B-115164, SEP. 22, 1955

B-115164, SEP. 22, 1955

TO FLORIDA EAST COAST RAILWAY COMPANY:

REFERENCE IS MADE TO YOUR FILE 442-RF-10287-D, CONCERNING YOUR CLAIM, PER BILL NO. 442-RF-10287-D, FOR $376.34, REPRESENTING ADDITIONAL CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF 69,929 POUNDS OF SMALL ARMS AMMUNITION FROM BYNUM, ALABAMA, TO MIAMI, FLORIDA, UNDER BILL OF LADING NO. WQ-17166329 DATED AUGUST 9, 1943. THE SUBJECT SHIPMENT CONSISTED OF TRANSIT TONNAGE WHICH ORIGINATED AT ST. LOUIS, MISSOURI, AND WAS SHIPPED TO BYNUM, ALABAMA UNDER BILL OF LADING NO. WQ-17944289 DATED AUGUST 5, 1943, FOR STORAGE IN TRANSIT.

FOR THIS SERVICE YOU CLAIMED ORIGINALLY AND WERE PAID $220.28, BASED ON A RATE OF $1.08 CENTS PER 100 POUNDS FROM ST. LOUIS, MISSOURI, TO MIAMI, FLORIDA, LESS 80 CENTS PER 100 POUNDS CREDITED AS HAVING BEEN PAID INTO THE TRANSIT POINT, PLUS 3 1/2 CENTS PER 100 POUNDS TRANSIT CHARGE. SUBSEQUENTLY, IN CONSIDERATION OF YOUR CLAIM, PER BILL NO. 442-RF-10287-C, FOR ADDITIONAL CHARGES IN THE AMOUNT OF $276.21, IT WAS DETERMINED HERE THAT THE CHARGES SHOULD BE COMPUTED ON THE BASIS OF A THROUGH RATE OF 75 CENTS PER 100 POUNDS, LESS 61.319 CENTS PER 100 POUNDS PAID INTO THE TRANSIT POINT, PLUS 3 1/2 CENTS PER 100 POUNDS TRANSIT CHARGE. THE RESULTING OVERPAYMENT OF $100.13 WAS SUBSEQUENTLY COLLECTED BY SETOFF FROM AMOUNTS DUE FOR SERVICES COVERED BY YOUR BILL NO. 442-RF-21233. YOU THEN FILED CLAIM FOR ADDITIONAL CHARGES IN THE AMOUNT OF $376.34 WHICH AMOUNT WAS DETERMINED BY THE USE OF LOCAL RATES TO AND BEYOND BYNUM, ALABAMA, LESS APPLICABLE DEDUCTIONS FOR LAND GRANT. THIS CLAIM WAS DISALLOWED BY OUR LETTER DATED MAY 15, 1951. YOUR POSITION IS THAT SECTION 22 QUOTATION NO. 31 B, NOT SECTION 22 QUOTATION NO. 16-C, PROVIDES THE AUTHORITY FOR TRANSIT AND THAT THE COMBINATION OF LOCAL RATES SHOULD BE APPLIED SINCE IT RESULTS IN LOWER CHARGES THAN THOSE ASSESSABLE ON THE BASIS OF THE RATES AVAILABLE UNDER QUOTATION NO. 31-B.

IT APPEARS THAT EXCEPT AS TO THE THROUGH RATE BASIS AND THE DESIGNATED MINIMUM WEIGHT OF 50,000 POUNDS PER CAR, THE TERMS, CHARGES, ETC., OF QUOTATION NO. 31-B WERE ESSENTIALLY THE SAME AS THOSE OF QUOTATIONS NO. 16 -C, AND THE ONLY APPARENT PROVISION OF EITHER QUOTATION, AS ORIGINALLY ISSUED, THAT WOULD SEEM TO PRECLUDE THE APPLICATION, AS TO THE SHIPMENT HERE INVOLVED, OF THE THROUGH RATE OTHERWISE APPLICABLE UNDER THE PROVISIONS OF QUOTATION NO. 16-C, WAS THE PROVISION IN ITEM 1 OF THAT QUOTATION TO THE EFFECT THAT THE "TRAFFIC COVERED BY AND SUBJECT" TO THAT QUOTATION IS PROPERTY OF THE UNITED STATES, EXCEPT "ITEMS OF ORDNANCE COVERED BY A.A.R. SECTION 22 QUOTATION NO. 31, OR ANY AMENDMENTS THERETO.'

