B-137104, JUN. 25, 1962

B-137104, JUN. 25, 1962

TO THE ILLINOIS CENTRAL RAILROAD:

REFERENCE IS MADE TO YOUR LETTER OF MAY 11, 1961, FILE G-AFR-20502 BG 233395, AND SUBSEQUENT CORRESPONDENCE, REFERRING TO OUR DECISIONS OF SEPTEMBER 29 AND MAY 20, 1959, WITH PARTICULAR REFERENCE TO YOUR SUPPLEMENTAL BILLS AFR 20502-A AND AFR 20748-A IN THE AMOUNTS OF$1,455.79 AND $1,267.15. IN OUR DECISIONS, WE SUSTAINED THE DISALLOWANCE OF YOUR BILLS FOR THE DIFFERENCE BETWEEN THE CHARGES COMPUTED ON THE MINIMUM WEIGHT FOR SIZE OF CAR USED AND THE CHARGES COMPUTED UPON THE ACTUAL WEIGHT OF THE SHIPMENTS ON THE BASIS OF SEVERAL REPORTS OF THE DEPARTMENT OF THE ARMY QUOTED OR REFERRED TO IN OUR DECISIONS. THESE REPORTS GENERALLY WERE TO THE EFFECT THAT EACH OF SUCH SHIPMENTS, CONSISTING OF A CRANE, DERRICK OR POWER SHOVEL, REVOLVING OR MILITARY BRIDGE ERECTING, MOUNTED ON AUTOMOBILE OR TRAILER TRUCK CHASSIS WEIGHING 28,182 POUNDS SHIPPED FROM GAR WOOD INDUSTRIES, INC., CHICAGO, ILLINOIS, TO MEMPHIS, TENNESSEE, FOR STORAGE IN TRANSIT AND THENCE TO NEW ORLEANS, LOUISIANA, FOR EXPORT WERE PART OF A SERIES OF SHIPMENTS OF SUCH ARTICLES; AND, THAT WHILE THROUGH OVERSIGHT THE SIZE OF CAR ORDERED WAS NOT INSERTED ON THE INBOUND BILLS OF LADING INVOLVED, THE OUTBOUND BILLS SHOW 40 FOOT CARS WERE ORDERED, WHICH SIZE CAR WAS SUFFICIENTLY LARGE TO ACCOMODATE THE SHIPMENTS. THE REPORTS FURTHER INDICATE THAT THE RATE DEPARTMENT OF THE ILLINOIS CENTRAL RAILROAD HAD INFORMED THE MEMPHIS GENERAL DEPOT, DEPARTMENT OF THE ARMY, THAT SINCE THE UNITS COULD HAVE BEEN LOADED ON A 41 FOOT 6 INCHES FLAT CAR WITH SAFETY CLEARANCE, A REFUND WAS IN ORDER ON ALL SUCH CARS RECEIVED AT THE MEMPHIS DEPOT. SINCE THE ACCOUNTING OFFICERS OF THE GOVERNMENT NECESSARILY MUST RELY UPON THE STATEMENT OF FACTS FURNISHED BY THE GOVERNMENT AGENCIES INVOLVED IN THE ABSENCE OF SUBSTANTIAL EVIDENCE TO THE CONTRARY, AND THE RECORD THUS INDICATED AN UNDERSTANDING BETWEEN YOUR RAILROAD AND THE SHIPPING AGENCY THAT THE ITEMS WOULD BE SHIPPED ON THE SMALLER SIZED CAR, AND SINCE YOUR RATE DEPARTMENT INDICATED AN ADJUSTMENT OF THE CHARGES TO SUCH BASIS WAS IN ORDER, WE SUSTAINED THE DISALLOWANCE OF THE TWO SUPPLEMENTAL BILLS. WE ALSO SUGGESTED THAT SINCE THE ADDITIONAL INFORMATION AS TO THE UNDERSTANDING BETWEEN YOUR RATE DEPARTMENT AND THE MEMPHIS GENERAL DEPOT APPEARED TO BE MATTERS WITHIN THE KNOWLEDGE OF OFFICERS OF THE DEPOT AND YOUR RATE OFFICE AT MEMPHIS THAT SUCH SOURCES BE CONTACTED FOR WHATEVER ADDITIONAL INFORMATION YOU DESIRED.

IN YOUR LETTER OF MAY 11, 1961, YOU EXPLAIN THAT YOUR RECORDS HAVE BEEN DESTROYED PURSUANT TO REGULATIONS OF THE INTERSTATE COMMERCE COMMISSION AND REQUEST THAT WE ENDEAVOR TO FURNISH DOCUMENTARY PROOF TO SUPPORT WHAT YOU TERM OUR CLAIM.

