B-152857, AUG. 7, 1964

B-152857, AUG. 7, 1964

TO UNION PACIFIC RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 6, 1963, YOUR FILE GW 292051, REQUESTING A REVIEW OF THE SETTLEMENT CERTIFICATE DATED SEPTEMBER 9, 1963 (CLAIM NO. TK-762674), WHICH DISALLOWED YOUR SUPPLEMENTAL BILL W- 292051-A FOR $1,313.10 ALLEGEDLY DUE AS ADDITIONAL TRANSPORTATION CHARGES ON A SHIPMENT OF TRACTOR TREADS, NOIBN, WHICH MOVED ON FEBRUARY 16, 1961, FROM STORAGE IN TRANSIT AT WARNER, UTAH, TO SEATTLE, WASHINGTON, FOR EXPORT, UNDER GOVERNMENT BILL OF LADING NO. WZ-T-111670. THE SHIPMENT WEIGHED 65,450 POUNDS, 51,714 OF WHICH ORIGINATED AT BYNUM, ALABAMA, AND RECEIVED PRIOR TRANSIT AT DEFENSE, TEXAS, AND THE BALANCE OF 13,736 POUNDS ORIGINATED AT PROVING GROUND, ILLINOIS.

FOR THE TRANSPORTATION SERVICE FROM WARNER, UTAH, YOUR COMPANY BILLED ORIGINALLY AND WAS PAID $1,370.67 ON VOUCHER NO. 316023, IN THE MAY 1961 ACCOUNTS OF A. G. PERRY. THE CHARGES WERE COMPUTED ON THE ACTUAL WEIGHT OF 64,050 POUNDS AT THE LOCAL CLASS 37-1/2 RATE OF $2.14 PER 100 POUNDS, AS PUBLISHED IN NORTH PACIFIC COAST FREIGHT BUREAU TARIFF NO. 1016, I.C.C. NO. 1590. IN THE SUBSEQUENT AUDIT OF THE PAYMENT VOUCHER OUR TRANSPORTATION DIVISION ISSUED A NOTICE OF OVERCHARGE REQUESTING REFUND OF $1,313.10, DETERMINED BY COMPUTING THE CHARGES ON THE BASIS OF THROUGH TARIFF RATES FROM THE TWO ORIGIN STATIONS (PROVING GROUND AND BYNUM) TO THE PORT OF SEATTLE, PLUS TRANSIT CHARGE AND PORT CHARGE, AND LESS THE USUAL PORT ALLOWANCE. THE REQUEST FOR REFUND WAS RESTATED IN AMENDED FORM 1003 DATED NOVEMBER 11, 1962, AND UPON YOUR FAILURE TO MAKE REFUND, THE INDICATED AMOUNT WAS DEDUCTED ON FEBRUARY 21, 1963, FROM AMOUNTS OTHERWISE DUE.

IN REQUESTING REVIEW OF THE SETTLEMENT YOU CONTEND THAT THE TRANSIT PRIVILEGE AT WARNER WAS ,NULLIFIED" BY ITEM 22 OF THE APPLICABLE QUOTATION. IT APPARENTLY IS YOUR VIEW THAT THE CITATION OF EC-WTA SECTION 22 QUOTATION NO. 225 ON BILL OF LADING WZ-T-229001, COVERING THE MOVEMENT FROM THE INITIAL TRANSIT POINT, DEFENSE, TEXAS, TO WARNER, UTAH, CONSTITUTED A NONCOMPLIANCE WITH THE TERMS OF EC-WTA SECTION 22 QUOTATION 38-D WITHIN THE PURVIEW OF ITEM 22 THEREOF, WHICH PROVIDES:

"CONDITIONS UNDER WHICH TRANSIT PRIVILEGE IS APPLICABLE

"THE APPLICATION OF THE TRANSIT PRIVILEGE (OR PRIVILEGES) IS CONDITIONED UPON ADHERENCE TO THE PROVISIONS HEREOF. ON A SHIPMENT (OR SHIPMENTS) AS TO WHICH THE GOVERNMENT FAILS OR REFUSES TO COMPLY WITH ANY OF THE PROVISIONS OF THIS QUOTATION, THE TRANSIT PRIVILEGE (OR PRIVILEGES) SHALL NOT BE APPLICABLE.'

