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B-151345, DEC. 9, 1963

B-151345 Dec 09, 1963
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THE ISSUE HERE IS WHETHER THE OUT-OF ROUTE HAUL PROVISION ESTABLISHING MILAN. WHICH WAS ADDED BY AMENDMENT NO. 13 TO EXECUTIVE COMMITTEE. SPECIFIC PROVISIONS ARE AMENDED TO ADD: "LOUISVILLE AND NASHVILLE RAILROAD COMPANY (L AND N RR) "ON TRAFFIC FROM KINGSPORT. WILL BE CONSIDERED INTERMEDIATE FROM INITIAL POINT OF ORIGIN VIA DORCHESTER JUNCTION. WAS INCLUDED AMONG THE LISTED POINTS. YOU CONTEND THAT THE OUT-OF-ROUTE HAUL PROVISION IS AVAILABLE ON ALL SHIPMENTS MOVING FROM POINTS OF ORIGIN ON AND AFTER OCTOBER 1. YOU URGE THAT THE OUT OF-ROUTE HAUL PROVISION IN AMENDMENT NO. 13 (AND THUS THE TRANSIT ARRANGEMENT IN QUOTATION NO. 82) IS NOT AVAILABLE FOR APPLICATION AND THAT THE FREIGHT CHARGES SHOULD BE SETTLED ON THE BASIS OF A COMBINATION OF RATES OVER THE TRANSIT POINT.

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B-151345, DEC. 9, 1963

TO THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY:

IN YOUR LETTER OF APRIL 12, 1963, FILE GOVERNMENT BILL 269559-A, YOU REQUEST REVIEW OF OUR SETTLEMENT DATED DECEMBER 14, 1962 (CLAIM NO. TK 675795). THE SETTLEMENT ALLOWED $193.91 OF YOUR CLAIM FOR $1,215.22, THE ADDITIONAL FREIGHT CHARGES ALLEGEDLY DUE ON TWO CARLOAD SHIPMENTS OF EXPLOSIVES ORIGINATING AT KINGSPORT, TENNESSEE, DURING AUGUST 1956, STORED IN TRANSIT AT MILAN, TENNESSEE, AND SUBSEQUENTLY RESHIPPED TO WEST BURLINGTON, IOWA, DURING MAY 1958. THE OUTBOUND WEIGHT OF EACH SHIPMENT EXCEEDS 95,000 POUNDS. THE ISSUE HERE IS WHETHER THE OUT-OF ROUTE HAUL PROVISION ESTABLISHING MILAN, TENNESSEE, AS AN INTERMEDIATE POINT ON A THROUGH ROUTE FROM KINGSPORT, TENNESSEE, TO WEST BURLINGTON, IOWA, WHICH WAS ADDED BY AMENDMENT NO. 13 TO EXECUTIVE COMMITTEE--- WESTERN TRAFFIC ASSOCIATION SECTION 22 QUOTATION NO. 82, ENTITLED "TRANSIT ARRANGEMENT ON DOMESTIC AND EXPORT SHIPMENTS OF AMMUNITION, EXPLOSIVES, AND OTHER ORDNANCE," APPLIES ON THIS TRAFFIC.

AMENDMENT NO. 13, IN ADDITION TO AMENDING ITEM NOS. 3 (LIST OF COMMODITIES) AND 17 (TRANSIT RECORDS, CANCELLATION OF TONNAGE, ETC.) OF QUOTATION NO. 82, ADDED TO APPENDIX A, ENTITLED ,BACK-HAUL OR OUT OF-ROUTE PROVISIONS," THE FOLLOWING LANGUAGE:

"EFFECTIVE MARCH 29, 1957, SPECIFIC PROVISIONS ARE AMENDED TO ADD:

"LOUISVILLE AND NASHVILLE RAILROAD COMPANY (L AND N RR)

"ON TRAFFIC FROM KINGSPORT, TENN., MOVING VIA CLINCHFIELD RAILROAD, MILLER YARD, VA., INTERSTATE RAILROAD, DORCHESTER JUNCTION, VA., THENCE L AND N RR THROUGH GUTHRIE, KY., TO MILAN, TENN. FOR TRANSIT AND SUBSEQUENTLY REFORWARDED VIA L AND N RR TO POINTS IN ILLINOIS, INDIANA, OHIO, IOWA, NEBRASKA, UTAH, KANSAS, AND NEVADA, LISTED BELOW, MILAN, TENN. WILL BE CONSIDERED INTERMEDIATE FROM INITIAL POINT OF ORIGIN VIA DORCHESTER JUNCTION, VA., L AND N RR TO CINCINNATI, OHIO, LOUISVILLE, KY., EVANSVILLE, IND. OR EAST ST. LOUIS, ILL., THENCE CONNECTIONS TO FINAL DESTINATION.'

WEST BURLINGTON, IOWA, WAS INCLUDED AMONG THE LISTED POINTS.

THE CONCLUDING PARAGRAPH OF THE AMENDMENT READS:

"EXCEPT AS OTHERWISE HEREIN PROVIDED, THIS AMENDMENT SHALL BE IN EFFECT AND APPLICABLE TO ALL SHIPMENTS MOVING UNDER

TEA-ER SECTION 22 QUOTATION NO. A-1912

EC-WTA SECTION 22 QUOTATION NO. 82

SFA SECTION 22 QUOTATION ADVICE NO. A-1606, AS AMENDED, FROM INITIAL POINT OR PORT OF ORIGIN ON AND AFTER OCTOBER 1, 1956.'

