B-127144, SEP. 4, 1956

B-127144, SEP. 4, 1956

TO THE BALTIMORE AND OHIO RAILROAD COMPANY:

CONSIDERATION HAS BEEN GIVEN TO YOUR REQUEST, PER FILE USO BILL 0108145- CNS, FOR REVIEW OF THE SETTLEMENT OF FEBRUARY 8, 1956, WHICH DISALLOWED YOUR CLAIM FOR $73.84, ALLEGED TO BE THE BALANCE DUE ON YOUR BILL NO. 0108145 IN CONNECTION WITH BILL OF LADING WV-1875572 WHICH COVERED A CARLOAD SHIPMENT OF WATER-PROOFED COTTON CLOTH, WEIGHING 30,693 POUNDS, TRANSPORTED FROM WHARTON, NEW JERSEY, TO SHELBY, OHIO, ON AUGUST 10, 1951.

THE RECORD INDICATES THAT THE BALTIMORE AND OHIO RAILROAD COMPANY BILLED AND THE DEPARTMENT OF THE ARMY PAID $448.12 FOR THIS TRANSPORTATION SERVICE, BASED ON A CLASS K-26 RATE OF $1.46 PER 100 POUNDS. IN THE AUDIT OF THE PAYMENT VOUCHER, OUR TRANSPORTATION DIVISION DETERMINED THAT THE ALLOWABLE FREIGHT CHARGES ON THIS SHIPMENT WERE $355.86, BASED ON A CLASS- 50 RATE ON THE FIRST 20,000 POUNDS AND A CLASS-40 RATE ON 10,693 POUNDS, THE WEIGHT IN EXCESS OF 20,000 POUNDS. THESE RATINGS ARE EXCEPTIONS TO THE OFFICIAL CLASSIFICATION RATING FOR COTTON PIECE GOODS, FINISHED, AND OTHER ARTICLES DESCRIBED THEREIN, INCLUDING WATER-PROOFED COTTON CLOTH, AND ARE PUBLISHED IN ITEM NO. 3251-C AND LIST NO. 36 OF SUPPLEMENT NO. 209 TO TRUNK LINE FREIGHT BUREAU TARIFF NO. 90-E, I.C.C. NO. A-848.

IT IS YOUR CONTENTION THAT ON THE DATE OF SHIPMENT THE PROPER RATE FOR USE IN ASSESSING CHARGES ON THIS SHIPMENT WAS THE CLASS "K-26" RATE, CARLOAD MINIMUM WEIGHT 30,000 POUNDS, PER ITEM 12640 OF THE CONSOLIDATED FREIGHT CLASSIFICATION NO. 19, APPLYING ON "CLOTH, COTTON, FIREPROOFED, OILED OR WATERPROOFED, NOT COATED, NOIBN, IN BOXES OR CRATES, OR IN WRAPPED BALES OR ROLLS.' THE REASON GIVEN BY YOU IS, IN EFFECT, THAT LIST NO. 36 IN TARIFF NO. 90-E, AS PUBLISHED IN SUPPLEMENT NO. 209, EFFECTIVE JULY 1, 1951, PROVIDED ONLY LESS CARLOAD APPLICATION ON WATER-PROOFED COTTON CLOTH UNTIL SEPTEMBER 29, 1951, ON WHICH DATE, IN SUPPLEMENT NO. 223, LIST NO. 36 WAS REISSUED TO PROVIDE FOR BOTH CARLOAD AND LESS CARLOAD RATINGS ON THIS COMMODITY.

