B-148520, JUL. 27, 1962

B-148520, JUL. 27, 1962

TO THE SOUTHERN PACIFIC COMPANY, TEXAS AND LOUISIANA LINES:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 23, 1962, FILEWZT-11559-10 RG, REQUESTING REVIEW OF THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM FOR $134.10 ON SUPPLEMENTAL BILL WZT-11559-10-A, OUR REFERENCE TK 727398.

THE AMOUNT CLAIMED REPRESENTS AN AMOUNT ASSERTED TO BE DUE ON THE SHIPMENT UNDER BILL OF LADING WZ-T-270559 BASED ON THE APPLICATION OF THE LOCAL RATE FROM AVONDALE, COLORADO, TO NEW ORLEANS, LOUISIANA. YOU CONTEND THAT TRANSIT PRIVILEGE DOES NOT SUPPLY ON THIS MOVEMENT SINCE A TRANSIT CREDIT REFERENCE WAS ALSO SHOWN ON BILL OF LADINGWZ-T-270560 COVERING A SIMILAR FREIGHT MOVEMENT. APPARENTLY IT IS YOUR POSITION THAT TRANSIT CREDIT REFERENCE ON THE SECOND BILL OF LADING VIOLATED THE TRANSIT PROVISIONS AND NULLIFIED TRANSIT ON BOTH OF THESE SHIPMENTS.

OUR RECORDS SHOW THAT A SHIPMENT OF 43,480 POUNDS OF FREIGHT AUTOMOBILES MOVED FROM OAKLAND, CALIFORNIA, TO AVONDALE, COLORADO, FOR IN-TRANSIT STORAGE, AND THAT THE INBOUND CARRIER BILLED AND WAS PAID CHARGES OF $1,214.40 BASED ON A RATE OF $2.40 PER HUNDRED POUNDS, PLUS THE 15 PERCENT EX-PARTE INCREASE, APPLIED TO A MINIMUM WEIGHT OF 44,000 POUNDS. THE RECORDS FURTHER SHOW THAT YOUR COMPANY CLAIMED AND WAS PAID BALANCE CHARGES OF $505.65 ON EACH OF THE TWO SHIPMENTS MOVING FROM AVONDALE, COLORADO, TO NEW ORLEANS, LOUISIANA, BASED ON A RATE OF $4.73 PER HUNDRED POUNDS, PLUS THE 15 PERCENT EX-PARTE INCREASES AND OTHER ASSESSABLE CHARGES, ON A MINIMUM WEIGHT OF 20,000 POUNDS.

IN THE ADJUSTMENT OF THE PAID CHARGE ON THE OUTBOUND MOVEMENT UNDER BILL OF LADING WZ-T-270559 THE THROUGH RATE OF $2.76 PER HUNDRED POUNDS (PLUS THE 6 PERCENT EX-PARTE INCREASE) NAMED IN ITEM 5745 OF TRANS-CONTINENTAL FREIGHT TARIFF 2-V, I.C.C. 1574, MINIMUM FREIGHT OF 44,000 POUNDS, WAS APPLIED. WE CONSIDERED THE SHIPMENT UNDER BILL OF LADING WZ-T-270560 AS A LOCAL SHIPMENT FROM AVONDALE, COLORADO, TO NEW ORLEANS, LOUISIANA, AND APPLIED A RATE OF $1.69 PER HUNDRED POUNDS ON A MINIMUM WEIGHT OF 18,000 POUNDS.

ITEM 6 OF EXECUTIVE COMMITTEE--- WESTERN TRAFFIC ASSOCIATION SECTION 22 QUOTATION 38 PROVIDES UNDER "THROUGH RATE" (PARAGRAPH B) THAT:

"EACH SHIPMENT MADE FROM ITS INITIAL POINT OF ORIGIN OR PORT OF IMPORTATION ON AND AFTER THE EFFECTIVE DATE HEREOF SHALL BE SUBJECT AND ENTITLED TO THE ALL-RAIL CARLOAD RATE APPLICABLE TO THE INBOUND OR OUTBOUND COMMODITY, WHICHEVER IS HIGHER, FROM SUCH POINT OF ORIGIN OR PORT OF IMPORTATION TO PORT OF TRANSSHIPMENT OR RAILHEAD, IN EFFECT BY TARIFF OR AS PROVIDED IN ANY APPLICABLE QUOTATION.'

