B-147712, MAY 29, 1962

B-147712: May 29, 1962

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TO WESTERN MARYLAND RAILROAD COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 17. ORDINARILY OUR SETTLEMENTS ARE REVIEWABLE ONLY AT THE REQUEST OF THE CLAIMANT. IN PAYMENT OF THE FULL CHARGES DUE WE HAVE CONSIDERED THE MATTER AT YOUR REQUEST. - WESTERN TRAFFIC ASSOCIATION SECTION 22 QUOTATION 142 WAS IMPROPERLY APPLIED IN COMPUTING THE SETTLEMENT CHARGES ON THE THROUGH FREIGHT MOVEMENT. YOU URGE THAT THE CLASS 37 1/2 RATING IS NOT FOR APPLICATION ON THE ENTIRE HAUL FROM ORIGIN TO DESTINATION BECAUSE THE VEHICLES IN THE OUTBOUND MOVEMENT HAD BEEN RECONDITIONED AND WERE READY FOR USE UPON DELIVERY AT DESTINATION. THE QUOTATION PROVIDES UNDER ITEM 9 (B) A TRANSIT CHARGE OF 18 CENTS PER HUNDRED POUNDS (15 CENTS PLUS EX-PARTE INCREASE) WILL APPLY.

B-147712, MAY 29, 1962

TO WESTERN MARYLAND RAILROAD COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 17, 1961, FILE XTA- 153-59, RELATING TO THE SETTLEMENT WHICH DISALLOWED THE CLAIM FOR ADDITIONAL CHARGES MADE BY THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY UNDER SUPPLEMENTAL BILL 271760-B.

ORDINARILY OUR SETTLEMENTS ARE REVIEWABLE ONLY AT THE REQUEST OF THE CLAIMANT. HOWEVER, IN VIEW OF YOUR INTEREST AS A PARTICIPATING CARRIER, IN PAYMENT OF THE FULL CHARGES DUE WE HAVE CONSIDERED THE MATTER AT YOUR REQUEST.

IN TAKING ISSUE WITH THE SETTLEMENT OF THAT CLAIM, YOU CONTEND THAT THE CLASS 37 1/2 RATING (MINIMUM WEIGHT OF 40,000 POUNDS) NAMED IN EXECUTIVE COMMITTEE--- WESTERN TRAFFIC ASSOCIATION SECTION 22 QUOTATION 142 WAS IMPROPERLY APPLIED IN COMPUTING THE SETTLEMENT CHARGES ON THE THROUGH FREIGHT MOVEMENT. IN SUPPORT OF YOUR CONTENTION, YOU INVITE OUR ATTENTION TO THE INBOUND MOVEMENT OF FREIGHT AUTOMOBILES, OLD, USED, FOR RECONDITIONING WHICH MOVED FROM NEW YORK, NEW YORK, TO THE TRANSIT POINT AT CULBERTSON, PENNSYLVANIA, AND TO THE OUTBOUND MOVEMENT OF RECONDITIONED FREIGHT AUTOMOBILES WHICH MOVED FROM CULBERTSON, PENNSYLVANIA, TO OMAHA, NEBRASKA. YOU URGE THAT THE CLASS 37 1/2 RATING IS NOT FOR APPLICATION ON THE ENTIRE HAUL FROM ORIGIN TO DESTINATION BECAUSE THE VEHICLES IN THE OUTBOUND MOVEMENT HAD BEEN RECONDITIONED AND WERE READY FOR USE UPON DELIVERY AT DESTINATION.

AT THE TIME OF THE SHIPMENT FROM ORIGIN, HOWEVER, EXECUTIVE COMMITTEE--- WESTERN TRAFFIC ASSOCIATION SECTION 22 QUOTATION 61-A (TEA-ER SECTION 22 QUOTATION NO. A-1280-A) AUTHORIZED TRANSIT PRIVILEGES ON TRAFFIC RETURNED FROM OVERSEAS. ITEM 5 (F) OF THAT QUOTATION PROVIDES THAT THE COMMODITIES NAMED THEREIN MAY BE RECONDITIONED TO THE EXTENT NECESSARY TO PUT SUCH ARTICLES INTO CONDITION FOR OPERATION UPON DELIVERY AT ULTIMATE DESTINATION. FOR THE RECONDITIONING PRIVILEGE, THE QUOTATION PROVIDES UNDER ITEM 9 (B) A TRANSIT CHARGE OF 18 CENTS PER HUNDRED POUNDS (15 CENTS PLUS EX-PARTE INCREASE) WILL APPLY. THE RATE ON THE THROUGH MOVEMENT IS COVERED BY ITEM 6 (A) WHICH PROVIDES:

"EACH SHIPMENT MADE FROM ITS PORT OF ORIGIN ON AND AFTER THE EFFECTIVE DATE HEREOF SHALL BE SUBJECT AND ENTITLED TO THE LOWEST APPLICABLE ALL- RAIL CARLOAD RATE THEREON, FROM SUCH PORT OF ORIGIN TO FINAL DESTINATION, IN EFFECT BY TARIFF OR AS PROVIDED IN ANY APPLICABLE QUOTATION ON THE DATE OF SUCH SHIPMENT FROM THE PORT OF ORIGIN.'

IT IS OUR VIEW THAT THIS PROVISION AUTHORIZES THE APPLICATION OF THE RATING APPLICABLE TO THE INBOUND COMMODITY ON THE THROUGH MOVEMENT. SUPPORT FOR THIS CONSTRUCTION IS ENGENDERED BY THE ELIMINATION OF THE WORDING USED IN THE THROUGH RATE PROVISION OF THE PRECEDING QUOTATION WHICH SPECIFICALLY REQUIRED THE APPLICATION OF THE HIGHER OF THE RATES APPLICABLE TO THE INBOUND OR OUTBOUND SHIPMENTS. IN ADDITION, THE TRANSIT CHARGE FOR THE RECONDITIONING PRIVILEGE IS ALMOST TWICE THAT OF THE 9 1/2 CENTS APPLICABLE TO SHIPMENTS ACCORDED STORAGE PRIVILEGES, WHICH INDICATES THAT THE HIGHER CHARGE COVERS SOMETHING OTHER THAN TRANSIT SERVICES. GENERALLY THE TRANSIT CHARGE IS CONSTANT SINCE THE TRANSIT SERVICES PERFORMED BY THE CARRIERS ARE THE SAME REGARDLESS OF THE COMMODITY TRANSITED. SEE MIXED CAR DEALERS ASSOC. V. DELAWARE, L. AND W.R.CO., 33 I.C.C. 133, 140. MOREOVER, THE QUOTATIONS WERE BOTH ISSUED BY THE EXECUTIVE COMMITTEE--- WESTERN TRAFFIC ASSOCIATION AND BOTH APPLIED TO VEHICLES RETURNED FROM OVERSEAS.

ACCORDINGLY, THE CHARGES PAID ON THE THROUGH MOVEMENT APPEAR CORRECT AND THE DISALLOWANCE OF THE CLAIM IS SUSTAINED.