B-156389, JUL. 7, 1965

B-156389: Jul 7, 1965

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TO SOUTHERN PACIFIC COMPANY: REFERENCE IS MADE TO YOUR LETTER OF MARCH 17. FOR THIS SERVICE YOU CLAIMED AND WERE PAID $965.25 BY THE NAVY REGIONAL FINANCE OFFICE. THE RESULTING OVERCHARGE WAS RECOVERED BY AN ADMINISTRATIVE DEDUCTION FROM MONIES OTHERWISE DUE YOU PURSUANT TO SECTION 322 OF THE TRANSPORTATION ACT OF 1940. THE BASIS USED IN YOUR ORIGINAL BILL IS $2.97 PER 100 POUNDS AT ACTUAL WEIGHT OF 32. ON THE FACT OF THE BILL OF LADING SECTION 22 QUOTATION NO. 424-A IS NOTED AS THE SPECIAL RATE AUTHORITY. " STATES THAT EXCEPT AS OTHERWISE PROVIDED SHIPMENTS MADE ARE SUBJECT TO ALL CHARGES AND RULES WHICH IN ANY WAY DECREASE OR INCREASE THE AMOUNT TO BE PAID AS PROVIDED IN TARIFFS OR FILED WITH THE I.C.C.

B-156389, JUL. 7, 1965

TO SOUTHERN PACIFIC COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 17, 1965, FILE NO. YM-85 123474 -M, REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE DATED MARCH 9, 1965 (CLAIM TK-785703), WHICH DISALLOWED YOUR SUPPLEMENTAL BILL NO. D-123474-M, FOR $274.05 ADDITIONAL FREIGHT CHARGES ON A SHIPMENT OF GENERATORS AND ENGINES COMBINED, MOUNTED ON TRAILERS, WEIGHING 32,500 POUNDS, MOVING FROM KANSAS CITY, MISSOURI, TO OAKLAND, CALIFORNIA, UNDER GOVERNMENT BILL OF LADING A-4109501, DATED APRIL 20, 1963.

FOR THIS SERVICE YOU CLAIMED AND WERE PAID $965.25 BY THE NAVY REGIONAL FINANCE OFFICE. IN OUR AUDIT OF THE PAYMENT VOUCHER, WE DETERMINED THAT THE ALLOWABLE CHARGES SHOULD BE $691.20, COMPUTED ON THE BASIS OF A COMMODITY RATE OF $1.88 PER 100 POUNDS, MINIMUM WEIGHT 36,000 POUNDS, PER ITEM 2065-G, SUPPLEMENT 41 OF TRANSCONTINENTAL FREIGHT BUREAU (TCFB) TARIFF 29-L, I.C.C.NO. 1626, PLUS THE 7 CENTS PER 100 POUNDS EX PARTE INCREASE AND LESS 3 CENTS PER 100 POUNDS PORT ALLOWANCE. THE RESULTING OVERCHARGE WAS RECOVERED BY AN ADMINISTRATIVE DEDUCTION FROM MONIES OTHERWISE DUE YOU PURSUANT TO SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 54 STAT. 955, AS AMENDED, 49 U.S.C. 66.

ALTHOUGH YOUR PROTEST OF SETTLEMENT DATED MARCH 17, 1965, FAILS TO STATE YOUR BASIS FOR CHARGES, THE BASIS USED IN YOUR ORIGINAL BILL IS $2.97 PER 100 POUNDS AT ACTUAL WEIGHT OF 32,500 POUNDS, AS NAMED IN TRANSCONTINENTAL FREIGHT BUREAU'S SECTION 22 QUOTATION NO. 424-A, COVERING ,FREIGHT" ALL KINDS.'

