B-147206, DEC. 8, 1961

B-147206, DEC. 8, 1961

TO THE WESTERN PACIFIC RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 8, 1961, FILE G-12-F 72942- REV., REQUESTING REVIEW OF THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM FOR $110.16 ADDITIONAL FREIGHT CHARGES ON THREE SHIPMENTS OF ARMY TRACTOR TANKS WHICH MOVED FROM MCKAY, CALIFORNIA, TO WARNER, UTAH, UNDER BILLS OF LADING WY-8363637, WY-8363638 AND WY-8363639, ALL DATED OCTOBER 30, 1958.

IN URGING PAYMENT OF YOUR CLAIM, YOU INVITE OUR ATTENTION TO PARAGRAPH (3) (B) OF ITEM 100 OF THE TARIFF OF INCREASED RATES AND CHARGES X-212 EFFECTIVE FEBRUARY 1, 1958, AND TO THE LISTING OF ARMY TRACTOR TANKS IN GROUP 619 WHICH PROVIDES FOR INCREASING THE COMMODITY RATES SET OUT IN TARIFFS ON ARMY TANKS BY THREE PERCENT. APPARENTLY IT IS YOUR CONTENTION THAT THE CLASS 35-RATING NAMED IN EXECUTIVE COMMITTEE--- WESTERN TRAFFIC ASSOCIATION SECTION 22 QUOTATION NO. 64-A IS SUCH A COMMODITY RATE AND HENCE SHOULD BE SO INCREASED UNDER TARIFF K-212.

A RATE OR RATING PROFFERED UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C.A. 22, IS TO BE DISTINGUISHED FROM COMMODITY AND OTHER RATES AND RATINGS PUBLISHED UNDER SECTION 6 (1) OF THE ACT, 49 U.S.C.A. 6 (1). A COMMODITY RATE PUBLISHED IN TARIFFS ON FILE WITH THE COMMISSION PURSUANT TO 49 U.S.C.A. 6 (1) REMOVES THE ARTICLE COVERED BY THE COMMODITY-RATE DESCRIPTION FROM THE FREIGHT CLASSIFICATION, AND THE EXCEPTIONS THERETO, IF ANY. AN EXCEPTION RATE IS AN EXCEPTION TO RATINGS IN THE CLASSIFICATION AND REMOVES THE ARTICLE FROM THE CLASSIFICATION. REISMAN AND SONS, INC., V. MUSHROOM TRANSPORTATION COMPANY, INC., 313 I.C.C. 94, 96; NEW YORK V. UNITED STATES, 331 U.S. 284 (FOOTNOTE PAGE 290). A SECTION 22 QUOTATION RATE, HOWEVER, IS A SPECIAL RATE EXISTING BY REASON OF A CONTRACT, BID OR OTHER ARRANGEMENT BETWEEN THE GOVERNMENT AND THE CARRIERS. UNITED STATES V. SOUTHERN PACIFIC CO., 25 I.C.C. 255. THE RIGHT OF THE CARRIERS TO TRANSPORT GOVERNMENT PROPERTY FREE OR AT REDUCED RATES IS ELECTIVE AND NOT MANDATORY, AND IS NOT DEPENDENT UPON TARIFF AUTHORIZATION. UNITED STATES OF AMERICA V. UNION PACIFIC R. CO., 28 I.C.C. 518. THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF ATCHISON, T. AND S.F. RY. V. UNITED STATES, 256 U.S. 205, 206, NOTED THAT TWO OF THE SHIPMENTS THERE INVOLVED WERE PERFORMED UNDER CONTRACT OR SPECIAL RATE AGREEMENTS PERMITTED UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT. THUS A RATING TENDERED UNDER SECTION 22 OF THE ACT IS NOT A COMMODITY RATE UNDER THE GENERALLY UNDERSTOOD DEFINITION OF THE TERM.

EC-WTA QUOTATION 64-A IN THE FORM OF A CONTINUING UNILATERAL OFFER TO TRANSPORT ARMY TRACTOR TANKS AT THE CLASS 35 RATES IN PUBLISHED TARIFFS. THE QUOTATION ITSELF IS NOT MADE SUBJECT TO THE EX-PARTE INCREASES, AND THOSE INCREASES APPARENTLY ARE APPLICABLE ONLY TO THE EXTENT THE CLASS RATE IN THE TARIFFS FROM WHICH THE RATE IS DERIVED WAS INCREASED. ITEM NO. 2, PARAGRAPH (B) OF THE QUOTATION, WHICH IS APPLICABLE TO THESE SHIPMENTS, PROVIDES FOR THE ALTERNATIVE APPLICATION OF THE CLASS OR COLUMN 35 RATE PUBLISHED IN TARIFFS LAWFULLY ON FILE WITH THE INTERSTATE COMMERCE COMMISSION, WITH ONE EXCEPTION NOT HERE INVOLVED. THUS, THE RATES TO BE USED UNDER THE QUOTATION ARE THOSE NAMED IN EITHER THE CLASS OR EXCEPTION TARIFFS WITH INCREASES APPLICABLE TO SUCH RATES APPLYING BETWEEN THE POINTS OF SHIPMENT ON THE DATE OF SHIPMENT.

ITEM 100 OF EX-PARTE INCREASE 212 WHICH PROVIDES THE METHODS TO BE USED IN INCREASING TARIFF RATES IS DIVIDED INTO FIVE NUMBERED PARAGRAPHS. PARAGRAPHS NUMBERED (4) AND (5) ARE NOT HERE RELEVENT. PARAGRAPH (1) PROVIDES FOR INCREASING CLASS RATES UNDER TABLE 2, OR TWO PERCENT, DETERMINED BY THE USE OF RATINGS NAMED IN THE GOVERNING CLASSIFICATION. PARAGRAPHS (2) AND (3) PROVIDE FOR THE ALTERNATIVE APPLICATION OF TABLE 2 ON UNLISTED COMMODITIES OR THE TABLE SPECIFIED FOR GROUPS OF LISTED COMMODITIES (INTO WHICH ARTICLES ARE DIVIDED) TAKING RATES DETERMINED BY THE USE OF RATINGS PUBLISHED AS EXCEPTIONS TO THE CLASSIFICATION OR COMMODITY RATES. SINCE THE RATING APPLICABLE TO THESE SHIPMENTS IS PROVIDED BY A SECTION 22 QUOTATION, WHICH MAKES APPLICABLE THE CLASS 35 RATE DERIVED FROM PACIFIC SOUTH COAST FREIGHT BUREAU (NAMING CLASS RATES) TARIFF 1016, I.C.C. 1590, WE CONCLUDE THAT THE TWO PERCENT INCREASE PROVIDED IN PARAGRAPH (1) OF EX-PARTE 212 IS APPLICABLE. IN ANY EVENT THE PERCENTAGE INCREASE TO BE APPLIED IS NOT CLEAR UNDER THE TARIFF, MAKING APPLICABLE THE RULE THAT AMBIGUITIES MUST BE RESOLVED IN FAVOR OF THE SHIPPER WHO IS ENTITLED TO THE LOWER RATE. SEE 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.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM FOR $110.16 BY OUR SETTLEMENT CERTIFICATE OF JANUARY 12, 1961, APPEARS PROPER, AND IS SUSTAINED.