B-148223, JUL. 31, 1962

B-148223, JUL. 31, 1962

TO THE SOUTHERN PACIFIC COMPANY, TEXAS AND LOUISIANA LINES:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 13, 1962, FILE HAPH- 55897-2-RG-A, REQUESTING REVIEW OF THE SETTLEMENTS WHICH DISALLOWED YOUR CLAIMS ON SEVERAL SHIPMENTS OF PRE-FABRICATED HOUSES OR BUILDINGS TRANSPORTED DURING 1945 FROM DALLAS, TEXAS, TO HOUSTON, TEXAS AND NEW ORLEANS, LOUISIANA, OUR FILE REFERENCES TK-163604, TK 163605, TK-705040 AND TK-705041. YOU ALSO REQUEST THAT CONSIDERATION BE GIVEN TO TWO ADDITIONAL CLAIMS INVOLVING SIMILAR SHIPMENTS WHICH ARE PRESENTLY PENDING IN OUR OFFICE, OUR FILE REFERENCES (T-S4B-) TK 705042 AND (T-S4B-) TK- 705043.

IN URGING PAYMENT OF THE $1,144.93 ASSERTED TO BE THE TOTAL BALANCE DUE OF THESE SHIPMENTS, YOU CONTEND THAT THE CLASS 27 1/2 RATING IS APPLICABLE AND THAT THE ADJUSTMENTS MADE IN THE FREIGHT CHARGES BY OUR OFFICE BASED ON THE 25 PERCENT OF THE FIRST CLASS RATE PRESCRIBED BY THE INTERSTATE COMMERCE COMMISSION WERE IMPROPER SINCE THE SHIPMENTS CONSIDERED BY THE COMMISSION DID NOT INVOLVE SIMILAR FREIGHT MOVEMENTS. YOU FURTHER CONTEND THAT SETTLEMENT OF RECENT CLAIMS BY OUR OFFICE BEARS OUT YOUR CONTENTION.

THE INTERSTATE COMMERCE COMMISSION IN DOCKET 29385, TEXAS PREFABRICATED HOUSE AND TENT CO. V. ATCHISON, T. AND S.F.RY.CO., 272 I.C.C. 61, DECIDED JULY 15, 1948, CONSIDERED AT LENGTH THE RATINGS APPLYING ON PREFABRICATED HOUSES FROM, TO AND BETWEEN SOUTHWESTERN POINTS. THE COMMISSION NOTED, PAGE 68, THAT THE LUMBER F RATES, MINIMUM 34,000 POUNDS, WERE APPLICABLE ON PREFABRICATED HOUSES FROM PRODUCING POINTS IN TEXAS AND LOUISIANA TO TEXAS AND LOUISIANA GULF PORTS AND CERTAIN OTHER POINTS IN LOUISIANA AND TEXAS. THE COMMISSION ALSO TOOK COGNIZANCE OF THE FACT THAT SOMEWHAT LOWER BASES WERE APPLICABLE ON INTRASTATE TRAFFIC.

AT THE BOTTOM OF PAGE 77 AND AT THE TOP OF PAGE 78 OF THE PUBLISHED REPORT, THE COMMISSION, AFTER CONSIDERATION OF THE RATES GENERALLY APPLICABLE ON PREFABRICATED BUILDINGS WITHIN THE SOUTHWEST, FOUND THAT A SUBSTANTIALLY LOWER BASIS THAN THE 27.5 PERCENT BASIS ESTABLISHED BY THE CARRIERS HAD ADEQUATE SUPPORT FOR THE FUTURE TO DESTINATIONS IN THE SOUTHWEST AND ADJOINING AREAS. THE COMMISSION ALSO FOUND THAT REASONABLE MAXIMUM BASIS FROM THESE SOUTHWESTERN ORIGINS FOR THE PAST WAS 25 PERCENT OF THE FIRST CLASS RATES CONCURRENTLY IN EFFECT PRIOR TO AUGUST 22, 1947, INCREASED BY THE GENERAL INCREASES APPLICABLE ON LUMBER AND LUMBER PRODUCTS. THE SHIPMENTS HERE INVOLVED WERE PREFABRICATED HOUSES. THEY ORIGINATED AT THE SAME CITY, DALLAS, TEXAS AS CERTAIN OF THE SHIPMENTS CONSIDERED BY THE COMMISSION IN ITS DECISION. ALSO, WHILE THE POINTS OF DESTINATION OF THE INSTANT SHIPMENTS WERE NOT SPECIFICALLY INVOLVED IN THE SHIPMENTS CONSIDERED BY THE COMMISSION ITS DECISION SEEMS CLEARLY TO BE APPLICABLE TO POINTS IN THE SOUTHWESTERN TERRITORY AND ADJOINING AREAS. IT WILL BE OBSERVED THAT SOME OF THE SHIPMENTS GIVEN CONSIDERATION MOVED BETWEEN TULSA, OKLAHOMA, AND ODESSA, TEXAS.

THUS THE BASIS USED IN THE SETTLEMENT OF YOUR CLAIMS, 25 PERCENT OF THE FIRST CLASS RATING, SEEMS TO BE CONSISTENT WITH THE FINDINGS MADE BY THE INTERSTATE COMMERCE COMMISSION. IN CARRYING OUT OUR FUNCTION OF SETTLING AND ADJUSTING CLAIMS AGAINST THE UNITED STATES, 31 U.S.C. 71, WE ARE REQUIRED TO GIVE EFFECT TO PERTINENT DECISIONS OF THE COURTS AND REGULATORY AGENCIES. WE WOULD NOT IN CARRYING OUT SUCH FUNCTION BE WARRANTED IN ALLOWING ANY CHARGES IN EXCESS OF THE MAXIMUM CHARGES DETERMINED REASONABLE BY THE COMMISSION ON SIMILAR SHIPMENTS. ACCORDINGLY, THE SETTLEMENTS ISSUED ON THE FOUR CLAIMS ARE SUSTAINED, AND NO FURTHER ACTION WILL BE TAKEN ON THE TWO OTHER SUPPLEMENTAL FREIGHT BILLS SINCE THE CHARGES, AS NOW PAID, ARE ON A PROPER BASIS.

SINCE YOU FAILED TO REFER TO SPECIFIC CLAIMS WE ARE UNABLE TO COMMENT ON YOUR CONTENTION THAT OUR OFFICE HAS APPLIED THE CLASS 27.5 RATE IN CONNECTION WITH OTHER SETTLEMENTS. YOUR ATTENTION IS INVITED, HOWEVER, TO SOUTHERN MILL AND MANUFACTURING CO. V. ATCHISON, T AND S.F.RY.CO., 292 I.C.C. 261, WHEREIN THE COMMISSION REFERS TO SEVERAL OF ITS PREVIOUS DECISIONS. WE NOTE THAT AT THE BOTTOM OF PAGE 264 THE COMMISSION STATES THAT 20.5 EXCEPTION RATING APPLIED WITHIN SOUTHWESTERN TERRITORY, AND THE CLASS 27.5 RATING BETWEEN SOUTHWESTERN AND WESTERN TRUNK LINE TERRITORIES. IT MAY BE THAT THE SETTLEMENTS BASED ON THE 27.5 RATING REFERRED TO IN YOUR LETTER INVOLVED SHIPMENTS BETWEEN TERRITORIES UPON WHICH THE HIGHER RATING WAS FOUND TO BE APPLICABLE.