B-151820, JAN. 2, 1964

B-151820, JAN. 2, 1964

TO THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY:

WE HAVE CONSIDERED YOUR REQUEST OF JUNE 13, 1963, FILE 5 GB-27346, FOR REVIEW OF OUR SETTLEMENT OF JUNE 29, 1961 (CLAIM FILE TK-703818), WHICH DISALLOWED YOUR CLAIM FOR $45.44 ON BILL 27346. WE CONCLUDE THAT THE BASIS ON WHICH THE SETTLEMENT WAS MADE WAS PROPER AND IT IS SUSTAINED.

YOUR CLAIM IS FOR CHARGES ADDITIONAL TO THOSE ALREADY PAID FOR TRANSPORTATION SERVICE FURNISHED IN CONNECTION WITH BILL OF LADING AT 171356, DATED APRIL 24, 1959, WHICH COVERED THE TRANSPORTATION OF 4,455 POUNDS OF "TRAINING MATERIAL" FOR THE UNITED STATES ATOMIC ENERGY COMMISSION IN A GOVERNMENT-OWNED CAR FROM MORRIS, LOUISIANA, TO ROCKY, COLORADO, WITH A STOPOVER AT KILLEEN, TEXAS. THE BILL OF LADING IS ANNOTATED:

"AUTH: "JOINT MILITARY PASSENGER AGREEMENT, SEC. 25 AND AEC SEC. 22 DATED JULY 1, 1951.'

"ROUTE: IC-MS TO SHREVEPORT, T AND P TO FT. WORTH, ATSF TO TEMPLE, ATSF- GCF TO COPPERAS COVE, ATSF TO KAYS SPUR (STOPOVER) ATSF TO KILLEEN, ATSF TO FT. WORTH, FWD-CS TO DENVER, D AND RGW-LOCAL TO ROCKY FLATS.'

THE CHARGES HAVE BEEN SETTLED, IN ACCORDANCE WITH THE AUTHORITIES SHOWN ON THE BILL OF LADING, ON A COMBINATION OF FIRST-CLASS LESS CARLOAD RATES MADE OVER COPPERAS COVE, TEXAS. YOUR CLAIM FOR THE ADDITIONAL $45.44 REPRESENTS CHARGES AT THE LOCAL RATE OF $1.02 PER HUNDRED POUNDS FROM DENVER TO ROCKY. THE CLAIM IS PREDICATED UPON YOUR CONTENTION THAT THE AUTHORITIES CITED ON THE BILL OF LADING REQUIRE, IN THE ABSENCE OF A THROUGH FREIGHT ROUTE IDENTICAL TO THE ROUTE ACTUALLY TRAVELED, THE USE OF A COMBINATION OF LOCAL FREIGHT

RATES VIA THE PASSENGER ROUTE USED.

WE HAVE CONSIDERED THIS PROBLEM SEVERAL TIMES IN CONNECTION WITH YOUR VARIOUS REQUESTS FOR REVIEW OF SIMILAR CLAIM SETTLEMENTS. SEE OUR DECISIONS OF MARCH 29 (WITH WHICH WE ENCLOSED A COPY OF OUR DECISION B- 148393, OCTOBER 19, 1962, TO ANOTHER CARRIER), AUGUST 5, OCTOBER 2, AND DECEMBER 16, 1963, B-149821, AND THOSE OF JULY 22 AND OCTOBER 18, 1963, B- 151850. THE BASIC PROBLEM ARISES FROM YOUR CONSTRUCTION OF SECTION 25, JOINT MILITARY PASSENGER AGREEMENT NO. 29, WHICH PROVIDES THE BASIS FOR CHARGES ON MILITARY IMPEDIMENTA AND WHICH IS APPLICABLE TO THIS SHIPMENT BECAUSE OF AN ARRANGEMENT MADE UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22. BY LETTER OF JULY 1, 1951, VARIOUS PASSENGER CARRIER ASSOCIATIONS, ON BEHALF OF THEIR MEMBERS, PURSUANT TO SECTION 22 OF THE INTERSTATE COMMERCE ACT, OFFERED TO TRANSPORT IN PASSENGER TRAIN SERVICE BETWEEN ANY UNITED STATES POINTS, SHIPMENTS OF ATOMIC ENERGY COMMISSION TRAINING MATERIAL IN GOVERNMENT-OWNED CARS UNDER THE SAME CONDITIONS AND AT THE SAME RATES AS THOSE AVAILABLE FOR THE TRANSPORTATION OF MILITARY IMPEDIMENTA. JOINT MILITARY PASSENGER AGREEMENT NO. 29, SECTION 25, PROVIDES FOR THE TRANSPORTATION OF MILITARY IMPEDIMENTS IN PASSENGER TRAIN SERVICE AT TRANSPORTATION CHARGES WHICH

"WILL BE THE SAME AMOUNT IN DOLLARS AND CENTS AS WOULD APPLY IF THE SHIPMENT WERE MADE IN REGULAR FREIGHT TRAIN SERVICE UNDER CURRENT TARIFFS AND AGREEMENTS WITH THE MILITARY AUTHORITIES * * *.'

