B-152083, JAN. 2, 1964

B-152083: Jan 2, 1964

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TO THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY: WE HAVE CONSIDERED YOUR REQUEST. WHICH WAS COLLECTED BY DEDUCTION FROM YOUR BILL F-54618. CHARGES HAVE BEEN SETTLED AT THE FIRST-CLASS LESS CARLOAD RATE OF $5.08 PER 100 POUNDS PRIEST INTERMEDIATE TO MACEDONIA. IS USE OF THE LOCAL RATE BETWEEN DENVER AND ROCKY ON THE THEORY THAT THE CHARGES SHOULD BE COMPUTED VIA THE PASSENGER ROUTE ACTUALLY TRAVELED WHERE THERE IS NOT A FREIGHT ROUTE WHICH COINCIDES EXACTLY WITH THE PASSENGER ROUTE USED. IS COMPELLED UNDER THE LETTER OF JULY 1. THE LATTER AGREEMENT PROVIDES FOR THE TRANSPORTATION OF MILITARY IMPEDIMENTA IN PASSENGER TRAIN SERVICE AT A CHARGE WHICH "WILL BE THE SAME AMOUNT IN DOLLARS AND CENTS AS WOULD APPLY IF THE SHIPMENT WERE MADE IN REGULAR FREIGHT TRAIN SERVICE UNDER CURRENT TARIFFS AND AGREEMENTS WITH THE MILITARY AUTHORITIES * * *.

B-152083, JAN. 2, 1964

TO THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY:

WE HAVE CONSIDERED YOUR REQUEST, BY LETTER OF JULY 18, 1963, FILE 5 GB 27442, FOR REVIEW OF THE SETTLEMENT OF SEPTEMBER 7, 1961, IN CLAIM TK 703821, WHICH DISALLOWED YOUR CLAIM ON BILL 27442 FOR ADDITIONAL CHARGES OF $18 IN CONNECTION WITH BILL OF LADING AT-150819. AT THAT TIME OUR TRANSPORTATION DIVISION ISSUED A FORM 1003 FOR AN ADDITIONAL OVERCHARGE OF $10.77, WHICH WAS COLLECTED BY DEDUCTION FROM YOUR BILL F-54618, PRIOR TO PAYMENT OF THE BALANCE THEREON BY DISBURSING OFFICER LT.COL. A. G. PERRY IN HIS DECEMBER 1961 ACCOUNTS.

BILL OF LADING AT-150819, DATED JUNE 25, 1959, COVERED THE TRANSPORTATION OF 1,765 POUNDS OF ATOMIC ENERGY COMMISSION TRAINING MATERIAL IN A GOVERNMENT-OWNED CAR, IN PASSENGER TRAIN SERVICE, FROM PRIEST, TEXAS, TO ROCKY, COLORADO. CHARGES HAVE BEEN SETTLED AT THE FIRST-CLASS LESS CARLOAD RATE OF $5.08 PER 100 POUNDS PRIEST INTERMEDIATE TO MACEDONIA, TEXAS), BASED UPON THE AUTHORITY SHOWN IN THE BILL OF LADING: "JOINT MILITARY PASSENGER AGREEMENT (NO. 29) SEC. 25 AND AEC SEC. 22, DATED JULY 1, 1951.' YOU CONTEND THAT CHARGES SHOULD BE BASED UPON A COMBINATION OF LOCAL RATES VIA THE ROUTE OF MOVEMENT: 75 CENTS PER 100 POUNDS FROM PRIEST TO SAN ANTONIO, $4.94 PER 100 POUNDS TO DENVER, AND $1.02 PER 100 POUNDS TO ROCKY. YOUR COMPUTATION APPARENTLY DOES NOT TAKE INTO ACCOUNT THE INTERMEDIATE APPLICATION, EFFECTIVE WHEN THIS SHIPMENT MOVED IN SOUTHWESTERN LINES FREIGHT TARIFF NO. SW/W-1006, I.C.C. NO. 3999, SUPPLEMENT 30, WHICH PERMITS USE OF THE MACEDONIA RATE FROM PRIEST. YOUR MAIN OBJECTION, HOWEVER, IS USE OF THE LOCAL RATE BETWEEN DENVER AND ROCKY ON THE THEORY THAT THE CHARGES SHOULD BE COMPUTED VIA THE PASSENGER ROUTE ACTUALLY TRAVELED WHERE THERE IS NOT A FREIGHT ROUTE WHICH COINCIDES EXACTLY WITH THE PASSENGER ROUTE USED.

