B-148981, NOV. 29, 1962

B-148981, NOV. 29, 1962

TO THE ASHWORTH TRANSFER, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MAY 16, 1962, WITH ENCLOSURES, REQUESTING REVIEW OF OUR SETTLEMENTS OF JANUARY 12 AND SEPTEMBER 21, 1961, AND MAY 12, 1960, WHICH DISALLOWED YOUR SUPPLEMENTAL BILLS NOS. 5188, 5193 AND 5190 FOR ADDITIONAL TRANSPORTATION CHARGES OF $134.44, $927.69 AND $1,661.54, RESPECTIVELY. YOUR CLAIMS FOR THESE ADDITIONAL CHARGES INVOLVE SEVERAL SHIPMENTS OF AMMUNITION DURING THE YEARS 1955, 1956 AND 1958.

THE SHIPMENT COVERED BY YOUR BILL NO. 5188 CONSISTED OF 350 BOXES OF AMMUNITION FOR CANNON WITH EXPLOSIVE PROJECTILES, WEIGHING 27,300 POUNDS, PLUS 250 POUNDS OF DUNNAGE, THAT MOVED FROM HERLONG, CALIFORNIA, TO FORT HAUCHUCA, ARIZONA, UNDER BILL OF LADING NO. WY 7616843, DATED APRIL 21, 1958, AND WAS ROUTED VIA WELLS CARGO, INC., AND ASHWORTH TRANSFER, INC. FOR THE SERVICE PERFORMED, YOU ORIGINALLY CLAIMED AND WERE PAID TRANSPORTATION CHARGES IN THE AMOUNT OF $1,755, COMPUTED ON THE BASIS OF A RATE OF $5.85 PER 100 POUNDS, SUBJECT TO A TRUCKLOAD MINIMUM WEIGHT OF 30,000 POUNDS IN ACCORDANCE WITH ITEM 2000, PUBLISHED IN ROCKY MOUNTAIN MOTOR TARIFF BUREAU, AGENT, U.S. GOVERNMENT QUOTATION I.C.C. NO. 8.

IN OUR AUDIT OF THE PAYMENT VOUCHER IT WAS DETERMINED THAT THE OVERCHARGE ON THIS SHIPMENT WAS $134.44, BASED ON A COMBINATION OF RATES OVER RENO, NEVADA. WE USED AS THE FIRST FACTOR A FIRST-CLASS RATE OF $0.51 PER 100 POUNDS, SUBJECT TO A MINIMUM WEIGHT OF 30,000 POUNDS, PURSUANT TO WELLS CARGO TARIFF NO. 1-B, MF-I.C.C. NO. 4, IN ACCORDANCE WITH THE RATING IN ITEM 3830 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 14. CHARGES BEYOND RENO WERE COMPUTED ON THE BASIS OF A RATE OF $3.32 PER 100 POUNDS (DISTANCE 1,007 MILES), SUBJECT TO A MINIMUM WEIGHT OF 20,000 POUNDS, PLUS A RATE OF $0.40 PER 100 POUNDS (1,403 DEADHEAD MILES), SUBJECT TO A MINIMUM WEIGHT OF 25,000 POUNDS, IN ACCORDANCE WITH ITEM 205 (DISTANCE RATE), ITEM 25(DEADHEAD MILEAGE), ITEM 90 (LOCATION OF GARAGES), AND ITEM 95 (RATES FOR DEADHEAD MILEAGE), AS PUBLISHED IN INTERMOUNTAIN TARIFF NO. 5-G, MF-I.C.C. NO. 3. THE AMOUNT OF THIS OVERCHARGE WAS REFUNDED BY YOU. YOU SUBSEQUENTLY FILED YOUR SUPPLEMENTAL BILL NO. 5188 TO RECOVER THAT AMOUNT CITING ROCKY MOUNTAIN QUOTATION NO. 49 AS AUTHORITY. YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT DATED JANUARY 12, 1961.

