B-139095, NOV. 12, 1959

B-139095, NOV. 12, 1959

TO THE TEXAS AND PACIFIC RAILWAY COMPANY:

WE HAVE CONSIDERED YOUR REQUEST, UNDER FILE V-90-56368, FOR REVIEW OF OUR SETTLEMENT (TK-66079) OF FEBRUARY 27, 1959, WHICH DISALLOWED YOUR CLAIM, PER SUPPLEMENTAL BILL NO. F-56368-A, FOR $1,517.60. THE AMOUNT CLAIMED REPRESENTS ADDITIONAL FREIGHT CHARGES ALLEGEDLY DUE FOR THE TRANSPORTATION, UNDER GOVERNMENT TRANSIT BILLS OF LADING, OF SHIPMENTS OF FREIGHT AUTOMOBILES FROM DEFENSE, TEXAS, TO NEW ORLEANS, LOUISIANA, FOR EXPORT, DURING JULY 1956. AS A CREDIT AGAINST THE CHARGES DUE FOR THESE SHIPMENTS, BILLING WAS SURRENDERED COVERING SHIPMENTS OF FREIGHT VEHICLES ORIGINATING IN NOVEMBER 1955, AT FORT WAYNE, INDIANA, ON GOVERNMENT BILLS OF LADING, AND SHIPPED INTO DEFENSE, TEXAS, FOR STORAGE IN TRANSIT.

OUR SETTLEMENT FOR THE THROUGH MOVEMENT FROM FORT WAYNE, INDIANA, TO NEW ORLEANS, LOUISIANA, ALLOWED FREIGHT CHARGES ON THE BASIS OF AN AGGREGATE OF INTERMEDIATE RATES TO AND FROM CHICAGO, ILLINOIS, PLUS AN OUT-OF-LINE HAUL CHARGE OF 10 CENTS PER 100 POUNDS, PLUS APPROPRIATE EX PARTE INCREASES. THE RATE FROM CHICAGO TO NEW ORLEANS EMPLOYED IN THE SETTLEMENT ($1.38 PER 100 POUNDS) IS NAMED IN ITEM 1750 OF SOUTHERN PORTS FOREIGN FREIGHT COMMITTEE FREIGHT TARIFF NO. 1016-K, I.C.C.NO. 136. YOUR OBJECTION TO THE SETTLEMENT ON THE BASIS STATED IS THAT THE SHIPMENTS IN QUESTION ACTUALLY MOVED VIA THE WABASH RAILROAD TO KANSAS CITY, MISSOURI, THE KANSAS CITY SOUTHERN RAILWAY TO TEXARKANA, ARKANSAS-TEXAS, AND THE TEXAS AND PACIFIC RAILWAY VIA DEFENSE, TEXAS, TO NEW ORLEANS, AND THAT TARIFF ROUTING INSTRUCTIONS APPLICABLE IN CONNECTION WITH THE $1.38 RATE FROM CHICAGO, ILLINOIS, SPECIFICALLY REQUIRE THE SHIPMENT TO BE ROUTED VIA THE KANSAS CITY SOUTHERN TO SHREVEPORT, LOUISIANA, THENCE THE TEXAS AND PACIFIC TO NEW ORLEANS LOUISIANA. THE GIST OF YOUR CONTENTION IS THAT TARIFF ROUTING REQUIRES THE INTERCHANGE BETWEEN THE KANSAS CITY SOUTHERN AND THE TEXAS AND PACIFIC TO BE PERFORMED AT SHREVEPORT, RATHER THAN TEXARKANA, WHERE APPARENTLY THE PRESENT SHIPMENTS WERE INTERCHANGED FOR THE PURPOSE OF UTILIZING THE STORAGE IN TRANSIT PRIVILEGE AT DEFENSE, TEXAS.

IN CONSIDERING THE APPLICABILITY OF THE RATE FROM CHICAGO TO NEW ORLEANS, IN VIEW OF THE SPECIFIC ROUTING INSTRUCTIONS REQUIRING INTERCHANGE TO BE MADE AT SHREVEPORT, WE ARE AWARE THAT TRANSIT PRIVILEGES MUST BE AUTHORIZED BY APPROPRIATE TARIFF AUTHORITY, AND, ALSO, WHERE THE UNITED STATES IS THE SHIPPER, BY APPROPRIATE SECTION 22 QUOTATION. IN OTHER WORDS, IT IS THE PUBLICATION GRANTING THE TRANSIT PRIVILEGE THAT ESTABLISHES THE FICTIONAL CONTINUITY OF MOVEMENT SO AS TO AUTHORIZE THE APPLICATION OF THE THROUGH RATE FROM INITIAL POINT OF ORIGIN TO FINAL DESTINATION. ALBERS MILLING COMPANY V. CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILWAY COMPANY, 269 I.C.C. 425, 434.

