B-146390, FEB. 1, 1962

B-146390, FEB. 1, 1962

TO THE TEXAS AND PACIFIC RAILWAY COMPANY:

WE AGAIN REFER TO YOUR LETTER OF JUNE 30, 1961, FILE V-91-6129 (WITH ENCLOSURE), IN WHICH YOU REQUEST REVIEW OF THE SETTLEMENT CERTIFICATES DISALLOWING THESE CLAIMS:

CHART DATE OF SETTLEMENT OUR CLAIM YOUR BILL AMOUNT CERTIFICATE FILE NO. NO. MARCH 27, 1959 TK-666505 F-39081-B $1,482.15 MAY 1, 1959 TK-667120 F- 39083 B 724.93 MAY 14, 1959 TK-667119 F-38647-B 107.25

THE AMOUNTS CLAIMED REPRESENT ADDITIONAL FREIGHT CHARGES ALLEGEDLY DUE FOR TRANSPORTING 18 CARLOAD SHIPMENTS OF FREIGHT AUTOMOBILES FROM ST. LOUIS, MISSOURI, TO NEW ORLEANS, LOUISIANA, UNDER GOVERNMENT BILLS OF LADING, DURING 1945.

THESE SHIPMENTS ORIGINATED AT ST. LOUIS, MISSOURI, WERE STORED IN TRANSIT AT SPRINGFIELD, ILLINOIS, AND SHREVEPORT, LOUISIANA, AND WERE DELIVERED FOR EXPORT AT NEW ORLEANS, LOUISIANA. THE BILLS OF LADING AND TRANSIT CERTIFICATES SHOW THAT THE SHIPMENTS CONSISTED OF CRATED, SINGLE-UNIT PACKED, 2 1/2 TON, 6 BY 6 CARGO TRUCKS (SML GROUP NO. G 508), WITH OR WITHOUT WINCH, AND THAT THEY WERE ROUTED TO SPRINGFIELD VIA THE ILLINOIS CENTRAL RAILROAD, TO SHREVEPORT VIA THE ILLINOIS CENTRAL RAILROAD TO MEMPHIS, TENNESSEE AND THE ST. LOUIS SOUTHWESTERN RAILWAY LINES, AND TO NEW ORLEANS VIA THE TEXAS AND PACIFIC RAILWAY COMPANY.

THE CHARGE BASIS SHOWN ON OUR NOTICES OF OVERPAYMENT AND SETTLEMENT CERTIFICATES IS BASED ON A THROUGH RATE OF 59 CENTS PER 100 POUNDS, INCREASED BY TARIFF NO. X-148, AGENT B. T. JONES' I.C.C. NO. 3659, TO 63 CENTS PER 100 POUNDS, PLUS 11 CENTS PER 100 POUNDS FOR AN OUT-OF LINE HAUL, PLUS 7 CENTS PER 100 POUNDS FOR THE STORAGE IN TRANSIT AT SPRINGFIELD AND SHREVEPORT. THE THROUGH RATE IS PUBLISHED IN ITEM NO. 5210, SUPPLEMENT 58, TO SOUTHERN PORTS FOREIGN FREIGHT COMMITTEE TARIFF NO. 1016-I, I.C.C. NO. 52, TO APPLY TO NEW ORLEANS FROM SPRINGFIELD AS INTERMEDIATE FROM CHICAGO, ILLINOIS. THE OUT-OF-LINE HAUL BASIS IS PUBLISHED IN ITEM NO. 7 (A) OF ASSOCIATION OF AMERICAN RAILROADS SECTION 22 QUOTATION NO. 16-F FOR DISTANCES OF BETWEEN 200 AND 300 MILES AND THE TRANSIT CHARGE OF 3 1/2 CENTS FOR TRANSIT AT SPRINGFIELD AND AT SHREVEPORT IS NAMED IN ITEM 8 (A) OF THE QUOTATION. THE RATE FROM SPRINGFIELD IS HIGHER THAN THE RATE FROM ST. LOUIS AND BECOMES THE APPLICABLE RATE UNDER ITEM NO. 6 (B) OF QUOTATION NO. 16-F.

