B-155981, JUN. 30, 1965

B-155981, JUN. 30, 1965

TO UNION PACIFIC RAILROAD COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 19, 1965, FILE GW 128486, IN WHICH YOU REQUEST REVIEW OF OUR SETTLEMENT CERTIFICATES DATED MAY 5 AND JUNE 23, 1964 (OUR CLAIM NUMBERS TK-068256 AND TK 704594, RESPECTIVELY). THE SETTLEMENTS DISALLOWED YOUR CLAIMS OF $138.41 AND $636.13 UNDER YOUR BILLS NUMBERED TW-128486-C AND TW 130025-D, RESPECTIVELY.

THE ISSUE HERE IS THE PROPER CHARGES TO BE ASSESSED ON SIX SHIPMENTS OF GOVERNMENT PROPERTY SUBSTANTIALLY DESCRIBED AS "FIREWORKS, BOMBS, INCENDIARY, 100 LB, M47A2, NP FILLED, W/O FUSE OR BURSTERS OR WIRE," WHICH MOVED FROM LADORA, COLORADO, VIA RAIL TO, CALIFORNIA, TO LONG BEACH, CALIFORNIA, FOR EXPORT DURING MARCH AND MAY 1944 UNDER GOVERNMENT BILLS OF LADING WT-1063750, WT-1064489, WT-1064492, WT 1064491, WT-1064490, AND WT- 1064487.

FOR THE SERVICES PERFORMED YOU INITIALLY CLAIMED AND WERE PAID $12,749.81, BASED UPON THE WEIGHT OF THE MATERIAL AS 100 POUNDS PER BOMB. VARIOUS DEDUCTIONS AND ALLOWANCES WERE MADE WHICH ADJUSTED THE CHARGES SO THAT THE SAN FRANCISO RATE WAS APPLIED TO LONG BEACH AS AUTHORIZED BY ITEM III OF TRANSCONTINENTAL FREIGHT BUREAU TARIFF 39-G, I.C.C. 1489, WHICH PERMITS THE USE OF SUCH RATE ON TRAFFIC TO LONG BEACH, CALIFORNIA, AND CERTAIN OTHER WEST COAST PORTS AND A WEIGHT OF 104 POUNDS PER BOMB. THE RATE TO SAN FRANCISCO WAS CONSTRUCTED BASED ON AN AGGREGATE MADE OVER RENO, NEVADA, USING TO RENO $2.24 PER 100 POUNDS WHICH IS 65 PERCENT OF THE FIRST-CLASS RATE OF $3.25 PER 100 POUNDS PUBLISHED IN ITEM 1084 OF TCFB 39-G, PLUS TARIFF X-148 INCREASE, AND BEYOND RENO, 38 CENTS PER 100 POUNDS WHICH IS 65 PERCENT OF THE FIRST-CLASS RATE OF 56 CENTS PER 100 POUNDS PUBLISHED IN PACIFIC FREIGHT TARIFF BUREAU NO. 258, IC.C. 1389, PLUS TARIFF X-148 INCREASE, PLUS TRANSIT AND OUT-OF-LINE CHARGES. YOUR SUPPLEMENTAL BILLS BASED ON A THROUGH RATE OF $2.78 PER 100 POUNDS, WHICH IS 65 PERCENT OF THE SINGLE FACTOR FIRST-CLASS RATE, WERE DISALLOWED BY THE SETTLEMENTS OF MAY 5 AND JUNE 23, 1964. IN REQUESTING REVIEW OF SUCH SETTLEMENTS, YOU STATE THAT THE APPLICATION OF AAR SECTION 22 QUOTATION 40 -B, AAR SECTION 22 QUOTATION 265-A, TCFB TARIFFS 29 AND 39 SERIES IS NOT QUESTIONED NOR DO YOU QUESTION THE APPLICATION OF AAR SECTION 22 QUOTATION 14-A TO A THROUGH TRANSCONTINENTAL RATE PUBLISHED IN TCFB 39 SERIES.