THE PRESENT CONTROVERSY IS OVER THE USE OF LIST NO. 36 IN CONNECTION WITH ITEM 3251-C OF THE ,EXCEPTIONS" TARIFF NO. 90-E. LIST NO. 36 WAS FIRST PUBLISHED IN SUPPLEMENT NO. 175 OF TARIFF NO. 90-K FOR USE IN CONNECTION WITH A NEW ITEM, NO. 3251, EFFECTIVE OCTOBER 15, 1950, AND, IN CONJUNCTION WITH ITEM NO. 3251, PROVIDED BOTH CARLOAD AND LESS CARLOAD RATINGS ON COTTON PIECE GOODS AND OTHER ARTICLES, INCLUDING WATER-PROOFED COTTON CLOTH. SUBSEQUENTLY, LIST NO. 36 WAS REISSUED IN SUPPLEMENT NO. 209, EFFECTIVE JULY 1, 1951, BUT AS REISSUED, LIST NO. 36 PROVIDED ONLY FOR LESS CARLOAD QUANTITIES OF WATER-PROOFED COTTON CLOTH. AT THE SAME TIME, THE CAPTION TO LIST NO. 36, AS REISSUED IN SUPPLEMENT NO. 209, PROVIDED FOR THE SHIPMENT OF THE COMMODITIES SHOWN THEREIN IN "ANY QUANTITY" LOTS. THUS, ITEM 3251 C PROVIDED BOTH CARLOAD AND LESS CARLOAD RATINGS FOR THE COTTON PIECE GOODS AND OTHER ARTICLES NAMED IN LIST NO. 36, BUT THE LATTER WAS SHOWN IN THE CAPTION TO COVER ARTICLES FOR SHIPMENT IN "ANY QUANTITY" LOTS, AND IN THE BODY OF THE "LIST" SOME OF THE ARTICLES WERE SHOWN TO BE FOR "L.C.L.' (LESS CARLOAD) SHIPMENT AND OTHERS WERE UNDESIGNATED AS TO CARLOAD, LESS CARLOAD, OR ANY QUANTITY LOTS.

IN SUPPLEMENT NO. 223 TO TARIFF NO. 90-K, EFFECTIVE SEPTEMBER 29, 1951, LIST NO. 36 AGAIN WAS REISSUED AND THE "ANY QUANTITY" REFERENCE WAS ELIMINATED FROM THE CAPTION, AS WELL AS ALL REFERENCES TO "L.C.L.' CONNECTION WITH ANY OF THE ARTICLES SHOWN IN THE BODY OF THE "LIST.' THIS HAD THE EFFECT OF RESTORING TO THE ARTICLES NAMED IN LIST NO. 36 THE APPLICABILITY OF BOTH THE CARLOAD AND LESS CARLOAD RATINGS PUBLISHED IN ITEM 3251-C TO THE SAME EXTENT AS ORIGINALLY PUBLISHED IN SUPPLEMENT NO. 175.

THE RECORD SHOWS CLEARLY THAT THE FAILURE TO PROVIDE FOR THE APPLICATION OF THE CARLOAD RATING IN THE REISSUE OF LIST NO. 36 IN SUPPLEMENT NO. 209 OF THE "EXCEPTIONS" TARIFF NO. 90-K, AND THE AMBIGUITY OF THE TARIFF PROVISIONS CREATED BY THE CHANGE IN LIST NO. 36, WERE DUE TO A CLERICAL ERROR ON THE PART OF THE TARIFF PUBLISHING AGENT, AND THAT THERE WAS NO INTENTION TO OMIT THE CARLOAD APPLICATION OR CHANGE ANY OF THE OTHER PROVISIONS IN THE REISSUING OF THE "LIST.' THE INTENTION TO CONTINUE THE CARLOAD RATINGS IS SHOWN BY THE APPLICATION OF SEPTEMBER 13, 1951, FILED BY THE TRUNK LINE TERRITORY TARIFF BUREAU WITH THE INTERSTATE COMMERCE COMMISSION REQUESTING PERMISSION TO AMEND LIST NO. 36, AS SHOWN IN SUPPLEMENT NO. 209, BY (1) CHANGING THE HEADING TO READ "COTTON PIECE GOODS, FINISHED AND OTHER ARTICLES, MADE WHOLLY OF COTTON, UNLESS OTHERWISE SPECIFICALLY PROVIDED, VIZ.:" AND (2) ELIMINATING THE LETTERS "L.C.L.' SHOWN NINE TIMES IN CONNECTION WITH THE DESCRIPTION OF THE COMMODITIES,"THEREBY CORRECTING CLERICAL ERROR.' THE APPLICATION CONTAINED A STATEMENT OF THE FOLLOWING FACTS AS PRESENTING CERTAIN SPECIAL CIRCUMSTANCES AND CONDITIONS JUSTIFYING THE REQUEST:

"EFFECTIVE JULY 1, 1951, SUPPLEMENT NO. 209 CANCELLED SUPPLEMENT 175. WHEN BRINGING FORWARD LIST 36 CONTAINED ON PAGE 29 OF SUPPLEMENT NO. 175, THROUGH ERROR, THE COMPILER USED THE HEADING AND COMMODITY DESCRIPTION SHOWN IN LIST 30 ON PAGE 28 OF SUPPLEMENT 175.

