B-146498, NOV. 16, 1962

B-146498, NOV. 16, 1962

TO PANHANDLE AND SANTA FE RAILWAY COMPANY:

REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 12 AND NOVEMBER 2, 1962, FILE NO. 105260-GA, REQUESTING FURTHER CONSIDERATION OF OUR DECISIONS DATED DECEMBER 14, 1961, MAY 1 AND AUGUST 6, 1962, B-146498, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR AN ADDITIONAL ALLOWANCE OF $376.56 IN CONNECTION WITH THE TRANSPORTATION OF IRON BODY GATE VALVES FROM BIRMINGHAM, ALABAMA, TO BUTLER (CUSTER COUNTY), OKLAHOMA, UNDER GOVERNMENT BILLS OF LADING NOS. I-271450 AND I-271451 DATED MARCH 24, 1959.

THE FACTS AND CIRCUMSTANCES GIVING RISE TO YOUR CLAIM AND THE BASIS FOR OUR ACTION WERE FULLY SET FORTH IN OUR DECISIONS OF DECEMBER 14, 1961, MAY 1 AND AUGUST 6, 1962. IN YOUR LETTER OF SEPTEMBER 12, 1962, YOU REITERATE YOUR CONTENTION THAT ITEM 1010 OF SOUTHWESTERN LINES' FREIGHT TARIFF NO. SW/S-1007, I.C.C. NO. 4000, AUTHORIZES THE USE OF ONE OR MORE GATEWAYS "ONLY WHEN THE MOVEMENT BETWEEN THE GATEWAYS REFERRED TO IS VIA LINES EAST OF THE MISSISSIPPI RIVER THENCE VIA ROUTES AUTHORIZED FROM THE LAST GATEWAY USED.' YOUR STATEMENT APPEARS TO BE SUBSTANTIALLY CORRECT, AS FAR AS IT GOES, BUT YOU ARE NOT CONSIDERING THE QUALIFICATION IN THE LAST PHRASE IN THE FIRST PARAGRAPH OF ITEM 1010.

THE FIRST PART OF SECTION 1 OF ITEM 1010 PROVIDES THAT:

"BETWEEN THE GATEWAYS NAMED BELOW ON THE ONE HAND, AND STATIONS IN SOUTHWESTERN TERRITORY ON THE OTHER, RATES FROM OR TO STATIONS IN SOUTHERN TERRITORY ALSO APPLY AS INDICATED BELOW VIA THE GM AND O, IC, MISSC, NO AND NE (SR SYS) OR SOU (SR SYS) AND THEIR CONNECTIONS EAST OF THE MISSISSIPPI RIVER, EXCEPT AS OTHERWISE PROVIDED IN THIS ITEM.'

PARAGRAPH (A) OF SECTION 1 PROVIDES THAT:

"FROM STATIONS IN SOUTHERN TERRITORY, RATES APPLY VIA ANY OF THE GATEWAYS SPECIFIED, THENCE VIA ONE OR MORE OF THE OTHER GATEWAYS SPECIFIED, SUBJECT TO THE ROUTING INSTRUCTIONS APPLICABLE FROM THE LAST GATEWAYS USED, THENCE VIA ONE OR MORE OF THE OTHER GATEWAYS SPECIFIED, SUBJECT TO THE ROUTING INSTRUCTIONS APPLICABLE FROM THE LAST GATEWAYS USED.'

THUS, YOUR STATEMENT QUOTED ABOVE IS QUALIFIED BY THE FOREGOING UNEQUIVOCAL ROUTING PROVISION, WHICH IS SUBJECT ONLY TO THE SPECIFIC ROUTING PROVIDED FROM THE LAST GATEWAYS USED.

YOUR PRIMARY OBJECTION TO THE ROUTE THROUGH BOTH MEMPHIS, TENNESSEE, AND ST. LOUIS, MISSOURI, SEEMS TO BE BASED ON THE PROVISION IN SECTION 3 OF ITEM 1000-D OF THE TARIFF THAT THE RATES FROM OR TO STATIONS IN SOUTHERN TERRITORY DO NOT APPLY IN CONNECTION "WITH THESE CARRIERS" (THE CARRIERS NAMED THEREIN) VIA GATEWAYS FROM OR TO WHICH NO ROUTES ARE PROVIDED VIA THESE CARRIERS. HOWEVER, YOU WILL NOTE THAT THE MOVEMENT VIA MEMPHIS WAS IN CONNECTION WITH THE ST. LOUIS SOUTHWESTERN RAILWAY, AND THAT PARTICULAR CARRIER IS NOT NAMED IN SECTION 3 OF ITEM 1000-D, BUT IT IS A PARTY TO THE TARIFF. AS YOU HAVE BEEN PREVIOUSLY ADVISED THERE IS NO PROVISION EXPRESSLY OR IMPLIEDLY REQUIRING THAT THE SERVICE BETWEEN TWO GATEWAYS BE PERFORMED ENTIRELY BY LINES EAST OF THE RIVER.