THE TRANSIT PRIVILEGE AT DEFENSE, TEXAS, IS AUTHORIZED IN THE PRESENT CASE BY EXECUTIVE COMMITTEE-WESTERN TRAFFIC ASSOCIATION SECTION 22 QUOTATION NO. 38-A.TRANSIT IS AUTHORIZED AT DEFENSE (ITEM 3) FOR STORAGE (ITEM 2). WHEN SHIPMENT FROM THE TRANSIT POINT IS MADE, THE SHIPPER IS REQUIRED TO PAY CHARGES ON THE OUTBOUND MOVEMENT AT THE BASIS OF "THE ALL- RAIL CARLOAD RATE APPLICABLE TO THE INBOUND OR OUTBOUND COMMODITY, WHICHEVER IS HIGHER, FROM SUCH POINT OR PORT OF ORIGIN TO THE PORT OF TRANSSHIPMENT OR RAILHEAD, IN EFFECT BY TARIFF * * *.' ITEM 6 (A).

ITEM 6 (C) OF THE QUOTATION PROVIDES THAT THE RATE TO BE APPLIED IS THAT APPLICABLE OVER THE ROUTE OF MOVEMENT VIA THE TRANSIT POINT OR, WHERE BACK -HAUL OR OUT-OF-ROUTE HAUL IS INVOLVED, VIA THE POINT "FROM AND TO WHICH THE BACK-HAUL OR OUT-OF-ROUTE HAUL CHARGE UNDER ITEM NO. 8 IS DETERMINED OR WAIVED.'

AS NOTED, THE QUOTATION PROVIDES FOR THE APPLICATION OF TRANSIT AT THE RATE APPLICABLE VIA THE TRANSIT POINT, DEFENSE, TEXAS, OR, IN THE ALTERNATIVE, THE THROUGH RATE APPLICABLE VIA THE POINT WHERE BACK-HAUL OR OUT-OF-ROUTE HAUL OCCURS. IN YOUR VIEW, IT WOULD SEEM THAT SINCE THE SHIPMENTS MOVED VIA TEXARKANA, THE RATE IN QUESTION WOULD NOT BE APPLICABLE, SINCE IT WAS RESTRICTED TO ROUTING VIA SHREVEPORT.

ITEM NO. 8 OF THE QUOTATION SETS FORTH CERTAIN "BACK-HAUL" AND "OUT OF- ROUTE-HAUL" PROVISIONS, INCLUDING THE DEFINITION OF THE TERMS AS MEANING THE DISTANCE IN MILES A SHIPMENT ACCORDED THE TRANSIT PRIVILEGE ACTUALLY IS TRANSPORTED IN EXCESS OF THE MILES THE SHIPMENT WOULD HAVE BEEN TRANSPORTED FROM INITIAL POINT OF ORIGIN TO FINAL DESTINATION. IN THE INSTANT CASE, THE SHIPMENT ROUTED VIA THE KANSAS CITY SOUTHERN AND THE TEXAS AND PACIFIC ORDINARILY WOULD HAVE MOVED DIRECTLY VIA THE KANSAS CITY SOUTHERN TO SHREVEPORT, THENCE THE TEXAS AND PACIFIC BEYOND, BUT AN OUT-OF -ROUTE HAUL REQUIRES MOVEMENT FROM TEXARKANA THROUGH DEFENSE, TEXAS; MARSHALL, TEXAS; AND SHREVEPORT, LOUISIANA, OR IN THE ALTERNATIVE, FROM TEXARKANA TO DEFENSE, TEXAS, RETURN TO TEXARKANA, AND THE TEXAS AND PACIFIC BEYOND.

IN THE COMPUTATION OF THE CHARGES FOR OUT-OF-ROUTE SERVICE, ITEM 8 (B) OF THE QUOTATION PROVIDES THAT: "EXCEPT AS PROVIDED IN APPENDIX A HEREOF" CHARGES AT RATES NAMED IN (1) OR (2) ITEM 8 WILL BE APPLIED.

APPENDIX A, PROVIDES THE FOLLOWING IN PART:

"THE KANSAS CITY SOUTHERN RAILWAY COMPANY (KCS RY.)

ON TRAFFIC MOVING IN CONNECTION WITH THE KCS RY., SHREVEPORT, LA. WILL BE CONSIDERED INTERMEDIATE TO THE SAME EXTENT THAT TEXARKANA, ARK.-TEX. INTERMEDIATE BETWEEN INITIAL POINT OR PORT OF ORIGIN AND PORT OF TRANSSHIPMENT OR RAILHEAD.'

