B-140037, OCT. 8, 1959

B-140037, OCT. 8, 1959

TO UNION PACIFIC RAILROAD COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 23, 1959, FILE GO 272572, REQUESTING A REVIEW OF OUR CERTIFICATE OF SETTLEMENT DATED MARCH 5, 1959, IN CLAIM NO. TK-633690, WHICH DISALLOWED $448.09 OF YOUR SUPPLEMENTAL BILL NO. 0272572 FOR $461.84.

THE INVOLVED SHIPMENT CONSISTING OF 64 BUNDLES AND 15 BOXES OF LAND LEVELERS, AND SPARE PARTS MOVED ON GOVERNMENT BILL OF LADING NO. GS 285199, DATED JANUARY 26, 1955, FROM DENVER, COLORADO, TO SEATTLE, WASHINGTON, FOR EXPORT. THE BILL OF LADING BORE THE NOTATION,"FOR EXPORT DELIVER TO PIER FOR SS "BANTAN" " AND WAS MARKED "U.S. OPERATIONS MISSION TO IRAN C/O AMERICAN EMBASSY TEHRAN, IRAN (VIA KHORRAMSHAHR).'

FOR THIS SERVICE YOU BILLED AND WERE PAID ON VOUCHER NO. 264039 IN THE APRIL 1955 ACCOUNTS OF J. F. CANNON, ON THE BASIS OF AN EXPORT RATE OF $1.37 PER 100 POUNDS, PLUS APPLICABLE INCREASES PROVIDED IN ITEM 1535-E OF TRANS-CONTINENTAL FREIGHT BUREAU TARIFF NO. 29-J, I.C.C. NO. 1553, LESS 3 PERCENT PORT ALLOWANCE NAMED IN ASSOCIATION OF AMERICAN RAILROADS SECTION 22 QUOTATION NO. 265-A. YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES ON THE BASIS OF DOMESTIC RATES IS BASED ON THE FACT THAT NO EXPORT CERTIFICATE WAS RECEIVED. IN THE SETTLEMENT OF YOUR CLAIM WE DID NOT APPLY THE PROVISIONS OF QUOTATION NO. 265-A, BUT RATHER THE RATES USED WERE THOSE AUTHORIZED BY TRANS-CONTINENTAL FREIGHT BUREAU TARIFF 29-J SINCE THE DESTINATION, TEHRAN, IRAN, VIA KHORRANSHAHR, WAS LOCATED WITHIN THE DESTINATION TERRITORY NAMED IN ITEM 246 (A). OCEAN BILL OF LADING NO. SE- 1 (COPY ENCLOSED) SHOWED THAT THE SHIPMENT WAS LOADED ABOARD THE MS "BANTAM," A DUTCH FLAGSHIP, ON MARCH 10, 1955, AT SEATTLE, WASHINGTON. REFUNDED $13.75, REPRESENTING A PORT ALLOWANCE OF 3 CENTS PER 100 POUNDS THEN BELIEVED NOT TO HAVE BEEN AVAILABLE.

THE UNITED STATES COURT OF CLAIMS IN THE CASE OF UNION PACIFIC RAILROAD COMPANY V. UNITED STATES, C.CLS. NO. 330-56, DECIDED MAY 6, 1959, 172 F.SUPP. 668, HELD, IN CIRCUMSTANCES SIMILAR TO THOSE INVOLVED IN THE PRESENT MATTER, THAT THE MERE FAILURE OF THE GOVERNMENT TO FURNISH EXPORT CERTIFICATES WAS NOT SUFFICIENT TO JUSTIFY THE APPLICATION OF THE HIGHER DOMESTIC RATES RATHER THAN THE EXPORT RATES. THE INSTANT SHIPMENT WAS INTENDED FOR EXPORT; THE BILL OF LADING PROVIDED ON ITS FACE THAT IT WAS DESTINED FOR THE U.S. OPERATIONS MISSION IN IRAN VIA A COMMON CARRIER BY WATER; THE SHIPMENT WAS ACTUALLY EXPORTED AS SHOWN BY OCEAN BILL OF LADING SE-1, AND ALL CONDITIONS OF THE QUOTATIONS WERE MET EXCEPT THE ACTUAL GIVING OF NOTICE BY CERTIFICATE. SINCE THE BILLING TO THE PORT GAVE AMPLE INDICATION THAT THIS WAS AN EXPORT SHIPMENT, THERE WAS A SUBSTANTIAL COMPLIANCE WITH THE TERMS AND CONDITIONS OF ASSOCIATION OF AMERICAN RAILROAD SECTION 22 QUOTATION NO. 265-A, AND THE GOVERNMENT WAS ENTITLED TO THE LOWER EXPORT RATE.

ITEM 3 OF THE CITED QUOTATION PROVIDES THAT THE PACIFIC COAST TERMINAL LINES WILL MAKE AN ALLOWANCE TO THE GOVERNMENT OF 3 CENTS PER 100 POUNDS ON ALL TRANS-CONTINENTAL OFF-SHORE TRAFFIC FOR POINTS WITHIN THE DESTINATION AREA COVERED BY TRANS-CONTINENTAL FREIGHT BUREAU EXPORT TARIFF 29-SERIES.

AS INDICATED ABOVE, IN OUR SETTLEMENT OF MARCH 5, 1959, WE ALLOWED $13.75 ON YOUR SUPPLEMENTAL BILL NO. O-272572 BECAUSE WE FAILED TO APPLY THE 3 PERCENT PORT ALLOWANCE AUTHORIZED UNDER ITEM 3 OF QUOTATION 265-A. SUCH ALLOWANCE WAS IMPROPER AND YOU HAVE BEEN OVERPAID IN THE AMOUNT OF $13.75, WHICH SHOULD BE REMITTED PROMPTLY TO AVOID COLLECTION BY OTHER MEANS.