B-160345, MAY 16, 1967

B-160345, MAY 16, 1967

TO SEABOARD AIR LINE RAILROAD COMPANY:

WE REFER TO YOUR LETTER OF MARCH 20, 1967, AND THE CONFERENCE ON FEBRUARY 24, 1967, BETWEEN MR. J. C. BRASWELL OF YOUR COMPANY AND MEMBERS OF OUR STAFF RELATIVE TO YOUR REQUEST BY LETTER DATED OCTOBER 27, 1966, FOR REVIEW OF OUR TRANSPORTATION DIVISION'S SETTLEMENT CERTIFICATE OF OCTOBER 4, 1966 (CLAIM NO. TK-827651). THE SETTLEMENT

THE CLAIM CONCERNS A SHIPMENT OF 10 MOTOR VEHICLES ON 5 FLAT CARS FROM GUILDERLAND CENTER, NEW YORK, TO FORT BRAGG, NORTH CAROLINA, WHICH WAS TENDERED TO THE NEW YORK CENTRAL RAILROAD ON APRIL 28, 1965, FOR MOVEMENT VIA "NYC-NANDW SAL AND R-CF" UNDER GOVENMENT BILL OF LADING NO. C- 1405741. THE CONSIGNEE CERTIFIED THE PROPERTY WAS DELIVERED ON MAY 3, 1965, BY CAPE FEAR RAILWAYS. THE DELIVERING CARRIER WAIVED ITS RIGHT TO COLLECT THE CHARGES IN YOUR FAVOR AND ON YOUR BILL CF-281-1 YOU CLAIMED AND WERE PAID $8,847.80 PRIOR TO AUDIT BY THIS OFFICE PURSUANT TO 49 U.S.C.A. 66.

IN THE AUDIT OF THOSE CHARGES OUR TRANSPORTATION DIVISION DETERMINED AND NOTIFIED YOU THAT A LOWER CHARGE BASIS, OFFERED TO THE GOVERNMENT IN SUPPLEMENT NO. 11 TO TRAFFIC EXECUTIVE ASSOCIATION--- EASTERN RAILROADS (TEA-ER) SECTION 22 QUOTATION A-3287-B (SOUTHERN FREIGHT ASSOCIATION SECTION 22 QUOTATION A-3287-B), E-ICC NO. 1881, WAS APPLICABLE ON THE SHIPMENT AND YOU WERE ASKED TO REFUND RESULTING OVERCHARGES TOTALING $6,717.80. YOU PROTESTED THE NOTICE OF OVERCHARGE (FORM 1003) IN A LETTER DATED MARCH 24, 1966, AND SUBMITTED A SUPPLEMENTAL BILL (CF-281-1-A) FOR CHARGES OF $3,218.45 IN ADDITION TO THE SUM OF $8,847.80 PREVIOUSLY PAID YOU. OUR TRANSPORTATION DIVISION SUSTAINED ITS OVERCHARGE ACTION ON SEPTEMBER 27, 1966, AND DISALLOWED YOUR CLAIM FOR THE ADDITIONAL SUM BY SETTLEMENT DATED OCTOBER 4, 1966. THE OVERCHARGE WAS COLLECTED BY OFFSET AGAINST YOUR BILL QMD 298-2 PAID NOVEMBER 28, 1966.

YOUR LETTER OF MARCH 20, 1967, STATES THAT DURING THE PERIOD APRIL 21, 1965, TO AND INCLUDING JULY 6, 1965, NO ROUTES IN CONNECTION WITH YOUR COMPANY EXISTED FROM CINCINNATI, OHIO, TO FORT BRAGG, NORTH CAROLINA, ON TRAFFIC COVERED BY THE QUOTATION CITED, AND FURTHER CONTENDS THAT THE RATE QUOTED WAS NOT COMPENSATORY TO THE SEABOARD AIR LINE RAILROAD, THE ABERDEEN AND ROCKFISH RAILROAD OR THE CAPE FEAR RAILWAYS, INC. YOU SAY THAT TO AVOID LENGTHY AND TIME-CONSUMING LITIGATION OF CLAIMS NOW FILED OR TO BE FILED PERTAINING TO THIS AND SIMILAR SHIPMENTS MOVING BETWEEN THE ABOVE-NOTED DATES, YOU PROPOSE THAT SETTLEMENTS BE MADE ALLOWING YOU $167.25 PER CAR IN ADDITION TO THE $426 PER CAR PROVIDED BY THE QUOTATION. THE ADDITIONAL PAYMENT WOULD BE DIVIDED AMONG THE THREE CARRIERS NAMED BUT WOULD NOT PREJUDICE THE RIGHT OF ANY OTHER CARRIER.

