B-122146, APR. 26, 1956

B-122146, APR. 26, 1956

TO THE PENNSYLVANIA RAILROAD COMPANY:

CONSIDERATION HAS BEEN GIVEN YOUR REQUEST PER FILE 145-110-8/157046, FOR REVIEW OF THE CHARGES ALLOWED YOUR COMPANY FOR THE TRANSPORTATION OF A SHIPMENT OF FRESH MEAT, PORK LOINS, FROZEN, FROM OMAHA, NEBRASKA, TO JERSEY CITY, NEW JERSEY, FOR EXPORT, UNDER BILL OF LADING NO. WV 4365963 DURING OCTOBER 1944. YOU NOW CLAIM AN ADDITIONAL AMOUNT OF $107.96.

THE RECORD SHOWS THAT THE TRANSIT TONNAGE SURRENDERED IN CONNECTION WITH THIS SHIPMENT CONSISTED OF 30,000 POUNDS OF FRESH MEAT, PORK BUTTS, FROZEN, AND 13,265 POUNDS OF FRESH MEAT, PORK LIONS, FROZEN, TOTAL 43,265 POUNDS, ORIGINALLY SHIPPED FROM SIOUX CITY, IOWA, TO OMAHA, NEBRASKA, FOR STORAGE, ON BILLS OF LADING NOS. WV-3753747 AND WV-3754972, DURING AUGUST AND SEPTEMBER 1944, RESPECTIVELY.

THE CHARGES FOR THE TRANSPORTATION OF THIS SHIPMENT WERE COMPUTED ON THE BASIS OF A THROUGH COMBINATION RATE, LAND GRANT CONSIDERED, ON FRESH MEAT, FROZEN, FROM SIOUX CITY, IOWA, TO JERSEY CITY, NEW JERSEY, FOR EXPORT. YOU QUESTION THAT BASIS FOR THE REASON THAT A PORTION OF THE INBOUND TONNAGE USED IN CONNECTION WITH THE TRANSIT CONSISTED OF FRESH MEAT (PORK BUTTS), FROZEN, WHILE THE OUTBOUND SHIPMENT CONSISTED OF FRESH MEAT (PORK LOINS), FROZEN. YOU URGE THAT THE TRANSIT TARIFF, IN EFFECT AT THE TRANSIT TARIFF, IN EFFECT AT THE TIME THIS SHIPMENT WAS TRANSPORTED, DID NOT PERMIT THE SUBSTITUTION OF PORK BUTTS FOR PORK LIONS, AND CITE THE PROVISIONS OF A SUBSEQUENTLY PUBLISHED TARIFF WHICH SPECIFICALLY AUTHORIZES SUCH SUBSTITUTION.

AN EXAMINATION OF ITEM 945 OF WESTERN TRUNK LINES' FREIGHT TARIFF NO. 213 -0, NAMING TRANSIT PRIVILEGES, SHOWS THAT IT PROVIDES FOR THE STORAGE AND/OR FREEZING IN TRANSIT OF FRESH MEAT, AS DESCRIBED IN LIST 1, ITEM 450 OF WESTERN TRUNK LINES' TARIFF NO. 209-0, AT OMAHA, NEBRASKA, AT $11 PER CAR, WHEN ORIGINATING AT SIOUX CITY, IOWA, AND DESTINED TO CHICAGO, ILLINOIS, AND POINTS BEYOND. THE COMMODITY DESCRIPTION IN LIST 1 OF ITEM 450 OF TARIFF NO. 208-G IS FRESH MEATS, IN STRAIGHT OR MIXED CARLOADS. ITEM 160, SECTION C, TARIFF NO. 213-0, COVERS "SUBSTITUTION" OF TONNAGE AND THERE IS NOTHING IN THE ITEM WHICH SPECIFICALLY PROHIBITS THE SUBSTITUTION OF ONE KIND OF FROZEN FRESH MEAT FOR ANOTHER. YOU RELY ON PARAGRAPH (C) OF SECTION C AS PROHIBITING SUCH SUBSTITUTION. THAT PARAGRAPH PROVIDES THAT "NO SUBSTITUTION OF COMMODITIES OR FREIGHT BILLS WILL BE PERMITTED AT TRANSIT STATION THAT WILL IMPAIR THE INTEGRITY OF THE APPLICABLE THROUGH RATE.' CONCERNING THE QUESTION OF SUBSTITUTION IT WAS CONTENDED IN THE CASE OF BOARD OF TRADE, CITY OF CHICAGO V. GRANT TRUNK WESTERN RAILROAD CO., 255 I.C.C. 141, 147, THAT THE MANUFACTURER SUBSTITUTED WHITE-CORN BILLING FOR YELLOW-CORN BILLING. THE COMMISSION STATED "THAT PRACTICES APPEARS TO BE GENERAL AND NOT IN CONTRAVENTION OF THE TRANSIT RULES.' AND IN CHARLES B. STOUT, D/B/A) MIGGINSVILLE FLOUR MILL V. ALTON RAILROAD CO., 227 I.C.C. 281, 283, IT WAS STATED THAT "THE SUBSTITUTION OF A CHARACTER OF WHEAT DIFFERENT FROM THE INBOUND WHEAT, OR THE SUBSTITUTION OF DIFFERENT WHEAT OF THE SAME CHARACTER, IS A GENERAL PRACTICE.'

THE RATES ON THE SHIPMENT UNDER CONSIDERATION HERE ARE AVAILABLE FOR APPLICATION ON FRESH MEAT, FROZEN. THE TARIFFS NAMING THE RATES PROVIDE NO RATES ON PORK BUTTS OR PORK LOINS, AS SUCH. IT DOES NOT APPEAR THAT THERE IS ANY DISTINCTION, FOR TARIFF PURPOSES, BETWEEN THE TWO TYPES OF PORK. THEY ARE IDENTIFIABLE AS FRESH MEAT WITHIN THE PURVIEW OF ITEM 945 AND DO NOT APPEAR TO BE WITHIN THE CONTEMPLATION OF PARAGRAPH (C), SECTION C OF ITEM 160.

ACCORDINGLY, THE AUDIT ACTION TAKEN IN THIS INSTANCE WHICH GAVE EFFECT TO THE VIEW THAT BOTH THE INBOUND SHIPMENTS AND THE OUTBOUND SHIPMENT WERE FRESH MEAT ENTITLED TO THE AUTHORIZED TRANSIT PRIVILEGE, WAS PROPER AND IS SUSTAINED.