B-145946, DEC. 20, 1962

B-145946, DEC. 20, 1962

TO THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 9, 1962, FILE G-615383, IN WHICH YOU REQUEST REVIEW OF THE BASIS OUTLINED IN OUR LETTER OF MARCH 2, 1962, B-145946, TO YOUR COMPANY, FOR THE SETTLEMENT OF YOUR CLAIM, PER SUPPLEMENTAL BILLS 615383-A AND 615383-B, FOR ADDITIONAL CHARGES ON THE SHIPMENT OF BOMB FIN ASSEMBLIES WHICH MOVED DURING 1951 AND 1952 FROM PINE MEADOW, CONNECTICUT, TO PORT CHICAGO, CALIFORNIA, WITH A STOP FOR TRANSIT AT BELLEMONT, ARIZONA. ALSO, THERE HAS BEEN BROUGHT TO OUR ATTENTION YOUR LETTER OF OCTOBER 10, 1962, G-615383, TO OUR TRANSPORTATION DIVISION RELATIVE TO THE SETTLEMENT MADE PURSUANT TO OUR LETTER OF MARCH 2, 1962.

IN REQUESTING FURTHER CONSIDERATION OF THE SETTLEMENT ACTION, AND WHILE AGREEING TO THE THROUGH ASSESSABLE CHARGES, YOU PROTEST THE COMPUTATION OF THE CREDIT TAKEN FOR THE INBOUND CHARGES PAID TO THE TRANSIT STATION ON THE TRANSITED WEIGHT. YOU INVITE OUR ATTENTION TO THE PROVISIONS OF ITEMS 6 AND 16 OF ASSOCIATION OF AMERICAN RAILROADS SECTION 22 QUOTATION 16-F, AND TO THE PROVISIONS OF THE LATTER ITEM WHICH PROVIDES THAT THE GOVERNMENT WILL PAY THE THROUGH RATE MINUS THE RATE PAID INTO THE TRANSIT POINT. YOU ASSERT THAT THERE IS NO AUTHORITY UNDER THESE ITEMS FOR THE BASIS USED IN OUR SETTLEMENT AND URGE THAT CREDIT FOR THE INBOUND CHARGES SHOULD BE BASED ON THE TARIFF RATE OF $3.12 PER HUNDRED POUNDS PLUS 6 PERCENT INCREASES APPLIED TO THE WEIGHT OF 26,924 POUNDS WHICH MOVED OUTBOUND. THUS IT SEEMS TO BE YOUR POSITION THAT THE WORD "RATE" MEANS THE MONETARY CHARGE PER HUNDRED POUNDS, WITHOUT REGARD TO THE MINIMUM WEIGHT ASSOCIATED WITH SUCH RATE. THIS SEEMS TO BE EQUIVALENT TO SAYING THAT TWO SHIPMENTS WEIGHING 500 POUNDS, WHERE THE RATE PER HUNDREDWEIGHT IS $10, ONE BASED ON THE ACTUAL WEIGHT AND WHERE THE FREIGHT CHARGES WOULD BE $50, AND THE OTHER IS BASED ON A 10,000 POUND MINIMUM AND WHERE THE FREIGHT CHARGES WOULD BE $1,000, MOVED AT THE SAME RATE. OBVIOUSLY, THEY DID NOT, THE ONE RATE BEING 20 TIMES THE OTHER, THOUGH THE RATE PER HUNDREDWEIGHT IS THE SAME. THE RATE PER HUNDRED POUNDS ONLY BECOMES MEANINGFUL WHEN CONSIDERED WITH THE APPLICABLE MINIMUM WEIGHT.

THE RECORD PERTAINING TO THIS SHIPMENT SHOWS THAT THE INBOUND MOVEMENT INTO BELLEMONT, ARIZONA, CONSISTED OF 500 BOXES OF BOMB FIN ASSEMBLIES WEIGHING 35,000 POUNDS, WHICH UNDER ITEM 6 OF QUOTATION 16 F WAS TREATED AS A LOCAL MOVEMENT SUBJECT TO A MINIMUM WEIGHT OF 40,000 POUNDS AT A RATE OF $3.12 PER HUNDRED POUNDS PLUS 6 PERCENT INCREASE. THUS, THE INBOUND CHARGES PAID WERE 40,000 TIMES $3.12 PER HUNDRED POUNDS OR $1,248 PLUS 6 PERCENT OR $1,322.88. CONSIDERING ONLY 35,000 POUNDS MOVED INBOUND, THE ACTUAL PAID IN RATE PER HUNDRED POUNDS WAS $1,322.88 DIVIDED BY 350 OR $3.77966 AS SHOWN ON OUR SETTLEMENT CERTIFICATE.

