B-131602, OCT. 23, 1957

B-131602, OCT. 23, 1957

TO THE MISSOURI PACIFIC RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR REQUEST, PER FILE 6-CP-47262-A, FOR REVIEW OF THE SETTLEMENT DATED JUNE 3, 1952, WHICH DISALLOWED YOUR CLAIM, PER BILL NO. 47262-A, FOR ADDITIONAL CHARGES FOR THE TRANSPORTATION OF 80,700 POUNDS OF "5/8" PLASTIC PLYWOOD (FIR WALLBOARD)" FROM ST. LOUIS, MISSOURI, TO MEMPHIS, TENNESSEE, UNDER GOVERNMENT BILL OF LADING NO. WV-1639727, DATED JUNE 1, 1945. THE BILL OF LADING CARRIER AN INBOUND REFERENCE SHOWING THAT THE SHIPMENT ORIGINATED AT OLYMPIA, WASHINGTON, ON JULY 15, 1944, AND WAS SHIPPED FROM THAT POINT TO ST. LOUIS, MISSOURI, UNDER GOVERNMENT BILL OF LADING NO. WV-328154. BILL OF LADING WV-1639727 ALSO SHOWS BY A NOTATION THEREON THAT THE SHIPMENT WAS TENDERED FOR TRANSIT UNDER THE PROVISIONS OF MISSOURI PACIFIC RAILROAD TARIFF NO. 9600-F, I.C.C. NO. A-9721.

YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES COMPUTED ON THE BASIS OF A JOINT THROUGH RATE FROM OLYMPIA, WASHINGTON, OF 75 1/2 CENTS PER 100 POUNDS, PLUS A TRANSIT CHARGE OF 2 3/4 CENTS PER 100 POUNDS,LESS A CREDIT OF 75 1/2 CENTS PER 100 POUNDS FOR CHARGES PAID ON THE MOVEMENT INTO ST. LOUIS, THE TRANSIT POINT. THIS RESULTED IN CHARGES ON THE OUTBOUND MOVEMENT FROM ST. LOUIS TO MEMPHIS OF $22.24. YOU SUBSEQUENTLY REFUNDED $335.94, PRESUMABLY AS LAND-GRANT DEDUCTIONS FROM THE THROUGH TRANSPORTATION CHARGES FROM OLYMPIA, WASHINGTON, TO MEMPHIS, TENNESSEE. THEREAFTER YOU FILED A SUPPLEMENTAL BILL FOR $289.61, BASED ON THE PREMISE THAT TRANSIT WAS NOT APPLICABLE BECAUSE THE INBOUND AND OUTBOUND COMMODITY WERE NOT THE SAME.

THE CERTIFICATE OF SETTLEMENT DATED JUNE 3, 1952, DISALLOWED THIS CLAIM ON THE GROUNDS THAT IDENTICAL COMMODITIES WERE SHIPPED INBOUND AND OUTBOUND. AT THE SAME TIME A NOTICE OF OVERPAYMENT, FORM 1003, WAS ISSUED FOR $44.93, BASED ON THE APPLICATION OF A JOINT THROUGH RATE OF 75 1/2 CENTS PER 100 POUNDS PUBLISHED IN TRANS-CONTINENTAL FREIGHT BUREAU TARIFF NO. 17-R, AGENT L. E. KIPP'S I.C.C. NO. 1470, LESS LAND-GRANT DEDUCTIONS COMPUTED VIA AN EQUALIZED ROUTE THROUGH MINNEAPOLIS, MINNESOTA, LYLE, MINNESOTA, AND CAIRO, ILLINOIS. THIS LAND-GRANT BASIS PRODUCED A NET RATE OF 40.804 CENTS PER 100 POUNDS, TO WHICH WAS ADDED 2 3/4 CENTS PER 100 POUNDS, THE TRANSIT CHARGE AUTHORIZED IN MISSOURI PACIFIC RAILROAD COMPANY TARIFF NO. 9600-F, I.C.C. NO. A-9721. SINCE YOU FAILED TO MAKE REFUND OF THE OVERPAYMENT, RECOVERY WAS EFFECTED IN JULY 1953 BY DEDUCTION OF THE AMOUNT OF $44.93 FROM YOUR BILL NO. 70095.

