B-155218, OCT. 22, 1965

B-155218, OCT. 22, 1965

TO THE POSTMASTER GENERAL:

REFERENCE IS MADE TO A LETTER OF JUNE 18, 1965, FROM ASSISTANT POSTMASTER GENERAL WILLIAM J. HARTIGAN, BUREAU OF TRANSPORTATION AND INTERNATIONAL SERVICES, FURNISHING A REPORT AND RECOMMENDING THAT A CLAIM OF THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY TO RECOVER CERTAIN DOORWAY ALLOWANCES DEDUCTED BY YOUR DEPARTMENT BE DENIED.

WE ARE ENCLOSING TWO COPIES OF OUR LETTER OF TODAY TO THE CARRIER. THERE INDICATED WE ARE INSTRUCTING OUR CLAIMS DIVISION TO DISALLOW THAT PORTION OF THE CARRIER'S CLAIM RELATING TO TERMINAL COMPENSATION BUT TO ALLOW THAT PORTION RELATING TO LINE-HAUL COMPENSATION.

THE INVOLVED TRANSPORTATION TOOK PLACE BETWEEN CHICAGO AND ST. PAUL ON TRAIN 31 DURING THE PERIOD APRIL 7, 1959, TO FEBRUARY 3, 1961. THE CAR CARRYING THE MAIL--- REFERRED TO AS THE ,SEATTLE CAR" SINCE SEATTLE, WASHINGTON, WAS ITS FINAL DESTINATION--- FUNCTIONED AS A "WORKING STORAGE CAR," THAT IS, BETWEEN CHICAGO AND ST. PAUL MAIL WOULD BE LOADED OR UNLOADED AT INTERMEDIATE POINTS EN ROUTE. THE SEATTLE CAR WAS ALSO FURTHER CLASSIFIED AS A "MIXED TRAFFIC AR" BECAUSE SPACE IN IT WAS UTILIZED BY THE RAILROAD FOR ITS EXPRESS AND BAGGAGE SHIPMENTS.

AT THE ORIGIN POINT--- CHICAGO--- THE SEATTLE CAR WAS INSPECTED AFTER LOADING BY A DEPARTMENT TRANSFER CLERK AND A RAILROAD EMPLOYEE. APPARENTLY, WHEN THE SEATTLE CAR CONTAINED OVER 30 LINEAR FEET OF MAIL AND THE TRANSFER CLERK ANTICIPATED THAT MAIL WOULD BE OFF OR ON LOADED EN ROUTE BETWEEN CHICAGO AND ST. PAUL, THE TRANSFER CLERK WOULD NOT ON A DEPARTMENT FORM THAT A 3-FOOT DOORWAY ALLOWANCE WAS ADDED TO THE ACTUAL LINEAR FOOTAGE OF THE MAIL IN THE CAR. THE CARRIER'S EMPLOYEE, IF HE AGREED WITH THE TRANSFER CLERK'S COMPUTATION, SIGNED THIS FORM AND, FOR EACH MOVEMENT HERE IN CONTROVERSY, COUNTERSIGNATURES WERE APPARENTLY OBTAINED.

THE CARRIER WAS PAID AN ADDITIONAL 3 FEET IN LINE-HAUL COMPENSATION IN THOSE INSTANCES WHERE THE TRANSFER CLERK NOTED A DOORWAY ALLOWANCE ON A PARTICULAR RUN OF THE SEATTLE CAR. SUBSEQUENTLY, YOUR DEPARTMENT DETERMINED THAT IN SOME INSTANCES WHERE A DOORWAY ALLOWANCE WAS PAID, NO MAIL WAS IN FACT LOADED OR UNLOADED EN ROUTE. ON SUCH MOVEMENTS YOUR DEPARTMENT RECOVERED FROM THE CARRIER THE AMOUNT OF LINE-HAUL COMPENSATION PAID AS A DOORWAY ALLOWANCE. THE CARRIER IS NOW RECLAIMING THIS AMOUNT.

DEPARTMENT REGULATIONS (39 CFR 92.8 (C) (1) (I), 23 F.R. 224, JANUARY 11, 1958) IN EFFECT AT THE TIME OF THE SUBJECT MAIL MOVEMENTS PROVIDED THAT:

"STORAGE CARS SHALL BE LOADED SOLIDLY AT INITIAL POINTS OF THE RUN AS FAR AS PRACTICABLE LEAVING ONLY SUCH DOORWAYS OR AISLES AS ARE NEEDED EN ROUTE TO HANDLE THE MAIL. * * *"

THIS CONTROVERSY STEMS FROM A SENTENCE IN THE NEXT PARAGRAPH OF THESE REGULATIONS--- 39 CFR 92.8 (C) (1) (II/--- WHICH READS IN PART:

"* * * A 3-FOOT ALLOWANCE WILL BE MADE FOR EACH SUCH DOORWAY AS IS NECESSARY, WHEN THE VOLUME OF MAIL IN THE CAR EXCEEDS 30 FEET.'