ITEM 15, PARAGRAPH (G) PROVIDES THAT:

"WHEN THE ACTUAL TRANSIT WEIGHT OF THE INBOUND AND OUTBOUND SHIPMENT IS LESS THAN THE MINIMUM WEIGHT GOVERNING THE THROUGH RATE, AND THE ACTUAL TRANSIT WEIGHT OF THE OUTBOUND SHIPMENT IS THE SAME AS OR LESS THAN THE ACTUAL TRANSIT WEIGHT OF THE INBOUND SHIPMENT, THE DIFFERENCE BETWEEN THE ACTUAL AND MINIMUM WEIGHT, INBOUND AND OUTBOUND, WILL BE CONSIDERED TRANSIT TONNAGE. A TRANSIT TONNAGE CREDIT WILL NOT BE ALLOWED FOR ANY INBOUND WEIGHT NOT INCLUDED IN THE OUTBOUND SHIPMENT.'

THE DIFFICULTY WHICH HAS ARISEN IN CONNECTION WITH THE RATING OF THIS SHIPMENT RESULTS FROM THE SEVERAL RATES AND MINIMUM WEIGHTS PUBLISHED IN THE TARIFFS--- ANY ONE OF WHICH IS APPLICABLE DEPENDING ON THE WEIGHT OF A PARTICULAR SHIPMENT. IT HAS BEEN GENERALLY HELD, HOWEVER, THAT WHERE TWO DESCRIPTIONS AND TARIFFS ARE EQUALLY APPROPRIATE, OR IF THERE ARE TWO RATES IN EFFECT, THE SHIPPER IS ENTITLED TO HAVE THE RATE APPLIED THAT PRODUCED THE LOWER CHARGES. UNITED STATES V. GULF REFINING COMPANY, 268 U.S. 542, 546, AFFIRMING 284 F. 90; AMERICAN RY.XP.CO. V. PRICE OS., 54 F.2D 67; GENFIRE STEEL CO. V. BOSTON AND A.R., 204 I.C.C. 285, 287.

THE LOWEST CHARGES FROM ORIGIN TO FINAL DESTINATION ON THIS SHIPMENT APPEAR TO BE THOSE COMPUTED BY THE USE OF THE THROUGH RATE OF $2.76PER HUNDRED POUNDS ON A 44,000 POUND MINIMUM WEIGHT IN CONNECTION WITH THE OUTBOUND SHIPMENT UNDER BILL OF LADING WZ-T-270559. THIS RATE THEN IS THE APPLICABLE RATE AND BECAME EFFECTIVE UPON THE TENDER OF THE FIRST OUTBOUND SHIPMENT. UNDER THE PROVISIONS OF ITEM 15 (G) OF THE TRANSIT QUOTATION A CREDIT TONNAGE WAS NOT ACCEPTABLE ON ANY SUBSEQUENT OUTBOUND SHIPMENT, AND THE UNAPPLIED INBOUND WEIGHT BECAME CANCELLED TONNAGE.

ACCORDINGLY, WE TREATED THE SHIPMENT UNDER BILL OF LADING WZ-T 270560 AS A LOCAL SHIPMENT FROM THE TRANSIT POINT AND COMPUTED THE CHARGES AT A RATE OF $1.69 PER HUNDRED POUNDS ON A MINIMUM WEIGHT OF 18,000 POUNDS. IT IS NOTED, HOWEVER, THAT PAID CHARGES OF $398.90 WERE USED IN THE COMPUTATION OF THE NOTICE OF OVERPAYMENT ON THIS SHIPMENT INSTEAD OF THE $505.65 ACTUALLY BILLED AND PAID TO YOUR COMPANY. THUS, THERE IS A BALANCE OF $106.75 STILL DUE THE GOVERNMENT ON THIS SHIPMENT. THIS AMOUNT SHOULD BE REFUNDED WITHIN THE NEXT THIRTY DAYS; OTHERWISE, COLLECTION WILL BE EFFECTED BY DEDUCTION.