B-170932, JUN 14, 1971

B-170932, JUN 14, 1971

TRANSPORTATION - FREIGHT CHARGES - GOODS FOR EXPORT DECISION DISALLOWING, BASED ON DIFFERENCE OF OPINION AS TO THE APPLICABLE TARIFF, CLAIM OF THE UNION PACIFIC RAILROAD COMPANY IN THE AMOUNT OF $287.79 ALLEGED TO BE DUE FOR TRANSPORTATION OF LUBRICATING OIL FROM KARNS CITY, PA., TO LONG BEACH, CALIF., FOR EXPORT SUBJECT TO REVIEW, DEPENDENT ON THE OUTCOME, OF LITIGATION PENDING IN COURT OF CLAIMS.

TO UNION PACIFIC RAILROAD COMPANY:

BY YOUR LETTER OF SEPTEMBER 28, 1970, YOU REQUEST REVIEW OF THE DISALLOWANCE OF YOUR CLAIM, BY SUPPLEMENTAL BILL NO. W-307197-A, FOR ADDITIONAL FREIGHT CHARGES OF $287.79 ALLEGED TO BE DUE FOR THE TRANSPORTATION OF LUBRICATING OIL FROM KARNS CITY, PENNSYLVANIA, TO OGDEN, UTAH, FOR STORAGE IN TRANSIT, UNDER A COMMERCIAL PREPAID BILL OF LADING DATED OCTOBER 18, 1966, AND FROM OGDEN TO LONG BEACH, CALIFORNIA, FOR EXPORT UNDER GOVERNMENT BILL OF LADING NO. AT-364835, DATED DECEMBER 4, 1966.

FOR THE TRANSPORTATION SERVICES PERFORMED, YOU ORIGINALLY COLLECTED $1,330.27 ON THE OUTBOUND BILL OF LADING COMPUTED ON THE BASIS OF A SINGLE FACTOR RATE OF $2.48 PER HUNDRED POUNDS WITHOUT ALLOWANCE FOR THE AMOUNT OF $1,476 PREPAID ON THE INBOUND MOVEMENT TO OGDEN, UTAH. AS A RESULT OF OUR AUDIT OF THE PAYMENT VOUCHER, THE AMOUNT OF $1,564.27 WAS RECOVERED BY DEDUCTION, TAKING CREDIT FOR THE AMOUNT PREPAID ON THE INBOUND MOVEMENT AND COMPUTING CHARGES ON THE BASIS OF THE TRANSIT CHARGE OF 10 CENTS PER HUNDRED POUNDS PLUS A THROUGH DOMESTIC RATE OF $1.97 PER HUNDRED POUNDS CONSTRUCTED FROM AN AGGREGATE OF INTERMEDIATE RATES OF 42 CENTS PER HUNDRED POUNDS, SUBJECT TO A MINIMUM WEIGHT OF 60,000 POUNDS, TO CHICAGO, PROVIDED BY ITEM 77230, TRUNK LINE CENTRAL TERRITORY RAILROAD FREIGHT TARIFF NO. E-2009-G, I.C.C. NO. C-533, PLUS $1.55 PER HUNDRED POUNDS, 60,000-POUND MINIMUM WEIGHT BEYOND, PROVIDED IN ITEM 10135, TRANS- CONTINENTAL FREIGHT BUREAU TARIFF NO. 1-0, I.C.C. 1736, WITHOUT THE ADDITION OF THE PORT SERVICE CHARGE OR THE DEDUCTION OF THE PORT ALLOWANCE.

YOUR CLAIM FOR REFUND OF $287.79 OF THE AMOUNT DEDUCTED WAS DISALLOWED BY SETTLEMENT DATED JUNE 30, 1970. IN YOUR REQUEST FOR REVIEW OF THAT SETTLEMENT, YOU CONTEND THAT USE OF THE RATE FROM TL-CTR TARIFF 2009-G AS THE FIRST FACTOR IN THE AGGREGATE OF INTERMEDIATES IS IN VIOLATION OF THE RESTRICTIONS IN THAT TARIFF AGAINST USE OF THE RATES IN THAT ITEM ON EXPORT TRAFFIC.

AT THE TIME THE SUBJECT SHIPMENT MOVED EC-WTA SECTION 22 QUOTATION NO. 120 AND EC-WTA SECTION 22 QUOTATION NO. 128 WERE IN EFFECT. THESE QUOTATIONS PERMIT THE APPLICATION OF TRANSCONTINENTAL EXPORT RATES ON GOVERNMENT SHIPMENTS WHICH ARE EXPORTED BUT DO NOT COMPLY WITH THE TARIFF RULES BECAUSE THE SHIPMENTS ARE NOT DELIVERED TO SHIPSIDE BY THE CARRIERS. IN ADDITION, QUOTATION 120 SPECIFICALLY PERMITS ALTERNATION OF DOMESTIC RATES WITH EXPORT RATES WHEN THE DOMESTIC RATES PRODUCE LOWER CHARGES. IT IS ACCORDINGLY OUR VIEW, THAT THE SETTLEMENT ACTION TAKEN IS PROPER BY REASON OF THE PROVISIONS OF EXECUTIVE COMMITTEE - WESTERN TRAFFIC ASSOCIATION SECTION 22 QUOTATION NO. 120 AND IT IS ACCORDINGLY SUSTAINED.

WE NOTE THAT THIS ISSUE IS PRESENTLY BEFORE THE COURT OF CLAIMS IN UNION PACIFIC RAILROAD COMPANY V UNITED STATES, CT. CL. 257-70. IF YOU BELIEVE, BASED ON THE FINAL OUTCOME OF THAT LITIGATION, THAT YOU HAVE A RIGHT TO RECOVER ALL OR ANY PART OF THE AMOUNT COLLECTED BY DEDUCTION, WE WILL BE PLEASED AT THAT TIME TO RECONSIDER THE MATTER AT YOUR REQUEST.