YOUR DEPARTMENT TAKES THE POSITION THAT IF NO MAIL WAS LOADED INTO OR OUT OF A WORKING STORAGE CAR OVER THE ENTIRE RUN OF THE CAR, EVEN THOUGH MAIL VOLUME EXCEEDED 30 LINEAR FEET, NO DOORWAY WAS "NECESSARY" AND, THEREFORE, NO DOORWAY ALLOWANCE SHOULD BE MADE.

AFTER STUDYING THE RECORD AND THE PERTINENT REGULATIONS AND INTERSTATE COMMERCE COMMISSION DECISIONS, WE HAVE CONCLUDED THAT THE CARRIER WAS ENTITLED TO A DOORWAY ALLOWANCE IN THE LINE-HAUL COMPENSATION AS ORIGINALLY DETERMINED BY THE TRANSFER CLERK AND PAID TO THE CARRIER. CONVERTING FROM THE "SPACE AUTHORIZED" TO THE "SPACE USED" SYSTEM OF RAILWAY PAY (SEE RAILWAY MAIL PAY, APPLICATIONS OF SOUTHERN AND WESTERN RAILROADS, 302 I.C.C. 609 (1957) (, THE ABOVE QUOTED REGULATIONS PROVIDED THAT VACANT SPACE SHOULD BE LEFT ADJACENT TO A DOOR (DOORWAY) TO FACILITATE THE LOADING AND UNLOADING OF MAIL EN ROUTE AND THAT THE CARRIER SHOULD BE COMPENSATED FOR SUCH SPACE AT THE RATE OF 3 LINEAR FEET WHEN THE CAR IS MORE THAN HALF FULL. THE DOORWAY SPACE APPARENTLY SHOULD BE CONSIDERED "USED SPACE" SINCE RAILROAD EMPLOYEES AND MAIL MUST PASS THROUGH IT IN THE LOADING AND UNLOADING OPERATIONS. IN A MIXED TRAFFIC CAR--- AS WAS THE SEATTLE CAR--- THE INDICATION AT ORIGIN POINT OF RESERVING DOORWAY SPACE FOR GOVERNMENT USE WOULD SERVE TO PRECLUDE ITS POSSIBLE USE BY THE RAILROAD FOR BAGGAGE OR EXPRESS SHIPMENTS, AND EQUIVALENT DOORWAY SPACE PRESUMABLY WOULD HAVE TO BE KEPT CLEAR FOR THE CARRIER'S CONVENIENCE AS WELL AS FOR THE GOVERNMENT-S.

IN THEORY, WHEN THE TRANSFER CLERK INCLUDED A 3-FOOT DOORWAY ALLOWANCE IN HIS COMPUTATIONS AT CHICAGO--- ON THE ASSUMPTION THAT MAIL WOULD BE ON OR OFF LOADED EN ROUTE TO ST. PAUL--- DOORWAY SPACE HAD BEEN CREATED WHICH DEPRIVED THE RAILROAD OF THE USE OF THIS SPACE FOR ITS OWN PURPOSES. YOUR DEPARTMENT'S RETROACTIVE DETERMINATION THAT DOORWAY SPACE WAS NOT "NECESSARY" ON A PARTICULAR RUN OF THE SEATTLE CAR--- AFTER IT WAS LEARNED THAT NO MAIL HAD BEEN WORKED EN ROUTE--- WOULD NOT ALTER THE FACT THAT SUCH DOORWAY SPACE WAS NOT AVAILABLE FOR OCCUPANCY BY THE RAILROAD'S SHIPMENTS ON SUCH RUN. IN THESE CIRCUMSTANCES, WE FEEL THAT COMPENSATION TO THE CARRIER IS JUSTIFIED IN THE WAY OF A DOORWAY ALLOWANCE. FOR THESE REASONS WE HAVE INSTRUCTED OUR CLAIMS DIVISION TO ISSUE SETTLEMENT MAKING AN APPROPRIATE ALLOWANCE IN LINE-HAUL COMPENSATION.