YOU URGE THAT THE THROUGH RATE OF 63 CENTS, WHICH WE FIND IS AUTHORIZED UNDER QUOTATION NO. 16-F, DOES NOT APPLY TO THESE SHIPMENTS BECAUSE THE INTERIOR TRANSIT STATION, SPRINGFIELD, IS NOT IN THE GENERAL DIRECTION OF THE PORT (ITEM NO. 1 (A) OF THE QUOTATION), AND BECAUSE THE 63-CENT RATE IS NOT THE LOWEST ALL-RAIL RATE FROM THE ORIGINAL POINT OF SHIPMENT TO THE PORT (ITEM NO. 1 (B) OF THE QUOTATION). ALSO, YOU CONTEND THAT IN ESTABLISHING THE THROUGH RATE WE HAVE INCORRECTLY APPLIED, AS AN EXCEPTION TO ITEMS NOS. 1 (A) AND (B), THE BACK HAUL OR OUT-OF-LINE HAUL PROVISIONS OF THE QUOTATION (ITEM NO. 7). YOUR CLAIMS FOR $2,314.33 ARE BASED ON A COMBINATION OF RATES AGGREGATING 115 CENTS PER 100 POUNDS USING, AS ONE FACTOR, A RATE OF 52 CENTS PER 100 POUNDS FROM ST. LOUIS TO SPRINGFIELD, AND, AS THE OTHER FACTOR, A RATE OF 63 CENTS PER 100 POUNDS FROM SPRINGFIELD TO NEW ORLEANS, PLUS THE CHARGE FOR STORAGE IN TRANSIT AT SHREVEPORT.

ASSOCIATION OF AMERICAN RAILROADS SECTION 22 QUOTATION NO. 16-F TITLED "STORAGE IN TRANSIT OF PROPERTY OF WAR DEPARTMENT, NAVY DEPARTMENT AND U.S. MARINE CORPS INTENDED FOR TRANSSHIPMENT BY VESSEL," WAS TENDERED TO THE UNITED STATES UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT, AS AMENDED, 49 U.S.C. 22. ITEM NO. 1 OF THE QUOTATION, UNDER THE HEADING "TRAFFIC COVERED," PROVIDES IN PART THAT---

"THE TRAFFIC COVERED BY AND SUBJECT TO THIS QUOTATION IS PROPERTY OF * * * "THE GOVERNMENT" * * *, WHEN ORIGINATING AT POINTS IN THE CONTINENTAL UNITED STATES * * * SHIPPED BY "THE GOVERNMENT" ON GOVERNMENT BILLS OF LADING, ALL-RAIL, IN CARLOADS, CONSIGNED TO:

(A) AN INTERIOR TRANSIT POINT, LISTED IN ITEM NO. 3, IN THE GENERAL DIRECTION OF THE PORT OR RAIL HEAD THROUGH WHICH THE SHIPMENT IS TRANSSHIPPED,

(B) AN INTERIOR TRANSIT POINT, LISTED IN ITEM NO. 3, WHICH IS ON A THROUGH ROUTE OVER WHICH THE LOWEST ALL-RAIL RATE FROM ORIGINAL POINT OF SHIPMENT IS APPLICABLE TO THE PORT OR RAIL HEAD THROUGH WHICH THE SHIPMENT ACTUALLY IS TRANSHIPPED, OR * * *"

WE AGREE THAT SPRINGFIELD, THE INTERIOR TRANSIT POINT, COULD NOT BE CONSIDERED AS BEING IN THE GEOGRAPHIC GENERAL DIRECTION OF NEW ORLEANS, THE PORT THROUGH WHICH THE SHIPMENTS WERE ACTUALLY TRANSHIPPED, ON SHIPMENTS ORIGINATING AT ST. LOUIS. HOWEVER, SPRINGFIELD IS LOCATED ON A THROUGH ROUTE OVER WHICH THE LOWEST ALL RAIL RATE FROM THE ORIGINAL POINT OF SHIPMENT TO THE PORT THROUGH WHICH THE SHIPMENT ACTUALLY WAS TRANSSHIPPED IS APPLICABLE AND, THEREFORE, THE TRAFFIC IS COVERED BY ITEM NO. 1 (B) OF QUOTATION NO. 16-F. SEE NO. 13, WHICH PROVIDES A ROUTE FROM ST. LOUIS, MISSOURI, TO NEW ORLEANS, LOUISIANA (ROUTE NO. 199), VIA: "IC MEMPHIS, TENN., ST. LSW, SHREVEPORT, LA., T AND P.'

