B-151387, DEC. 9, 1963

B-151387: Dec 9, 1963

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ALSO INVOLVED IS OUR OVERCHARGE CLAIM FOR $87.50. YOU ALSO ASK WHETHER THE ISSUE RAISED HERE IS THE SAME AS THE ISSUE IN OUR DECISION OF JUNE 25. EACH OF THE SIX SHIPMENTS IS DESCRIBED ON THE BILL OF LADING AS "6 EA. " AND WAS TRANSPORTED AT AN AGREED WEIGHT OF 8. WHICH STATES THAT THE LONGER SIZED CAR WAS "FURNISHED FOR CONVENIENCE OF CARRIER.'. OUR SETTLEMENT AND OVERCHARGE ACTION ON THE SIX SHIPMENTS IS BASED ON THE SAME $3.50 RATE USED BY YOU AND ON A MINIMUM WEIGHT OF 10. THERE IS A TOTAL DIFFERENCE OF $1. WE AGREE THAT THE APPLICABLE CHARGE BASIS ON THESE SHIPMENTS IS NAMED IN ITEM 4792 OF TARIFF NO. " TWO COMMODITY RATE BASES WHICH ALTERNATE WITH EACH OTHER AND WHICH ARE SUBJECT TO CARLOAD MINIMUM WEIGHTS VARYING WITH THE INSIDE LENGTHS OF CLOSED OR OPEN-TOP CARS AND WITH THE PLATFORM LENGTHS OF FLAT CARS.

B-151387, DEC. 9, 1963

TO THE ILLINOIS CENTRAL RAILROAD:

IN YOUR LETTERS OF SEPTEMBER 23, 1963, AND APRIL 23, 1963, FILE G AR- 64727-BG, ETC., YOU REQUEST REVIEW OF OUR SETTLEMENTS OF MAY 17 AND SEPTEMBER 27, 1962 (OUR CLAIM NOS. TK-732476 AND TK-742924), WHICH DISALLOWED YOUR CLAIMS FOR $350 AND $1,137.50, RESPECTIVELY. ALSO INVOLVED IS OUR OVERCHARGE CLAIM FOR $87.50, ON YOUR BILL NO. AR-65000, WHICH, IN THE ABSENCE OF REFUND, HAS BEEN COLLECTED BY DEDUCTION. U.S.C. 66. THE SETTLEMENTS AND THE COLLECTED OVERCHARGE CLAIM INVOLVE THE APPLICABLE FREIGHT CHARGES ON SIX CARLOAD SHIPMENTS OF FREIGHT TRAILERS TRANSPORTED ON GOVERNMENT BILLS OF LADING FROM EXETER, PENNSYLVANIA, TO DECATUR, ILLINOIS, DURING SEPTEMBER AND OCTOBER 1960. YOU ALSO ASK WHETHER THE ISSUE RAISED HERE IS THE SAME AS THE ISSUE IN OUR DECISION OF JUNE 25, 1962, B-137104, TO YOU, AND IN ILLINOIS CENTRAL RAILROAD CO. V. UNITED STATES, COURT OF CLAIMS NO. 565-58 (OUR B-138334).

EACH OF THE SIX SHIPMENTS IS DESCRIBED ON THE BILL OF LADING AS "6 EA. FREIGHT TRAILERS, NOIBN, S.U. EXCEEDING 44 INCHES HIGH (TRAILER CARGO, 3/4 TON, 2 WHL, M101)," AND WAS TRANSPORTED AT AN AGREED WEIGHT OF 8,400 POUNDS. THE BODY OF EACH BILL OF LADING CONTAINS THE WORDS "LOAD IN FLAT CAR NOT EXC. 41 FT. 6 INCHES.' EACH BILL OF LADING, IN THE SPACE PROVIDED FOR SIZE OF CAR ORDERED, SHOWS THAT THE SHIPPER ORDERED A CAR 41 FEET, 6 INCHES, IN LENGTH, AND, IN THE SPACE PROVIDED FOR CAR OF SIZE FURNISHED, THAT THE ORIGIN CARRIER FURNISHED A FLAT CAR 50 FEET, OR LONGER, IN LENGTH. AND EACH BILL OF LADING CONTAINS A TYPEWRITTEN ANNOTATION, INITIALED BY AN AGENT OF THE ORIGIN CARRIER, WHICH STATES THAT THE LONGER SIZED CAR WAS "FURNISHED FOR CONVENIENCE OF CARRIER.'

