B-145569, AUG. 4, 1961

B-145569, AUG. 4, 1961

TO THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 7, 1961, FILE G-648278, WITH ENCLOSURE, REQUESTING A REVIEW OF THE DISALLOWANCE OF YOUR CLAIM FOR $41.06 WHICH AROSE FROM A SHIPMENT OF "ARMY TRACTOR TANKS" MOVED FROM BARWICK, PENNSYLVANIA, TO OAKLAND, CALIFORNIA. THE SHIPMENT WAS STORED FOR APPROXIMATELY TWO YEARS IN TRANSIT AT DEFENSE, TEXAS, AND WAS THEN TRANSPORTED TO DESTINATION UNDER GOVERNMENT BILL OF LADING WZ T-369495 DATED SEPTEMBER 12, 1958.

YOU SEEM TO CONTEND THAT THE CLASS-35 RATING AUTHORIZED IN TEA-ER SECTION 22 QUOTATION NO. A-1412-A, JOINT EWS-I.C.C.NO. 12, IS AN EXCEPTION TO THE CLASSIFICATION RATING, THEREFORE, ITEM 100 (2) (B) OF TARIFF OF INCREASED RATES AND CHARGES X-212, A TABLE 3 INCREASE OF THREE PERCENT, IS APPLICABLE TO THIS SHIPMENT RATHER THAN ITEM 100 (1) OF THE TARIFF, A TABLE 2 INCREASE OF TWO PERCENT.

THE CLASS-35 RATE OR THE 35 PERCENT OF FIRST-CLASS RATE AUTHORIZED BY SECTION 22 QUOTATION NO. A-1412-A DOES NOT APPEAR TO BE A CLASS RATE "DETERMINED BY THE USE OF RATINGS PUBLISHED AS EXCEPTIONS TO A SPECIFIED CLASSIFICATION," TO WHICH ITEM 100 (2) HAS REFERENCE, BUT IS A ,QUOTATION" OF A SPECIAL REDUCED RATE. THE AUTHORITY FOR SUCH REDUCED OR SPECIAL RATE IS SECTION 22 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22, WHICH PERMITS A CARRIER TO CHARGE LESS-THAN-APPLICABLE TARIFF RATES (A CLASS-45 RATE IN THIS INSTANCE) IN CONTRACTS WITH THE UNITED STATES. THE AUTHORITY FOR AN EXCEPTION RATE TO WHICH ITEM 100 (2) OF TARIFF OF INCREASED RATES AND CHARGES X-212 APPEARS TO REFER IS SECTION 6 OF THE INTERSTATE COMMERCE ACT. THIS SECTION PROVIDES THAT ALL COMMON CARRIERS SUBJECT TO THE ACT MUST FILE WITH THE COMMISSION, AS WELL AS PUBLISH IN A TARIFF AND POST FOR INSPECTION, ALL RATES AND CHARGES IN WHICH THE CARRIERS PARTICIPATE, EITHER ON A LOCAL, JOINT, OR COMBINATION BASIS. FURTHERMORE, AN EXCEPTION RATE REMOVES AN ARTICLE FROM THE CLASSIFICATION AND ESTABLISHES CLASS RATES DIFFERENT FROM NORMAL OR REGULAR CLASS RATES. GEORGE H. NOWLAND CO. V. ABERDEEN AND ROCKFISH R.R. CO., 263 I.C.C. 598.

THE PROPER RATE APPLICABLE TO THE SHIPMENT HERE INVOLVED, WHICH REMAINED AT THE TRANSIT POINT FOR MORE THAN 12 MONTHS, APPEARS TO BE THE CARLOAD RATE FROM THE TRANSIT POINT OR PORT OF ORIGIN IN EFFECT BY TARIFF OR QUOTATION ON THE DATE OF SHIPMENT FROM THE INITIAL POINT OF ORIGIN OR ON THE DATE OF RESHIPMENT FROM THE TRANSIT POINT, WHICHEVER IS HIGHER. SEE EC-WTA SECTION 22 QUOTATION NO. 38-A DATED JUNE 20, 1955, ITEM 6 (B). THE DATE OF RESHIPMENT FROM THE TRANSIT POINT THE CARLOAD RATE FOR ARMY TRACTOR TANKS IS SET FORTH IN TEA-ER SECTION 22 QUOTATION NO. A-1412-A DATED SEPTEMBER 27, 1957, AS CLASS OR COLUMN 35 PUBLISHED IN TARIFFS ON FILE WITH THE INTERSTATE COMMERCE COMMISSION. WHILE BY VIRTUE OF THE TARIFF OF INCREASED RATES AND CHARGES X-212 THE CLASS RATES WERE INCREASED BY APPLICATION OF TABLE 2 (TWO PERCENT) AND THE GOVERNMENT THUS BECAME LIABLE TO THE TWO PERCENT INCREASE WHICH YOU ALREADY HAVE BEEN ALLOWED, THE THREE PERCENT INCREASE DOES NOT APPEAR TO BE ALLOWABLE, THE APPLICABLE RATE BEING DERIVED FROM THE SECTION 22 QUOTATION AND NOT FROM A RATING PUBLISHED AS AN EXCEPTION TO A SPECIFIED CLASSIFICATION.

WHILE THERE IS DOUBT AS TO WHICH OF THE NAMED CLASS RATE INCREASES APPLY TO THIS SHIPMENT BECAUSE OF AN AMBIGUITY IN THE TARIFF WHEN READ TOGETHER WITH SECTION 22 QUOTATION A-1412-A, WE CONCLUDE THAT THE PROPER INCREASE IS THE TWO PERCENT UNDER TABLE 2 AND NOT THE THREE PERCENT UNDER TABLE 3, SINCE WHENEVER AN AMBIGUITY EXISTS IN THE TARIFF SO THAT IT IS NOT CLEAR UNDER WHICH RATING THE ARTICLE SHIPPED COMES, THE AMBIGUITY MUST BE RESOLVED IN FAVOR OF THE SHIPPER AND THE LOWER RATE IS APPLICABLE. UNITED STATES V. STRICKLAND TRANSPORTATION CO., 200 F.2D 234; WILLINGHAM V. SELIGMAN, 179 F.2D 257; AND, ATLANTIC COAST LINE R.CO. V. ATLANTIC BRIDGE CO., 57 F.2D 654.

THE LETTER OF JULY 25, 1958, ENTITLED "EX PARTE NO. 212--- INCREASED FREIGHT RATES, 1958" APPEARS BY ITS TERMS TO BE APPLICABLE ONLY TO SECTION 22 QUOTATIONS "WHICH HAVE BEEN AMENDED" TO MAKE THEM SUBJECT TO INCREASES PROVIDED IN TARIFF X-212. NO SUCH AMENDMENT APPLICABLE TO A TRANSCONTINENTAL SHIPMENT SUCH AS HERE INVOLVED APPEARS TO HAVE BEEN MADE IN SECTION 22 QUOTATION A-1412-A AT THE TIME THIS SHIPMENT MOVED FROM THE TRANSIT POINT.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM FOR $41.06 IN OUR SETTLEMENT CERTIFICATE OF MAY 4, 1960, MUST BE AND IS SUSTAINED.