IN REQUESTING REVIEW OF THE MATTER YOU SUBMIT A SUPPLEMENTAL BILL NO. 5188 (A) FOR $509.44 AND YOU TAKE THE POSITION THAT SINCE YOUR RATES ON AMMUNITION WERE INADVERTENTLY CANCELLED FROM FEBRUARY 28, 1955, UNTIL MAY 15, 1958, YOU HAD NO TARIFF RATES IN EFFECT DURING THAT PERIOD AND, CONSEQUENTLY, ANY SECTION 22 RATES YOU HAD ON FILE WERE NOT, IN FACT, REDUCED RATES, AND THEREFORE WERE INVALID. YOU CONTEND THAT WHERE NO RATES ARE IN EFFECT, THE CARRIER IS ENTITLED TO COMPETITOR'S RATES, CITING R. E. SHUTT V. UNITED STATES, 218 F.2D 10.

AS INDICATED ABOVE, THIS SHIPMENT ORIGINATED ON APRIL 21, 1958, AND THE CONSIGNEE'S CERTIFICATE OF DELIVERY WAS EXECUTED APRIL 25, 1958. YOU DID NOT CANCEL OUT OF INTERMOUNTAIN TARIFF NO. 5-G UNTIL JULY 28, 1958 (3RD REVISED PAGE 2). HOWEVER, YOU DID HAVE A RESTRICTION IN CONNECTION WITH THE TRANSPORTATION OF EXPLOSIVES IN THIS TARIFF AT THE TIME THIS SHIPMENT MOVED. SHOWN ADJACENT TO THE ARTICLES LISTED AS CLASS A, B AND C EXPLOSIVES, AS DEFINED IN EXPLOSIVES AND DANGEROUS ARTICLES TARIFF NO. 9, IN ITEM 185 OF THE TARIFF (2ND REVISED PAGE 19) IS A CIRCLE REFERENCE 2. THE EXPLANATION OF THIS CIRCLE REFERENCE IS GIVEN NEAR THE BOTTOM OF THE PAGE AND READS AS OLLOWS:

"WILL APPLY ONLY VIA ASHWORTH TRANSFER, INC. OR SALT LAKE TRANSFER COMPANY AND ONLY ON SHIPMENTS TENDERED TO CARRIERS ON COMMERCIAL BILLS OF LADING.'

ALL GOVERNMENT BILL OF LADING CONTRACTS CONTAIN CERTAIN CONDITIONS MUTUALLY AGREED AND UNDERSTOOD BETWEEN THE UNITED STATES AND CARRIERS WHO ARE PARTIES TO THE BILL OF LADING, AMONG WHICH ARE THE FOLLOWING:

"2. UNLESS OTHERWISE SPECIFICALLY PROVIDED OR OTHERWISE STATED HEREON, THIS BILL OF LADING IS SUBJECT TO THE SAME RULES AND CONDITIONS AS GOVERN COMMERCIAL SHIPMENTS MADE ON THE USUAL FORMS PROVIDED THEREFOR BY THE CARRIER.

"3. SHIPMENT MADE UPON THIS BILL OF LADING SHALL TAKE NO HIGHER RATE THAN WOULD BE CHARGED HAD THE SHIPMENT BEEN MADE UPON THE UNIFORM STRAIGHT BILL OF LADING, UNIFORM EXPRESS RECEIPT, OR OTHER FORMS USUALLY PROVIDED BY CARRIERS FOR COMMERCIAL SHIPMENTS.'

THE BILL OF LADING INVOLVED WAS ISSUED BY AN AGENT OF WELLS CARGO, INC. IN VIEW OF THE EXISTENCE AND EFFECTIVENESS OF THESE CONDITIONS, THE CONTRACTUAL RELATIONSHIP BETWEEN THE PARTIES IN MATERIAL RESPECTS CONCERNING APPLICABLE RATES AND CHARGES WAS NO DIFFERENT THAN IT WOULD HAVE BEEN HAD A UNIFORM STRAIGHT COMMERCIAL BILL OF LADING BEEN USED. CF. ALCOA STEAMSHIP CO. V. UNITED STATES, 338 U.S. 421, ON THE EFFECT OF CONDITION 2 OF THE GOVERNMENT BILL OF LADING.

