B-153552, AUG. 13, 1965

B-153552, AUG. 13, 1965

TO SOUTHERN PACIFIC COMPANY:

FURTHER REFERENCE IS MADE TO YOUR FILE NO. YM 85-D-93039-M REQUESTING REVIEW OF OUR SETTLEMENT DATED MAY 28, 1961, IN CLAIM TK 709734, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES ON A SHIPMENT DESCRIBED AS ELECTRICAL INSTRUMENTS, NOIBN, THAT MOVED FROM CLEAR FIELD, UTAH, TO OAKLAND, CALIFORNIA, UNDER GOVERNMENT BILL OF LADING N-T638939, DATED FEBRUARY 20, 1959. THE SHIPMENT WAS SHOWN ON THE BILL OF LADING AS AN OUTBOUND APPLICATION OF TONNAGE THAT HAD ORIGINATED AT CLEAR FIELD, PENNSYLVANIA, AND MOVED FOR STORAGE IN TRANSIT INTO CLEAR FIELD, UTAH, UNDER GOVERNMENT BILLS OF LADING N 3341631 AND NO. N-3341633, DATED MAY 8, 1957.

FOR THE OUTBOUND SERVICE TO OAKLAND, CALIFORNIA, YOU SUBMITTED YOUR BILL NO. F-93039, MARCH 1959, FOR $405.17, COMPUTED AT THE TRANS CONTINENTAL FREIGHT BUREAU QUOTATION NO. 71 (FREIGHT, ALL KINDS) RATE OF $6.28 PER 100 POUNDS FROM CLEAR FIELD, PENNSYLVANIA, LESS THE LOCAL RATE OF $5.43 PER 100 POUNDS PAID TO THE TRANSIT POINT, PLUS 14 CENTS PER 100 POUNDS TRANSIT CHARGE. THIS BILL WAS PAID ON VOUCHER NO. 345374 IN APRIL 1959.

IN OCTOBER 1960, BY SUPPLEMENTAL BILL NO. B-93039-M, MARCH 1959, YOU CLAIMED ADDITIONAL CHARGES OF $343.78, BASED UPON THE APPLICATION OF THE LOCAL RATE OF $1.83 PER 100 POUNDS, AS PROVIDED FOR IN PACIFIC SOUTH COAST FREIGHT BUREAU QUOTATION NO. 168-A, APPLICABLE ON SHIPMENTS OF RADIO TRANSMITTING AND RECEIVING SETS, FROM THE TRANSIT STATION, CLEAR FIELD, UTAH, TO OAKLAND, CALIFORNIA. YOU ALLEGED THAT UNDER ITEM 13 OF THE APPLICABLE TRANSIT QUOTATION THE TRANSIT PRIVILEGE WAS NOT AVAILABLE FOR THE REASON THAT THE INBOUND TONNAGE ON WHICH BILLING WAS SURRENDERED FOR CREDIT CONSISTED OF RADIO TRANSMITTING AND RECEIVING SETS COMBINED (ITEM 35080, UNIFORM FREIGHT CLASSIFICATION 5), WHEREAS THE OUTBOUND SHIPMENT CONSISTED OF RADIO TRANSMITTER PARTS (ITEM 34580, UNIFORMED FREIGHT CLASSIFICATION 5). IN SUPPORT OF SUCH ALLEGATION YOU SUBMITTED A COPY OF WESTERN WEIGHING AND INSPECTION BUREAU CORRECTION SHEET, DISTRICT NO. 4646, DATED SEPTEMBER 29, 1959, WHICH CONTAINS THE STATEMENT:

"ELIMINATE TRANSIT ACCOUNT INBOUND RADIO REC. AND TRANS. SETS APPLIED OUTBOUND AGAINST RADIO TRANSMITTER PARTS, A SUBSTITUTION NOT PERMITTED UNDER ITEM 13 QUO. WTL 1440.'

OUR TRANSPORTATION DIVISION ISSUED A SETTLEMENT DATED MAY 26, 1961, WHICH DISALLOWED YOUR SUPPLEMENTAL BILL, STATING THAT THE WESTERN WEIGHING AND INSPECTION BUREAU CERTIFICATE WAS NOT PROPERLY ENDORSED. YOUR RESTATED SUPPLEMENTAL BILL NO. D-93039-M MARCH 1959, SUBMITTED HERE FEBRUARY 18, 1964, CLAIMS ADDITIONAL CHARGES OF $503.39 (RATHER THAN THE $343.78 CLAIMED IN 1960), COMPUTED AT THE RATE OF $2.22 PER 100 POUNDS PROVIDED IN PACIFIC SOUTH COAST FREIGHT BUREAU QUOTATION NO. 423, APPLICABLE ON "FREIGHT, ALL KINDS.'