IT IS NOTED THAT QUOTATION NO. 31-B, AS ORIGINALLY ISSUED, PURPORTS TO AFFORD, UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT, LOWER RATES AND CHARGES ON THE TRAFFIC TO WHICH IT PERTAINS THAN THOSE WHICH ARE AVAILABLE IN PUBLIC TARIFFS INDEPENDENTLY OF SUCH QUOTATION. NOTWITHSTANDING THE DECLARATION IN QUOTATION NO. 31-B TO THE EFFECT THAT LOADED SMALL ARMS CARTRIDGES, AS LISTED IN ITEM 3 OF THE QUOTATION, ARE INCLUDED IN THE "TRAFFIC COVERED BY" THE QUOTATION, THE USE OF THE ONLY RATE OR CHARGE BASIS AUTHORIZED IN THE QUOTATION AS ORIGINALLY ISSUED, BEING 65 PERCENT OF THE FIRST-CLASS RATE, WOULD PRODUCE HIGHER CHARGES THAN THOSE AVAILABLE INDEPENDENTLY OF THE QUOTATION. THEREFORE, TO TREAT THIS SHIPMENT OF SMALL ARMS AMMUNITION AS AN ITEM OF ORDNANCE COVERED IN FACT BY QUOTATION NO. 31-B WOULD NOT AFFORD ANY REDUCTION IN RATES OR CHARGES AS COMTEMPLATED UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT, BUT INSTEAD WOULD REQUIRE THE PAYMENT OF HIGHER CHARGES THAN AUTHORIZED OTHERWISE IN TARIFFS--- A RESULT NOT LEGALLY PERMISSIBLE, AS RECOGNIZED IN ITEM 21 OF THE QUOTATION. ANY AGREEMENT TO DO THIS WOULD BE INVALID AND CANNOT BIND THE UNITED STATES.

MORE PARTICULARLY, HOWEVER, IT SHOULD BE OBSERVED THAT THE PRESENT SHIPMENT MOVED FROM THE ORIGINAL POINT OF ORIGIN, ST. LOUIS, MISSOURI, ON AUGUST 5, 1943, AND WAS DELIVERED AT MIAMI, FLORIDA, ON AUGUST 22, 1943. IN THIS CONNECTION, AMENDMENT NO. 4 TO QUOTATION NO. 31-B, DATED JULY 29, 1943, AND "IN EFFECT AND APPLICABLE TO ALL SHIPMENTS MOVING" FROM ORIGINAL POINT OF ORIGIN ON AND AFTER JULY 15, 1943, REQUIRED THE APPLICATION OF THE "LOWEST THROUGH ALL-RAIL CARLOAD RATE (JOINT OR COMBINATION).' THAT AMENDMENT WAS EFFECTIVE AT THE TIME OF THE PRESENT TRANSACTION AND DID NOT CONTAIN ANY REQUIREMENT FOR THE ASSESSMENT OF THE 65-PERCENT BASIS, WHICH AGAIN APPEARED IN AMENDMENT NO. 6, DATED AUGUST 18, 1943, ALMOST TWO WEEKS AFTER THIS SHIPMENT MOVED FROM ITS ORIGINAL POINT OF ORIGIN.

THE CHARGE BASIS USED BY OUR TRANSPORTATION DIVISION WAS CONSISTENT WITH THE ABOVE PROVISIONS OF THE MENTIONED QUOTATIONS AND YOUR CLAIM FOR ADDITIONAL CHARGES PROPERLY WAS NOT ALLOWED.