ADDITIONAL, GOVERNMENT OFFICERS ARE WITHOUT AUTHORITY TO CONTRACT FOR TRANSPORTATION SERVICES AT CHARGES HIGHER THAN THOSE AVAILABLE TO THE PUBLIC UNDER PUBLISHED AND FILED TARIFFS FOR LIKE SERVICES UNDER LIKE CONDITIONS. SEE 19 COMP. DEC. 208, WHERE IT IS STATED, QUOTING FROM THE SYLLABUS, THAT---

"THE GOVERNMENT BEING ENTITLED LIKE ANY OTHER SHIPPER TO THE REGULAR TARIFF RATES * * * NO CONTRACT IN EXCESS OF SAID NET RATE IS VALID, FOR IT WOULD BE, AS TO SAID EXCESS, A GIFT OF PUBLIC MONEY WITH NO CONSIDERATION THEREFOR, AND NO OFFICER HAS THE RIGHT TO GIVE AWAY PUBLIC REVENUES.'

IN SOUTHERN PACIFIC CO. V. UNITED STATES, 60 CT.CL. 662, 671 (AFFIRMED 272 U.S. 445), THE COURT REITERATED THE RULE THAT THE GOVERNMENT IS ENTITLED UNDER THE LAW TO THE LOWEST RATE OPEN TO THE PUBLIC FOR THE TRANSPORTATION OF SIMILAR PROPERTY.

ALTHOUGH ITEM 205 (ORIGINAL PAGE 26) OF TARIFF NO. 5-G RESTRICTS THE APPLICATION OF RATES ON EXPLOSIVES AND DANGEROUS ARTICLES IN CONNECTION WITH RATES PUBLISHED FOR THE 30,000- AND 38,000-POUND COLUMNS, THERE IS NO RESTRICTION ON THE APPLICATION OF RATES BASED ON THE 20,000-POUND COLUMN, WHICH WAS THE RATE USED IN OUR AUDIT. SINCE OUR AUDIT ACTION WAS CONSISTENT WITH THE FOREGOING, THE DISALLOWANCE OF YOUR CLAIM FOR AN ADDITIONAL AMOUNT IN TRANSPORTATION CHARGES IS SUSTAINED.

THE SHIPMENTS COVERED BY YOUR SUPPLEMENTAL BILL NO. 5193 (A) CONSISTED OF BOMBS, PRACTICE, EMPTY, PLATE SHEET IRON, WEIGHING 15,309, 18,750 AND 11,960 POUNDS THAT MOVED FROM HILL AIR FORCE BASE, UTAH, TO LUKE AIR FORCE BASE, ARIZONA, UNDER BILLS OF LADING NOS. AF-6807627 AND AF-6807626, DATED OCTOBER 15, 1956, AND AF-6807628, DATED OCTOBER 16, 1956, RESPECTIVELY, AND WERE ROUTED VIA ASHWORTH TRANSFER AND STORAGE CO. EACH BILL OF LADING WAS ANNOTATED TO SHOW THAT EACH SHIPMENT WAS A PART OF A VOLUME SHIPMENT AND CONTAINED A CROSS REFERENCE TO ALL OTHER BILLS OF LADING COMPRISING THE COMPLETE SHIPMENT. MOREOVER, EACH BILL OF LADING BEARS A NOTATION ON ITS FACE TO INDICATE THAT IT WAS TENDERED UNDER AUTHORITY OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU U.S. GOVERNMENT RATE QUOTATION NO. 49. FOR THE SERVICES PERFORMED YOU ORIGINALLY CLAIMED AND WERE PAID $338.33 (AF 6807627), $414.38 (AF-6807626) AND $264.32 (AF-6807628), COMPUTED ON THE BASIS OF A RATE OF $2.21 PER 100 POUNDS.

