B-152493, JAN. 16, 1964

B-152493, JAN. 16, 1964

TO THE GULF, MOBILE AND OHIO RAILROAD COMPANY:

YOUR LETTER OF SEPTEMBER 5, 1963, CONTAINS A REQUEST FOR REVIEW OF THE DISALLOWANCE BY OUR SETTLEMENT CERTIFICATE (CLAIM NO. TK-736262) DATED JUNE 14, 1963, OF $568.70 CLAIMED ON YOUR SUPPLEMENTAL BILL W 75060-A, A AND D 1312-A, AS ADDITIONAL CHARGES ALLEGED TO BE DUE FOR SERVICE PERFORMED UNDER BILL OF LADING AF-T-101294.

THE SHIPMENT OF FREIGHT AUTOMOBILES WHICH HAD BEEN ACCORDED A STORAGE-IN- TRANSIT PRIVILEGE, MOVED FROM THE ORIGINAL POINT OF ORIGIN ON NOVEMBER 16, 1956, AND THE THROUGH MOVEMENT FROM THE INITIAL POINT OF SHIPMENT TO FINAL DESTINATION APPARENTLY WAS GOVERNED BY SOUTHWESTERN LINES' FREIGHT TARIFF NO. SW/E-1005, I.C.C. NO. 3998, WHICH CONTAINED DOCKET 28300 CLASS RATES, RATHER THAN BY SOUTHWESTERN LINES' TARIFF NO. 252-C, I.C.C. 3987, AS URGED BY YOU.

THE FREIGHT AUTOMOBILES COMPRISING THE SHIPMENT WERE NAMED IN ITEM 1610-F OF SUPPLEMENT 148 TO SWL 252-C, AND ITEM 1610-F WAS PUBLISHED UNDER THE GENERAL HEADING OF "EXCEPTIONS TO RATINGS IN CURRENT WESTERN CLASSIFICATION.' AND APPEARED SUBSTANTIALLY AS FOLLOWS:

TABLE

ARTICLES

CLASS ITEM CARLOAD, EXCEPT AS OTHERWISE INDICATED RATING

IN LIEU OF THE MINIMUM WEIGHT IN THE AS PER 1610-F CURRENT WESTERN CLASSIFICATION, ETC. WESTERN

(STATES MINIMUM WEIGHT EXCEPTIONS) CLASSIFICATION

YOU CONTEND THAT THE APPLICABILITY OF SWL 1005 RATES TO THIS SHIPMENT IS GOVERNED BY ITEM 300 OF THAT TARIFF, WHICH PROVIDES, IN ITEM 300-N IN SUPPLEMENT 74, THAT:

"* * * CLASS RATES PUBLISHED IN TARIFF, AS AMENDED, WILL NOT APPLY WHERE THERE IS IN EFFECT ON A GIVEN SHIPMENT:

(1) A COMMODITY RATE, * * *;

(2) CLASSIFICATION EXCEPTION RATING;

(3) COLUMN RATING; BETWEEN THE SAME POINTS VIA ANY ROUTE FORMED WHOLLY BY CARRIERS * * *.'

THUS, YOU APPEAR TO CONCEDE THAT THE RATE PUBLISHED IN SWL 1005 WOULD BE APPLICABLE ON THIS SHIPMENT, IN THE ABSENCE OF AN APPLICABLE COMMODITY RATE, CLASSIFICATION EXCEPTION RATING, OR A COLUMN RATING THEREON. AT THE SAME TIME, HOWEVER, YOU URGE THAT ITEM 300 OF SWL 1005 IS BROAD ENOUGH IN ITS PROVISIONS TO PREVENT THE APPLICATION OF THE RATES IN THAT TARIFF ON THE SHIPMENT OF FREIGHT AUTOMOBILES HERE CONCERNED, AND YOU STATE THAT "IT IS A LONG ESTABLISHED FACT THAT THE MINIMUM WEIGHT IS AS MUCH A PART OF THE RATE AS THE RATE IS OF OF THE MINIMUM WEIGHT.' ALSO YOU REFER TO THE CASE OF WINSTON-SALEM SOUTHBOUND RAILWAY COMPANY V. UNITED STATES, 139 CT.CLS. 548 (1957), AS ESTABLISHING THAT THE FUNCTION OF AN EXCEPTION TARIFF IS TO REMOVE ARTICLES FROM THE CLASSIFICATION, PROVIDED THE SHIPMENTS ARE CLEARLY COVERED BY THE EXCEPTION, AS YOU ALLEGE IS THE CASE HERE.

THE ONLY RESTRICTION AGAINST THE USE OF CHARGES BASED ON THE RATE PUBLISHED IN SWL 1005 IS SHOWN IN ITEM 300-N OF THAT TARIFF AND, SUBJECT TO EXCEPTIONS NOT PERTINENT HERE, THE RATE PUBLISHED THEREIN IS PROPER FOR USE IN THE ABSENCE OF AN APPLICABLE COMMODITY RATE, CLASSIFICATION EXCEPTION RATING, OR A COLUMN RATING, AND NONE OF THESE HAS BEEN FOUND.