ON EACH OF FOUR OF THE SIX SHIPMENTS YOU COLLECTED FREIGHT CHARGES OF $700, BASED ON A COMMODITY RATE OF $3.50 PER 100 POUNDS (INCLUDES APPLICABLE INCREASES), DERIVED FROM TRUNK LINE TERRITORY TARIFF BUREAU FREIGHT TARIFF NO. E-180, I.C.C. NO. A-1059, SUPPLEMENT NO. 104, ITEM 4792, AND ON A MINIMUM WEIGHT OF 20,000 POUNDS, THE MINIMUM WEIGHT PROVIDED IN ITEM 4792 FOR CARS EXCEEDING 50 FEET, 8 INCHES, IN LENGTH. EACH OF THE OTHER TWO SHIPMENTS, YOU COLLECTED FREIGHT CHARGES OF $437.50, BASED ON THE $3.50 RATE AND ON A MINIMUM WEIGHT OF 12,500 POUNDS, THE MINIMUM WEIGHT PROVIDED IN ITEM 4792 FOR CARS EXCEEDING 41 FEET, 6 INCHES, BUT NOT EXCEEDING 50 FEET, 8 INCHES, IN LENGTH.

OUR SETTLEMENT AND OVERCHARGE ACTION ON THE SIX SHIPMENTS IS BASED ON THE SAME $3.50 RATE USED BY YOU AND ON A MINIMUM WEIGHT OF 10,000 POUNDS, THE MINIMUM WEIGHT PROVIDED IN ITEM 4792 FOR CARS NOT EXCEEDING 41 FEET, 6 INCHES, IN LENGTH. THIS BASIS RESULTS IN TRANSPORTATION CHARGES OF $350 ON EACH SHIPMENT. THUS, ON THE SIX SHIPMENTS, THERE IS A TOTAL DIFFERENCE OF $1,575, BETWEEN THE FREIGHT CHARGES ASSESSED BY YOU AND THOSE WE DETERMINED TO BE APPLICABLE.

WE AGREE THAT THE APPLICABLE CHARGE BASIS ON THESE SHIPMENTS IS NAMED IN ITEM 4792 OF TARIFF NO. E-180. THAT ITEM PROVIDES ON "TRAILERS, VEHICLE," TWO COMMODITY RATE BASES WHICH ALTERNATE WITH EACH OTHER AND WHICH ARE SUBJECT TO CARLOAD MINIMUM WEIGHTS VARYING WITH THE INSIDE LENGTHS OF CLOSED OR OPEN-TOP CARS AND WITH THE PLATFORM LENGTHS OF FLAT CARS. ALTERNATION MEANS THAT THE SHIPMENT IS SUBJECT TO THE COMMODITY RATE BASIS WHICH RESULTS IN THE LOWEST FREIGHT CHARGES. SEE ITEM 70 OF TARIFF NO. E- 180. THE ITEM ALSO CONTAINS THESE "CONDITIONS: "

"RULE 34 OF UNIFORM CLASSIFICATION WILL NOT APPLY.

WHEN A CARRIER FURNISHES A CAR LONGER THAN CAR ORDERED BY SHIPPER FOR CARRIER'S CONVENIENCE, MINIMUM WEIGHT SHALL BE THAT FIXED FOR CAR ORDERED, EXCEPT THAT WHEN LOADING CAPACITY OF CAR IS USED, MINIMUM WEIGHT SHALL BE THAT FIXED FOR CAR FURNISHED.'