IN OUR AUDIT OF THE PAYMENT VOUCHER IT WAS DETERMINED THAT THE OVERCHARGES ON THESE SHIPMENTS AMOUNTED TO $46.02 BASED ON A RATE OF $2.11 PER 100 POUNDS, SUBJECT TO A VOLUME MINIMUM WEIGHT OF 30,000 POUNDS, IN ACCORDANCE WITH ITEM 400, AS PUBLISHED IN ROCKY MOUNTAIN MOTOR TARIFF BUREAU, U.S. GOVERNMENT QUOTATION NO. 49. THE AMOUNT OF THE OVERCHARGE WAS REFUNDED BY YOU. THEREAFTER, YOU FILED YOUR SUPPLEMENTAL BILL IN THE AMOUNT OF $927.69, TREATING EACH BILL OF LADING AS A SEPARATE SHIPMENT AND COMPUTING YOUR CHARGES ON THE BASIS OF THE RATE OF $2.11 PER 100 POUNDS USED IN OUR AUDIT CITING ROCKY MOUNTAIN QUOTATION NO. 49 FOR YOUR AUTHORITY--- THE SAME AUTHORITY USED BY US--- BUT SUBJECTING EACH SHIPMENT TO A MINIMUM WEIGHT OF 30,000 POUNDS, AND STATING THAT EACH BILL OF LADING CONSTITUTES A SEPARATE SHIPMENT. YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT DATED SEPTEMBER 21, 1961, BECAUSE EACH BILL OF LADING WAS ANNOTATED TO SHOW THAT IT WAS A PART OF A VOLUME SHIPMENT.

IN REQUESTING REVIEW OF THE MATTER YOU AGAIN TAKE THE POSITION THAT SINCE YOUR RATES ON AMMUNITION WERE INADVERTENTLY CANCELLED FROM FEBRUARY 28, 1955, UNTIL MAY 15, 1958, YOU HAD NO TARIFF RATES IN EFFECT DURING THAT PERIOD AND, CONSEQUENTLY, THE SECTION 22 RATES TO WHICH YOU WERE A PARTY WERE NOT, IN FACT, REDUCED RATES AND THEREFORE WERE IN APPLICABLE INSOFAR AS YOU WERE CONCERNED. YOU AGAIN CONTEND THAT WHERE NO RATES ARE IN EFFECT THE CARRIER IS ENTITLED TO COMPETITOR'S RATES, CITING THE SHUTT CASE, AND YOU SUBMIT A SUPPLEMENTAL BILL NO. 5193 (A) FOR $64.29 ADDITIONAL CHARGES, COMPUTED ON THE BASIS OF A RATE OF $2.04 PER 100 POUNDS, CITING AS AUTHORITY ROCKY MOUNTAIN MOTOR TARIFF BUREAU NO. 32, AND SUBJECTING EACH SHIPMENT TO A MINIMUM WEIGHT OF 16,000 POUNDS.

THE INTERSTATE COMMERCE COMMISSION AND THE COURTS HAVE IN SEVERAL INSTANCES TREATED PROPERTY COVERED BY MORE THAN ONE BILL OF LADING AS A SINGLE SHIPMENT. IN A CASE IN WHICH A SHIPMENT WAS LOADED IN TWO CARS IN LIEU OF A LARGER CAR THAT WAS ORDERED, AND A BILL OF LADING WAS ISSUED FOR EACH CAR, THE BILL OF LADING COVERING THE LARGER CAR MADE REFERENCE TO THE FURNISHING OF TWO CARS, AND THE BILL OF LADING COVERING THE SMALLER LOAD SHOWED THAT IT WAS A PART SHIPMENT. THERE THE COMMISSION HELD THAT THE CROSS REFERENCE WAS A SUBSTANTIAL COMPLIANCE WITH THE REQUIREMENT THAT ONE BILL OF LADING BE ISSUED. STONE-FISHER COMPANY V. DIRECTOR GENERAL, 77 I.C.C. 369. SEE, ALSO, WILLINGHAM V. SELIGMAN, 179 F.2D 257; EXPOSITION COTTON MILLS V. SOUTHERN RAILWAY COMPANY, 234 I.C.C. 441. THE BILLS OF LADING INVOLVED WERE PROPERLY CROSS REFERENCED TO SHOW THAT THIS WAS A VOLUME SHIPMENT. THUS, THE ONLY ISSUE REMAINING IS THE APPLICABLE RATE.

