B-137664, SEP. 10, 1959

B-137664: Sep 10, 1959

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TO THE CENTRAL OF GEORGIA RAILWAY COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 28. WERE COMPUTED ON THE BASIS OF FULL COMMERCIAL TARIFF RATES. THE CHARGES FOR THESE SHIPMENTS WERE ADJUSTED TO THE APPLICABLE NET LAND-GRANT RATES. YOU CONTEND THAT THESE SHIPMENTS WERE NOT MILITARY SHIPMENTS. THAT NOTHING HAS BEEN FURNISHED THE CARRIER TO PROVE THE STEEL PLATE SHIPMENTS WERE USED 100 PERCENT BY THE ARMY OR NAVY. THE PRIMARY QUESTION HERE INVOLVED IS WHETHER THESE SHIPMENTS WERE "MILITARY OR NAVAL PROPERTY OF THE UNITED STATES MOVING FOR MILITARY OR NAVAL AND NOT FOR CIVIL USE. LAND-GRANT RATES ARE APPLICABLE. THE USE TO WHICH THE PROPERTY IS TO BE PUT IS THE CONTROLLING TEST OF ITS MILITARY OR NAVAL CHARACTER IN DETERMINING WHETHER LAND-GRANT RATES WOULD APPLY.

B-137664, SEP. 10, 1959

TO THE CENTRAL OF GEORGIA RAILWAY COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 28, 1959, FILE N 22769-G- A, IN WHICH YOU REQUEST RECONSIDERATION OF OUR DECISION B 137664, DATED FEBRUARY 3, 1959, CONCERNING YOUR BILL NO. 22769.

YOUR SUPPLEMENT TO BILL NO. 22769 STATES A CLAIM FOR ADDITIONAL FREIGHT ALLEGEDLY DUE FOR THE TRANSPORTATION OF TWO SHIPMENTS OF STEEL PLATE FROM CLEVELAND, OHIO, TO SAVANNAH, GEORGIA, FOR EXPORT TO GREAT BRITAIN UNDER LEND-LEASE REQUISITION NO. UK-15350/DA/T24, WHICH SHOWS THEREON, UNDER PARAGRAPH 2C, THE INTENDED USE AS "ARMY, NAVY.'

THE CHARGES CLAIMED AND PAID ON THESE SHIPMENTS, INITIALLY, WERE COMPUTED ON THE BASIS OF FULL COMMERCIAL TARIFF RATES. AS A RESULT OF OUR AUDIT OF THE PAYMENT VOUCHER, THE CHARGES FOR THESE SHIPMENTS WERE ADJUSTED TO THE APPLICABLE NET LAND-GRANT RATES.

YOU CONTEND THAT THESE SHIPMENTS WERE NOT MILITARY SHIPMENTS; THAT NOTHING HAS BEEN FURNISHED THE CARRIER TO PROVE THE STEEL PLATE SHIPMENTS WERE USED 100 PERCENT BY THE ARMY OR NAVY; THAT THIS OFFICE HAS REFUSED TO FURNISH PERTINENT DOCUMENTS REQUESTED; AND THAT THIS OFFICE HAS NOT COMPLIED WITH THE MILITARY TRAFFIC MANAGEMENT REGULATIONS.

THE PRIMARY QUESTION HERE INVOLVED IS WHETHER THESE SHIPMENTS WERE "MILITARY OR NAVAL PROPERTY OF THE UNITED STATES MOVING FOR MILITARY OR NAVAL AND NOT FOR CIVIL USE," TO WHICH, UNDER SECTION 321 (A) OF THE TRANSPORTATION ACT OF 1940, 54 STAT. 898, 954, LAND-GRANT RATES ARE APPLICABLE.

THE USE TO WHICH THE PROPERTY IS TO BE PUT IS THE CONTROLLING TEST OF ITS MILITARY OR NAVAL CHARACTER IN DETERMINING WHETHER LAND-GRANT RATES WOULD APPLY. NORTHERN PACIFIC R.CO. V. UNITED STATES, 330 U.S. 248, 254. PROPERTY MOVES "FOR MILITARY OR NAVAL AND NOT FOR CIVIL USE" WITHIN THE MEANING OF SEC. 321 (A), IF THAT WAS THE INTENDED USE AT THE TIME THE SHIPMENT WAS MADE. UNITED STATES V. SPOKANE, PORTLAND AND SEATTLE RY.CO., 261 F.2D 681. IT IS THE RELATION OF THE USE TO WHICH THE SHIPMENT "IS TO BE PUT" TO THE MILITARY OR NAVAL EFFORT THAT IS CONTROLLING UNDER SEC. 321 (A). NORTHERN PACIFIC R.CO. V. UNITED STATES, 330 U.S. 248.

SINCE THE INTENDED USE OF THESE SHIPMENTS AS SHOWN ON THE REQUISITION WAS FOR "ARMY AND NAVY" THERE SEEMS TO BE NO BASIS FOR YOUR CONTENTION THAT THESE STEEL SHIPMENTS WERE NOT ENTITLED TO LAND GRANT RATES.

THIS OFFICE HAS NOT REFUSED TO FURNISH YOU THE PERTINENT DOCUMENTS REQUESTED. IT SEEMS APPARENT FROM YOUR LETTERS THAT YOU HAVE A COPY OF THE PERTINENT REQUISITION. YOU REQUESTED COPIES OF ALL SUBREQUISITIONS, AND AS EXPLAINED BY THE DIRECTOR OF OUR TRANSPORTATION DIVISION, IN A LETTER DATED APRIL 18, 1955, THESE SUBREQUISITIONS ARE VOLUMINOUS AND NOT PERTINENT TO YOUR CLAIM. UNDER THE CIRCUMSTANCES, THERE SEEMS NO REASON FOR THE GOVERNMENT BEARING THE COST OF FURNISHING YOU COPIES OF SUCH DOCUMENTS NOT GERMANE TO YOUR CLAIM. HOWEVER, AS EXPLAINED THEREIN COPIES OF SUCH DOCUMENTS MAY BE FURNISHED AT YOUR EXPENSE. THE CHARGE FOR THIS SERVICE IS FIFTY CENTS FOR THE FIRST FOUR COPIES REQUESTED AND TWENTY-GIVE CENTS FOR EACH ADDITIONAL COPY.

THE MILITARY TRAFFIC MANAGEMENT REGULATIONS, REFERRED TO IN YOUR LETTER, ARE PUBLISHED BY THE ARMED FORCES OF THE UNITED STATES FOR THE GUIDANCE OF ITS PERSONNEL IN FURNISHING TRAFFIC AND RELATED INFORMATION TO COMMERCIAL CARRIERS. OBVIOUSLY, THEY DO NOT BIND THE UNITED STATES GENERAL ACCOUNTING OFFICE, AN INDEPENDENT AGENCY IN A DIFFERENT BRANCH OF THE GOVERNMENT, IN PASSING UPON THE VALIDITY OF CLAIMS ASSERTED AGAINST THE UNITED STATES.

THE CONTENTS OF YOUR LETTER HAVE BEEN CAREFULLY EXAMINED AND SINCE YOU HAVE NOT PRESENTED ANY ADDITIONAL INFORMATION THAT WAS NOT PREVIOUSLY CONSIDERED, THERE IS NO PROPER BASIS FOR A MODIFICATION OR REVERSAL OF OUR DECISION OF FEBRUARY 3, 1959.