ON THE FACT OF THE BILL OF LADING SECTION 22 QUOTATION NO. 424-A IS NOTED AS THE SPECIAL RATE AUTHORITY. PARAGRAPH 4 OF APPENDIX A TO THIS QUOTATION, ENTITLED "CHARGES AND ALLOWANCES," STATES THAT EXCEPT AS OTHERWISE PROVIDED SHIPMENTS MADE ARE SUBJECT TO ALL CHARGES AND RULES WHICH IN ANY WAY DECREASE OR INCREASE THE AMOUNT TO BE PAID AS PROVIDED IN TARIFFS OR FILED WITH THE I.C.C. OR ANY STATE REGULATORY AUTHORITY OR IN ANY SECTION 22 QUOTATION. TRANSCONTINENTAL FREIGHT BUREAU TARIFF 29-L, I.C.C. NO. 1626 AND ITS SUPPLEMENTS, WHICH WOULD IN THE ABSENCE OF A GOVERNING QUOTATION BE APPLICABLE TO THIS SHIPMENT, CONTAINS A COMMODITY RATE WHICH WOULD APPLY TO DECREASE THE CHARGES AS PROVIDED UNDER PARAGRAPH 4 OF APPENDIX A OF THE QUOTATION.

IN OUR SETTLEMENT CERTIFICATE WE CITED ITEM 2065-G OF TCFB TARIFF 29 L, AS THE BASIS FOR THE ALLOWABLE CHARGES. ITEM 2065-G NAMES RATES ON: "ELECTRICAL APPLIANCES AS DESCRIBED IN ITEMS 1416 AND 1418. ITEM 1416 LISTS "GENERATORS AND ENGINES COMBINED," AND STATES THAT "THERE IS NO RESTRICTION IN THIS ITEM TO INDICATE THAT RATES THEREIN WILL NOT APPLY ON PORTABLE GENERATORS.' IT IS YOUR VIEW THAT THE COMMODITY RATE IN QUESTION DOES NOT APPLY ON GENERATORS AND ENGINES COMBINED WHEN MOUNTED ON FREIGHT TRAILERS.

UPON FURTHER CONSIDERATION, WE FIND THAT ITEM 2075-F, PART 2, SUPPLEMENT48, OF TARIFF 29-L, NAMES THE SAME RATE AND CHARGES AS THOSE PROVIDED BY ITEM 2065-G, AND IS THE PROPER RATE ITEM TO APPLY ON THIS ARTICLE. ITEM 2075-F REFERS TO THE DESCRIPTIVE ITEM 1415, WHICH PROVIDES FOR ,GENERATORS AND ENGINES COMBINED, LOOSE, ON SKIDS OR IN PACKAGES.' THERE ARE NO RESTRICTIONS IN ITEMS 2075-F AND 1415 TO INDICATE THAT THE RATES THEREIN WILL NOT APPLY ON PORTABLE GENERATORS. THIS ARTICLE, THOUGH MOUNTED ON A WHEELED TRAILER SOLELY FOR MOBILITY PURPOSES, WAS DEFINITELY DESIGNED FOR USE AS A GENERATOR, AND AS SUCH WAS SPECIFICALLY NAMED IN THE TARIFF. THEREFORE, THERE IS NO REASON WHY THE RATE NAMED IN ITEM 2075-F SHOULD NOT APPLY IN THIS INSTANCE. SEE, GENERALLY, HARRISON CONSTRUCTION CO. V. CINCINNATI, N.O. AND T.P. RY. CO., 266 I.C.C. 313, 316-318; OAKLAND TRUCK SALES CO. V. BALTIMORE AND O.R.R. CO., 270 I.C.C. 548; AUGUST PLANTZ, INC. V. LONG ISLAND R.CO., 281 I.C.C. 172.

ACCORDINGLY, ALTHOUGH THE SETTLEMENT OF MARCH 9, 1965, SHOULD HAVE REFERRED TO ITEMS 2075-F AND 1415 OF TARIFF 29-L, AS APPLYING ON "GENERATORS AND ENGINES COMBINED, LOOSE, ON SKIDS OR IN PACKAGES," THE ALLOWABLE CHARGES ARE THE SAME AS FOUND IN OUR ORIGINAL AUDIT AND THE SETTLEMENT, NOT HAVING BEEN SHOWN TO OTHERWISE BE IN ERROR, IS SUSTAINED.