UNDER SECTION 217 (A) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 317 (A), EVERY COMMON CARRIER BY MOTOR VEHICLE IS REQUIRED TO PUBLISH AND FILE WITH THE INTERSTATE COMMERCE COMMISSION A TARIFF NAMING RATES AND CHARGES FOR THE SERVICES OFFERED, AND IS PROHIBITED BY 217 (B), 49 U.S.C. 317 (B), FROM CHARGING, DEMANDING, COLLECTING, OR RECEIVING A GREATER OR LESS OR DIFFERENT COMPENSATION FOR TRANSPORTATION, EXCEPT THAT UNDER SECTION 22, 49 U.S.C. 22, THE CARRIER MAY TRANSPORT GOVERNMENT PROPERTY FREE OR AT REDUCED RATES. ALSO, SECTION 217 (D) OF THE INTERSTATE COMMERCE ACT READS AS FOLLOWS:

"NO COMMON CARRIER BY MOTOR VEHICLE, UNLESS OTHERWISE PROVIDED BY THIS PART, SHALL ENGAGE IN THE TRANSPORTATION OF PASSENGERS OR PROPERTY UNLESS THE RATES, FARES, AND CHARGES UPON WHICH THE SAME ARE TRANSPORTED BY SAID CARRIER HAVE BEEN FILED AND PUBLISHED IN ACCORDANCE WITH THE PROVISIONS OF THIS PART.'

OUR RECORDS INDICATE THAT YOU WERE NOT A PARTY TO ANY TARIFF APPLYING ON AMMUNITION BETWEEN THE POINTS AND DURING THE PERIOD THE SHIPMENTS COVERED BY YOUR BILL NO. 5193 MOVED, BUT YOU WERE A PARTY TO ROCKY MOUNTAIN QUOTATION NO. 49. YOUR CONTENTION THAT SINCE YOU HAD NO PUBLISHED TARIFF RATES IN EFFECT YOUR SECTION 22 RATES WERE NOT ACTUALLY REDUCED RATES AND THEREFORE INVALID SEEMS TO OVERLOOK THE FACT THAT 49 U.S.C. 22 AND 317 (B) NOT ONLY AUTHORIZES CARRIERS TO NEGOTIATE WITH THE GOVERNMENT TO GRANT REDUCED RATES BUT TO CARRY PROPERTY FREE, IF THEY SO DESIRE. YOU OFFERED TO HAUL THE ARTICLES IN QUESTION UNDER A SECTION 22 AGENCY QUOTATION AND SUCH OFFER WAS CONTRACTUAL IN NATURE AND WHEN ACCEPTED BY THE GOVERNMENT BY TENDERING YOU A SHIPMENT THEREUNDER WAS BINDING UPON YOU AS WELL AS OTHER CARRIERS PARTY TO THE QUOTATION. A QUOTATION SUBMITTED TO THE GOVERNMENT GENERALLY IS MERELY AN OFFER TO TRANSPORT A GIVEN COMMODITY AT A RATE LOWER THAN THE RATE OTHERWISE APPLICABLE FOR A LIKE SERVICE. QUOTATION RATES ARE SOMETIMES HIGHER THAN PUBLISHED TARIFF RATES; HOWEVER, IN SUCH CASES THE HIGHER QUOTATION RATE IS VALID ONLY IF IT PROVIDES FOR SPECIAL HANDLING OR OTHER PREMIUM SERVICE NOT COVERED BY A PARTICULAR TARIFF.