THE EFFECT OF THE ABOVE PROVISION IS TO MAKE SHREVEPORT, INTERMEDIATE BETWEEN FORT WAYNE, INDIANA, AND NEW ORLEANS, LOUISIANA, TO THE SAME EXTENT THAT TEXARKANA IS INTERMEDIATE, SO THAT ANY OUT-OF ROUTE HAUL THAT MAY HAVE RESULTED FROM DELIVERY OF THE TRAFFIC TO THE TEXAS AND PACIFIC AT TEXARKANA INSTEAD OF AT SHREVEPORT IS WAIVED IN THE SENSE THAT IT WILL NOT PRECLUDE THE APPLICATION OF THE THROUGH RATE OTHERWISE AVAILABLE VIA SHREVEPORT. IT SEEMS SIGNIFICANT THAT THE WORDS "OUT-OF-ROUTE-HAUL" IN ITEM 8 (A) ARE USED IN CONNECTION WITH THE MOVEMENT VIA THE TRANSIT POINT. GENERALLY SPEAKING, THE DISTANCE A SHIPMENT TRAVELS VIA A TRANSIT POINT WHERE SUCH TRANSIT POINT IS NOT LOCATED ON A DIRECT ROUTE BETWEEN INITIAL POINT OF ORIGIN AND FINAL DESTINATION IS TERMED "OUT-OF-LINE- HAUL.' SEE ITEM 7 OF ASSOCIATION OF AMERICAN RAILROADS SECTION 22 QUOTATION NO. 16-F, SUPERSEDED BY THE QUOTATION UNDER CONSIDERATION. THERE IS NO DEFINITION OTHER THAN THAT SHOWN IN ITEM 8 (A) FOR THE WORDS "OUT-OF-ROUTE-HAUL," AND IT IS BELIEVED THAT THE WORDS PROPERLY DENOTE THE DISTANCE THE SHIPMENT TRAVELS OUTSIDE OF, OR AWAY FROM, A TARIFF AUTHORIZED ROUTE, ESPECIALLY SINCE ITEM 8 IS RESTRICTED TO APPLY ONLY ON THE RAILROADS WHICH PARTICIPATE IN THE LINE-HAUL MOVEMENT AND THE THROUGH RATE. QUOTATION NO. 16-F, REFERRED TO ABOVE, BY ITEM 7 (D), PERMITTED "OUT-OF LINE" SERVICE TO BE PERFORMED BY CARRIERS OTHER THAN THE LINE-HAUL CARRIERS.

IN THE INSTANT CASE, THE OUT-OF-ROUTE HAUL IS PERFORMED BY A CARRIER--- THE TEXAS AND PACIFIC RAILWAY--- PARTICIPATING IN THE THROUGH RATE AND THE LINE HAUL. THE SHIPMENTS ARE "OUT-OF-ROUTE" TO THE EXTENT THAT THEY WERE DELIVERED TO THE TEXAS AND PACIFIC AT TEXARKANA INSTEAD OF SHREVEPORT. TEXARKANA ARK.-TEX., ON EITHER THE KANSAS CITY SOUTHERN OR THE TEXAS AND PACIFIC IS INTERMEDIATE BETWEEN ORIGIN AND DESTINATION OF THE SHIPMENTS IN QUESTION. SINCE THE QUOTATION, IN APPENDIX A, SPECIFICALLY MAKES SHREVEPORT AND TEXARKANA EQUAL INSOFAR AS THEIR INTERMEDIATE CHARACTER IS CONCERNED, THE EFFECT IS TO WAIVE THE OUT-OF-ROUTE PROVISIONS OTHERWISE SET FORTH IN ITEM 8, AND TO MAKE THE RATE FROM CHICAGO TO NEW ORLEANS APPLICABLE TO THE SHIPMENTS HERE IN QUESTION, PLUS THE OUT-OF-ROUTE CHARGE FOR THE EXCESS DISTANCE THE SHIPMENTS TRAVELED VIA DEFENSE, TEXAS, AS AGAINST THE DISTANCE VIA THE TEXAS AND PACIFIC DIRECT FROM TEXARKANA TO NEW ORLEANS.

INSOFAR AS THE SUBSEQUENT AMENDMENT OF THE QUOTATION REFERRED TO IN YOUR REQUEST FOR REVIEW IS CONCERNED, IT SEEMS REASONABLE TO CONCLUDE THAT THE AMENDMENT WAS FOR THE PURPOSE OF FURTHER WAIVING THE OUT-OF ROUTE PROVISIONS VIA DEFENSE, TEXAS, SINCE APPENDIX A ALSO PROVIDES THAT VIA THE TEXAS AND PACIFIC RAILWAY, DEFENSE, TEXAS, WILL BE CONSIDERED INTERMEDIATE TO THE EXTENT THAT TEXARKANA, ARK.-TEX. IS INTERMEDIATE BETWEEN INITIAL POINT OF ORIGIN AND FINAL DESTINATION.

ACCORDINGLY, FOR THE FOREGOING REASONS THE SETTLEMENT IS SUSTAINED.