IN REQUESTING REVIEW OF THE MATTER YOU REITERATE YOUR CONTENTION THAT THE GOVERNMENT IS NOT ENTITLED TO THE TRANSIT PRIVILEGES ON THIS SHIPMENT BECAUSE THE COMMODITIES INBOUND AND OUTBOUND WERE NOT THE SAME, AND YOU URGE THAT, IN ANY EVENT, LAND-GRANT DEDUCTIONS MUST BE COMPUTED VIA A ROUTE THROUGH ST. LOUIS, MISSOURI, THE TRANSIT POINT.

THE BILL OF LADING COVERING THE INBOUND SHIPMENT (NO. WV-328154) DESCRIBES THE ARTICLE AS "FIR WALLBOARD," WHEREAS THE BILL OF LADING COVERING THE OUTBOUND SHIPMENT (NO. WV-1639727) DESCRIBES THE ARTICLE AS "5/8" PLASTIC PLYWOOD (FIR WALLBOARD).' YOU RELY UPON THE VARIANCE IN THE DESCRIPTIONS IN THE TWO BILLS OF LADING AND THE FACT THAT THE COMMODITY WAS DESCRIBED AS "FIR WALLBOARD" ON UNION PACIFIC WAYBILL NO. 52 COVERING THE INBOUND SHIPMENT. YOU ALSO MAKE REFERENCE TO A WESTERN WEIGHING AND INSPECTION BUREAU CORRECTION NOTICE, WHICH WAS NOT FURNISHED IN SUPPORT OF THE CLAIM.

THE RECORD SHOWS THAT THE ARTICLES TENDERED FOR SHIPMENT ON BILL OF LADING NO. WV-328154 WERE PURCHASED UNDER PURCHASE ORDER NO. (23-107) 44- 791, ISSUED UNDER CONTRACT NO. W-23-107-AC-435 WITH THE WASHINGTON VENEER COMPANY, C/O C-W PLYWOOD COMPANY, 9 S. CLINTON STREET, CHICAGO, ILLINOIS. THE PURCHASE ORDER PROVIDES FOR THE PURCHASE "F.O.B. CARS, MILL, ON COMMERCIAL B/L TO BE CONVERTED TO GOVERNMENT B/L AT DESTINATION," AND THE DESCRIPTION "PLASTIC FACED PLYWOOD" IS USED IN THE CITED PURCHASE ORDER AND CONTRACT TO DESCRIBE THE ARTICLES PURCHASE. THUS, IT SEEMS THAT NOTWITHSTANDING THE DESCRIPTION USED ON THE INBOUND BILL OF LADING, THE COMMODITY SHIPPED TO ST. LOUIS WAS, IN FACT, PLASTIC FACED WALLBOARD AND THE SAME AS THE COMMODITY INVOLVED IN THE OUTBOUND SHIPMENT. IN THE CIRCUMSTANCES, TRANSIT PRIVILEGES APPEAR TO HAVE BEEN AVAILABLE.

YOUR EQUALIZATION AGREEMENT PROVIDES THAT:

"THE CARRIERS SHOWN HEREIN AS PARTIES TO AGREEMENT, AGREE, SUBJECT TO THE CONDITIONS AND EXCEPTIONS STATED BELOW, TO ACCEPT, FOR THE TRANSPORTATION OF PROPERTY SHIPPED FOR ACCOUNT OF THE GOVERNMENT OF THE UNITED STATES AND FOR WHICH THE GOVERNMENT OF THE UNITED STATES IS LAWFULLY ENTITLED TO REDUCED RATES OVER LAND-GRANT ROADS, THE LOWEST NET RATES LAWFULLY AVAILABLE, AS DERIVED THROUGH DEDUCTIONS ACCOUNT OF LAND-GRANT DISTANCE FROM LAWFUL RATES FILED WITH THE THE INTERSTATE COMMERCE COMMISSION * * * APPLYING FROM POINT OF ORIGIN TO DESTINATION AT TIME OF MOVEMENT.'