THERE IS NO AUTHORITY IN THE INTERSTATE COMMERCE ACT, OR ELSEWHERE, WHEREBY CARRIERS MAY CONTRACT TO FURNISH SERVICES FOR THE GOVERNMENT AT RATES OR CHARGES HIGHER THAN THOSE PROVIDED FOR THE SAME SERVICE IN TARIFFS LAWFULLY ON FILE WITH THE INTERSTATE COMMERCE COMMISSION. THEREFORE, A CARRIER CANNOT BY VOLUNTARILY FILING A SO-CALLED SECTION 22 QUOTATION WITH A GOVERNMENT AGENCY, PRECLUDE THE GOVERNMENT FROM MAKING ITS SHIPMENTS AT THE LOWER PUBLISHED TARIFF RATES. CONVERSELY, WHERE A CARRIER NEITHER PUBLISHES RATES FOR ITS OWN ACCOUNT NOR PARTICIPATES IN THE PUBLISHED RATES OF OTHER CARRIERS, BUT HAS A SECTION 22 QUOTATION ON FILE WHICH PRODUCES LOWER CHARGES THAN THE PUBLISHED TARIFFS OF OTHER CARRIERS FOR THE SAME SERVICE, THE GOVERNMENT IS ENTITLED TO THE LOWER CHARGES PRODUCED BY APPLYING THE QUOTATION RATE--- WHICH IS IN THE NATURE OF A CONTINUING OFFER--- WHEN THE GOVERNMENT TENDERS, AND THE CARRIER ACCEPTS, A SHIPMENT THEREUNDER. SINCE OUR AUDIT ACTION WAS CONSISTENT WITH THE FOREGOING, THE DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL AMOUNTS ON THE SHIPMENTS COVERED BY YOUR BILL NO. 5193 IS SUSTAINED.

THE SHIPMENTS COVERED BY YOUR BILL NO. 5190 CONSISTED OF ROCKET AMMUNITION WITHOUT PROJECTILES (ROCKET MOTORS) WEIGHING 38,000, 30,720 AND 37,986 POUNDS, PLUS 250 POUNDS OF DUNNAGE ON EACH SHIPMENT, WHICH MOVED FROM HERLONG, CALIFORNIA, TO YUMA COUNTY AIRPORT, ARIZONA, UNDER BILLS OF LADING NOS. WY-6564503 AND WY-6564509, DATED NOVEMBER 2, 1955, AND WY- 6564515, DATED NOVEMBER 3, 1955, RESPECTIVELY, AND WERE ROUTED VIA WELLS CARGO, INC., AND ASHWORTH TRANSFER, INC. FOR THE SERVICES PERFORMED YOU ORIGINALLY CLAIMED AND WERE PAID TRANSPORTATION CHARGES IN THE AMOUNTS OF $1,326.20 (WY-6564503), $1,072.13 (WY 6564509) AND $1,325.71 (WY-6564515), COMPUTED ON THE BASIS OF A RATE OF $3.49 PER 100 POUNDS.

IN OUR AUDIT OF THE PAYMENT VOUCHER IT WAS DETERMINED THAT THE OVERCHARGES ON THESE SHIPMENTS AMOUNTED TO $1,661.54, BASED ON A COMBINATION OF RATES OVER LOS ANGELES, CALIFORNIA, BY APPLYING 65 PERCENT OF THE APPLICABLE MOTOR FIRST-CLASS LESS-TRUCKLOAD RATE (SUBJECT TO 65 PERCENT OF THE APPLICABLE FIRST-CLASS RAIL RATE AS MAXIMUM), FOR A TRUCKLOAD MINIMUM WEIGHT OF 30,000 POUNDS, IN ACCORDANCE WITH ASHWORTH TENDER NO. 23. WE DETERMINED THE APPLICABLE LESS-TRUCKLOAD RATE TO LOS ANGELES, CALIFORNIA, TO BE $1.58 PER 100 POUNDS, SUBJECT TO THE 20,000- POUND MINIMUM WEIGHT SCALE, WHILE BEYOND LOS ANGELES TO YUMA, ARIZONA, WE DETERMINED THE FIRST-CLASS LESS TRUCKLOAD RATE TO BE $1.28 PER 100 POUNDS, SUBJECT TO THE 10,000-POUND MINIMUM WEIGHT SCALE, AS PUBLISHED IN INTERSTATE FREIGHT CARRIERS' CONFERENCE TARIFFS NOS. 7-A (MF-I.C.C. NO. A- 7), AND 1-D (MF-I.C.C. NO. 3), RESPECTIVELY. THUS, 65 PERCENT OF THE TOTAL RATE OF $2.86 ($1.58 PLUS $1.28) EQUALS $1.86. FROM YUMA TO YUMA COUNTY AIRPORT, CHARGES WERE COMPUTED ON RATES OF 8 AND 7 CENTS PER 100 POUNDS, SUBJECT TO MINIMUM WEIGHTS OF 20,000 AND 36,000 POUNDS, RESPECTIVELY, PER ITEM 1410 OF IFCC TARIFF NO. 1-D. THE AMOUNT OF THE OVERCHARGE WAS REFUNDED BY YOU. THEREAFTER, YOU FILED YOUR SUPPLEMENTAL BILL NO. 5190 TO RECOVER THAT AMOUNT ON THE GROUNDS THAT ANY OVERCHARGES ON THESE SHIPMENTS WERE BARRED BY THE STATUTE OF LIMITATIONS, CITING UNITED STATES V. DE QUEEN AND EASTERN RAILROAD CO., 167 F.SUPP. 545. YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT DATED MAY 20, 1960, BECAUSE THE CASE UPON WHICH YOU RELIED WAS REVERSED BY THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS, TEXARKANA DIVISION, IN UNITED STATES V. DE QUEEN AND EASTERN RAILROAD CO., 271 F.2D 597.

