B-153245, MAY 12, 1964

B-153245, MAY 12, 1964

TO UNION PACIFIC RAILROAD COMPANY:

IN YOUR LETTER OF JANUARY 7, 1964, FILE GW 292721, YOU REQUEST THAT WE REVIEW OUR SETTLEMENT OF OCTOBER 14, 1963, CLAIM NO. TK 763600, WHICH DISALLOWED $1,316.70, CLAIMED BY YOUR SUPPLEMENTAL BILL W-292721 A, DATED JUNE 17, 1963. YOUR SUPPLEMENTAL BILL WAS ISSUED TO RECOVER ADDITIONAL CHARGES FOR TRANSPORTING ARMY TRACTOR TANKS WITHOUT GUNS, WEIGHING 399,000 POUNDS, MOVING IN FIVE CARS FROM ARMY POINT, CALIFORNIA, TO FORT LEWIS, WASHINGTON, UNDER GOVERNMENT BILL OF LADING NO. 9903037, DATED JUNE 21, 1961.

AS DESTINATION CARRIER YOU CLAIMED AND WERE PAID CHARGES OF $9,216.90 ON THE SHIPMENT. IN THE AUDIT OF SUCH CHARGES, IT WAS CONSIDERED THAT PROPER CHARGES SHOULD HAVE BEEN $5,865.30, COMPUTED ON THE BASIS OF A CLASS 35 RATE (INCLUDING EX PARTE INCREASES) OF $1.47 PER 100 POUNDS AS PROVIDED IN ITEM NO. 2 (B) EXECUTIVE COMMITTEE--- WESTERN TRAFFIC ASSOCIATION SECTION 22 QUOTATION NO. 64-A, AMENDMENT NO. 4, TAKEN IN CONJUNCTION WITH PACIFIC SOUTH COAST FREIGHT BUREAU FREIGHT TARIFF NO. 234-C, I.C.C. 1508. THE DIFFERENCE BETWEEN THE CHARGES AS ORIGINALLY BILLED, $9,216.90, AND THOSE CONSIDERED IN THE AUDIT TO BE APPLICABLE, $5,865.30, OR $3,351.60, WAS RECOVERED BY DEDUCTION AS AUTHORIZED BY 49 U.S.C. 66.

YOUR SUPPLEMENTAL BILL IN THE AMOUNT OF $1,316.70 IS BASED UPON YOUR CONTENTION THAT THE CHARGES PROPERLY APPLICABLE ARE $7,182 BASED UPON A RATE OF 35 PERCENT OF FIRST CLASS--- $1.80 PER 100 POUNDS--- PUBLISHED IN NORTH PACIFIC COAST FREIGHT BUREAU TARIFF NO. 1016, I.C.C. 1590, ITEM 7654.

EXECUTIVE COMMITTEE--- WESTERN TRAFFIC ASSOCIATION SECTION 22 QUOTATION 64-A, AT THE TIME OF MOVEMENT OFFERED TO CARRY ARMY TRACTOR TANKS WITH OR WITHOUT GUNS MOUNTED THEREON AT CLASS OR COLUMN 35 RATES IN TARIFFS GOVERNED BY THE CONSOLIDATED FREIGHT CLASSIFICATION (EXCEPT PACIFIC SOUTH COAST FREIGHT BUREAU TARIFF NO. 255-F, AGENT J. P. HAYNES, I.C.C. NO. 1567) OR, IN THE ABSENCE OF SPECIFIC PUBLISHED CLASS OR COLUMN RATES, AT 35 PERCENT OF THE BASIC FIRST-CLASS RATES PLUS EX PARTE INCREASES. PACIFIC COAST FREIGHT BUREAU TARIFF NO. 234-C, I.C.C. 1508, PROVIDES THE FIRST-CLASS RATE BASIS (974) FROM WHICH THE CLASS 35 RATE OF $1.47 (INCLUDING THE INCREASES) USED IN OUR AUDIT WAS COMPUTED.

YOU CONTEND THAT THE "CANCELLATION NOTICE" IN SUPPLEMENT 72, PSFE 234-C, EFFECTIVE APRIL 28, 1961, CANCELLED THE FIRST CLASS RATE BASIS FROM WHICH THE RATE USED IN OUR AUDIT WAS DERIVED. THAT PROVISION CANCELS "ALL CLASS RATES" IN THE TARIFF, EXCEPT THOSE WHICH "APPLY ON TRAFFIC SUBJECT TO EXCEPTIONS TO THE WESTERN CLASSIFICATION, AS PROVIDED IN TARIFF, AND AS AMENDED, AND IN THE CURRENT EXCEPTION SHEET.' A FURTHER PROVISION OF SUCH CANCELLATION NOTICE PROVIDED THAT ,CLASS RATES ARE CONTINUED IN EFFECT TO APPLY ON TRAFFIC SUBJECT TO WESTERN CLASSIFICATION, AS FOLLOWS: CLASSES 1 THROUGH A ONLY.' ARTICLES SUBJECT TO RATINGS IN WESTERN CLASSIFICATION, LOWER THAN CLASS A ARE MADE SUBJECT TO 5TH CLASS RATES. YOU ASSERT THAT THE SECTION 22 QUOTATION IS NOT SUCH AN EXCEPTION.

IT IS OUR VIEW THAT FIRST-CLASS RATE FROM WHICH OUR 35 PERCENT RATE WAS DERIVED WAS NOT COMPLETELY ELIMINATED BY THE CANCELLATION NOTICE AND REMAINED IN EFFECT FOR SOME PURPOSES. THUS, AS THE SECTION 22 QUOTATION PROVIDES THAT THE GOVERNMENT IS ENTITLED, BY THE ABOVE-CITED ITEM 2 (B), TO USE A CLASS OR COLUMN 35 RATE "PUBLISHED IN TARIFFS" AND THE CLASS 35 RATE REMAINED IN EFFECT, EVEN THOUGH LIMITED, THAT THE UNITED STATES MAY APPLY THE CLASS 35 RATE IN PSFB NO. 234-C TO THIS SHIPMENT.

ACCORDINGLY, WE FEEL THAT THE DISALLOWANCE OF OCTOBER 14, 1963, WAS PROPER, AND IT IS SUSTAINED. YOU ARE ADVISED, HOWEVER, THAT SUBSTANTIALLY THE SAME ISSUE IS CURRENTLY PENDING IN GREAT NORTHERN RAILWAY COMPANY AND PACIFIC COAST RAILWAY COMPANY V. THE UNITED STATES, CT.CL. NO. 245-62, AND IF, UPON FINAL DECISION OF THE ISSUE IN THAT CASE YOU FEEL THAT THE ADDITIONAL AMOUNT CLAIMED IS DUE, WE WILL BE PLEASED TO RECONSIDER THE MATTER AT YOUR REQUEST.