B-153793, SEP. 17, 1964

B-153793, SEP. 17, 1964

TO THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY:

IN YOUR LETTER OF JULY 23, 1964, FILE 5 GB-25573, YOU REQUEST THAT FURTHER CONSIDERATION BE GIVEN TO YOUR LETTER OF MARCH 20, 1964. YOU STATE IN EFFECT THAT OUR REPLY OF JULY 17, 1964, B-153793, TO YOUR MARCH 20 LETTER DOES NOT DISCUSS YOUR CONTENTIONS BUT EVADES THE BASIC ISSUE.

YOU MAY BE ASSURED THAT THE CONTENTS OF YOUR PREVIOUS LETTER WERE FULLY CONSIDERED AND IT WAS RECOGNIZED THAT THE SUBJECT MATTER INVOLVED THE SAME ISSUE AS THAT WHICH HAS BEEN THE SUBJECT OF THE SEVERAL PRIOR DECISIONS ADDRESSED TO YOUR COMPANY REFERRED TO IN THE SECOND PARAGRAPH OF OUR LETTER OF JULY 17, 1964. SINCE YOUR CONTENTIONS AND OBJECTIONS HAD BEEN DISCUSSED IN SUCH DECISIONS AND OUR VIEWS THEREON HAD BEEN FULLY SET FORTH IN SUCH DECISIONS, WE DID NOT FEEL THAT ANY USEFUL PURPOSE WOULD BE SERVED IN AGAIN RESTATING SUCH VIEWS BUT REFERRED YOU TO SUCH DECISIONS FOR OUR VIEWS THEREON. HOWEVER, IN ORDER THAT THERE MAY BE NO MISUNDERSTANDING WE HAVE AGAIN HAD THE MATTER REVIEWED.

YOUR LETTER OF MARCH 20, 1964, FILE 5 GB-25573, CONTAINED YOUR REQUEST FOR REVIEW OF THE SETTLEMENT ACTION OF JUNE 18, 1962, WHICH DISALLOWED YOUR CLAIM (OUR CLAIM TK-731499) FOR $126.25 ADDITIONAL TRANSPORTATION CHARGES ON YOUR SUPPLEMENTAL BILL NO. 25573, ALLEGED TO BE DUE IN CONNECTION WITH A SHIPMENT OF "TRAINING MATERIAL" IN PASSENGER TRAIN SERVICE FROM ROCKY, COLORADO, TO SANDIA BASE, ALBUQUERQUE, NEW MEXICO, AND RETURN, TRANSPORTED FOR THE ATOMIC ENERGY COMMISSION UNDER GOVERNMENT BILL OF LADING NO. A-106921, DATED SEPTEMBER 18, 1956.

FOR THIS SERVICE YOU ORIGINALLY BILLED AND WERE PAID THE SUM OF $735.92, BASED UPON THE FIRST CLASS LESS CARLOAD RATE OF $14.34 PER 100 POUNDS, PRESUMABLY COMPUTED ON A COMBINATION OF RATES VIA THE ROUTE OF MOVEMENT. ON AUDIT OF THE PAYMENT VOUCHER IN OUR OFFICE, APPLICABLE CHARGES WERE COMPUTED ON A COMBINATION RATE OF $11.17 PER 100 POUNDS, BY USE OF RATES OF $4.45 PER 100 POUNDS FROM ROCKY, COLORADO, TO PRIEST, TEXAS; $3.96 FROM PRIEST, TEXAS, TO ALBUQUERQUE, NEW MEXICO; AND $2.76 FROM ALBUQUERQUE, NEW MEXICO, TO ROCKY, COLORADO, RESULTING IN AN OVERPAYMENT OF $162.68 WHICH WAS SUBSEQUENTLY RECOVERED BY ADMINISTRATIVE DEDUCTION FROM AMOUNTS OTHERWISE DUE.