ITEM 1610-F OF SWL 252-C PROVIDES AN EXCEPTION TO THE CLASSIFICATION MINIMUM WEIGHT ON SHIPMENTS OF FREIGHT AUTOMOBILES BUT THE ITEM PROVIDES SPECIFICALLY THAT THE "CLASS RATING" SHALL BE "AS PER CURRENT WESTERN CLASSIFICATION.' IT IS TRUE THAT IN SOME CIRCUMSTANCES--- USUALLY IN CASES INVOLVING THE REASONABLENESS OF CHARGES--- THE INTERSTATE COMMERCE COMMISSION HAS SAID THAT THE MINIMUM WEIGHT IS A PART OF THE RATE. RUDY- PATRICK SEED CO. V. ABILENE AND SOUTHER RAILWAY CO., 206 I.C.C. 355, 357; BUTLER BROS. V. ANN ARBOR RAILROAD CO., 253 I.C.C. 437; ABRASIVE CO. V. ERIE RAILROAD CO., 183 I.C.C. 103, 105. HOWEVER, THE COMMISSION HAS CALLED ATTENTION TO THE FACT THAT WHETHER THE MINIMUM WEIGHT IS A PART OF THE RATE DEPENDS UPON THE PARTICULAR CIRCUMSTANCES IN EACH CASE. FOR INSTANCE, IN THE REPORT IN THE CASE OF AMERICAN SALT CO. V. ATCHISON, T. AND S. F. RY. CO., 179 I.C.C. 489, 491, THE COMMISSION POINTED OUT THAT FOR TARIFF PURPOSES, SUCH AS POSTING AND FILING A MINIMUM WEIGHT IS CONSIDERED AS A PART OF THE RATE, BUT THAT AS APPLIED TO A BILL OF LADING A DIFFERENT SITUATION ARISES. ALSO, IN A CASE IN WHICH A CARRIER ESTABLISHED AN EXCEPTIONS ITEM PROVIDING A MINIMUM CARLOAD WEIGHT FOR CARS OF ANY SIZE LOADED WITH COTTON GIN MACHINERY, WHICH ALTERNATED WITH THE CLASSIFICATION MINIMUM WEIGHT SUBJECT TO RULE 34 OF THE CLASSIFICATION, AND THE EXCEPTIONS ITEM PROVIDED THAT THE RATING IN THE CLASSIFICATION APPLIED, THE COMMISSION HELD THAT THE CARRIER HAD ESTABLISHED AN EXCEPTION TO THE MINIMUM CARLOAD WEIGHT BUT NOT TO THE CLASSIFICATION RATING. DOW CHEMICAL COMPANY V. ALTON AND SOUTHER RAILROAD COMPANY, 286 I.C.C. 424, 426.

AS FAR AS YOUR REFERENCE TO THE WINSTON-SALEM SOUTHBOUND RAILWAY CO. CASE IS CONCERNED, THERE WILL BE NOTED IN PARAGRAPH 20 (C) OF THE FINDINGS OF FACT ON PAGE 562 OF THAT REPORT, THE STATEMENT THAT "THE FUNCTION OF AN EXCEPTIONS TARIFF * * * IS TO REMOVE AN ITEM FROM THE CLASSIFICATION BUT ONLY TO THE EXTENT STATED IN THE EXCEPTIONS TARIFF ITSELF.' APPLYING THIS RULE TO OUR PRESENT CASE, WE FIND THAT ITEM 1610-F OF SWL 262-C (WHICH IS THE EXCEPTIONS TARIFF IN THIS INSTANCE) REMOVES THE MINIMUM WEIGHTS FROM THE CLASSIFICATION (THE EXCEPTION TARIFF ITSELF) STATES SPECIFICALLY THAT THE CLASS RATING IS NOT SO REMOVED BY PROVIDING THAT THE RATING SHALL REMAIN "AS PER WESTERN CLASSIFICATION.'

ACCORDINGLY, SINCE ITEM 1610-F OF SWL 252-C PROVIDES AN EXCEPTION ONLY TO THE MINIMUM CARLOAD WEIGHT, AND NOTHING LISTED IN THE NONAPPLICABILITY PORTION OF ITEM 300-N OF SWL 1005--- NO COMMODITY RATE, CLASSIFICATION EXCEPTION RATING, OR COLUMN RATING TO COVER THIS SHIPMENT-- HAS BEEN FOUND, THE CHARGES BASED ON THE RATES PUBLISHED IN SWL 1005 APPEAR TO BE PROPER, AND THE SETTLEMENT OF JUNE 14, 1963, IS SUSTAINED.