THE ACT OF JUNE 7, 1924, 43 STAT. 477, 486, AS AMENDED BY SECTION 321 (A) OF THE TRANSPORTATION ACT OF 1940, 54 STAT. 954, REQUIRES PAYMENT FOR THE TRANSPORTATION OF DESIGNATED PROPERTY OVER LAND-GRANT DISTANCES ON THE BASIS OF 50 PERCENTUM OF THE RATES PAYABLE FOR LIKE TRANSPORTATION FOR THE PUBLIC, AND THE EQUALIZATION AGREEMENT SETS FORTH THAT THE CARRIERS PARTIES TO THE AGREEMENT WILL ACCEPT FOR THE TRANSPORTATION OF SUCH PROPERTY THE LOWEST NET RATES LAWFULLY AVAILABLE THROUGH DEDUCTIONS ON ACCOUNT OF LAND-GRANT DISTANCES FROM LAWFUL RATES APPLYING FROM ORIGIN TO DESTINATION.

SHIPMENT UNDER CONSIDERATION MOVED FROM OLYMPIA TO ST. LOUIS UNDER A COMMERCIAL BILL OF LADING WHICH WAS CONVERTED TO A GOVERNMENT BILL OF LADING AT ST. LOUIS, AND THE SHIPMENT MOVED FROM ST. LOUIS, TO MEMPHIS ON A GOVERNMENT BILL OF LADING. CONSIDERING THE TERMS OF PURCHASE (F.O.B. CARS, MILL), AND THE MOVEMENT OF THE SHIPMENT ON A GOVERNMENT BILL OF LADING OR A COMMERCIAL BILL OF LADING SUBSEQUENTLY CONVERTED TO A GOVERNMENT BILL OF LADING, IT MUST BE 1HDR XXXXX00001 002 AFLITEDATA68261- 000 CONCEDED THAT THE SHIPMENT CONSISTED OF GOVERNMENT PROPERTY THROUGHOUT THE ENTIRE TRANSPORTATION. THEREFORE, THE SHIPMENTS WERE ENTITLED TO LAND -GRANT DEDUCTIONS FROM OLYMPIA, THE ORIGINAL POINT OF ORIGIN, TO MEMPHIS, AND THE EQUALIZATION AGREEMENT PROVIDES THAT THE CARRIERS PARTICIPATING IN THE TRANSPORTATION WILL ACCEPT PAYMENT ON THE BASIS OF THE LOWEST NET RATE LAWFULLY AVAILABLE FROM ORIGIN TO DESTINATION. THERE IS NOTHING IN THE AGREEMENT THAT REQUIRES THAT A SHIPMENT GIVEN TRANSIT EN ROUTE UNDER APPROPRIATE TARIFF AUTHORITY SHOULD BE ACCORDED A DIFFERENT BASIS OF COMPUTING NET LAND-GRANT RATES THAN A THROUGH SHIPMENT WHICH HAS NOT BEEN ACCORDED A TRANSIT PRIVILEGE. THE HOLDING OUT UNDER THE AGREEMENT IS TO APPLY THE LOWEST NET RATES LAWFULLY AVAILABLE FROM ORIGIN TO DESTINATION. SEE, IN THIS CONNECTION, SOUTHERN RAILWAY COMPANY V. UNITED STATES, 322 U.S. 72, WHERE THE UNITED STATES SUPREME COURT STATES, ON PAGE 75:

"* * * THE "LOWEST NET RATES LAWFULLY AVAILABLE" MEANS TO US THE LOWEST NET RATES WHICH COULD HAVE BEEN OBTAINED ON THE BASIS OF TARIFFS ON FILE WITH THE INTERSTATE COMMERCE COMMISSION. * * * "

ACCORDINGLY, AS OUR SETTLEMENT OF YOUR BILL NO. 47262-A WAS CONSISTENT WITH THE FOREGOING, IT IS SUSTAINED.