B-2817, FEBRUARY 16, 1940, 19 COMP. GEN. 730

B-2817, FEBRUARY 16, 1940, 19 COMP. GEN. 730

TRANSPORTATION - FREIGHT CHARGES - UNNECESSARILY LARGE CAR FURNISHED WHERE THE CARRIER'S AGENT AT POINT OF ORIGIN OF A GOVERNMENT SHIPMENT WAS INFORMED OF THE NATURE OF THE SHIPMENT SO THAT A PROPER CAR WOULD BE FURNISHED, AND THE GOVERNMENT ORDERED A CAR WITHOUT SPECIFYING ANY GIVEN LENGTH, IT WAS TO BE UNDERSTOOD A CAR OF STANDARD LENGTH WAS DESIRED, AND PAYMENT MAY NOT BE MADE ON THE BASIS OF A WEIGHT APPLICABLE TO THE LONGER CAR ACTUALLY FURNISHED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE AUDITOR, SAN DIEGO AND ARIZONA EASTERN RY. CO., FEBRUARY 16, 1940:

YOUR LETTER DATED OCTOBER 15, 1938 (YM-S-85-1575), PERTAINS TO YOUR CLAIM FOR $12.21 DISALLOWED IN SETTLEMENT T-134043, DATED SEPTEMBER 21, 1938, UPON YOUR BILL F-S-1575 ( OCTOBER 1937) FOR TRANSPORTATION OF A TRACTOR CATERPILLAR WITH TRAILBUILDER ATTACHMENT, 26,340 POUNDS, FROM FELTON, CALIF., TO LAKESIDE, CALIF., UNDER BILL OF LADING NSS ( ECW) NO. 17344, OCTOBER 15, 1937.

YOU CLAIMED (BILL F'S 1575, OCTOBER 1937) $197.02 ON THE BASIS OF A WEIGHT OF 28,080 POUNDS APPLICABLE TO A CAR 40 FEET 10 INCHES IN LENGTH AND A RATE OF 74.5 CENTS PER 100 POUNDS, LESS 10.206 PERCENT LAND GRANT FROM REVENUE BETWEEN OAKLAND TO SAN DIEGO. THE SETTLEMENT ALLOWED $184.81 ON THE BASIS OF THE ACTUAL WEIGHT OF 26,340 POUNDS AND THE CLAIMED NET RATE. YOU CLAIM THE DIFFERENCE OF $12.21, URGING---

THE I.C.C. RULED IN THE KAY AND CARTER LUMBER CO. V. THE MINNEAPOLIS, ST. PAUL AND SAULT STE. MARIE RY., UNREPORTED OPINION 159, THAT WHEN NO SPECIFIC SIZE OF CAR IS ORDERED THAT THE WEIGHT APPLICABLE TO THE SIZE OF CAR USED SHOULD BE PROTECTED.

THE ADMINISTRATIVE REPORT CONCERNING THIS SHIPMENT STATES:

CHECKING OUR RECORDS WE FIND THAT BILL OF LADING CIV-17344 DATED OCTOBER 11, 1937, SHOWS THAT NO PARTICULAR SIZE CAR WAS SPECIFIED FOR THE SHIPMENT OF ONE CATERPILLAR TRACTOR WITH TRAILBUILDER ATTACHMENT FROM FELTON, CALIF., TO LAKESIDE, CALIF.

THE OVERALL LENGTH OF THE TRACTOR WITH TRAILBUILDER ASSEMBLED WOULD NOT EXCEED 13 FEET. THERE IS NO DOUBT, AS VERIFIED BY THE ATTACHED LETTER RECEIVED FROM THE PROJECT SUPERINTENDENT, CAMP SP-4, CALIF., WHO ORIGINATED THE SHIPMENT, BUT THAT THE AGENT OF THE CARRIER AT FELTON, CALIF., KNEW THE NATURE OF THE SHIPMENT.

THE SUPERINTENDENT'S LETTER IS IN PERTINENT PART AS FOLLOWS:

* * * IT IS CERTAIN, HOWEVER, THAT THE SOUTHERN PACIFIC AGENT AT FELTON WAS CONTACTED BEFORE THE SHIPMENT, AND WE DISCUSSED THE PIECE OF EQUIPMENT TO BE SHIPPED AND WHERE A CAR SHOULD BE SPOTTED FOR THE MOST SIMPLE LOADING. ALTHOUGH IT IS NOT BELIEVED THAT A PARTICULAR TYPE OF CAR WAS REQUESTED, IT IS KNOWN THAT THE AGENT HAD BEEN INFORMED OF THE EXACT TYPE OF EQUIPMENT TO BE SHIPPED SO THAT A PROPER CAR WOULD BE FURNISHED.

CONCERNING THE KAY AND CARTER LUMBER COMPANY CASE TO WHICH YOU REFER, IT IS NOTED THAT THIS CASE WAS DECIDED MAY 2, 1910, AND THE FINDING OF THE INTERSTATE COMMERCE COMMISSION IS SHOWN AS FOLLOWS:

UNDER THE CIRCUMSTANCES OF THIS CASE WE ARE OF THE OPINION AND FIND THAT THE CHARGE BY DEFENDANT ON 3,120 POUNDS ABOVE THE ACTUAL WEIGHT OF SHIPMENT WAS UNREASONABLE AND THAT COMPLAINANT IS ENTITLED TO REPARATION. THE INTERSTATE COMMERCE COMMISSION HAS ALSO SAID:

* * * IT IS NOT EQUITABLE OR PROPER TO REQUIRE A SHIPPER TO PAY ADDITIONAL CHARGES FOR USING A CAR OF DIFFERENT DIMENSIONS OR CAPACITIES FROM THAT WHICH WOULD SUIT HIS SHIPMENT OR FOREGO ENTIRELY HIS DESIRE TO SHIP. BORDEN BRICK AND TILE COMPANY V. ATLANTIC COAST LINE RAILROAD COMPANY, ET AL., 198 I.C.C. 232 (235).

IT IS APPARENT THAT IN ORDERING A CAR FOR THIS SHIPMENT, WITHOUT SPECIFYING ANY GIVEN LENGTH, IT WAS TO BE UNDERSTOOD THAT A CAR OF STANDARD LENGTH WAS DESIRED. SEE IN THIS CONNECTION 24 COMP. DEC. 48.

UPON THE RECORD AS IT APPEARS IN CONNECTION WITH THE SHIPMENT HERE CONCERNED, THERE IS NO SHOWING THAT THE DISALLOWANCE WAS IN ERROR AND THE SETTLEMENT IS ACCORDINGLY SUSTAINED.