B-145028, AUG. 8, 1961

B-145028, AUG. 8, 1961

TO CENTRAL OF GEORGIA RAILWAY COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 3 AND TWO LETTERS OF FEBRUARY 6, 1961, CONCERNING YOUR CLAIMS PER SUPPLEMENTAL BILLS NOS. N-5- 56997-A-G-R-478-2; N-5-56998-A-G-R-479-2; AND N-10103 C-G-R-2627, OUR TK NOS. 385217, 385213 AND 388552.

ON SUPPLEMENTAL BILLS NOS. N-5-56998-A-G-R-479-2 AND N-5-56997-A-G R-478- 2 YOU CLAIM ADDITIONAL FREIGHT CHARGES FOR THE REASON THAT MOTOR FREIGHT VEHICLES MOVED INBOUND TO THE TRANSIT POINT BUT JEEPS MOVED OUTBOUND, AND YOU STATE THAT: "INBOUND FREIGHT BILLS COVERING MOTOR FREIGHT VEHICLES NOT APPLICABLE FOR RESHIPPING PASSENGER AUTOMOBILES-- JEEPS.' YOUR CLAIMS WERE ORIGINALLY DISALLOWED FOR THE REASON THAT THE QUESTION PRESENTED CONCERNING THE NATURE OF JEEPS AS FREIGHT OR PASSENGER MOTOR VEHICLES WAS THEN INVOLVED IN PENDING LITIGATION. THE UNITED STATES COURT OF CLAIMS HELD IN UNION PACIFIC R. CO. V. UNITED STATES, 117 CT.CL. 534, THAT THE JEEP, AS PRODUCED IN WORLD WAR II, WAS A PASSENGER VEHICLE WITHIN THE MEANING OF THE CONSOLIDATED FREIGHT CLASSIFICATION SCHEDULES, AND THIS DECISION WAS FOLLOWED IN UNION PACIFIC R. CO. V. UNITED STATES, 121 CT.CL. 463; ATCHISON, T. AND S.F. RY. V. UNITED STATES, ID. 467; AND IN WINSTON- SALEM SOUTHBOUND RY. CO., ET AL. V. UNITED STATES, ID. 473, AS TO SUBSEQUENTLY PRODUCED AND SHIPPED JEEPS; THUS FINALLY RESOLVING THE QUESTION. ACCORDINGLY, THESE TWO CLAIMS ARE BEING RETURNED TO OUR TRANSPORTATION DIVISION FOR ALLOWANCE AS CLAIMED, IF OTHERWISE CORRECT. YOU WILL RECEIVE NOTICE OF SETTLEMENT IN DUE COURSE.

ON SUPPLEMENTAL BILL NO. N-10103-C-G-R-2627 YOU CLAIM THE AMOUNT OF $39.93 IN ADDITION TO THE ADJUSTED FREIGHT CHARGES IN THE AMOUNT OF $277.84 PREVIOUSLY ALLOWED ON A SHIPMENT OF A FREIGHT VEHICLE WEIGHING 15,100 POUNDS. YOUR CLAIM IS APPARENTLY BASED UPON THE COMPUTATION OF CHARGES AT THE SECOND-CLASS RATE OF $1.84, PROVIDED IN TRUNK LINE TARIFF BUREAU TARIFF NO. 44-H, I.C.C. NO. A-712, BUT AT THE MINIMUM CARLOAD WEIGHT OF 19,440 POUNDS IN ACCORDANCE WITH RULE 34 OF CONSOLIDATED FREIGHT CLASSIFICATION NO. 15, I.C.C. NO. 59, SUPPLEMENT NO. 1. COMPUTATION IN THIS MANNER RESULTS IN TOTAL CHARGES OF $357.70, OR A DIFFERENCE OF $79.86 FROM THE AMOUNT PREVIOUSLY ALLOWED, WHICH YOU PROPOSE TO SETTLE FOR 50 PERCENT OF $39.93, AS AN "ICC SERVICE ORDER 68" CASE, STATING:

"THE GENERAL ACCOUNTING OFFICE AND THE ASSOCIATION OF AMERICAN RAILROADS HAVE REACHED AN AGREEMENT THAT THE CARRIERS WOULD RECEIVE A STIPULATED BASIS OF 50 PERCENT ON THIS CLASS OF TRAFFIC.'

ITEM 43780 OF CFC NO. 15 PROVIDES A SECOND-CLASS CARLOAD RATING ON MOTOR FREIGHT VEHICLES AT A MINIMUM CARLOAD WEIGHT OF 12,000 POUNDS, BUT REFERS BY APPROPRIATE SYMBOL TO RULE 34. RULE 34 INCREASES THE MINIMUM WEIGHT TO 19,440 POUNDS FOR OPEN CARS MEASURING OVER 46 FEET 6 INCHES, BUT NOT OVER 50 FEET 6 INCHES. HOWEVER, TRUNK LINE TARIFF BUREAU TARIFF NO. 44-H, CURLETT'S I.C.C. NO. A-712, WHICH NAMES THE APPLICABLE RATE, IS SUBJECT TO THE EXCEPTIONS IN TRUNK LINE TARIFF BUREAU TARIFF NO. 141, I.C.C. NO. A- 709. ITEM NO. 46510 OF T.L.T.B. TARIFF NO. 141 PROVIDES A MINIMUM WEIGHT OF 12,500 POUNDS FOR CARS EXCEEDING 40 FEET 7 INCHES BUT NOT EXCEEDING 50 FEET 8 INCHES IN CONNECTION WITH A SHIPMENT OF FREIGHT OR PASSENGER AUTOMOBILES.

I.C.C. SERVICE ORDER NO. 68, TO WHICH YOU REFER, SUSPENDED THE OPERATION OF SECTION 6 (2) OF RULE 34, AND THEREBY PERMITTED THE CARRIER TO COMPUTE CHARGES ON THE BASIS OF THE MINIMUM CARLOAD WEIGHT SPECIFIED FOR A LARGER CAR FURNISHED BY THE CARRIER THAN WAS REQUESTED BY THE SHIPPER. IN THE PRESENT CASE THE BILL OF LADING INDICATES THAT A 36-FOOT CAR WAS ORDERED BUT A 50-FOOT CAR WAS FURNISHED. THE BILL OF LADING FURTHER INDICATES THAT THE FREIGHT ACTUALLY MOVED IN PRR CAR NO. 475244, AND THE OFFICIAL RAILWAY EQUIPMENT REGISTER OF APRIL 1943, ICC-RER NO. 267, SHOWS THAT PRR CAR NO. 475244 WAS AN OPEN CAR MEASURING 48 FEET 4 INCHES IN LENGTH. CONSEQUENTLY, IT WAS SUBJECT TO A MINIMUM CARLOAD WEIGHT OF 12,500 POUNDS IN ACCORDANCE WITH THE PROVISIONS OF T.L.T.B. TARIFF NO. 141.

THE ACTUAL WEIGHT OF THE SHIPMENT, HOWEVER, WAS 15,000 POUNDS. SINCE THE ACTUAL WEIGHT OF THE SHIPMENT EXCEEDED THE MINIMUM WEIGHT PROVIDED IN THE APPLICABLE EXCEPTIONS, NEITHER RULE 34 NOR SERVICE ORDER 68 HAVE ANY APPLICATION, AND THE FREIGHT CHARGES WERE PROPERLY COMPUTED BY OUR OFFICE ON THE BASIS OF THE ACTUAL WEIGHT. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM PER SUPPLEMENTAL BILL NO. N-10103-C-G-R 2627 IS SUSTAINED.