ITEM 6 PROVIDES FURTHER, HOWEVER, THAT EACH SHIPMENT MADE FROM ITS ORIGINAL POINT OF ORIGIN WILL BE ENTITLED TO THE LOWEST THROUGH CARLOAD RATE FROM SUCH POINT OF ORIGIN TO THE PORT OF TRANSSHIPMENT OR RAILHEAD. TRANSIT IS A STOP-OVER PRIVILEGE BY WHICH A BREAK IN THE CONTINUOUS CARRIAGE IS DISREGARDED AND THE INBOUND AND OUTBOUND MOVEMENTS TREATED AS THOUGH NO INTERRUPTION HAD TAKEN PLACE IN THE THROUGH MOVEMENT. BALTIMORE AND O.R. V. UNITED STATES, 24 F.SUPP. 734, 735; WHEELOCK AND BIERD V. AKRON, C. AND Y.RY.CO., 179 I.C.C. 517, 520-521. UNDER THE TRANSIT ARRANGEMENT THE INBOUND SHIPMENT LOSES ITS IDENTITY AS A COMPLETED OR SEPARATE MOVEMENT AND BECOMES A PORTION OF THE THROUGH MOVEMENT. SEE SAWDUST SALES CO. V. BALTIMORE AND O.R.CO., 186 I.C.C. 265, 268; STALEY MANUFACTURING CO. TERMINAL ALLOWANCE, 245 I.C.C. 383, 392 (FOOTNOTE). SEE ALSO DUCK RIVER GRAIN CO. V. NASHVILLE, C. AND ST.L. RY., 160 I.C.C. 28, 29-30, WHEREIN THE INTERSTATE COMMERCE COMMISSION, IN DENYING REPARATION ON THE SHIPMENT TO THE TRANSIT POINT, STATED THAT THE PRINCIPLES APPLICABLE TO THE THROUGH SHIPMENT GOVERNED THE TRANSPORTATION MOVEMENT, AND THAT IN THE ADJUSTMENT OF THE CHARGES THE CARRIERS WERE ENTITLED TO THE THROUGH RATE APPLICABLE ON THE SHIPMENT.

REGARDING YOUR CONTENTION THAT ITEM 16 OF QUOTATION 16-F PROVIDES THAT THE GOVERNMENT WILL PAY THE THROUGH RATE LESS THE RATE PAID INTO THE TRANSIT POINT OUR SETTLEMENT APPLIED THE ACTUAL PAID IN RATE AS EXPLAINED ABOVE. ALSO, IT WILL BE NOTED THAT IN THE SENTENCE FOLLOWING THE ONE TO WHICH YOU MAKE REFERENCE THERE IS A FURTHER PROVISION THAT FINAL SETTLEMENT WILL BE MADE ON THE BASIS OF THE ACTUAL FREIGHT CHARGES PAID IN THOSE INSTANCES IN WHICH THE INBOUND CHARGES HAVE BEEN ADJUSTED. THIS SEEMS TO INDICATE THAT THE WORDS "RATE" AND "CHARGES" WERE INDISCRIMINATELY AND INTERCHANGEABLY USED IN THE QUOTATION. SEE ALSO IN THIS CONNECTION, LULL CARRIAGE CO. V. CHICAGO, K. AND S.RY.CO., 19 I.C.C. 15, WHEREIN THE INTERSTATE COMMERCE COMMISSION (PAGE 16) STATED THAT THE SHIPPER IS INTERESTED IN THE ULTIMATE CHARGE FOR THE TRANSPORTATION SERVICE AND THAT THE MINIMUM WEIGHT COMPRISED A PART OF THE CARLOAD RATE. TO THE SAME EFFECT, HIGHLAND CORDAGE CO. V. SOUTHERN RY.CO., 179 I.C.C. 771, 774; J. F. SOLLEY AND CO. V. BALTIMORE AND O.R.CO., 178 I.C.C. 777, 781.

THE WORD "RATE" AS USED IN INTERSTATE COMMERCE LAW HAS BEEN DEFINED ELSEWHERE TO MEAN THE LOWEST NET COST TO THE SHIPPER FOR THE TRANSPORTATION OF HIS PROPERTY. IN ASCERTAINING THIS AMOUNT, CONSIDERATION IS GIVEN TO ALL MONEY TRANSACTIONS OF EVERY KIND OR CHARACTER HAVING A BEARING ON, OR RELATION TO, THE PARTICULAR INSTANCE OF TRANSPORTATION WHEREBY THE COST TO THE SHIPPER IS DIRECTLY OR INDIRECTLY INCREASED OR DIMINISHED. SEE UNITED STATES V. CHICAGO AND A.RY.CO., 148 F. 646, 674, AFFIRMED 212 U.S. 563; GREAT NORTHERN RY. CO. V. ARMOUR AND CO., 26 F.SUPP. 964, 967; CLARK V. SOUTHERN RY.CO., 119 N.E. 539, 542.

ACCORDINGLY, IT IS OUR VIEW THAT OUR LETTER OF MARCH 2, 1962, B 145946, GIVES A REALISTIC AND EQUITABLE CONSTRUCTION TO THE LANGUAGE OF THE QUOTATION REFERRED TO BY YOU AND NOT HAVING BEEN SHOWN TO BE ERRONEOUS, THE SETTLEMENT BASED THEREON APPEARS PROPER AND IS SUSTAINED.