SECTION 2 OF ITEM 1000-D PROVIDES OPEN ROUTING ON TRAFFIC FROM BIRMINGHAM, ALABAMA, TO GATEWAYS (INCLUDING ST. LOUIS) NAMED IN SECTION 5 OF THE ITEM, AND NO CONTRARY PROVISION HAS BEEN FOUND IN TARIFF ITEMS 1200 TO 1570--- REFERRED TO IN SECTION 2--- NOR IN SECTION 3 OR SECTION 4 OF THE ITEM. THE NONPARTICIPATION SHOWN IN SECTION 3 APPLIES ONLY FOR ACCOUNT OF THE CARRIERS NAMED THEREIN (AND THE ST. LOUIS SOUTHWESTERN RAILWAY COMPANY IS NOT SO NAMED), AND SECTION 4 IS NOT PERTINENT.

GIVING EFFECT TO YOUR CONTENTION APPARENTLY WOULD REQUIRE THE PLACING OF UNDUE EMPHASIS UPON THE "EAST OF THE MISSISSIPPI RIVER" PHRASE IN THE FIRST PARAGRAPH OF ITEM 1010 OF THE TARIFF, AND DISREGARDING ENTIRELY THE "EXCEPT AS OTHERWISE PROVIDED IN THIS ITEM" PHRASE. ALSO, THE OPEN ROUTING PROVISIONS OF SECTION 2 OF ITEM 1000-D WOULD HAVE TO BE DISREGARDED ENTIRELY. THUS, WITHOUT HARMONIZING THE PROVISIONS OF THE SEVERAL ITEMS THE LANGUAGE IN THE ROUTING INSTRUCTIONS NECESSARILY WOULD BE CONSIDERED AMBIGUOUS, AND IN THAT REGARD IT IS WELL ESTABLISHED THAT ANY DOUBT IN THE MATTER IS REQUIRED TO BE RESOLVED AGAINST THE CARRIER AND IN FAVOR OF THE SHIPPER. SEE UNITED STATES V. STRICKLAND TRANSPORTATIONCO., 204 F.2D. 325, CERTIORARI DENIED 346 U.S. 856; UNION WIRE ROPE CORP. V. ATCHISON, TOPEKA AND SANTA FE RAILWAY CO., 66 F.2D. 965, CERTIORARI DENIED, 290 U.S. 686; SOUTHERN PACIFIC CO. V. LOTHROP, 15 F.2D. 486, CERTIORARI DENIED 273 U.S. 742; WILLINGHAM V. SELIGMAN, 179 F.2D. 257; BURRUS MILL AND ELEVATOR CO. V. CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY CO., 131 F.2D. 532; PETALUMA AND SANTA ROSA RAILROAD CO. V. COMMODITY CREDIT CORP., 83 F.SUPP. 639, AFFIRMED 190 F.2D. 438; LOUISVILLE AND NASHVILLE RAILROAD CO. V. ST. REGIS PAPER CO., 102 F.SUPP. 713, AFFIRMED 201 F.2D. 371; AND TIDE WATER ASSOCIATED OIL CO. V. ALTON AND SOUTHERN RAILROAD, 289 I.C.C. 42.

THE CONTENTS OF YOUR LETTER OF AUGUST 6, 1962, HAVE BEEN CAREFULLY CONSIDERED AND YOU HAVE NOT PRESENTED ANY FACTS OR EVIDENCE THAT WOULD WARRANT ANY MODIFICATION OF THE CONCLUSION REACHED IN OUR DECISIONS OF DECEMBER 14, 1961, MAY 1 AND AUGUST 6, 1962. ACCORDINGLY, THE CONCLUSION REACHED IN THOSE DECISIONS MUST BE, AND IS, ADHERED TO. ..END :