INASMUCH AS THE SHIPPING DOCUMENTS RELATING TO THE OUTBOUND SHIPMENTS HAVE BEEN DESTROYED PURSUANT TO LAW, WE ARE UNABLE TO IDENTIFY PRECISELY THE ARTICLES SHIPPED; BUT EVEN IF IT BE CONCEDED THAT THE OUTBOUND CARGO CONSISTED OF RADIO TRANSMITTER PARTS WE ARE OF THE VIEW THAT THE APPLICATION OF THE INBOUND TONNAGE WAS ENTIRELY CONSISTENT WITH ALL PERTINENT PROVISIONS OF THE TRANSIT QUOTATION. THE PERTINENT LANGUAGE OF ITEM 13 OF THE TRANSIT QUOTATION IN EFFECT AT THE TIME THE INBOUND SHIPMENT MOVED, WESTERN TRUNK LINE QUOTATION NO. 1199, AND ITEM 13 OF WESTERN TRUNK LINE QUOTATION NO. 1440, EFFECTIVE ON SHIPMENTS MOVING FROM POINT OF ORIGIN ON AND AFTER SEPTEMBER 1, 1957, IS IDENTICAL, AND READS AS FOLLOWS:

"ITEM NO. 13 INBOUND AND OUTBOUND SHIPMENT--- QUANTITY AND CHARACTER TONNAGE CREDITS

(B) THE OUTBOUND SHIPMENT FROM THE TRANSIT POINT MUST CONSIST OF THE SAME TYPE OF COMMODITY (ARTICLES EMBRACED BY THE SAME ITEM NUMBER OF THE GOVERNING TARIFF OR CLASSIFICATION AS THE INBOUND SHIPMENT, EXCEPT AS OTHERWISE PROVIDED HEREIN.'

AT THE TIME THE INBOUND TONNAGE AND THE OUTBOUND TONNAGE HERE INVOLVED MOVED ITEM 2700 OF TRANS-CONTINENTAL FREIGHT BUREAU FREIGHT TARIFF 29-K, I.C.C. 1570, NAMED COMMODITY RATES ON SHIPMENTS OF "FREIGHT, ALL KINDS," WITH EXCEPTIONS AS SPECIFIED IN SUCH ITEM. NEITHER THE COMMODITY THAT ACTUALLY MOVED INBOUND NOR THAT WHICH APPARENTLY MOVED OUTBOUND IS INCLUDED IN THE LIST OF SPECIFIC EXCEPTIONS; THEREFORE, BOTH CLEARLY ARE EMBRACED BY "THE SAME ITEM OF THE GOVERNING TARIFF.' THE VIEW THAT THE OUTBOUND SHIPMENT FALLS WITHIN THE "FREIGHT, ALL KINDS" CATEGORY SEEMS TO BE CONCEDED BY YOU, SINCE YOU ORIGINALLY BILLED FOR THE THROUGH MOVEMENT FROM CLEAR FIELD, PENNSYLVANIA, ON THAT BASIS OF RATES PROVIDED IN TRANS- CONTINENTAL FREIGHT BUREAU SECTION 22 QUOTATION NO. 71, AND BOTH YOUR SUPPLEMENTAL AND CORRECTED SUPPLEMENTAL BILLS ARE PREDICATED ON QUOTATION RATES APPLYING ON "FREIGHT, ALL KINDS.' NOR CAN IT BE MAINTAINED THAT THE ARTICLES WERE NOT OF THE SAME TYPE. BOTH THE INBOUND AND OUTBOUND SHIPMENTS CONSISTED OF ELECTRONIC COMMUNICATIONS EQUIPMENT, AND THEY ARE NOT MADE DISSIMILAR BY THE FACT THAT THE OUTBOUND SHIPMENT WAS COMPRISED OF PARTS. THUS, WHILE THE INBOUND AND OUTBOUND SHIPMENTS MAY NOT HAVE BEEN EMBRACED BY THE SAME ITEM OF THE CLASSIFICATION, BOTH CLEARLY ARE COVERED BY THE SAME ,FREIGHT, ALL KINDS" ITEM OF THE GOVERNING TARIFF, THE AFORE-MENTIONED ITEM 2700 OF TRANS-CONTINENTAL FREIGHT BUREAU FREIGHT BUREAU FREIGHT TARIFF 29-K. UNDER THE PLAIN AND UNAMBIGUOUS LANGUAGE OF ITEM 13 (B) OF THE TRANSIT QUOTATION THE OUTBOUND APPLICATION OF TONNAGE WAS CLEARLY AUTHORIZED. WAS CLEARLY AUTHORIZED.

IT THEREFORE APPEARS THAT THE CHARGES ON THE SHIPMENT HERE INVOLVED ARE COMPUTABLE AT THE RATE NAMED IN ITEM 2700 OF THE TARIFF 29 K, PLUS APPLICABLE INCREASES, OR $5.12 PER 100 POUNDS, PLUS 6 CENTS PORT SERVICE CHARGE, PLUS 14 CENTS TRANSIT CHARGE, LESS 3 CENTS PORT ALLOWANCE. THE NET RATE OF $5.29 PER 100 POUNDS, WHICH APPLIED TO THE OUTBOUND WEIGHT OF 40,926 POUNDS PRODUCES THROUGH CHARGES OF $2,164.90. CHARGES ON THE INBOUND SHIPMENT WERE COMPUTED AT THE RATE OF $5.43 PER 100 POUNDS ON 40,926 POUNDS, PRODUCING A TOTAL OF $2,222.28, AND $405.17 WAS PAID ON THE OUTBOUND SHIPMENT. THUS, CHARGES HAVE BEEN PAID ON THE THROUGH MOVEMENT IN THE TOTAL AMOUNT OF $2,627.45, OR $462.47 MORE THAN THE PROPERLY APPLICABLE CHARGES. THE OVERPAID AMOUNT OF $462.47 SHOULD BE REFUNDED PROMPTLY.