B-130586, DEC. 20, 1957

B-130586, DEC. 20, 1957

TO ILLINOIS CENTRAL RAILROAD:

REFERENCE IS MADE TO YOUR FILE C-N-5226-A-OASI-WAG, REQUESTING A REVIEW OF THE SETTLEMENT (CLAIM NO. TK-579186) DATED DECEMBER 4, 1956, WHICH DISALLOWED YOUR CLAIM FOR $13.26 FOR WHARFAGE AND HANDLING AT GULFPORT, MISSISSIPPI, ON A CARLOAD OF NITRE CAKE TRANSPORTED FROM EVERETT, MASSACHUSETTS, COVERED BY BILL OF LADING NO. N-13145297, DURING MAY 1945.

YOU CONTEND THAT WHARFAGE AND HANDLING CHARGES ARE DUE ON THIS SHIPMENT BECAUSE YOUR WAYBILL AND THE BILL OF LADING SHOW THAT THE SHIPMENT WAS FOR EXPORT. IT IS APPARENT, THEREFORE, THAT YOU ARE ACCEPTING THE BILLING RECORD ON THIS SHIPMENT AS SATISFACTORY EVIDENCE OF EXPORTATION.

THE PORT TERMINAL CHARGES APPLICABLE AT GULFPORT, MISSISSIPPI, ARE PUBLISHED IN GULF AND SHIP ISLAND RAILROAD COMPANY FREIGHT TARIFF NO. H 2103, I.C.C. NO. 1192. WHILE THE TARIFF REQUIRES THE PAYMENT OF WHARFAGE AND HANDLING CHARGES WHEN THE DOMESTIC RATE IS APPLIED ON EXPORT SHIPMENTS ORIGINATING AT POINTS IN MASSACHUSETTS (RULE NO. 70, SUPPLEMENT NO. 58), OTHER RULES IN THE TARIFF SEEM TO PRECLUDE THE APPLICATION OF WHARFAGE AND HANDLING CHARGES ON SUCH SHIPMENTS WHEN DESTINED TO THE NAVY FACILITIES AT GULFPORT.

ADMINISTRATIVE ADVICE HAS BEEN RECEIVED THAT THE NAVY SUPPLY DEPOT WAS LOCATED ON PIERS WHICH IT LEASED FROM THE GULFPORT PORT COMMISSION. THIS CONNECTION, IT IS OBSERVED THAT RULE NO. 25 OF TARIFF NO. H-2013 DEFINES "WHARFAGE" AS:

"* * * THE USE OF WHARVES IN THE RECEIPT OF TRAFFIC FROM OR DELIVERY OF TRAFFIC TO SHIPS, BARGES, OR OTHER CRAFT WHILE LYING ALONGSIDE THE WHARF PROPERTIES OF THIS RAILROAD * * *.'

ACCORDINGLY, IF THE NAVY FACILITIES WERE NOT LOCATED ON WHARF PROPERTIES OF THE GULF AND SHIP ISLAND RAILROAD, BUT WERE ON LEASED PROPERTIES OF THE PORT COMMISSION, THE WHARFAGE CHARGE OF 22 CENTS PER TON IS NOT APPLICABLE.

SIMILARLY, WITH REFERENCE TO THE HANDLING CHARGE OF 88 CENTS PER TON, RULE 1, SUPPLEMENT NO. 43 OF TARIFF NO. H-2013, STATES, IN SUBSTANCE, THAT SUCH CHARGES APPLY ON TRAFFIC HANDLED OVER WHARF PROPERTY OWNED OR OPERATED BY OR IN CONNECTION WITH "THIS RAILROAD" (GULF AND SHIP ISLAND RAILROAD) OR OTHER WHARF PROPERTIES WITH WHICH THE GULF AND SHIP ISLAND HAS ARRANGEMENT OR CONTRACT. SINCE "HANDLING" IS DEFINED IN RULE 15 OF THE TARIFF AS MEANING THE PHYSICAL HANDLING OR MOVEMENT OF TRAFFIC BETWEEN CARS AND SHIPSIDE, IT SEEMS THAT THE HANDLING CHARGE WOULD APPLY ONLY WHERE SUCH SERVICE WAS PERFORMED BY THE RAILROAD OVER PIERS OPERATED BY IT. AS THE SUPPLY DEPOT WAS PRIVATELY OPERATED, THERE DOES NOT SEEM TO BE ANY BASIS FOR CONCLUDING THAT THE HANDLING IN THIS INSTANCE WAS PERFORMED BY THE RAILROAD. THEREFORE, SINCE THE PRESENT RECORD DOES NOT SHOW THAT YOU ARE ENTITLED TO WHARFAGE AND HANDLING CHARGES ON THIS SHIPMENT UNDER THE TERMS OF TARIFF NO. H-2013, THE SETTLEMENT IS SUSTAINED.

