B-155881, JUN. 30, 1965

B-155881, JUN. 30, 1965

TO NORTHWESTERN PACIFIC RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 30, 1964, FILE YM-DN 20256- 28, REQUESTING REVIEW OF THE ACTION TAKEN IN DISALLOWING YOUR CLAIM, PER SUPPLEMENTAL BILL DN-20256-28, FOR $34.06 PORT HANDLING CHARGES AT THE NEW ORLEANS ARMY TERMINAL, NEW ORLEANS, LOUISIANA, IN CONNECTION WITH THE SHIPMENT OF HOUSEHOLD GOODS FROM EUROPE THROUGH THE PORT OF NEW ORLEANS, LOUISIANA, TO HAMILTON FIELD, CALIFORNIA, IN JULY 1962, UNDER GOVERNMENT BILL OF LADING NO. B-3732402.

FOR THE SERVICE FROM NEW ORLEANS TO HAMILTON FIELD YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES BASED ON A LINE-HAUL RATE OF $2.83 PER 100 POUNDS SUBJECT TO 20,000 POUNDS MINIMUM WEIGHT, A HANDLING CHARGE OF 11 1/2 CENTS PER 100 POUNDS ON THE ACTUAL WEIGHT OF 17,441 POUNDS AND PORT CHARGES OF 7 CENTS PER 100 POUNDS ON 20,000 POUNDS, PLUS A STOPOFF CHARGE OF $17, OR A TOTAL OF $617.06. IN THE AUDIT OF THE PAYMENT VOUCHER, IT WAS CONSIDERED THAT THE APPLICABLE CHARGES SHOULD BE $566, BASED ON A RATE OF $2.83 PER 100 POUNDS ON 20,000 POUNDS MINIMUM WEIGHT, AS CLAIMED, AND AS AUTHORIZED IN ITEM 8160 OF TRANS CONTINENTAL FREIGHT BUREAU FREIGHT TARIFF 1-K, I.C.C. NO. 1668 (WITHOUT THE ADDITION OF THE HANDLING AND PORT CHARGES AS ORIGINALLY CLAIMED BY YOU), PLUS $17 STOPOFF CHARGE, RESULTING IN AN APPLICABLE CHARGE OF $583. THE OVERCHARGE OF $34.06 WAS DEDUCTED FROM AN AMOUNT OTHERWISE DUE YOU. THEREAFTER YOU PRESENTED YOUR SUPPLEMENTAL BILL NO. DN-20256 28, SEPT. 1962 (CLAIM NO. TK-778227), IN THE AMOUNT OF $34.06, WHICH WAS DISALLOWED IN CERTIFICATE OF SETTLEMENT DATED DECEMBER 11, 1964. UNDER DATE OF DECEMBER 30, 1964, YOU REQUEST REVIEW OF THE SETTLEMENT RESTATING YOUR VIEW THAT THE PORT CHARGES IN THE AGGREGATE AMOUNT OF $34.06 ARE PROPERLY APPLICABLE.

THE LINE-HAUL RATE OF $2.83 AS APPLIED TO THE SUBJECT SHIPMENT IS NOT A SHIPSIDE RATE BUT IS SUBJECT TO ITEM 210 OF TRANS-CONTINENTAL FREIGHT BUREAU FREIGHT TARIFF 5-B, I.C.C. NO. 1674, WHICH PROVIDES ON EXPORT- IMPORT TRAFFIC SUPPLEMENTAL CHARGES TO BE ADDED TO THE LINE-HAUL RATE FOR SHIPSIDE APPLICATION. THE LINE-HAUL RATE IS ALSO SUBJECT TO ITEM 212 OF TRANS-CONTINENTAL FREIGHT BUREAU FREIGHT TARIFF 1-K, I.C.C. NO. 1668.

ITEM 210 OF TRANS-CONTINENTAL FREIGHT BUREAU FREIGHT TARIFF 5-B PROVIDES, IN PERTINENT PART, THAT ON IMPORT TRAFFIC A CHARGE OF 11 1/2 CENTS PER 100 POUNDS IS TO BE ADDED TO THE GROUP H RATES (PAGE 203, NOTE 9) TO EFFECT SHIPSIDE APPLICATION WITH A RESTRICTION THAT SUCH RATES APPLY ONLY WHEN THE TRAFFIC IS HANDLED OVER DOCKS, WHARVES OR PIERS LISTED IN SECTION 1 OF SOUTHERN PORTS FOREIGN FREIGHT COMMITTEE TARIFF 1027-C, I.C.C. NO. 161. SINCE THE BILL OF LADING RECORD SHOWS THAT THE SHIPMENT WAS TRANSFERRED AT THE NEW ORLEANS ARMY TERMINAL (NOT SHOWN IN SECTION 1 OF SOUTHERN PORTS FOREIGN FREIGHT COMMITTEE TARIFF 1027-C), THE ADDITIONAL CHARGE OF 11 1/2 CENTS PER 100 POUNDS IS NOT CONSIDERED APPLICABLE TO THE SUBJECT MOVEMENT.