IN YOUR LETTER OF MARCH 20, 1964, REQUESTING REVIEW AND CONSIDERATION OF YOUR CLAIM, YOU STATE:

"* * * WE AGAIN REFER YOU TO PARAGRAPH (E) OF SECTION 25 OF JOINT MILITARY PASSENGER AGREEMENT NO. 29, WHICH SEEMS TO BE THE CONTROLLING FACTOR IN THIS ISSUE. WHY IS IT WHEN YOUR OFFICE MAKES QUOTES FROM AGREEMENTS THAT YOU DO OVERLOOK THE SPECIFIC WORDS,"WITH TROOPS OR IN CONNECTION WITH TROOP MOVEMENTS.' THE WORDS,"WITH TROOPS OR IN CONNECTION WITH TROOP MOVEMENTS," DO HAVE A SPECIFIC MEANING AS TO WHAT THEY DO CONVEY AND ARE A SPECIFIC PART OF THE AGREEMENT. TROOPS AND TROOP MOVEMENTS DO TRAVEL VIA SPECIFIC ROUTES AND WHEN MILITARY IMPEDIMENTA MOVES WITH TROOPS OR WITH TROOP MOVEMENTS VIA THESE SAME ROUTES, SUCH ROUTES MUST BE CONSIDERED REGARDLESS OF THE KIND OF SERVICE USED. PARAGRAPH (E) THEN REFERS TO,"THE TRANSPORTATION CHARGES THEREFOR WILL BE THE SAME AMOUNT IN DOLLARS AND CENTS, AS WOULD APPLY IF THE SHIPMENT WERE MADE IN REGULAR FREIGHT TRAIN SERVICE UNDER CURRENT TARIFFS AND AGREEMENTS.'

"IF THE SHIPMENT WERE MADE IN REGULAR FREIGHT TRAIN SERVICE, WITH TROOPS OR IN CONNECTION WITH TROOP MOVEMENTS, THE SPECIFIC ROUTES OF SUCH MOVEMENTS MUST BE CONSIDERED UNDER CURRENT FREIGHT TARIFFS AND SUCH ROUTES WERE PROVIDED FOR ON GOVERNMENT BILL OF LADING.

"WE ARE REQUESTING YOUR OFFICE TO CONSIDER THE FULL MEANING OF PARAGRAPH (E) AND THE CLEAR AND PLAIN WORDS,"WITH TROOPS OR IN CONNECTION WITH TROOP MOVEMENTS," AS TO WHAT THEY DO CONVEY, AND WHY THE ROUTES IN CONNECTION WITH TROOPS OR IN CONNECTION WITH TROOP MOVEMENTS SHOULD NOT BE CONSIDERED UNDER CURRENT TARIFFS.'

IT THUS APPEARS TO BE YOUR CONTENTION THAT THE CHARGES FOR THE SERVICE MUST BE COMPUTED, UNDER THE SECTION 22 AGREEMENT, IN EFFECT, ON THE BASIS OF A COMBINATION OF FREIGHT RATES CONSTRUCTED OVER THE ACTUAL PASSENGER ROUTE OF MOVEMENT.

AT THE TIME OF THE SHIPMENT IN QUESTION, DETERMINATION OF THE APPLICABLE RATES WAS GOVERNED BY AN AGREEMENT EFFECTIVE JULY 1, 1951, BETWEEN NUMEROUS CARRIERS, INCLUDING YOUR RAILROAD, AND THE ATOMIC ENERGY COMMISSION WHICH STATES THAT IT IS MADE "UNDER THE PROVISIONS OF SECTION 22 OF THE INTERSTATE COMMERCE ACT, AS AMENDED," AND PROVIDES THAT THE TRAINING MATERIAL WILL BE TRANSPORTED IN PASSENGER TRAIN SERVICE "UNDER THE SAME CONDITIONS AND AT THE SAME RATES AS APPLY FOR TRANSPORTATION OF MILITARY IMPEDIMENTA.'

THE RATES AND CONDITIONS UNDER WHICH MILITARY IMPEDIMENTA IS CARRIED IN PASSENGER TRAIN SERVICE ARE SET OUT IN SECTION 25 (D) THROUGH (H) OF JOINT MILITARY PASSENGER AGREEMENT NO. 29 EFFECTIVE JULY 1, 1952. SECTION 25 (E) OF AGREEMENT NO. 29 PROVIDES:

"/E) THE PASSENGER DEPARTMENTS OF THE CARRIERS HAVE AGREED WITH THE MILITARY AUTHORITIES THAT WHEN MILITARY IMPEDIMENTA, OTHER THAN CERTAIN ARTICLES WHICH ARE INCLUDED IN THE FREE BAGGAGE ALLOWANCE UNDER THE BAGGAGE TARIFFS OF THE CARRIERS, IS TRANSPORTED IN PASSENGER TRAIN SERVICE WITH TROOPS, OR IN CONNECTION WITH TROOP MOVEMENTS HANDLED IN PASSENGER TRAIN SERVICE, THE TRANSPORTATION CHARGES THEREFOR WILL BE THE SAME AMOUNT IN DOLLARS AND CENTS AS WOULD APPLY IF THE SHIPMENT WERE MADE IN REGULAR FREIGHT TRAIN SERVICE UNDER CURRENT TARIFFS AND AGREEMENTS WITH THE MILITARY AUTHORITIES * * *.'