IN REQUESTING REVIEW OF THE MATTER YOU AGAIN TAKE THE POSITION ADVANCED IN CONNECTION WITH YOUR BILL NO. 5193 DISCUSSED ABOVE. YOU AGAIN CONTEND THAT WHERE NO RATES ARE IN EFFECT, THE CARRIER IS ENTITLED TO COMPETITOR'S RATES CITING THE SHUTT CASE AND YOU SUBMIT A SUPPLEMENTAL BILL NO. 5190 (A) FOR $1,224.05 CITING AS AUTHORITY WELLS CARGO TARIFF 1-B, IFCC 7-A AND IFCC 1-D.

THESE SHIPMENTS FALL WITHIN THE SAME CATEGORY AS THOSE DISCUSSED ABOVE IN CONNECTION WITH YOUR BILL NO. 5193. HERE, AS IN THAT SITUATION, YOU HAD NO PUBLISHED TARIFF RATES IN EFFECT AT THE TIME OF MOVEMENT FOR THE TRANSPORTATION OF AMMUNITION, BUT DID HAVE A JOINT QUOTATION (ASHWORTH TENDER NO. 23) WITH WELLS CARGO, INC., WHICH BY THE APPLICATION OF THE PROVISIONS THEREOF, PRODUCES LOWER CHARGES THAN THOSE COMPUTED BY THE APPLICATION OF COMPETITIVE TARIFF RATES AS NOW CLAIMED BY YOU. THE REASONING SET FORTH ABOVE IN SUPPORT OF THE USE OF THE RATES IN AN AGENCY QUOTATION TO WHICH YOU WERE A PARTY WOULD APPLY EQUALLY HERE IN CONNECTION WITH YOUR TENDER NO. 23.

UPON A REVIEW OF OUR AUDIT SECTION, WE NOW FIND THAT THE CORRECT RATE TO APPLY FOR THE SHIPMENTS HERE UNDER CONSIDERATION IS $2.30 PER 100 POUNDS, WHICH IS 65 PERCENT OF THE FIRST-CLASS RAIL RATE OF $3.54PER 100 POUNDS ($3.08 PLUS X175-B EQUALS $3.54), AS PUBLISHED IN PACIFIC FREIGHT BUREAU TARIFF NO. 26-V, I.C.C. NO. 1540. ON THIS BASIS YOU ARE DUE AN ADDITIONAL AMOUNT OF $391.74 ON THE SHIPMENTS COVERED BY YOUR BILL NO. 5190. OUR TRANSPORTATION DIVISION WILL CREDIT YOUR ACCOUNT WITH SUCH AMOUNT, AND YOU WILL RECEIVE NOTICE OF SUCH SETTLEMENT ACTION IN DUE COURSE.