AS YOU KNOW, THE NET AMOUNT PAID TO THE CARRIERS ON THESE SHIPMENTS OCCURRED THROUGH SUCH CARRIERS BILLING AND BEING PAID PRIOR TO AUDIT FOR WHAT THEY CONSIDERED DUE FOR THE INBOUND AND OUTBOUND PORTIONS OF THE TRANSPORTATION SERVICES FURNISHED AND OUR OFFICE ADJUSTING THE CHARGES SO PAID, AS AUTHORIZED BY SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66 TO WHAT WE CONSIDERED WAS DUE. YOUR SUPPLEMENTAL BILLS REPRESENT AMOUNTS CLAIMED BY YOU IN ADDITION TO THE NET CHARGES SO PAID. IT IS THUS YOUR CLAIM RATHER THAN THAT OF THE UNITED STATES AND THE BURDEN OF PROOF AS TO ITS PROPRIETY APPEARS TO REST WITH YOU RATHER THAN UPON THE UNITED STATES TO REBUT IT. UNITED STATES V. NEW YORK, N.H. AND H.R.CO., 355 U.S. 253.

HOWEVER, IN AN EFFORT TO SECURE FURTHER INFORMATION AS TO THE NATURE OF THE AGREEMENT OF THE ILLINOIS CENTRAL RATE OFFICE CONCERNING RATES APPLICABLE TO THE SHIPMENT AND ITS CONCESSION THAT A REFUND WAS IN ORDER DUE TO OVERSIZED CARS HAVING BEEN FURNISHED, WE CONTACTED THE DEPARTMENT OF THE ARMY. WHILE THE REPORT IS SOMEWHAT INDEFINITE AS TO THE BACKGROUND OF THE AGREEMENT OF THE ILLINOIS CENTRAL RATE DEPARTMENT THAT A REFUND WAS DUE, APPARENTLY BECAUSE OF THE CONSIDERABLE LAPSE OF TIME SINCE THE ITEMS MOVED IN 1951 AND 1952, WE WERE FURNISHED COPIES OF CERTAIN CORRESPONDENCE BETWEEN MR. T. J. PRENDERGAST OF YOUR CHICAGO OFFICE AND MR. P. E. SCHEPPE OF YOUR MEMPHIS, TENNESSEE, OFFICE WHICH WERE FORWARDED TO THE FORMER CHIEF OF THE TRANSPORTATION SECTION, U.S. ARMY ENGINEER DISTRICT, CHICAGO, ILLINOIS. COPIES OF SUCH CORRESPONDENCE ARE ATTACHED AND WE ASSUME THAT AS A RESULT OF THE INVESTIGATION MENTIONED THE ILLINOIS CENTRAL RATE DEPARTMENT DETERMINED THE CHARGES BASED ON THE SMALLER CAR WERE PROPER AND NOTIFIED THE ARMY DEPOT ACCORDINGLY AND THAT A REFUND WAS IN ORDER. TRUST THAT THE FURNISHING OF THE COPIES OF SUCH CORRESPONDENCE WILL ENABLE YOU TO LOCATE YOUR FILE IN THE MATTER AND ENABLE YOU TO SATISFY YOURSELF THAT YOU HAVE RECEIVED FULL PAYMENT OF THE AMOUNT AGREED UPON BY YOUR RATE DEPARTMENT.

IN ANY EVENT, IT HAS COME TO OUR ATTENTION THAT SUIT WAS BROUGHT BY YOUR COMPANY ON BILL AFR 20502-A IN THE SAME AMOUNT AS YOUR CLAIM TO THIS OFFICE, AND IS LISTED AS ITEM NO. 159 IN ILLINOIS CENTRAL RAILROAD V. UNITED STATES, CT.CL.NO. 565-58. THIS SUIT ALSO INCLUDES OTHER ITEMS INVOLVING SIMILAR SHIPMENTS. SINCE IT IS OUR UNIFORM PRACTICE TO WITHHOLD ACTION ON ITEMS INVOLVED IN A PENDING COURT ACTION, NO FURTHER ACTION BY US APPEARS APPROPRIATE AT THIS TIME AS TO YOUR BILL NO. 20502-A. IF ANY ADDITIONAL AMOUNT IS DUE YOU THEREON, IT WILL PRESUMABLY BE SETTLED IN THE COURT. ALSO SINCE THE SAME ISSUE INVOLVED IN YOUR BILL AFR 20748-A IS PENDING IN THE COURT ACTION, AND THE ACTION TAKEN BY US ACCORDS WITH THE ADMINISTRATIVE REPORT AS TO THE AGREEMENT WITH YOUR RATE DEPARTMENT, WE SEE NO PROPER BASIS, AT THIS TIME, FOR MODIFYING OUR PRIOR DECISIONS SUSTAINING THE DISALLOWANCE.

HOWEVER, SHOULD THE FINAL COURT DECISION ON THE ISSUE BE ADVERSE TO THE GOVERNMENT'S POSITION, WE WILL BE PLEASED, AT YOUR REQUEST, TO GIVE THE MATTER FURTHER CONSIDERATION.