"LIST 36 IS USED IN CONNECTION WITH ITEM 3251-C AND THE CLASS RATINGS CONTAINED IN ITEM 3251-C APPLY FOR BOTH L.C.L. TRAFFIC AND C.L. TRAFFIC. THIS ERROR HAS THE EFFECT OF ELIMINATING THE C.L. APPLICATION WHEREVER L.C.L. IS SHOWN IN LIST 36.'

ON THE BASIS OF THIS APPLICATION, THE INTERSTATE COMMERCE COMMISSION, BY PERMISSION ORDER NO. 51306 OF SEPTEMBER 18, 1951, AS AMENDED, GRANTED THE TARIFF PUBLISHING AGENT AUTHORITY TO ISSUE ON ONE DAY'S NOTICE THE CORRECTED LIST NO. 36, SHOWN IN SUPPLEMENT NO. 223, EFFECTIVE SEPTEMBER 29, 1951.

THUS, IT SEEMS THAT THE INCLUSION OF THE "L.C.L.' DESIGNATION IN CONNECTION WITH THE DESCRIPTION OF WATER-PROOF CLOTH IN LIST NO. 36, AND THE ADDITION OF THE "ANY QUANTITY" CLAUSE IN THE CAPTION OF THAT "LIST"--- BOTH OF WHICH WERE INCLUDED IN LIST NO. 36 BETWEEN JULY 1, 1951, AND SEPTEMBER 29, 1951--- WERE SIMPLY A TARIFF COMPILER'S ERRORS, AND AT NO TIME WAS THERE ANY INTENTION TO PUT INTO EFFECT A CANCELLATION OF THE CARLOAD RATINGS ON WATER-PROOF CLOTH. ALTHOUGH THE SHIPMENT INVOLVED IN THIS CASE MOVED BETWEEN JULY 1, 1951, AND SEPTEMBER 29, 1951, THE CARLOAD BASIS SEEMS PROPER FOR APPLICATION, SINCE THE CONTRADICTORY PROVISIONS OF ITEM 3251-C AND LIST NO. 36 RESULT IN SUCH AN AMBIGUITY THAT THE CONSTRUCTION MOST FAVORABLE TO THE SHIPPER SHOULD BE APPLIED. RAYMOND CITY COAL AND TRANS. CORP. V. NEW YORK CENTRAL R.R. CO., 103 F.2D 56; BURRUG MILL AND ELEV. CO. V. CHICAGO R.I. AND P.R.R. CO., 131 F.2D 532, 535. ALSO, IN MANY INSTANCES, WHERE THE FACTS JUSTIFIED SUCH A CONCLUSION, THE INTERSTATE COMMERCE COMMISSION HAS HELD THAT THE LOWER RATE WAS PROPER FOR USE IN COMPUTING CHARGES WHEN A HIGHER RATE BECAME APPLICABLE THROUGH MISTAKE OR TARIFF ERROR. IN THIS CONNECTION, SEE RUSSELL AND RUSSELL GRAIN COMPANY V. ATCHISON, T. AND S.F.RY. CO., 237 I.C.C. 691, 693; LONG ISLAND PROD. AND FERTZ. CO., INC. V. OCEAN S.S. CO. OF SAVANNAH, 237 I.C.C. 605, 608; AMERICAN WOOLEN CO. V. B. AND M. R.R. CO., 237 I.C.C. 186, 188; GLIDDEN CO. V. C. AND O. RY. CO., 229 I.C.C. 599, 601.

ACCORDINGLY, FOR THE REASONS STATED ABOVE, THE SETTLEMENT IS SUSTAINED.