THIS INTERPRETATION, YOU URGE, IS COMPELLED UNDER THE LETTER OF JULY 1, 1951, TO THE ATOMIC ENERGY COMMISSION, IN WHICH THE VARIOUS PASSENGER ASSOCIATIONS, ON BEHALF OF THEIR MEMBER CARRIERS, OFFERED TO TRANSPORT SHIPMENTS OF TRAINING MATERIAL IN GOVERNMENT-OWNED CARS IN PASSENGER TRAIN SERVICE AT MILITARY IMPEDIMENTA RATES AND UNDER SECTION 25 OF JOINT MILITARY PASSENGER AGREEMENT NO. 29. THE LATTER AGREEMENT PROVIDES FOR THE TRANSPORTATION OF MILITARY IMPEDIMENTA IN PASSENGER TRAIN SERVICE AT A CHARGE WHICH

"WILL BE THE SAME AMOUNT IN DOLLARS AND CENTS AS WOULD APPLY IF THE SHIPMENT WERE MADE IN REGULAR FREIGHT TRAIN SERVICE UNDER CURRENT TARIFFS AND AGREEMENTS WITH THE MILITARY AUTHORITIES * * *,"

AND WHICH WILL APPLY OVER ALL LINES AND ROUTES VIA WHICH THE IMPEDIMENTA MOVES IN PASSENGER TRAIN SERVICE. YOU URGE THAT ARMY SPECIAL REGULATIONS SR 55-105-5, MARCH 12, 1953, SUPPORTS YOUR CONTENTIONS.

WE HAVE CONSIDERED THE ISSUE INVOLVED A NUMBER OF TIMES IN RESPONSE TO YOUR REQUESTS FOR REVIEW OF SIMILAR CLAIM SETTLEMENTS AND RECONSIDERATION OF OUR DECISIONS ON THE POINT. SEE OUR DECISIONS OF MARCH 29, AUGUST 5, OCTOBER 2 AND DECEMBER 16, 1963, B-149821; OF JULY 22 AND OCTOBER 18, 1963, B-151850; AND OF JANUARY 2, 1964, B-151820. THE GIST OF THOSE DECISIONS IS THAT THE LETTER OF JULY 1, 1951, UNEQUIVOCALLY OFFERED TO TRANSPORT SHIPMENTS OF ATOMIC ENERGY COMMISSION TRAINING MATERIAL IN GOVERNMENT-OWNED CARS, IN PASSENGER TRAIN SERVICE AT THE SAME RATES AS THOSE AVAILABLE FOR THE TRANSPORTATION OF MILITARY IMPEDIMENTA. JOINT MILITARY PASSENGER AGREEMENT NO. 29 PROVIDED IN SECTION 25 FOR THE TRANSPORTATION OF MILITARY IMPEDIMENTA IN PASSENGER TRAIN SERVICE AT A CHARGE WHICH WOULD BE THE SAME AMOUNT IN DOLLARS AND CENTS AS WOULD APPLY IF THE SHIPMENT HAD MOVED IN REGULAR FREIGHT TRAIN SERVICE UNDER CURRENT TARIFFS AND AGREEMENTS. THUS THE CHARGE FOR TRANSPORTING MILITARY IMPEDIMENTA IN PASSENGER TRAIN SERVICE--AND, BY VIRTUE OF THE JULY 1, 1951, OFFER, THE CHARGE FOR TRANSPORTING ATOMIC ENERGY COMMISSION TRAINING MATERIAL IN PASSENGER TRAIN SERVICE-- WOULD BE THE CHARGE PASSABLE ("THE SAME AMOUNT IN DOLLARS AND CENTS") FOR TRANSPORTING A LIKE QUANTITY OF MILITARY IMPEDIMENTA IN REGULAR FREIGHT TRAIN SERVICE. AND THE ONLY WAY THIS CHARGE CAN BE DETERMINED IS BY APPLYING THE FREIGHT RATE APPLICABLE VIA A FREIGHT ROUTE OVER WHICH THE SHIPMENT WOULD HAVE MOVED IN REGULAR FREIGHT TRAIN SERVICE. ONCE THIS CHARGE HAS BEEN SO DETERMINED,"THE SAME AMOUNT IN DOLLARS AND CENTS" IS THE CHARGE PROPERLY APPLICABLE TO THE SHIPMENT OF TRAINING MATERIAL IN PASSENGER TRAIN SERVICE.

OUR SETTLEMENT OF SEPTEMBER 7, 1961, WAS CONSISTENT WITH THE FOREGOING AND IT IS SUSTAINED.