THESE WORDS CLEARLY INDICATE THAT ALTHOUGH PASSENGER SERVICE OVER PASSENGER ROUTES WAS CONTEMPLATED, THE CHARGE FOR THIS SERVICE WOULD BE COMPUTED BY APPLYING THE REGULAR FREIGHT RATES VIA THE REGULAR FREIGHT ROUTES. COMPUTATION OF THE CHARGES BY COMBINING THE FREIGHT RATES APPLICABLE OVER THE PASSENGER ROUTES, IF ANY, AS APPARENTLY CLAIMED BY YOU, WOULD NOT CONSTITUTE ,THE SAME AMOUNT IN DOLLARS AND CENTS AS WOULD APPLY * * * IN REGULAR FREIGHT TRAIN SERVICE," AS PROVIDED IN SECTION 25 (E). THIS CONSTRUCTION AND APPLICATION OF THE AGREEMENT IS SUPPORTED BY SECTION 25 (G) OF THE AGREEMENT, WHICH PROVIDES:

"/G) THE ARRANGEMENT AND BASIS FOR CHARGES SET FORTH HEREIN FOR MOVEMENT OF MILITARY IMPEDIMENTA IN PASSENGER TRAIN SERVICE APPLIES OVER ALL LINES AND ROUTES VIA WHICH THE MILITARY IMPEDIMENTA MOVES IN PASSENGER TRAIN SERVICE.'

UNDER THE INTERPRETATION URGED BY YOU THIS PROVISION WOULD BE UNNECESSARY AND WITHOUT MEANING, SINCE THE CHARGES WOULD ALWAYS BE COMPUTED OVER THE ACTUAL PASSENGER ROUTING. ALSO, WHILE SECTION 25 (E) OF AGREEMENT NO. 29, SO FAR AS MILITARY IMPEDIMENTA IS CONCERNED, APPEARS TO BE APPLICABLE IN PASSENGER TRAIN SERVICE WHEN SUCH IMPEDIMENTA ACCOMPANIES TROOPS OR TROOP MOVEMENTS, AND NO TROOPS ARE UNDERSTOOD TO ACCOMPANY TRAINING MATERIAL OF THE ATOMIC ENERGY COMMISSION, IT IS OUR VIEW THAT THE EFFECT OF THE AGREEMENT OF JULY 1, 1951, IS TO MAKE APPLICABLE TO THE MOVEMENT OF SUCH TRAINING MATERIAL THE SAME RATES AS APPLY TO THE MOVEMENT OF IMPEDIMENTA IN PASSENGER TRAIN SERVICE, THAT IS THE RATES FOR MOVEMENT OF MILITARY IMPEDIMENTA IN PASSENGER CAR SERVICE ACCOMPANYING TROOPS OR TROOP MOVEMENTS. THUS THE FACT THAT THE TRAINING MATERIAL OF THE ATOMIC ENERGY COMMISSION IS NOT ACCOMPANYING TROOPS IS NOT DEEMED MATERIAL OR CONTROLLING.

YOU FURTHER CONTEND THAT THE SPECIFIC ROUTES REQUIRED WHEN MILITARY IMPEDIMENTA MOVES WITH TROOPS OR IN CONNECTION WITH TROOP MOVEMENTS MUST, UNDER CURRENT TARIFFS AND THE RULES AND REGULATIONS OF THE INTERSTATE COMMERCE COMMISSION, BE CONSIDERED IN THE COMPUTATION OF CHARGES. HOWEVER, SINCE THE AGREEMENT OF JULY 1, 1951, AND JOINT MILITARY PASSENGER AGREEMENT NO. 29 WERE MADE PURSUANT TO SECTION 22 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22, WHICH PERMITS CARRIERS BY RAIL TO CARRY PROPERTY FREE OR AT REDUCED RATES FOR THE UNITED STATES, STATE OR MUNICIPAL GOVERNMENTS, THERE IS, AS TO THE TRAFFIC UNDER THESE AGREEMENTS, NO REQUIREMENT THAT THE USUAL TARIFF RATES OR ROUTES BE OBSERVED, AND THE RULES AND REGULATIONS OF THE INTERSTATE COMMERCE COMMISSION DESIGNED TO PREVENT DISCRIMINATION ARE NOT CONTROLLING.