B-153940, AUG. 17, 1964

B-153940: Aug 17, 1964

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TO SOUTHERN PACIFIC COMPANY: REFERENCE IS MADE TO YOUR LETTER OF APRIL 3. THIS SHIPMENT WAS THE OUTBOUND TRANSIT MOVEMENT WHICH HAD ORIGINATED AT ALMA. FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES OF $1. THE PROCESSING OF THIS SUPPLEMENTAL BILL WAS DELAYED. YOUR SUPPLEMENTAL CLAIM WAS DISALLOWED. AN OVERCHARGE OF $213.94 WAS DISCOVERED FOR WHICH A NOTICE OF OVERCHARGE (FORM 1003) WAS ISSUED SHOWING IN DETAIL THE BASIS FOR THE DETERMINATION OF THE OVERCHARGE. THE OVERCHARGE OF $213.94 WAS COLLECTED IN FEBRUARY 1963. D-45179-M FOR $289.57 IS CORRECT AND STATES: "IT IS THE POSITION OF SOUTHERN PACIFIC COMPANY THAT TCFB TARIFF 38 H ITEM 1200 CLASS 2 CFC 20. THERE IS NO DISAGREEMENT AS TO THE MANNER OF APPLYING THE TRANSIT CREDITS.

B-153940, AUG. 17, 1964

TO SOUTHERN PACIFIC COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 3, 1964, FILE YM-85D45179 M, IN WHICH YOU, IN EFFECT, REQUEST REVIEW OF SETTLEMENT CERTIFICATE OF DECEMBER 28, 1962, WHICH DISALLOWED YOUR CLAIM (OUR CLAIM TK 554909) FOR $289.57 ADDITIONAL TRANSPORTATION CHARGES ON BILL NO. D 45179-M JUNE 1953 FOR THE TRANSPORTATION OF A SHIPMENT OF "BUILDINGS, NOIBN, PORTABLE, WOOD AND STEEL COMB SU" WHICH MOVED FROM AVON, KENTUCKY, TO OAKLAND, CALIFORNIA, UNDER GOVERNMENT BILL OF LADING WZ-T 127540, DATED MAY 18, 1953. THIS SHIPMENT WAS THE OUTBOUND TRANSIT MOVEMENT WHICH HAD ORIGINATED AT ALMA, MICHIGAN, MOVING INBOUND ON GOVERNMENT BILLS OF LADING WY-96879L, DATED MARCH 21, 1952, AND WY 968788, DATED MARCH 20, 1952.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES OF $1,237.47 ON VOUCHER 32,033 IN THE JULY 1953 ACCOUNT OF LT.COL. J. L. WHIPPLE. ON JANUARY 10, 1957, YOU PRESENTED YOUR SUPPLEMENTAL BILL NO. D- 45179-M JUNE 1953 FOR $289.57 ADDITIONAL FREIGHT CHARGES. THE PROCESSING OF THIS SUPPLEMENTAL BILL WAS DELAYED, OCCASIONED BY THE DEVELOPMENT OF INFORMATION RELATIVE TO SUCH CLAIM AND BY SETTLEMENT CERTIFICATE OF DECEMBER 28, 1962, YOUR SUPPLEMENTAL CLAIM WAS DISALLOWED. IN THE AUDIT OF THE ORIGINAL PAYMENT VOUCHER 32,033, YOUR BILL FE 45179 JUNE 1953, AN OVERCHARGE OF $213.94 WAS DISCOVERED FOR WHICH A NOTICE OF OVERCHARGE (FORM 1003) WAS ISSUED SHOWING IN DETAIL THE BASIS FOR THE DETERMINATION OF THE OVERCHARGE. THE OVERCHARGE OF $213.94 WAS COLLECTED IN FEBRUARY 1963. BY LETTER OF APRIL 3, 1964, YOU ASSERT THAT YOUR SUPPLEMENTAL BILL NO. D-45179-M FOR $289.57 IS CORRECT AND STATES:

"IT IS THE POSITION OF SOUTHERN PACIFIC COMPANY THAT TCFB TARIFF 38 H ITEM 1200 CLASS 2 CFC 20, MINIMUM 12,000 LBS. SUBJECT TO RULE 34 ON 42 FEET 6 INCHES CAR INBOUND. A.A.R. SECTION 22 QUOTATION 16 F AMENDMENT 26 ITEM 14-F AND AMENDMENT 61 ITEM 6 APPLIES ON THE COMMODITY INVOLVED HEREIN.'