SUPPLEMENT NO. 11 OF THE QUOTATION WHICH OFFERED TO CARRY MOTOR VEHICLES ON FLAT CARS BETWEEN THE POINTS OF ORIGIN AND DESTINATION HERE INVOLVED AT $426 PER CAR INDICATES THE FOLLOWING ROUTING SOUTH OF CINCINNATI, OHIO---

"VIA THE SAME ROUTES AS APPLY IN CONNECTION WITH THE CLASS RATES AS PROVIDED IN TRUNK LINE TERRITORY RAILROADS TARIFF BUREAU FREIGHT TARIFF E/S-1008, ICC NO. A-946.'

THE QUOTATION REQUIRED THAT THE SHIPMENTS BE MOVED VIA CINCINNATI GATEWAY IN ORDER TO MAKE THE TENDERED RATE EFFECTIVE. BEYOND CINCINNATI, THE RATE WAS TO APPLY VIA THE SAME ROUTES AS APPLY IN CONNECTION WITH CLASS RATES IN TL E/S-1008. TL E/S-1008 PROVIDES CERTAIN CLASS RATES AND REFERS TO TL E/S-712-A, ICC C-239, FOR ROUTING INSTRUCTIONS. IN ITEM 400 OF THAT TARIFF COVERING ,ROUTING-GENERAL" IT IS STATED---

"RATES PUBLISHED IN TARIFFS, MAKING REFERENCE TO THIS TARIFF, FOR ROUTING INSTRUCTIONS, ARE APPLICABLE VIA ALL ROUTES MADE BY USE OF THE LINES OF ANY OF THE CARRIERS PARTIES TO SUCH RATE TARIFFS, EXCEPT AS PROVIDED IN INDIVIDUAL RATE ITEMS OR IN CONNECTION WITH INDIVIDUAL RATES THEREIN OR WHERE SPECIFIC INSTRUCTIONS ARE PUBLISHED IN THIS TARIFF.' FURTHERMORE, THE TITLE PAGE OF E/S-712-A STATES---

"ITS USE IN CONNECTION WITH ANY TARIFFS IS RESTRICTED TO THE CARRIERS AND TO THE APPLICATION PROVIDED IN SUCH TARIFF.'

YOUR AGENT, THE SOUTHERN FREIGHT ASSOCIATION, PARTICIPATED IN AND WAS A PARTY TO THE TENDER, AND SAL, AANDR, AND CFR ARE NAMED AS PARTICIPATING CARRIERS IN BOTH TL E/S-1008 AND TL E/S-712-A. FURTHER, THE FACT THAT SUPPLEMENT NO. 11 WAS ISSUED MAY 17, 1965, AND MADE RETROACTIVE TO APRIL 21, 1965, INDICATES THAT IT WAS NEGOTIATED TO COVER A SHIPMENT OR SHIPMENTS, SUCH AS THE ONE NOW IN ISSUE, WHICH HAD ALREADY MOVED.

SECTION 22 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22, AUTHORIZES THE "CARRIAGE * * * OF PROPERTY FREE OR AT REDUCED RATES FOR THE UNITED STATES * * *.' THEREUNDER, YOU COULD HAVE AGREED TO CARRY THE FREIGHT WITHOUT MAKING ANY CHARGE, SO THAT THE FACT THAT THE RATE QUOTED BY YOUR AGENT MAY NOT HAVE BEEN COMPENSATORY TO THE SOUTHERN CARRIERS FORMS NO LEGAL BASIS FOR PAYMENT OF ANY ADDITIONAL AMOUNT SAID TO REPRESENT OUT-OF-POCKET EXPENSE.

ACCORDINGLY, AND SINCE ACCEPTANCE OF YOUR PROPOSAL OF MARCH 20, 1967, FOR COMPROMISE SETTLEMENT WOULD NOT APPEAR TO FINALLY DISPOSE OF THE MATTER IN THAT YOU STATE THAT ITS ACCEPTANCE WOULD BE FOR THE ACCOUNT OF THE THREE CARRIERS NAMED AND WOULD NOT PREJUDICE THE RIGHT OF ANY OTHER CARRIER, WE DO NOT FEEL WE WOULD BE WARRANTED IN GIVING IT FAVORABLE CONSIDERATION. ALSO, THE DISALLOWANCE OF YOUR SUPPLEMENTAL BILL AND THE OVERCHARGE ACTION OF OUR TRANSPORTATION DIVISION ARE SUSTAINED.