B-129818, AUG. 22, 1957

B-129818, AUG. 22, 1957

TO ILLINOIS CENTRAL RAILROAD:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 14, 1956, FILE C-AFR 27132-A -H, IN WHICH YOU ENCLOSED SUPPLEMENTAL BILL NO. AFR-27132-A FOR $83.95, REPRESENTING ADDITIONAL CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF ONE AMBULANCE, WEIGHING 6,880 POUNDS, FROM BROOKLEY AIR FORCE BASE, BROOKLEY, ALABAMA, TO GREENVILLE PILOT SCHOOL, GREENVILLE, MISSISSIPPI, UNDER GOVERNMENT BILL OF LADING NO. AF 1855012, DURING JUNE 1953.

THE BILL OF LADING SHOWS THAT ALTHOUGH THE GOVERNMENT ORDERED A 40 FOOT CAR FOR SHIPMENT OF THE AMBULANCE, THE ORIGIN CARRIER, GULF, MOBILE AND OHIO RAILROAD COMPANY, FURNISHED A 46-FOOT CAR. THE BILL OF LADING ALSO CONTAINS A STATEMENT THAT THE LADING OCCUPIED NO MORE SPACE THAN WOULD HAVE BEEN REQUIRED HAD A 40-FOOT CAR BEEN FURNISHED.

FOR THE SERVICES PERFORMED YOU CLAIMED AND WERE PAID $281.75, COMPUTED ON THE BASIS OF A CLASS RATE OF $1.96 PER HUNDRED POUNDS, PLUS A 15 PERCENT INCREASE, APPLIED TO A 12,500-POUND MINIMUM WEIGHT FOR THE 46-FOOT CAR FURNISHED. IN OUR AUDIT, THE ALLOWABLE CHARGES ($197.80) WERE COMPUTED ON THE BASIS OF AN EXCEPTION RATING NAMED FOR SET-UP PASSENGER AUTOMOBILES IN ITEM NO. 43785 OF SUPPLEMENT NO. 24 TO EXCEPTIONS NO. 26 TO SOUTHERN CLASSIFICATION, I.C.C. NO. 108, WHICH PRODUCES A RATE OF $1.72 PER HUNDRED POUNDS, SUBJECT TO A 15 PERCENT INCREASE. THIS RATE WAS APPLIED TO A 10,000-POUND MINIMUM WEIGHT FOR THE 40-FOOT CAR ORDERED. THE OVERPAYMENT OF $83.95 WAS DEDUCTED FROM ONE OF YOUR SUBSEQUENT BILLS UPON YOUR FAILURE TO REMIT THIS AMOUNT VOLUNTARILY AFTER RECEIPT OF OUR NOTICE OF OVERPAYMENT.

YOU CONTEND THAT THE EXCEPTION RATING NAMED IN ITEM NO. 43785 DOES NOT INCLUDE AMBULANCES, AND THAT IF IT HAD MEANT TO INCLUDE THEM THE ITEM WOULD HAVE SO STATED, AS DOES THE CLASSIFICATION. THIS CONTENTION IS SIMILAR TO THAT OF THE DEFENDANT CARRIER IN DIAMOND T MOTOR CAR CO. V. HAWKEYE MOTOR EXP., INC., 48 M.C.C. 123, WHERE THE INTERSTATE COMMERCE COMMISSION HELD THAT THE TERM ,AUTOMOBILE" IS A GENERIC TERM DESIGNATING ANY VEHICLE DESIGNED FOR ROAD TRAVEL AND CONTAINING ITS SOURCE OF POWER WITHIN ITSELF. THIS CLEARLY INCLUDED AMBULANCES AND, IN THE ABSENCE OF A CLEAR LIMITATION IN THE PERTINENT TARIFF ITEM, THE RATE PROVIDED FOR PASSENGER AUTOMOBILES APPLIES TO THE SUBJECT AMBULANCE.

THE EXCEPTION RATING NAMED IN ITEM NO. 43785 IS SUBJECT TO THE CONDITION THAT THE MINIMUM WEIGHT SHALL BE THAT PROVIDED FOR THE CAR USED IN EVERY CASE. THE PROPRIETY OF ASSESSING FREIGHT CHARGES BASED UPON THE SIZE OF THE CAR FURNISHED AT THE CARRIER'S CONVENIENCE, RATHER THAN UPON THE SIZE OF THE CAR ORDERED BY THE SHIPPER AND ADEQUATE FOR THE SHIPMENT, IN CIRCUMSTANCES WHERE THE COMPUTATION OF CHARGES IS DEPENDENT UPON A MINIMUM CARLOAD WEIGHT GRADUATED ACCORDING TO THE SIZE OF THE CAR IS AN ISSUE BEFORE THE COURT OF CLAIMS IN BALTIMORE AND OHIO RAILROAD COMPANY V. UNITED STATES, C.CLS. NO. 275 55. THEREFORE, THIS ASPECT OF YOUR CLAIM CANNOT BE GIVEN CONSIDERATION AT THIS TIME.

ACCORDINGLY, THE ACTION OF OUR TRANSPORTATION DIVISION IS SUSTAINED.