IN THE INBOUND TRANSIT REFERENCE PORTION OF BILL OF LADING WZ-T 22901 IT IS SHOWN THAT THE TRANSIT AT DEFENSE WAS CONSIDERED TO BE AUTHORIZED BY EC -WTA QUOTATION NO. 225. THE BILL OF LADING FURTHER SHOWS THAT THE OUTBOUND TONNAGE COVERED THEREBY WAS RECORDED FOR TRANSIT AT WARNER, UTAH, ON NOVEMBER 17, 1960, CONSISTENT WITH THE REQUIREMENTS OF EC-WTA TRANSIT QUOTATION NO. 38-D.

EC-WTA QUOTATION NO. 225, WHICH IS THE DOMESTIC COUNTERPART OF THE QUOTATION 38-D, IS OBVIOUSLY THE ONLY QUOTATION APPLICABLE FOR TRANSIT AT DEFENSE, TEXAS, SINCE AT THAT TIME THERE WAS NO APPARENT KNOWLEDGE OF THE ULTIMATE EXPORTATION OF THE COMMODITY FROM SEATTLE.

THE RECORDING OF THIS TONNAGE AT WARNER, UTAH, AND ITS FURTHER MOVEMENT TO SEATTLE FOR EXPORT FIXES THE FINAL TERMS UPON WHICH TRANSIT PRIVILEGES, IF ANY ARE APPLICABLE, ARE TO BE APPLIED. SINCE THE MOVEMENT TO SEATTLE AND ITS SUBSEQUENT EXPORTATION CHANGED THE NATURE OF THE THROUGH MOVEMENT FROM BYNUM, ALABAMA, TO SEATTLE, WASHINGTON, FROM A DOMESTIC SHIPMENT TO AN EXPORT SHIPMENT, QUOTATION NO. 225 NO LONGER HAD APPLICATION TO THE SHIPMENT. THE ARRIVAL OF A SHIPMENT AT A TRANSIT STATION DOES NOT COMPLETE THE CONTRACT OF CARRIAGE, SINCE THE TRANSIT PRIVILEGE IS BASED ON THE THEORY THAT THE CONTRACT OF CARRIAGE HAS NOT BEEN COMPLETED AND THAT THE ENTIRE SHIPMENT FROM ORIGIN THROUGH THE TRANSIT POINT TO FINAL DESTINATION IS THE SAME IN PRINCIPLE AS IF THE SHIPMENT HAD MOVED WITHOUT TRANSIT. SEE CENTRAL R. CO. OF NEW JERSEY V. UNITED STATES, 257 U.S. 247, 257 (1921); LARABEE FLOUR MILLS CO. V. CHICAGO, BURLINGTON AND QUINCY R. CO., 223 I.C.C. 55, 64 (1937). THE CONTRACT OF CARRIAGE IN THIS CASE COVERED TRANSPORTATION FROM BYNUM, ALABAMA, TO SEATTLE, WASHINGTON, FOR EXPORT. THE INTERMEDIATE STOPS FOR TRANSIT ON SHIPMENTS CONSIGNED TO PORTS OF TRANSSHIPMENT WERE AUTHORIZED BY THE TERMS AND CONDITIONS OF QUOTATION NO. 38-D, AND THE PRESENT SHIPMENT WAS MADE IN COMPLIANCE WITH THE REQUIREMENTS OF THOSE TERMS AND CONDITIONS.

ACCORDINGLY, THE SETTLEMENT CERTIFICATE DISALLOWING YOUR SUPPLEMENTAL BILL W-292051-A WAS CORRECT, AND IT IS HEREBY SUSTAINED.