B-149312, DEC. 10, 1962

B-149312: Dec 10, 1962

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

BURLINGTON AND QUINCY RAILROAD COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JUNE 22. THE RATING AND MINIMUM WEIGHT APPLYING TO A SHIPMENT LOADED ON A CAR EXCEEDING 50 FEET 6 INCHES IN LENGTH IS THAT PROVIDED IN THE CLASSIFICATION. YOU ORIGINALLY CLAIMED AND WERE PAID TOTAL TRANSPORTATION CHARGES OF $4. THE CHARGES BILLED WERE COMPUTED AT ONE AND ONE-FOURTH TIMES 1ST CLASS. SINCE THIS SHIPMENT WAS LOADED IN A BOX CAR (CBQ-46749) 50 FEET 6 INCHES IN LENGTH. THE REMAINING 12 SHIPMENTS WERE LOADED ON FLAT CARS 53 FEET 6 INCHES IN LENGTH AND THE CHARGES BILLED FOR THESE SHIPMENTS WERE COMPUTED AT ONE AND ONE-FOURTH TIMES 1ST CLASS. IT WAS DETERMINED THAT ALL OF THE CHARGES SHOULD BE COMPUTED AT ONE AND ONE-FOURTH TIMES 1ST CLASS.

B-149312, DEC. 10, 1962

TO CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 22, 1962, FILE GOV-T BILL 275961, REQUESTING REVIEW OF OUR SETTLEMENT DATED APRIL 24, 1962, WHICH DISALLOWED $2,135.24 OF YOUR CLAIM, PER SUPPLEMENTAL BILL NO. 275961 A, FOR $2,215.28 ADDITIONAL TRANSPORTATION CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF 13 SHIPMENTS OF AIRPLANE PARTS FROM AKRON, OHIO, TO FORT CROOK, NEBRASKA, DURING JULY AND AUGUST 1945, UNDER GOVERNMENT BILLS OF LADING.

IN SUPPORT OF YOUR POSITION YOU RELY ON A DECISION OF THE COURT OF CLAIMS IN READING COMPANY V. UNITED STATES, NOS. 579-52 AND 149-59, DECIDED JANUARY 12, 1962. IN THAT CASE, THE COURT HELD THAT, WHERE AN ITEM IN AN EXCEPTIONS TARIFF PROVIDES RATINGS AND MINIMUM WEIGHTS ONLY FOR CARS IN EXCESS OF 40 FEET 7 INCHES, BUT NOT EXCEEDING 50 FEET 6 INCHES IN LENGTH, THE RATING AND MINIMUM WEIGHT APPLYING TO A SHIPMENT LOADED ON A CAR EXCEEDING 50 FEET 6 INCHES IN LENGTH IS THAT PROVIDED IN THE CLASSIFICATION.

FOR THE SERVICES INVOLVED, YOU ORIGINALLY CLAIMED AND WERE PAID TOTAL TRANSPORTATION CHARGES OF $4,920.32 ON THE 13 BILLS OF LADING COVERING THESE SHIPMENTS. ON BILL OF LADING NO. WX-9624526, THE CHARGES BILLED WERE COMPUTED AT ONE AND ONE-FOURTH TIMES 1ST CLASS, $2.43 PER 100 POUNDS, REDUCED BY LAND-GRANT TO A NET RATE OF $1.92050 PER 100 POUNDS, ON A MINIMUM WEIGHT OF 16,200 POUNDS, SINCE THIS SHIPMENT WAS LOADED IN A BOX CAR (CBQ-46749) 50 FEET 6 INCHES IN LENGTH. THE REMAINING 12 SHIPMENTS WERE LOADED ON FLAT CARS 53 FEET 6 INCHES IN LENGTH AND THE CHARGES BILLED FOR THESE SHIPMENTS WERE COMPUTED AT ONE AND ONE-FOURTH TIMES 1ST CLASS, $2.43 (NET RATE $1.92050) PER 100 POUNDS, IN EACH INSTANCE ON A MINIMUM WEIGHT OF 20,000 POUNDS, AS PROVIDED BY RULE 34 OF CONSOLIDATED FREIGHT CLASSIFICATION NO. 16. ITEM 1305 OF THIS CLASSIFICATION, COVERING AIRPLANE PARTS, NOIBN, OTHER THAN CLOTH AND WOOD OR METAL COMBINED, PROVIDES A MINIMUM CARLOAD WEIGHT OF 10,000 POUNDS, SUBJECT TO RULE 34.