SUBPARAGRAPH (G) PROVIDES THAT THE BASIS OF CHARGES THEREIN CONTAINED FOR THE MOVEMENT OF MILITARY IMPEDIMENTA IN PASSENGER TRAIN SERVICE SHALL APPLY OVER ALL LINES AND ROUTES VIA WHICH THE MILITARY IMPEDIMENTA MOVES IN PASSENGER TRAIN SERVICE.

THESE PROVISIONS ARE CLEAR AND UNAMBIGUOUS. STATED ANOTHER WAY, THEY PROVIDE FOR SHIPMENT IN PASSENGER TRAIN SERVICE AT THE SAME CHARGE--- "THE SAME AMOUNT IN DOLLARS AND CENTS"--- AS IF TRANSPORTATION HAD BEEN IN REGULAR FREIGHT TRAIN SERVICE. IMPLICIT IN THIS LANGUAGE IS THE NECESSARY DETERMINATION OF WHAT THE NORMAL FREIGHT CHARGES WOULD BE ON A LIKE SHIPMENT OF MILITARY IMPEDIMENTA IN FREIGHT SERVICE; THE FREIGHT CHARGES (DOLLARS AND CENTS) SO DETERMINED ARE THEN APPLICABLE TO THE SHIPMENT AS IT MOVED VIA THE PASSENGER ROUTE. THAT THIS IS A CORRECT INTERPRETATION OF THE RULE IS SUPPORTED BY THE FACT THAT A CHARGE WHICH WOULD BE "THE SAME AMOUNT IN DOLLARS AND CENTS") MUST BE BASED UPON THE APPLICABLE FREIGHT RATES AND THE THROUGH ROUTES VIA WHICH THE JOINT FREIGHT RATES APPLY. THE LETTER OF JULY 1, 1951, TO THE ATOMIC ENERGY COMMISSION PERMITTED THE SHIPMENT OF TRAINING MATERIALS IN GOVERNMENT-OWNED CARS UNDER THE SAME CONDITIONS AND AT THE SAME RATES AS APPLIED TO THE TRANSPORTATION OF MILITARY IMPEDIMENTA, SO THAT THE DOLLARS AND CENTS CHARGE FOR TRANSPORTING MILITARY IMPEDIMENTA, AUTHORIZED IN SECTION 25 OF JOINT MILITARY PASSENGER AGREEMENT NO. 29, APPLIES EQUALLY IN COMPUTING CHARGES FOR THE TRANSPORTATION OF ATOMIC ENERGY COMMISSION TRAINING MATERIAL. THE SETTLEMENT OF JUNE 29, 1961, DISALLOWING YOUR CLAIM ON BILL 27346, WAS CONSISTENT WITH THIS CHARGE BASIS AND THEREFORE IT IS SUSTAINED.

INCIDENTALLY,"A REGULAR SECTION 22 QUOTATION" AND A "SECTION 22 RATE QUOTATION," ABOUT WHICH YOU RAISE A QUESTION, ARE NOT DISTINGUISHABLE, SINCE THEIR PURPOSE, IN ACCORDANCE WITH SECTION 22 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22, IS TO PERMIT GOVERNMENT TRAFFIC TO BE ACCORDED CHARGES, RULES, OR REGULATIONS DIFFERENT FROM THOSE AVAILABLE TO THE GENERAL PUBLIC OR TO PERMIT ITS MOVEMENT AT CHARGES REDUCED FROM THOSE AVAILABLE TO THE PUBLIC IN TARIFFS. YOU REFER TO DEPARTMENT OF THE ARMY SPECIAL REGULATIONS SR 55-105-5, MARCH 12, 1953, SECTION 2, PARAGRAPHS 12A, B AND C. WHILE THESE REGULATIONS HAVE BEEN SUPERSEDED BY ARMY REGULATION AR 55-21, JUNE 6, 1956, THE PERTINENT PROVISIONS OF THE LATTER DO NOT SUBSTANTIALLY DIFFER FROM THOSE OF THE FORMER. AS EXPLAINED IN OUR DECISION OF OCTOBER 18, 1963, B-151850, THESE PROVISIONS DO NOT CONFLICT WITH THE PROPER CONSTRUCTION OF SECTION 25, JOINT MILITARY PASSENGER AGREEMENT NO. 29, AS SET FORTH HEREIN AND IN OUR DECISION OF OCTOBER 18, 1963.