THE QUESTION, THEN, IS WHETHER UNDER ITEM 4792 THE FREIGHT CHARGES ON THESE SHIPMENTS SHOULD BE BASED ON THE CARLOAD MINIMUM WEIGHTS FOR THE SIZE OF CARS ORDERED BY THE SHIPPER OR ON THE SIZE OF CARS FURNISHED BY THE ORIGIN CARRIER. THE ACTUAL WEIGHT IN EACH INSTANCE (8,400 POUNDS) IS LESS THAN THE 10,000 POUND CARLOAD MINIMUM WEIGHT FOR THE 41 FOOT, 6 INCH, CARS ORDERED.

TO SUPPORT YOUR CONTENTION THAT THE FREIGHT CHARGES SHOULD BE BASED ON THE SIZE OF CARS FURNISHED BY THE ORIGIN CARRIER, YOU RELY ON A LETTER DATED NOVEMBER 6, 1962, TO YOU, FROM H. C. ROYCE, DISTRICT MANAGER, EASTERN WEIGHING AND INSPECTION BUREAU, WHICH PURPORTS TO CONTAIN THE RESULTS OF THE BUREAU'S INVESTIGATION OF THESE SHIPMENTS WITH THE CONSIGNOR, GAR WOOD INDUSTRIES, PITTSTON, PENNSYLVANIA, AND WITH THE AGENT OF THE LEHIGH VALLEY RAILROAD COMPANY, THE ORIGIN CARRIER. THE BUREAU REPORTS THAT WHILE IN THE CONSIGNOR'S OPINION SIX OF THE TRAILERS COULD HAVE BEEN LOADED ON A 41 FOOT, 6 INCH, CAR, THE AGENT OF THE ORIGIN CARRIER CLAIMS THAT IT WAS NECESSARY TO FURNISH THE LARGER SIZE CARS FOR LOADING BECAUSE, IF SIX OF THE TRAILERS WERE LOADED ON A 41 FOOT, 6 INCH, CAR,"THERE WOULD BE INSUFFICIENT CLEARANCE FOR THE TRAIN CREW TO OPERATE THE HAND BRAKE, AND CONSEQUENTLY CREWS WOULD NOT HANDLE.'

BY THIS EVIDENCE YOU ATTEMPT TO ESTABLISH THAT THESE SHIPMENTS COULD NOT HAVE BEEN TRANSPORTED ON THE 41 FOOT, 6 INCH, CARS ORDERED BY THE SHIPPER; CONSEQUENTLY, YOU BELIEVE THAT UNDER ITEM 4792 OF TARIFF NO. E-180 THE FREIGHT CHARGES ON THE SHIPMENTS SHOULD BE BASED ON THE SIZE OF CARS FURNISHED FOR THE CONVENIENCE OF THE CARRIER.

IT IS OUR VIEW THAT THE CONDITION IN ITEM 4792, BEGINNING WITH THE WORDS "WHEN CARRIER FURNISHES A CAR LONGER THAN CAR ORDERED," PARTICULARLY THE PHRASE "EXCEPT WHEN THE LOADING CAPACITY OF CAR IS USED," IS AMBIGUOUS. IN SUCH AN INSTANCE, THE RULE IS WELL ESTABLISHED THAT THE ITEM MUST BE CONSTRUED IN FAVOR OF THE SHIPPER, AND AGAINST THE CARRIER. RAYMOND CITY COAL AND TRANSPORTATION CO. V. NEW YORK CENTRAL R.R. CO., 103 F.2D 56 (1939); BURRUS MILL AND ELEVATOR CO. V. CHICAGO, ROCK ISLAND AND PACIFIC R. CO., 131 F.2D 532 (1942), CERT.DEN. 318 U.S. 773.