WE ALSO AGREE THAT THE THROUGH RATE OF 63 CENTS IS NOT THE LOWEST ALL- RAIL RATE FROM ST. LOUIS, THE POINT OF SHIPMENT, TO NEW ORLEANS, THE PORT THROUGH WHICH THE SHIPMENT ACTUALLY WAS TRANSSHIPPED, HOWEVER, THE 63- CENTS RATE IS A RATE APPLIED AS A MAXIMUM UNDER ITEM NO. 6, HEADED "RATES TO BE APPLIED," OF QUOTATION NO. 16-F. PARAGRAPH (B), TITLED "THROUGH RATE," OF ITEM NO. 6, PROVIDES IN PART THAT EACH SHIPMENT MADE FROM ITS ORIGINAL POINT OF ORIGIN WILL BE SUBJECT AND ENTITLED TO THE LOWEST THROUGH ALL-RAIL CARLOAD RATE, FROM THAT ORIGIN TO THE PORT, APPLICABLE OVER THE ROUTE OF MOVEMENT VIA THE TRANSIT POINT, PLUS THE BACK HAUL OR OUT-OF-LINE HAUL CHARGE, IF INVOLVED,"BUT IN NO CASE LESS THAN THE ALL- RAIL CARLOAD RATE FROM THE TRANSIT POINT, OR IN THE CASE OF A SHIPMENT ACCORDED TWO TRANSIT PRIVILEGES, FROM THE FIRST TRANSIT POINT TO THE PORT OF TRANSSHIPMENT OR RAILHEAD, PLUS INCREASES, BACK HAUL OR OUT-OF-LINE CHARGES, AND TRANSIT AND OTHER CHARGES. IN THE ABSENCE OF THIS MAXIMUM PROVISION, APPARENTLY INSERTED IN THE QUOTATION IN RECOGNITION OF THE LONG AND SHORT HAUL CLAUSE OF THE INTERSTATE COMMERCE ACT, AS AMENDED, 49 U.S.C. 4 (1), THE LOWER ALL-RAIL RATE OF 58 CENTS, APPLICABLE FROM ST. LOUIS TO NEW ORLEANS, WOULD BE THE THROUGH RATE TO APPLY UNDER ITEM NO. 6 (B) (I) OF THE QUOTATION. THROUGH RATE TO APPLY UNDER ITEM NO. 6 (B) (I) OF THE QUOTATION.

IN SUPPORT OF YOUR VIEW THAT WE HAVE INCORRECTLY APPLIED THE QUOTATION'S BACK HAUL OR OUT-OF-LINE HAUL PROVISIONS AS EXCEPTIONS TO ITEMS NOS. 1 (A) AND (B) OF THE QUOTATIONS, YOU ENCLOSED WITH YOUR LETTER A COPY OF TRAFFIC EXECUTIVE CHAIRMAN'S COMMITTEE CIRCULAR NO. 42, DATED AUGUST 18, 1943, CONCERNING AMENDMENT NO. 2 TO QUOTATION NO. 16-C. THE COMMITTEE, IN THIS CIRCULAR, EXPLAINS IN SUBSTANCE THAT IN THE NEGOTIATIONS WHICH PRECEDED THE FILING OF QUOTATION NO. 16 IT WAS UNDERSTOOD THAT THE TRANSIT POINT MUST BE INTERMEDIATE BETWEEN THE POINT OF ORIGIN AND THE PORT OF TRANSSHIPMENT OR,"IN OTHER WORDS, THAT THE (TRANSIT POINT) MUST BE "IN THE GENERAL DIRECTION" OF THE PORT," AND THAT IT WAS NOT INTENDED THAT THE BACK HAUL OR OUT-OF-LINE HAUL CHARGE WOULD APPLY IN LIEU OF A COMBINATION OF RATES TO AND FROM THE TRANSIT POINT WHEN THE TRANSIT POINT WAS "NOT "IN THE GENERAL DIRECTION" BETWEEN POINT OF ORIGIN AND PORT OF TRANSSHIPMENT.'

APPARENTLY THE SITUATION WHICH IS THE SUBJECT MATTER OF CIRCULAR NO. 42 WAS ONE WHERE THE SHIPPING INSTALLATION SOUGHT TO APPLY THE TRANSIT PRIVILEGES VIA A ROUTE OVER WHICH THE THROUGH RATE WAS NOT APPLICABLE, AND THE OUT-OF-LINE HAUL CHARGE WAS SOUGHT TO BE ADDED TO THE THROUGH RATE FROM ORIGINAL POINT OF ORIGIN TO FINAL DESTINATION IN LIEU OF THE COMBINATION OF RATES APPLICABLE TO AND FROM THE TRANSIT POINT. IN THE INSTANT CASE, THE THROUGH RATE FROM ST. LOUIS, MISSOURI, TO NEW ORLEANS, LOUISIANA, IS APPLICABLE VIA SPRINGFIELD, ILLINOIS, AND THE OUT-OF-LINE CHARGE IS ADDED TO THE APPLICABLE THROUGH RATE (WHICH BY REASON OF ITEM NO. 6 (B) OF THE QUOTATION BECOMES THE HIGHER RATE FROM SPRINGFIELD, ILLINOIS), PRESUMABLY TO COMPENSATE THE BILL OF LADING CARRIERS FOR THE EXTRA MILEAGE SERVICE PERFORMED BY THE ILLINOIS CENTRAL RAILROAD IN TRANSPORTING THE SHIPMENTS VIA SPRINGFIELD, ILLINOIS, EN ROUTE TO MEMPHIS, TENNESSEE.

THE SETTLEMENT CERTIFICATES OF MARCH 27, MAY 1 AND MAY 14, 1959, ARE NOT SHOWN TO HAVE BEEN IN ERROR OTHERWISE AND, ACCORDINGLY, THEY ARE SUSTAINED.