YOU GO ON TO STATE:

"WE DO NOT AGREE, HOWEVER, TO THE APPLICATION OF THE AGGREGATE OF INTERMEDIATE RATES USED IN LIEU OF THE RATE TO SAN FRANCISCO, CALIFORNIA. ITEM III OF TCFB 39-G PROVIDES THAT THE RATES TO BE APPLIED TO LONG BEACH, CALIFORNIA, THEREUNDER"* * * ARE THE RATES APPLYING EITHER TO SAN FRANCISCO, CALIF., IN THIS TARIFF * * *" (TCFB 39-G) WHEREAS THE RATE APPLIED FROM RENO, NEV., TO SAN FRANCISCO IS PUBLISHED IN PFTB TARIFF 258 AND NOT IN TCFB 39; FURTHERMORE THERE IS NO AUTHORITY IN AAR SECTION 22 QUOTATION 14-A FOR APPLICATION OF 65 PERCENT OF FIRST CLASS WITHIN MOUNTAIN PACIFIC TERRITORY.'

OUR SETTLEMENT ACTION IS BASED UPON THE THEORY THAT THE APPLICABLE RATE ON THESE SHIPMENTS WAS 65 PERCENT OF A COMBINATION THROUGH FIRST CLASS RATE CONSTRUCTED OVER RENO, NEVADA. THE SAN FRANCISCO RATE WAS APPLIED TO LONG BEACH, CALIFORNIA, BY THE AUTHORITY PUBLISHED IN ITEM III OF TRANSCONTINENTAL FREIGHT BUREAU TARIFF 39-G, I.C.C. 1489, WHICH PERMITS THE USE OF RATES TO SAN FRANCISCO OR SEATTLE, WHICHEVER IS LOWER, ON TRAFFIC DESTINED TO OR CONSIGNED THROUGH LONG BEACH AND CERTAIN OTHER WEST COAST PORTS, AND A WEIGHT OF 104 POUNDS PER BOMB, PLUS DUNNAGE, LESS DUNNAGE ALLOWANCE, WAS USED. THE RATE TO SAN FRANCISCO WAS THEN CONSTRUCTED AS AN AGGREGATE MADE OVER RENO, NEVADA, USING TO RENO $2.24 PER 100 POUNDS, WHICH IS 65 PERCENT OF THE FIRST CLASS RATE OF $3.25 PER 100 POUNDS, PUBLISHED IN ITEM 1084 OF TCFB 39 G, PLUS TARIFF X-148 INCREASE, AND BEYOND RENO, 38 CENTS PER 100 POUNDS, WHICH IS 65 PERCENT OF THE FIRST-CLASS RATE OF 56 CENTS PER 100 POUNDS, PUBLISHED IN PACIFIC FREIGHT TARIFF BUREAU TARIFF NO. 258, I.C.C. 1389, PLUS TARIFF X-148 INCREASE, PLUS 3 1/2 CENTS PER 100 POUNDS TRANSIT CHARGE AND 5 1/2 CENTS PER 100 POUNDS OUT-OF-LINE HAUL CHARGE. THE AGGREGATE OF INTERMEDIATE RATES IS AUTHORIZED BY SECTION 3 OF TARIFF 39-G TO REPLACE THE SINGLE FACTOR FIRST-CLASS RATE TO SAN FRANCISCO.

THE APPLICATION OF ITEM III OF TRANSCONTINENTAL FREIGHT BUREAU TARIFF 39- G, I.C.C. 1489, IN CIRCUMSTANCES SIMILAR TO THIS CASE, IS AN ISSUE NOW PENDING BEFORE THE COURT OF CLAIMS IN THE FOLLOWING SUITS BROUGHT BY YOUR COMPANY, UNION PACIFIC RAILROAD COMPANY V. UNITED STATES, NUMBERS 4-65, 284-64, 115-64, AND 204-63.

IN THE CIRCUMSTANCES WE WILL NOT TAKE DISPOSITIVE ACTION ON THESE CLAIMS AT THIS TIME. WHEN A FINAL JUDICIAL DETERMINATION OF THE ISSUE HAS BEEN MADE, YOU MAY, SHOULD THE OUTCOME WARRANT IT, REQUEST FURTHER CONSIDERATION OF THESE CLAIMS.