B-153427, JUNE. 16, 1964

B-153427: Jun 16, 1964

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TO UNION PACIFIC RAILROAD COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 30. WHICH QUOTATION IS ALSO KNOWN BY YOUR REFERENCE AS. THIS RECORD SHOWS THAT THE OUTBOUND SHIPMENT WAS DESCRIBED AS: "1 EA (4 PCS.). WAS MOVED FROM PRAIRIE. WAS COMPRISED OF 27. YOU BILLED ORIGINALLY AND WERE PAID $553.32 ON VOUCHER NO. 042319 IN THE AUGUST 2. APPROXIMATELY 11 MONTHS AFTER YOUR BILL NO. 289315 WAS PAID. THE ADDITIONAL CHARGES WERE BASED ON THE THROUGH RATE OF $2.10 PER 100 POUNDS AND A MINIMUM WEIGHT OF 38. CREDIT WAS GIVEN FOR THE CORRECT PAID-IN RATE OF 93 CENTS PER 100 POUNDS COMPUTED ONLY UPON THE TRANSITED WEIGHT OF 27. NAMELY 27000/36116 OF THE INBOUND CARRIER'S CHARGES OF $361.58 WHICH WERE BASED UPON SHIPPING 36.

B-153427, JUNE. 16, 1964

TO UNION PACIFIC RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 30, 1964, FILE GW 289315, ACKNOWLEDGED FEBRUARY 6, 1964, IN WHICH YOU REQUEST REVIEW OF THE DISALLOWANCE OF YOUR SUPPLEMENTAL BILL NO. W-289315-B FOR $19.21 ADDITIONAL FREIGHT CHARGES ON A SHIPMENT FROM PRAIRIE, MISSISSIPPI, TO FORT RILEY, KANSAS. A PORTION OF THIS SHIPMENT HAD PREVIOUSLY MOVED FROM BROOKLEY AIR FORCE BASE, BROOKLEY, ALABAMA, AND HAD BEEN ACCORDED TRANSIT PRIVILEGES AT PRAIRIE, MISSISSIPPI, UNDER EXECUTIVE COMMITTEE- - WESTERN TRAFFIC ASSOCIATION SECTION 22 QUOTATION NO. 85B, WHICH QUOTATION IS ALSO KNOWN BY YOUR REFERENCE AS, TRAFFIC EXECUTIVE ASSOCIATION--- EASTERN RAILROADS SECTION 22 QUOTATION NO. A-1966-B.

THIS RECORD SHOWS THAT THE OUTBOUND SHIPMENT WAS DESCRIBED AS:

"1 EA (4 PCS.) CRANES, NOIBN (TRACTOR CRAWLER W/CRANE) LOOSE

UFC:60680

USAF NO.

53D1517

SHIPPED WITH TWO (2) OVM BOXES, ONE (1) COIL CABLE AND ONE

(1) TOW CABLE ATTACHED; ONE (1) BOOM, ONE (1) EXTENSION AND

ONE (1) GANTRY LOOSE, WEIGHT INCLUDED IN TOTAL WEIGHT.'

THE SHIPMENT, WEIGHING 34,650 POUNDS, WAS MOVED FROM PRAIRIE, MISSISSIPPI, TO FORT RILEY, KANSAS, UNDER GOVERNMENT BILL OF LADING NO. AF -T-108588 DATED APRIL 1, 1960, AND WAS COMPRISED OF 27,000 POUNDS WHICH HAD BEEN ACCORDED TRANSIT AND 7,650 POUNDS OF NON-TRANSIT TONNAGE. THE TRANSIT WEIGHT ORIGINATED AT BROOKLEY AIR FORCE BASE, ALABAMA, AND MOVED TO THE TRANSIT STATION, PRAIRIE, MISSISSIPPI, UNDER GOVERNMENT BILL OF LADING NO. AF-9716028 DATED JUNE 25, 1959.

FOR THE SERVICES PERFORMED ON THE OUTBOUND MOVEMENT, YOU BILLED ORIGINALLY AND WERE PAID $553.32 ON VOUCHER NO. 042319 IN THE AUGUST 2, 1960, ACCOUNTS OF LIEUTENANT COLONEL GEORGE M. SECKINGER. ON JUNE 30, 1961, APPROXIMATELY 11 MONTHS AFTER YOUR BILL NO. 289315 WAS PAID, YOU SUBMITTED SUPPLEMENTAL BILL NO. W-289315-A REQUESTING ADDITIONAL FREIGHT CHARGES OF $184.75. THE ADDITIONAL CHARGES WERE BASED ON THE THROUGH RATE OF $2.10 PER 100 POUNDS AND A MINIMUM WEIGHT OF 38,880 POUNDS FOR THE 27,000 POUNDS WHICH HAD BEEN TRANSITED PLUS THE $34.92 TRANSIT CHARGE AND THE CHARGE OF $137.70 FOR THE NON-TRANSIT TONNAGE. CREDIT WAS GIVEN FOR THE CORRECT PAID-IN RATE OF 93 CENTS PER 100 POUNDS COMPUTED ONLY UPON THE TRANSITED WEIGHT OF 27,000 POUNDS. OUR SETTLEMENT CERTIFICATE OF AUGUST 31, 1962, BASED UPON THE SAME RATES, ALLOWED YOU $165.54 OF THE $184.75 REQUESTED, CREDIT FOR THE CHARGES PAID THE INBOUND CARRIER BEING COMPUTED ON THE BASIS OF THE ACTUAL CHARGES PAID BY THE GOVERNMENT FOR SHIPPING THE 27,000 POUNDS TO THE TRANSIT STATION, NAMELY 27000/36116 OF THE INBOUND CARRIER'S CHARGES OF $361.58 WHICH WERE BASED UPON SHIPPING 36,116 POUNDS (AS 38,880 POUNDS MINIMUM WEIGHT FOR A 50-FOOT CAR) AT 93 CENTS PER 100 POUNDS OR $270.31.