APPARENTLY, THERE IS NO DISAGREEMENT AS TO THE MANNER OF APPLYING THE TRANSIT CREDITS, TRANSIT CHARGES, OUT-OF-LINE HAUL CHARGES AND NONTRANSIT APPLICATIONS PROVIDED IN THE TRANSIT AUTHORITY--- ASSOCIATION OF AMERICAN RAILROADS SECTION 22 QUOTATION NO. 16-F. THE DIFFERENCE BETWEEN THE POSITION OF YOUR COMPANY AND OUT AUDIT ACTION APPEARS TO RESULT FROM A QUESTION AS TO THE APPLICABLE THROUGH ALL RAIL CARLOAD RATE. THE SAME PROBLEM IS LIKEWISE INVOLVED IN ASCERTAINING THE RATES APPLICABLE ON THE NON-TRANSIT TONNAGE, BUT A DISCUSSION OF THE THROUGH RATE PROBLEM SHOULD SUFFICE TO DISPOSE OF THE NON-TRANSIT PROBLEM. YOU CONTEND THAT THE THROUGH RATE APPLICABLE IS $8.37 PER 100 POUNDS PUBLISHED IN ITEM 1200 OF TRANS CONTINENTAL FREIGHT BUREAU CLASS TARIFF NO. 38-H, I.C.C. NO. 1549. THIS RATE IS THE CLASS 2 RATING AND SUBJECT TO A MINIMUM WEIGHT OF 12,000 POUNDS SUBJECT RULE 34 (14,640 POUNDS FOR 42-FOOT 6-INCH CAR ORDERED FOR THE INBOUND SHIPMENT ON BILL OF LADING WY-968790) PROVIDED IN ITEM 8435 OF CONSOLIDATED FREIGHT CLASSIFICATION NO. 20 ,I.C.C- O.C. NO. 64 COVERING "HOUSES OR BUILDINGS, PORTABLE OR FABRICATED, NOIBN, WOODEN OR WOOD AND IRON OR STEEL COMBINED, SU.' IT IS OUR VIEW THAT THE APPLICABLE RATE IS AN ALL-FREIGHT COMMODITY RATE SUBJECT TO A 30,000-POUND MINIMUM WEIGHT AND PUBLISHED IN ITEM 2100 OF TRANS CONTINENTAL FREIGHT BUREAU WEST-BOUND EXPORT TARIFF NO. 29-J, I.C.C. NO. 1553. SUCH RATE IS, HOWEVER, SUBJECT TO AN AGGREGATE OF INTERMEDIATE RATES RULE IN ITEM 240 OF TCFB TARIFF NO. 29-J WHICH PRODUCES A LOWER CHARGE. THIS AGGREGATE OF RATES IS COMPUTED AS OF MAY 18, 1953, THE DATE OF THE OUTBOUND SHIPMENT PRESCRIBED IN ITEM 6, AMENDMENT NO. 61 TO A.A.R. QUOTATION NO. 16-F. IT IS CONSTRUCTED AS FOLLOWS: CLASS 85 RATE OF $1.30 PER 100 POUNDS, 12,000-POUND MINIMUM WEIGHT (14,640 POUNDS PER RULE 34) PUBLISHED IN ITEM 8435 OF UNIFORM FREIGHT CLASSIFICATION NO. 2, I.C.C. A-2 AND CENTRAL TERRITORY RAILROADS TARIFF BUREAU FREIGHT TARIFF NO. E-1009, I.C.C. NO. 4487 FROM ALMA, MICHIGAN, TO CALUMET, INDIANA, AND AN ALL-FREIGHT RATE OF $2.41 PER 100 POUNDS, 30,000-POUND MINIMUM WEIGHT PUBLISHED IN ITEM 2100 OF TCFB TARIFF NO. 29-J BEYOND. THIS AGGREGATE OF RATES IS NOT ONLY PROVIDED IN ITEM 240 OF TCFB TARIFF NO. 29-J BUT WOULD BE EQUALLY APPLICABLE UNDER THE TERMS OF THE AGGREGATE OF INTERMEDIATE RATES PROVISION OF ITEM 505 OF TCFB TARIFF NO. 38-H.

ALTHOUGH YOUR LETTER OF APRIL 3, 1964, DOES NOT STATE WHEREIN YOU TAKE EXCEPTION TO OUR BASIS, IT MAY BE IN THE MATTER OF THE CLASSIFICATION OF THE COMMODITY SHIPPED, YOUR CONTENTION BEING THAT THE ALL-FREIGHT RATES USED IN OUR BASIS ARE NOT APPLICABLE ON SHIPMENTS OF PORTABLE BUILDINGS. IN OUR LETTER OF SEPTEMBER 25, 1962, B-149417, B-137180 (COPY ENCLOSED) YOUR COMPANY WAS ADVISED THAT CLAIMS INVOLVING THE QUESTION OF THE CLASSIFICATION OF SIMILAR SHIPMENTS WOULD BE SETTLED, GIVING CONSIDERATION TO THE DECISION OF THE COURT OF CLAIMS IN WESTERN PACIFIC R.CO. V. UNITED STATES, 157 CT.CL. 637 (1962). AS YOU WERE ADVISED, THIS DECISION MERELY HELD THAT RATES PUBLISHED TO APPLY ON SHIPMENTS OF "RADIO MOBILE COMMUNICATIONS UNITS" IN TRANS-CONTINENTAL FREIGHT BUREAU SECTION 22 QUOTATION NO. 117-B WERE INAPPLICABLE ON THE TYPE OF SHIPMENTS HEREIN INVOLVED. IT DOES NOT APPEAR THAT THE COURT'S DECISION PRECLUDED THE APPLICATION OF OTHER RATES SUCH AS COMMODITY, QUOTATION OR THE ALL FREIGHT RATES USED IN OUR BASIS OF CHARGES, TO SHIPMENTS OF THE TYPE INVOLVED. WOULD APPEAR THAT ALL THE COURT DECIDED IN THE WESTERN PACIFIC CASE WAS THAT TCFB QUOTATION NO. 117-B DID NOT APPLY IN RATING THE SHIPMENTS THERE INVOLVED. IT DID NOT LIMIT THE RATING OF SIMILAR SHIPMENTS TO THE CLASS 2 RATING CONTENDED FOR BY THE PLAINTIFF BUT MERELY HELD THAT QUOTATION 117-B WAS NOT FOR APPLICATION.

ACCORDINGLY, SINCE THE USE OF ALL-FREIGHT RATES IN OUR BASIS OF CHARGES IS NOT PROHIBITED AND APPEARS OTHERWISE PROPER, THE DISALLOWANCE OF YOUR CLAIM FOR $289.57 IS SUSTAINED.