IF THE LOADING CAPACITY OF THE CARS ORDERED WOULD HAVE ACCOMMODATED THESE SHIPMENTS, IT WOULD FOLLOW BY DEFINITION THAT WHEN LOADED IN THE LONGER CARS FURNISHED FOR THE CONVENIENCE OF THE CARRIER THE SHIPMENTS WOULD NOT USE THE LOADING CAPACITY OF THE LONGER CARS. IT WOULD ALSO FOLLOW THAT SHIPMENTS EXCEEDING THE LOADING CAPACITY OF THE CARS ORDERED MIGHT NOT OCCUPY THE LOADING CAPACITY OF THE LONGER CARS FURNISHED. IN ANY EVENT, THE ITEM IS NOT FREE FROM DOUBT. SEE, IN THIS CONNECTION, ATCHISON, T. AND S.F. RY. CO. V. GUTHRIE COTTON OIL CO., 139 F.2D 10 (1944), IN WHICH, IN CONSTRUING SIMILAR LANGUAGE, THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT HELD THAT WHEN THE SHIPMENT EXCEEDS THE MAXIMUM CAPACITY OF THE CAR ORDERED THE APPLICABLE MINIMUM WEIGHT IS THAT FIXED FOR THE SIZE OF CAR FURNISHED. ON THE OTHER HAND, SEE FORT WORTH AND DENVER CITY RY. CO. V. CHILDRESS COTTON OIL CO., 141 F.2D 558 (1944), IN WHICH, IN CONSTRUING THE SAME LANGUAGE, THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT AFFIRMED THE HOLDING OF THE LOWER COURT, 48 F.SUPP. 937 (1942), TO THE EFFECT THAT THE MINIMUM WEIGHT FOR THE SIZE OF CAR FURNISHED APPLIED ONLY WHEN THE LOADING CAPACITY OF THE LONGER CAR FURNISHED IS USED. IN THIS LATER CASE, THE COURT OF APPEALS TOOK COGNIZANCE OF THE TENTH CIRCUIT CASE CITED ABOVE AND (AT PAGE 559) EXPRESSLY DISAGREED WITH THE MAJORITY OPINION IN THE EARLIER CASE.

AS TO THE SIX SHIPMENTS HERE UNDER REVIEW, WHILE THERE APPEARS TO BE SOME DISPUTED AS TO WHETHER SIX OF THE TRAILERS COULD BE LOADED ON A 41 FOOT, 6 INCH, CAR, IT FOLLOWS THAT IN THE ABSENCE OF CONTRARY EVIDENCE SIX TRAILERS WOULD NOT UTILIZE THE LOADING CAPACITY OF CARS EXCEEDING THAT LENGTH. THUS, UNDER ITEM 4792, AND UNDER THE AUTHORITY OF THE CHILDRESS COTTON OIL CO. CASE, WE HOLD THAT THE APPLICABLE MINIMUM WEIGHT ON THESE SIX SHIPMENTS IS THAT FIXED FOR THE SIZE OF CAR ORDERED.

THE ISSUE IN OUR DECISION OF JUNE 25, 1962, B-137104, AND IN ILLINOIS CENTRAL RAILROAD CO. V. UNITED STATES, COURT OF CLAIMS NO. 565 58, RELATES TO THE MATTER OF THE CARLOAD MINIMUM WEIGHT TO APPLY ON SHIPMENTS MOVING ON BILLS OF LADING WHICH DO NOT SPECIFY THE SIZE OF CAR ORDERED AND THUS IS NOT THE SAME AS THE ISSUE IN THIS MATTER.

OUR SETTLEMENTS OF MAY 17 AND SEPTEMBER 27, 1962, AND THE ACTION RESULTING IN THE COLLECTION OF AN OVERCHARGE ON YOUR BILL NO. AR-65000, ARE NOT SHOWN TO BE IN ERROR OTHERWISE, AND, ACCORDINGLY, ARE SUSTAINED.