ITEM 212 OF TRANS-CONTINENTAL FREIGHT BUREAU FREIGHT TARIFF 1-K PROVIDES THAT THE ADDITIONAL 7 CENTS PER 100 POUNDS TERMINAL CHARGE IS APPLICABLE ONLY ON LINE-HAUL RATES APPLYING TO SHIPSIDE, EITHER BY REASON OF SUCH APPLICATION BEING SO STATED IN TARIFFS OR BY REASON OF ABSORPTION, IN WHOLE OR PART, BY RAILROADS OF LOADING CHARGES, UNLOADING CHARGES OR WHARFAGE (TOLLAGE) CHARGES, OR BOTH, UNDER THE PROVISIONS OF TARIFFS ON FILE WITH THE INTERSTATE COMMERCE COMMISSION. THE COMMISSION HAS HELD, RELATIVE TO PACIFIC COAST PORTS, THAT SUCH A CHARGE IS NOT A PART OF THE LINE-HAUL RATE BUT WAS DESIGNED TO COVER THE COST OF PORT TERMINAL SERVICES AND INCREASE THEREIN FURNISHED BY THE CARRIER. INCREASED FREIGHT RATES, 1958, 304 I.C.C. 289, 351-356 (1958); INCREASED FREIGHT RATES, 1960, 311 I.C.C. 373, 416-417 (1960). THIS ISSUE, AMONG OTHERS, IS ALSO INVOLVED IN ATCHISON, TOPEKA AND SANTA FE RAILWAY V. UNITED STATES, CT.CL. NO. 183-63; WESTERN PACIFIC RAILROAD CO. V. UNITED STATES, CT.CL. NO. 278- 63; UNION PACIFIC RAILROAD CO. V. UNITED STATES, CT.CL. NO. 283-63 AND SEVERAL OTHER CASES.

IN RESPONSE TO A REQUEST FROM OUR OFFICE FOR INFORMATION IN REGARD TO ADDITIONAL TRANSPORTATION CHARGES ASSESSED BY RAIL CARRIERS SERVING THE NEW ORLEANS ARMY TERMINAL, NEW ORLEANS, LOUISIANA, WE RECEIVED A LETTER DATED SEPTEMBER 1, 1953, FROM HEADQUARTERS, NEW ORLEANS PORT OF EMBARKATION, WHICH STATED IN PERTINENT PART:

"THIS HEADQUARTERS EMPLOYS THE SERVICES OF A PRIVATE CONTRACTOR FOR CAR UNLOADING WHO PERFORMS SUCH SERVICES FOR THE ARMY ON ALL CARLOAD FREIGHT RECEIVED AT THE ARMY WHARF ON SHIPMENTS WHERE THE RATES DO NOT ABSORB HANDLING CHARGES.

"THIS HEADQUARTERS HAS NO KNOWLEDGE OF EVER REQUESTING SUCH SERVICE FROM THE RAIL CARRIERS AND CONSEQUENTLY HAS NEVER CERTIFIED THE BILLS FOR UNLOADING SERVICES.'

SINCE THE RECORD SHOWS THAT THE SHIPMENT WAS TRANSPORTED THROUGH THE PORT OF NEW ORLEANS USING A DOCK OWNED BY THE GOVERNMENT, WHERE LOADING AND UNLOADING SERVICES ARE PERFORMED BY PERSONNEL EMPLOYED BY THE ARMY THROUGH CONTRACT OR OTHERWISE, AND NOT BY THE CARRIER, THERE SEEMS TO BE NO JUSTIFICATION TO CHANGE OUR POSITION AS TO THE NONAPPLICABILITY OF EITHER THE 11 1/2-CENT HANDLING CHARGE OR THE 7 CENT PORT TERMINAL CHARGE, PARTICULARLY PENDING JUDICIAL DETERMINATION AS TO THE LATTER CHARGE.

ACCORDINGLY, ON THE PRESENT RECORD, THE DISALLOWANCE OF YOUR SUPPLEMENTAL BILL WAS PROPER AND IS SUSTAINED. HOWEVER, IF THE FINAL JUDICIAL DETERMINATION OF THE "PORT HANDLING CHARGES" ISSUE IS AGAINST THE GOVERNMENT AND YOU FEEL BASED THEREON THAT ADDITIONAL AMOUNTS ARE DUE, WE WILL BIVE THE MATTER FURTHER CONSIDERATION UPON YOUR REQUEST THEREFOR.