IN OUR SUBSEQUENT AUDIT OF THE PAYMENT VOUCHER, IT WAS DETERMINED THAT ALL OF THE CHARGES SHOULD BE COMPUTED AT ONE AND ONE-FOURTH TIMES 1ST CLASS, $2.43 PER 100 POUNDS, AS NAMED IN CENTRAL FREIGHT ASSOCIATION TARIFF BUREAU TARIFF 491-D, I.C.C. 3766, REDUCED BY APPLICABLE LAND-GRANT DEDUCTION TO A NET RATE OF $1.77849 PER 100 POUNDS, ON A MINIMUM WEIGHT OF 11,700 POUNDS PER CAR, AS PROVIDED IN THE EXCEPTIONS TARIFF, WESTERN TRUNK LINE 338-J, I.C.C. 3529, ITEM 645 OF WHICH READS AS FOLLOWS:

CHART. "ITEM CLASS

NO. * * * 645 AIRPLANES AND AIRPLANE PARTS AS DESCRIBED IN

ITEMS 1285 TO 1340, INCL., 1345, 1355 AND

1365 TO 1380, INCL., OF WESTERN CLASSIFICATION.

IN STRAIGHT OR MIXED CARLOADS, LOADING IN OR

ON OPEN CARS NOT EXCEEDING 50 FEET, 6 INCHES

IN LENGTH, CARLOAD MINIMUM WEIGHT 11,700

POUNDS. (SEE NOTE). 1 1/4

TIMES

NOTE.--- WHEN SHIPMENT RESTS ON ONE CAR FIRST

BUT REQUIRES, ON ACCOUNT OF LENGTH, TWO OR CLASS

MORE OPEN CARS 50 FEET 6 INCHES OR UNDER IN

LENGTH, THE MINIMUM WEIGHT FOR EACH CAR IN

THE SERIES WILL BE 11,700 POUNDS.'

THUS, WE DETERMINE THAT THE CHARGES ON EACH OF THE 13 SHIPMENTS SHOULD BE $208.08, COMPUTED AT THE MINIMUM WEIGHT OF 11,700 POUNDS AT THE NET RATE OF $1.77849 PER 100 POUNDS, RESULTING IN AN OVERCHARGE ON BILL OF LADING WX-9624526 OF $103.04 AND ON EACH OF THE OTHER 12 BILLS OF LADING OF $176.02, FOR THE TOTAL OVERCHARGE FOR ALL BILLS OF LADING OF $2,215.28. UPON YOUR FAILURE TO REFUND THESE OVERCHARGES, THEY WERE COLLECTED BY DEDUCTION, PURSUANT TO 49 U.S.C. 66, FROM AMOUNTS OTHERWISE DUE FOR UNRELATED SERVICES.

YOU SUBSEQUENTLY FILED YOUR SUPPLEMENTAL BILL NO. 275961-A CLAIMING REFUND OF THE AMOUNT DEDUCTED. THE ISSUE IN THE READING CASE DIFFERS FUNDAMENTALLY FROM THE SITUATION HERE INVOLVED, WITH THE EXCEPTION OF THE SHIPMENT MOVING UNDER BILL OF LADING NO. WX-9624526, FOR WHICH A 50-FOOT6- INCH BOX CAR WAS USED. THE CHARGES APPLYING TO THAT SHIPMENT WERE CORRECTLY STATED IN THE SETTLEMENT OF YOUR SUPPLEMENTAL BILL AND AN ALLOWANCE OF $80.04 WAS MADE ON THAT BILL OF LADING BY OUR SETTLEMENT OF APRIL 24, 1962, BASED ON THE MINIMUM WEIGHT OF 16,200 POUNDS DETERMINED BY PROVISIONS OF THE CLASSIFICATION. THE DISALLOWANCE OF $23 ON THE SHIPMENT MOVING UNDER THAT BILL OF LADING WAS THE RESULT OF OUR USE OF A MORE FAVORABLE DEDUCTION FOR LAND-GRANT FOUND TO BE APPLICABLE. WE DISALLOWED THE CLAIM FOR ADDITIONAL CHARGES ON THE REMAINING 12 SHIPMENTS, FOR WHICH 53-FOOT 6-INCH OPEN CARS WERE USED, ON THE PREMISE THAT, WHEN THE CARRIER FOR ITS OWN CONVENIENCE PROVIDES A CAR OF GREATER CAPACITY OR DIMENSIONS THAN THAT ORDERED, SUCH CAR MAY BE USED ON THE BASIS OF THE MINIMUM CARLOAD FIXED IN TARIFFS FOR CARS OF THE DIMENSIONS ORDERED BY THE SHIPPER.