YOU CONTEND THAT THE OUT-OF-ROUTE HAUL PROVISION IS AVAILABLE ON ALL SHIPMENTS MOVING FROM POINTS OF ORIGIN ON AND AFTER OCTOBER 1, 1956. SINCE THE TWO SHIPMENTS HERE INVOLVED MOVED FROM KINGSPORT, TENNESSEE, THE POINT OF ORIGIN, IN AUGUST 1956, YOU URGE THAT THE OUT OF-ROUTE HAUL PROVISION IN AMENDMENT NO. 13 (AND THUS THE TRANSIT ARRANGEMENT IN QUOTATION NO. 82) IS NOT AVAILABLE FOR APPLICATION AND THAT THE FREIGHT CHARGES SHOULD BE SETTLED ON THE BASIS OF A COMBINATION OF RATES OVER THE TRANSIT POINT, MILAN, TENNESSEE.

THE CHARGE BASIS SHOWN IN THE SETTLEMENT IS BASED ON THE ASSUMPTION THAT THE OUT-OF-ROUTE HAUL PROVISION IS AVAILABLE ON SHIPMENTS RESHIPPED FROM THE TRANSIT POINT ON AND AFTER MARCH 29, 1957. THESE SHIPMENTS MOVED FROM THE TRANSIT POINT, MILAN, TENNESSEE, IN MAY 1958; IT WAS THEREFORE DETERMINED THAT THE TRANSIT PRIVILEGES IN QUOTATION NO. 82 ARE AVAILABLE TO THE GOVERNMENT AND THE FREIGHT CHARGES ON THESE SHIPMENTS WERE SETTLED ON THAT BASIS.

WE CONCLUDE THAT THE SETTLEMENT BASIS IS CORRECT FOR THE REASON THAT THE LANGUAGE USED IN DESCRIBING THE OUT-OF-ROUTE HAUL PROVISION IN AMENDMENT NO. 13 INCLUDES THE PHRASE "EFFECTIVE MARCH 29, 1957.' WE MUST PRESUME THAT THE WRITERS OF THE AMENDMENT MEANT THAT THE EFFECTIVE DATE SHOWN APPLIED TO SHIPMENTS IN STORAGE AT MILAN, TENNESSEE, AND MOVING FORWARD ON OR AFTER THAT DATE. IF IT WAS INTENDED TO RESTRICT THE APPLICATION OF THE OUT-OF-ROUTE HAUL PROVISION TO SHIPMENTS MOVING FROM POINT OF ORIGIN ON AND AFTER OCTOBER 1, 1956, THE EFFECTIVE DATE URGED BY YOU, THE WRITERS COULD HAVE LEFT OUT THE PHRASE "EFFECTIVE MARCH 29, 1957," OR HAVE QUALIFIED IT WITH LANGUAGE CLEARLY STATING THEIR INTENTION. WE FIND NOTHING IN THE AMENDMENT OR IN THE QUOTATION TO PREVENT THE APPLICATION OF THE OUT-OF ROUTE HAUL PROVISION TO SHIPMENTS LEAVING THE TRANSIT POINT ON AND AFTER MARCH 29, 1957, PROVIDING, OF COURSE, THAT THOSE SHIPMENTS MOVED FROM POINT OF ORIGIN ON AND AFTER AUGUST 19, 1956, THE EFFECTIVE DATE OF THE QUOTATION. SEE ITEM NO. 23 OF THE QUOTATION. TO ACCEPT AS CORRECT YOUR VIEW THAT THE OUT-OF-ROUTE HAUL PROVISION APPLIES ON SHIPMENTS LEAVING POINT OF ORIGIN ON AND AFTER OCTOBER 1, 1956, WOULD RENDER MEANINGLESS THE PHRASE "EXCEPT AS OTHERWISE HEREIN PROVIDED," USED IN THE CONCLUDING PARAGRAPH OF THE AMENDMENT.

WE NOTE THAT TWO OF THE THREE TONNAGE CREDITS SURRENDERED FOR THE OUTBOUND WEIGHT OF EACH SHIPMENT REPRESENT INBOUND SHIPMENTS ORIGINATING AT THE POINT OF ORIGIN PRIOR TO AUGUST 19, 1956, THE EFFECTIVE DATE OF QUOTATION NO. 82. THEY, THEREFORE, ARE NOT SUBJECT TO THE TRANSIT ARRANGEMENT IN THAT QUOTATION. IN THESE CIRCUMSTANCES, WE HAVE INSTRUCTED OUR TRANSPORTATION DIVISION TO REVISE THE SETTLEMENT SO THAT THE TRANSIT ARRANGEMENT WILL APPLY ONLY TO THAT PORTION OF EACH SHIPMENT WHICH LEFT POINT OF ORIGIN ON OR AFTER THE EFFECTIVE DATE OF QUOTATION NO. 82. NOTICE OF THE REVISED SETTLEMENT SHOULD REACH YOU IN DUE COURSE.

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