YOU CONTEND THAT "THE SHIPMENT FROM THE TRANSIT POINT TO THE FINAL DESTINATION IS THE 27,000 LBS TRANSIT TONNAGE; THEREFORE, INASMUCH AS THE "LINE-HAUL RATE PAID ON SUCH SHIPMENT INTO THE TRANSIT POINT" IS 93 CENTS PER CWT., ONLY $251.10 CAN BE ALLOWED AS PAID IN.' TO SUPPORT YOUR POSITION YOU CITE ITEM 17 OF TEA-ER SECTION 22 QUOTATION NO. A-1966-B, WHICH READS:

"ON EACH SHIPMENT FROM A TRANSIT POINT TO A FINAL DESTINATION, REFERRED TO IN ITEM NO. 1, THE GOVERNMENT SHALL PAY THE THROUGH RATE APPLICABLE ON SUCH SHIPMENT, AS SPECIFIED IN ITEM NO. 6, PLUS ANY OTHER CHARGES ACCRUING HEREUNDER IN ADDITION TO SUCH THROUGH RATE, MINUS THE LINE-HAUL RATE PAID ON SUCH SHIPMENT INTO SUCH TRANSIT POINT, AND IF SUCH THROUGH RATE IS LESS THAN THE RATE (OR RATES) SO PAID, THE RAILROADS WILL MAKE APPROPRIATE REFUND TO THE GOVERNMENT.'

YOU WILL NOTE FROM WHAT IS SAID ABOVE THAT OUR SETTLEMENT COMPUTED THE RATE PAID INBOUND ON THE ACTUAL CHARGES PAID FOR SHIPPING THE TRANSITED WEIGHT TO THE TRANSIT STATION. ALSO, IT WILL BE NOTED THAT IN THE PARAGRAPH IMMEDIATELY FOLLOWING THE QUOTED PORTION OF ITEM 17, THERE IS A FURTHER PROVISION THAT FINAL SETTLEMENT WILL BE MADE "ON THE BASIS OF THE ACTUAL FREIGHT CHARGES PAID BY THE GOVERNMENT.' THIS SEEMS TO INDICATE THE WORDS "RATE" AND "CHARGES" WERE INDISCRIMINATELY AND INTERCHANGEABLY USED IN THE QUOTATION. ALSO, ALTHOUGH THE WORD RATE IS NOT DEFINED AS SUCH IN SECTION 22 QUOTATION NO. 85-B, THE TERM AS USED IN THE INTERSTATE COMMERCE ACT HAS BEEN DEFINED TO MEAN THE NET COST TO THE SHIPPER FOR THE TRANSPORTATION OF HIS PROPERTY; THE NET AMOUNT THE CARRIER RECEIVED FROM THE SHIPPER AND RETAINS FOR THE TRANSPORTATION SERVICE. IN DETERMINING THIS AMOUNT, ALL MONEY TRANSACTIONS OF EVERY KIND OR CHARACTER HAVING A BEARING ON, OR RELATION TO, THE PARTICULAR INSTANCE OF TRANSPORTATION WHEREBY THE COST TO THE SHIPPER IS DIRECTLY OR INDIRECTLY ENHANCED OR REDUCED MUST BE TAKEN INTO CONSIDERATION. UNITED STATES V. CHICAGO AND A.RY. CO. 148 F. 646, 647, AFFIRMED 212 U.S. 563; GREAT NORTHERN RY.CO. V. ARMOUR AND CO., 26 F.SUPP. 964, 967; CLARK V. SOUTHERN RY.CO., 119 N.E. 539, 542.

IN THE LIGHT OF THE CITED DECISIONS OF THE COURTS, WE ARE OF THE VIEW THAT CREDIT FOR THE INBOUND CHARGES SHOULD BE BASED UPON WHAT THE GOVERNMENT ACTUALLY PAID FOR CARRIAGE INBOUND OF 27,000 POUNDS ACCORDED TRANSIT NAMELY 27000/36116 OF THE INBOUND CHARGES OF $361.58 PAID TO THE INBOUND CARRIER OR AS INDICATED ON THE SETTLEMENT CERTIFICATE AT $1.00116 PER 100 POUNDS RATHER THAN 93 CENTS PER 100 POUNDS AS COMPUTED BY YOUR COMPANY.

ACCORDINGLY, OUR DISALLOWANCE OF YOUR SUPPLEMENTAL BILL NO. W-209315 B APPEARS PROPER AND IS SUSTAINED.