IN THE READING CASE, THE PARTIES AGREED, FOR THE PURPOSE OF ARRIVING AT A SINGLE ISSUE AND AVOIDING SUBSIDIARY ISSUES, THAT THE CAR-ORDERED VERSUS THE CAR-USED ISSUES, SUCH AS THE INTERSTATE COMMERCE COMMISSION SERVICE ORDER NO. 68 AND THE RULE 66 (A) OF TARIFF CIRCULAR NO. 20 CONTROVERSIES, WOULD NOT BE INTERPOSED. SEE PARAGRAPHS (A), (B) AND (C) OF THE COURT'S OPINION IN THE READING CASE FOR THE AGREEMENT GOVERNING THE OTHER ISSUES. THE SOLE QUESTION TRIED ON ITS MERITS IN THAT CASE WAS CONFINED TO THE CHARGES APPLICABLE TO THE SIZE OF CARS USED FOR THE SHIPMENTS AND NOT THE CARS ORDERED, WHERE THE EXCEPTION RATING DID NOT PROVIDE FOR CARS WHICH EXCEED CERTAIN DIMENSIONS.

THE RECORD SHOWS THAT, INSOFAR AS THE 12 SHIPMENTS WHICH WERE DISALLOWED IN FULL ARE CONCERNED, EACH BILL OF LADING SHOWS THAT A 50 FOOT CAR WAS ORDERED FOR THE SHIPMENT AND THAT IN EACH INSTANCE A 53 FOOT 6-INCH "CBQ" CAR WAS FURNISHED. THESE SHIPMENTS MOVED IN JULY AND AUGUST 1945, DURING THE EFFECTIVE PERIOD OF SERVICE ORDER NO. 68 WHICH HAS BEEN THE SUBJECT OF CONSIDERABLE CONTROVERSY AND LITIGATION WITHOUT THE QUESTION BEING FINALLY JUDICIALLY RESOLVED. OUR RECORDS SHOW THAT THERE WERE A NUMBER OF SHIPMENTS IN THE READING CASE INVOLVING THE SERVICE ORDER NO. 68 ISSUE, REFERRED TO AS "CATEGORY NO. 1" IN THE COURT'S OPINION. AS TO THOSE SHIPMENTS, THE PARTIES AGREED TO STIPULATE JUDGMENT IN ORDER THAT THE ENTIRE CASE MIGHT BE DISPOSED OF ON A 50 PERCENT BASIS IN ACCORDANCE WITH AN AGREEMENT BETWEEN OUR OFFICE AND THE ASSOCIATION OF AMERICAN RAILROADS REACHED SUBSEQUENT TO THE FILING OF THE SUIT. ON THAT BASIS, THE PARTIES AGREED THAT THE NET AMOUNT DUE PLAINTIFF ON SUCH BILLS IN DOCKET NO. 579- 52 WAS THE SUM OF $1,048.27, AND IN DOCKET NO. 149-59 THE SUM OF $3,371.30, WITH JUDGMENT FOR THOSE AMOUNTS TO BE ENTERED WHEN THE OTHER ISSUES INVOLVED IN THE PETITIONS HAD BEEN DISPOSED OF TO THE EXTENT THAT JUDGMENT CAN BE ENTERED ON ALL OF PLAINTIFF'S CLAIMS. IN VIEW OF THE FOREGOING, IT WILL BE SEEN THAT THERE IS NOTHING CONTAINED IN THE COURT'S DECISION IN THE READING CASE WHICH WOULD WARRANT ANY MODIFICATION OF OUR SETTLEMENT OF APRIL 24, 1962.

THE PROCEDURE ESTABLISHED FOR THE SETTLEMENT OF CARRIERS' SERVICE ORDER NO. 68 CLAIMS UNDER OUR AGREEMENT WITH THE ASSOCIATION OF AMERICAN RAILROADS WAS SET FORTH IN A LETTER DATED JUNE 22, 1959, SIGNED BY A. R. SEDER, VICE PRESIDENT OF THE ASSOCIATION OF AMERICAN RAILROADS, ADDRESSED TO THE CHIEF ACCOUNTING OFFICERS AND FREIGHT ACCOUNTING OFFICERS OF THE MEMBER CARRIERS. IF, UPON FURTHER CONSIDERATION OF THE MATTER, YOU DECIDE TO FILE A CLAIM WITH OUR TRANSPORTATION DIVISION AS TO THE 12 SHIPMENTS, CLAIM FOR WHICH WAS DISALLOWED BASED UPON THE AGREEMENT AS TO SERVICE ORDER NO. 68 SHIPMENTS, THE PROCEDURE OUTLINED IN THE LETTER OF THE ASSOCIATION OF AMERICAN RAILROADS SHOULD BE FOLLOWED.