B-139890, OCT. 2, 1959

B-139890, OCT. 2, 1959

TO UNION PACIFIC RAILROAD COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JUNE 8 AND JUNE 9, 1959, FILE NOS. GO 29026 AND GO 29033, RESPECTIVELY, IN WHICH YOU REQUEST A REVIEW OF THE DISALLOWANCES ON SUPPLEMENTAL BILLS NOS. O 29026-A AND O- 29033-B.

YOUR CLAIMS ARISE FROM TWO GOVERNMENT BILLS OF LADING ISSUED BY THE FEDERAL SURPLUS COMMODITIES CORPORATION TO COVER SHIPMENTS OF DRIED BEANS FOR EXPORT TO RUSSIA UNDER LEND LEASE REQUISITION R 6556 WHICH SHOWS THE INTENDED SHIPMENTS WERE TO BE USED FOR "ARMY, NAVY AND AIR - USSR.' THE POINTS OF ORIGIN FOR THESE TWO SHIPMENTS WERE GOODING AND JEROME, IDAHO. BOTH SHIPMENTS WERE ORIGINALLY CONSIGNED TO SPOKANE, WASHINGTON, AND WERE RECOGNIZED EN ROUTE TO PORTLAND, OREGON. THE RECONSIGNMENT FOR BOTH SHIPMENTS WAS ACCOMPLISHED AT WALLULA, WASHINGTON.

THE CHARGES CLAIMED AND PAID ON THESE SHIPMENTS, INITIALLY, WERE ON THE BASIS OF THE FULL COMMERCIAL TARIFF RATE. IN OUR AUDIT OF THE PAYMENT VOUCHERS, THE CHARGES FOR THESE SHIPMENTS WERE ADJUSTED TO WHAT WAS DEEMED TO BE THE APPLICABLE NET LAND-GRANT RATE AND OVERPAYMENTS WERE DEDUCTED FROM AMOUNTS OTHERWISE DUE.

YOU CONTEND THAT THE RATE OF 45 CENTS PER 100 POUNDS, NAMED IN ITEM 5380 OF THE NORTHERN PACIFIC COAST FREIGHT BUREAU TARIFF NO. 2-J, IS PROPERLY APPLICABLE FROM THE "SPOKANE GROUP" TO PORTLAND, OREGON, SINCE WALLULA, WASHINGTON, ON THE NORTHERN PACIFIC RAILWAY COMPANY, IS NAMED ON PAGE 23 OF THE NCP TARIFF NO. 2-J AND IS LISTED IN THE "HEADLINE STATION LIST" WITH A REFERENCE TO NOTES 5 AND 26. ALSO, IN SUPPLEMENTAL BILLS NOS. O- 29026-A AND O-29033-B, BOTH DATED NOVEMBER 25, 1957, YOU STATED THAT NO LAND-GRANT RATE WAS APPLICABLE VIA UNION PACIFIC RAILROAD COMPANY.

THE USE TO BE MADE OF THE SHIPMENT AS SHOWN BY THE REQUISITION CLEARLY ESTABLISHES ITS MILITARY CHARACTER AND UNDER THE FREIGHT LAND GRANT EQUALIZATION AGREEMENT, THE UNION PACIFIC RAILROAD COMPANY AGREED "TO ACCEPT FOR THE TRANSPORTATION OF PROPERTY SHIPPED FOR ACCOUNT OF THE GOVERNMENT OF THE UNITED STATES AND FOR WHICH THE GOVERNMENT OF THE UNITED STATES IS LAWFULLY ENTITLED TO REDUCED RATES OVER LAND-GRANT ROADS, THE LOWEST NET RATE LAWFULLY AVAILABLE, AS DERIVED THROUGH DEDUCTIONS ACCOUNT OF LAND-GRANT DISTANCE FROM LAWFUL RATES FILED WITH THE INTERSTATE COMMERCE COMMISSION OR THE VARIOUS STATE COMMISSIONS APPLYING FROM POINTS OF ORIGIN TO DESTINATION AT TIME OF MOVEMENT.' IT SEEMS, THEREFORE, THAT THE UNION PACIFIC RAILROAD COMPANY AGREED TO ACCEPT FOR THE TRANSPORTATION OF GOVERNMENT PROPERTY THE SAME NET RATES WHICH A LAND-GRANT CARRIER WOULD BE ENTITLED TO RECEIVE FOR SUCH TRANSPORTATION. FURTHERMORE, IN THE CASE OF SOUTHERN RAILWAY COMPANY V. UNITED STATES, 322 U.S. 72, 75, THE COURT HELD THAT THE PHRASE ,LOWEST NET RATES LAWFULLY AVAILABLE" MEANS THE LOWEST NET RATES WHICH COULD HAVE BEEN OBTAINED ON THE BASIS OF TARIFFS ON FILE WITH THE INTERSTATE COMMERCE COMMISSION.

IN THE CIRCUMSTANCES, IT APPEARS THAT THE "LOWEST NET RATES LAWFULLY AVAILABLE" FOR BOTH SHIPMENTS ON THE PORTION OF THE TRANSPORTATION FROM WALLULA, WASHINGTON, TO PORTLAND, OREGON, IS A TARIFF RATE OF 45 CENTS PER 100 POUNDS, LESS THE APPLICABLE LAND-GRANT DEDUCTION VIA THE NORTHERN PACIFIC RAILWAY COMPANY BETWEEN WALLULA, WASHINGTON, AND PORTLAND, OREGON. ACCORDINGLY, WE HAVE INSTRUCTED OUR TRANSPORTATION DIVISION, IF OTHERWISE PROPER, TO REVISE BOTH SETTLEMENTS ON THE ..END :