B-139787, FEB. 8, 1960

B-139787, FEB. 8, 1960

TO ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 28, 1959, FILE 6298- BJD-69496 GOV-T B/L WY-5927067, WHEREIN RECONSIDERATION OF OUR DECISION OF JULY 24, 1959, B-139787, IS REQUESTED. THAT DECISION CONCERNED THE PROPER FREIGHT CHARGES ON A SHIPMENT OF 97,734 POUNDS OF SMALL ARMS AMMUNITION, 3,933 POUNDS OF ROCKET AMMUNITION WITH EXPLOSIVE PROJECTILES, AND 45 POUNDS OF LOW EXPLOSIVES, TRANSPORTED FROM PROVING GROUND, ILLINOIS, TO NEWBURG, MISSOURI, UNDER GOVERNMENT BILL OF LADING WY-5927067, IN SEPTEMBER 1955.

FOR THIS SERVICE YOU CLAIMED AND WERE PAID A TOTAL OF $1,363.53, COMPUTED AT A COLUMN 45 RATE ON THE SMALL ARMS AMMUNITION, A DOUBLE 1ST CLASS RATE ON THE ROCKET AMMUNITION, AND A ONE AND ONE-HALF TIMES 1ST CLASS RATE ON THE LOW EXPLOSIVES. IN THE AUDIT HERE, THE APPLICABLE CHARGES WERE DETERMINED TO BE $1,249.68, COMPUTED AT A COLUMN 45 RATE ON THE SMALL ARMS AMMUNITION AND A COLUMN 65 RATE, AS AUTHORIZED IN A.A.R. SECTION 22 QUOTATION NO. 14-A, ON THE BALANCE OF THE SHIPMENT. YOU REFUNDED THE DIFFERENCE OF $113.85 ($1,363.53 LESS $1,249.68) AND FILED CLAIM FOR THE AMOUNT SO REFUNDED.

BY SETTLEMENT OF APRIL 17, 1959, IN CLAIM NO. TK 666331, YOUR CLAIM WAS DISALLOWED AND YOU WERE INFORMED THAT RE-EXAMINATION OF THE SHIPMENT DISCLOSED A FURTHER OVERPAYMENT FOR WHICH A FORM 1003 (NOTICE OF OVERPAYMENT) WAS BEING PREPARED AND WHICH WOULD BE SENT TO YOU IN DUE COURSE. THIS NOTICE WAS MAILED TO YOU APRIL 14, 1959, REQUESTING REFUND OF AN ADDITIONAL OVERPAYMENT OF $325.94, BASED ON CHARGES COMPUTED AT A COLUMN 32 1/2 EXCEPTIONS RATE ON THE SMALL ARMS AMMUNITION AND A COLUMN 65 RATE ON THE BALANCE OF THE SHIPMENT. BY LETTER OF MAY 29, 1959, REVIEW OF THIS SETTLEMENT BY THE COMPTROLLER GENERAL OF THE UNITED STATES WAS REQUESTED AND OUR DECISION ON THE MATTER WAS ISSUED JULY 24, 1959. SINCE YOU DID NOT THEREAFTER REFUND THE OVERPAYMENT OF $325.94, THAT AMOUNT WAS DEDUCTED FROM MONIES OTHERWISE DUE YOUR COMPANY ON OCTOBER 27, 1959. NOTED ABOVE, YOUR REQUEST FOR RECONSIDERATION IS DATED OCTOBER 28, 1959.

YOUR PRIMARY OBJECTION TO THE SETTLEMENT OF THIS ACCOUNT IS THE USE HERE OF THE SECTION 22 QUOTATION NO. 14-A CARLOAD RATE TO COMPUTE THE CHARGES ON THE 3,933 POUNDS OF ROCKET AMMUNITION, CONSTITUTING PART OF THIS MIXED CARLOAD SHIPMENT. THE RULE WE APPLIED WAS THE SO-CALLED MODIFIED RULE 10, FOUND IN THE APPLICABLE WESTERN TRUNK LINES EXCEPTIONS TARIFF, PROVIDING, IN EFFECT, THAT WHEN A NUMBER OF ARTICLES FOR WHICH THE SAME OR DIFFERENT RATINGS OR RATES ARE PROVIDED WHEN IN STRAIGHT CARLOADS ARE INCLUDED IN A CARLOAD SHIPMENT, THEY WILL BE CHARGED AT THE ACTUAL WEIGHT AND STRAIGHT CARLOAD RATE APPLICABLE TO EACH ARTICLE, SUBJECT TO THE HIGHEST MINIMUM WEIGHT PROVIDED FOR ANY ARTICLE IN THE MIXED CARLOAD. THE RULE DOES NOT EXPRESSLY RESTRICT THE RATES THEREIN AUTHORIZED TO PUBLISHED RATES ON FILE WITH THE INTERSTATE COMMERCE COMMISSION AND USE OF THE RULE IS AUTHORIZED BY ITEM 6 OF A.A.R. SECTION 22 QUOTATION NO. 14-A.

THE PRINCIPLE HERE INVOLVED IS ONE OF LONG STANDING WITH OUR OFFICE AND HAS BEEN CONSISTENTLY APPLIED IN THE SETTLEMENT OF ACCOUNTS OF RAILROAD CARRIERS. YOUR REQUEST FOR RECONSIDERATION RAISES NO QUESTION THAT WAS NOT CONSIDERED IN OUR PREVIOUS DECISION, NOR HAVE YOU FURNISHED ANYTHING IN THE WAY OF EVIDENCE WHICH WOULD INDICATE THAT THE PLAIN LANGUAGE OF ITEM 6 SHOULD NOT BE GIVEN EFFECT IN COMPUTING THE CHARGES ON THIS SHIPMENT. ACCORDINGLY, THE PREVIOUS DECISION IS AFFIRMED.