WITH REGARD TO YOUR CONTENTION AS TO BILL OF LADING N-13145297 FURNISHING THE NECESSARY PROOF THAT THE SHIPMENT REFERRED TO ABOVE WAS EXPORTED, IT IS NOTED THAT THE BILL OF LADING SHOWS THAT THE SHIPMENT WAS MARKED "FOR EXPORT" P.O. NO. 2AC-15305 CHG. 3," AND BORE A CODE DESIGNATION ,IDC-2701 -J.' IT IS, OF COURSE, CONCEDED THAT THIS SHIPMENT WAS INTENDED FOR EXPORT. IN THIS CONNECTION, YOUR ATTENTION IS INVITED TO YOUR LETTER OF NOVEMBER 29, 1956, FILE G-M-4620-OASI WAG, IN CONNECTION WITH OUR REQUEST FOR REFUND OF $1,558.95 FOUND TO HAVE BEEN OVERPAID ON YOUR BILL N-4620. INCLUDED IN THIS BILL WERE THE CHANGES CLAIMED ON BILLS OF LADING COVERING 7 CARLOAD SHIPMENTS OF IRON AND STEEL ARTICLES WHICH WERE TRANSPORTED FROM CARNEGIE, PENNSYLVANIA, CONSIGNED TO U.S. NAVY ADVANCE BASE DEPOT AT GULFPORT, MISSISSIPPI, DURING MARCH 1945. EACH BILL OF LADING SHOWS THAT IT COVERED A SHIPMENT MARKED FOR EXPORT IN A MANNER SIMILAR TO THAT SHOWN ON BILL OF LADING NO. 13145297, CONSIDERED ABOVE. CHARGES WERE PAID ON THE BASIS OF THE DOMESTIC RATES, LESS LAND-GRANT DEDUCTIONS, AND OUR REQUEST FOR THE REFUND OF OVERPAYMENTS WAS BASED ON THE APPLICATION OF A LOWER EXPORT RATE, LESS LAND-GRANT DEDUCTIONS. YOU REFUSE TO MAKE THE REQUESTED REFUND, CONTENDING THAT WE MUST FURNISH DOCUMENTARY EVIDENCE THAT THE SHIPMENTS WERE EXPORTED.

EACH BILL OF LADING, IN ADDITION TO BEING MARKED "FOR EXPORT," WITH A FURTHER CODE DESIGNATION AS TO THE OVERSEAS DESTINATION, BORE REFERENCE TO "ODT PERMIT NO. NM-103184-N EXPIRING MARCH 3, 1945" ON 6 BILLS OF LADING, AND TO "ODT PERMIT NO. NH-113043-N EXPIRING MARCH 10, 1945" ON THE REMAINING BILL OF LADING. THE PERMITS IN QUESTION WERE ISSUED PURSUANT TO THE PROVISIONS OF OFFICE OF DEFENSE TRANSPORTATION ORDER NO. 16, 7 FEDERAL REGISTER 5194. SECTION 502.41 OF THIS ORDER PROVIDED THAT NO CARRIER SHOULD ACCEPT FOR TRANSPORTATION, OR TRANSPORT FOR OR ON BEHALF OF THE GOVERNMENT TO ANY PORT OR POINT IN THE UNITED STATES FOR TRANSSHIPMENT OVERSEAS, ANY CARLOAD OF EXPORT OR OVERSEAS FREIGHT, UNLESS A VALID AND EFFECTIVE O.D.T. BLOCK PERMIT WAS FIRST ISSUED FOR SUCH SHIPMENT AND UNLESS SUCH O.D.T. BLOCK PERMIT NUMBER WAS INSCRIBED ON THE FACE OF THE WAYBILL AND THE BILL OF LADING. THUS, THESE BILLS OF LADING, BEING DULY INSCRIBED WITH THE NECESSARY O.D.T. BLOCK PERMIT NUMBERS ATTESTING TO THE FACT THAT THE SHIPMENTS WERE FOR EXPORTATION OVERSEAS, SHOULD PROVIDE SUFFICIENT DOCUMENTATION FOR PROTECTION OF THE EXPORT RATES.

FURTHERMORE, IN CONNECTION WITH BILL OF LADING N-13145297, YOU STATED THAT YOUR AGENT'S FREIGHT BILL, WHICH IS MADE FROM THE WAYBILL AND GOVERNMENT BILL OF LADING, SHOWED THAT THE SHIPMENT WAS FOR EXPORT. THE WAYBILLS AND THE BILLS OF LADING ON WHICH THE SEVEN SHIPMENTS REFERRED TO ABOVE WERE TRANSPORTED UNDOUBTEDLY SHOW SIMILAR INFORMATION, AND IF YOUR COMPANY PERFORMS THE WHARFAGE OPERATIONS YOUR RECORDS SHOULD SHOW SHIPSIDE DELIVERY. THEREFORE, SINCE THE 7 BILLS OF LADING HERE INVOLVED SHOW THE SAME EXPORTATION INFORMATION AS DID BILL OF LADING NO. N-13145297 IN ADDITION TO THE O.D.T. BLOCK PERMIT NUMBERS, THE REQUESTS FOR REFUND ON THE BASIS OF THE EXPORT RATES ARE PROPER. ACCORDINGLY, YOU ARE REQUESTED TO REFUND THE $1,558.95 FOUND OVERPAID; OTHERWISE, COLLECTION WILL BE EFFECTED BY DEDUCTION FROM AN UNPAID BILL.