B-120966, DEC. 14, 1955

B-120966, DEC. 14, 1955

TO MR. E. W. ENGLUND:

REFERENCE IS MADE TO YOUR FILE 66096-WGP-B, RELATIVE TO THE CLAIM OF THE NORTHERN PACIFIC RAILWAY COMPANY FOR ADDITIONAL CHARGES OF $10.60 FOR THE TRANSPORTATION OF AN OFFICER OF THE NAVY FROM SEATTLE, WASHINGTON, TO NEW YORK, NEW YORK, IN MAY 1944 UNDER TRANSPORTATION REQUEST NO. M-4,412,627.

THE REQUEST CALLED FOR TRANSPORTATION VIA THE ROUTE OF THE NORTHERN PACIFIC TO PORTLAND, REGON; THE SOUTHERN PACIFIC THROUGH SAN FRANCISCO, CALIFORNIA, TO OGDEN, UTAH, THE UNION PACIFIC TO OMAHA, THE CHICAGO AND NORTH WESTERN TO CHICAGO, AND THE NEW YORK CENTRAL TO DESTINATION. FOR THE SERVICE SO RENDERED THE CARRIER CLAIMED CHARGES ON THE BASIS OF A GROSS FARE OF $98.75, REDUCED TO $65.52, BECAUSE OF DEDUCTION FOR LAND GRANT AVAILABLE VIA A ROUTE THROUGH ST. PAUL, MINNESOTA, AND CHICAGO, ILLINOIS, AND THE CHARGES SO CLAIMED WERE PAID IN AUGUST 1944.

THEREAFTER IN 1949 A SUPPLEMENTAL BILL WAS PRESENTED FOR $10.60 ADDITIONAL ON THE BASIS THAT THE ORIGINAL BILL HAD BEEN BASED ON A FARE ESTABLISHED VIA DIRECT ROUTES TO ST. PAUL AND CHICAGO WHEREAS THE BILL SHOULD HAVE BEEN BASED ON A FARE ESTABLISHED VIA CALIFORNIA, SINCE THE TRANSPORTATION REQUEST CALLED FOR SERVICE VIA THAT ROUTE. THAT CLAIM WAS DISALLOWED OCTOBER 13, 1949, ON THE BASIS OF THE EQUALIZATION OF FARES AFFORDED BY THE CARRIER'S EQUALIZATION AGREEMENTS.

YOUR PRESENT CLAIM IS FOR THE SAME AMOUNT OF $10.60, IN SUPPORT OF WHICH YOU MAKE REFERENCE TO DECISION 4084 OF THE USUALLY TRAVELED ROUTE COMMITTEE TO THE EFFECT THAT THE ROUTE VIA WHICH THIS TRAVEL WAS PERFORMED WAS NOT A USUALLY TRAVELED ROUTE FOR INDIVIDUAL MILITARY TRAFFIC IN MAY 1944. WHILE THE AGREEMENTS PROVIDE THAT WHAT CONSTITUTES A USUALLY TRAVELED ROUTE SHALL BE CONSTRUED IN THE FIRST INSTANCE, BY THE ADMINISTRATIVE OFFICERS OF THE MILITARY BRANCHES OF THE GOVERNMENT, THERE IS NO PROVISION ESTABLISHING SUCH CONSTRUCTION OR DETERMINATION AS CONTROLLING IN THE FINAL DISPOSITION OF THE QUESTION. THE AGREEMENT REQUIRES THAT IN ARRIVING AT SUCH CONSTRUCTION THERE SHALL BE CONSIDERED SUCH FACTORS AS DISTANCE, TIME IN TRANSIT, TRACK CONNECTIONS, TRAIN SERVICE AND CONNECTIONS, POINTS OF INTERCHANGE, AND OTHER PERTINENT CONDITIONS. IT IS OBVIOUS THAT VIA THE ROUTE HERE IN QUESTION THE ELEMENTS OF TRACK CONNECTIONS, TRAIN SERVICE AND CONNECTIONS, AND ACCEPTABLE POINTS OF INTERCHANGE, WERE PRESENT AND IT DOES NOT APPEAR THAT THE ELEMENTS OF DISTANCE AND TIME IN TRANSIT ARE SUCH AS TO PRECLUDE THE ROUTE FROM BEING CONSIDERED A USUALLY TRAVELED ROUTE FOR USE BY THE MILITARY WHEN NECESSITIES REQUIRE.

WHAT MAY HAVE PROMPTED THE SELECTION OF THE ROUTE USED FOR THIS TRAVEL IS NOT SHOWN. HOWEVER, SECTION 25 OF THE JOINT MILITARY PASSENGER AGREEMENT NO. 20 PROVIDES THAT THE ROUTING OF MILITARY TRAFFIC SHOULD BE LEFT IN THE HANDS OF AUTHORIZED OFFICERS OF THE NAMED MILITARY SERVICES, FROM ORIGIN TO DESTINATION, IN THE UNDERSTANDING THAT SUCH TRAFFIC "SHALL BE EQUITABLY APPORTIONED BETWEEN THE CARRIERS, PARTIES HERETO" AND SECTION 27 REQUIRES THAT SUCH OFFICERS SHALL FURNISH THE CARRIERS' AGENTS, ON OR BEFORE THE TENTH OF EACH MONTH, STATEMENTS SHOWING, THE NUMBER OF TRANSPORTATION REQUESTS, DATE OF ISSUE, POINTS OF ORIGIN AND DESTINATION, AND THE INITIAL CARRIER AND CONNECTIONS, INCLUDING GATEWAYS OR JUNCTIONS COMPRISING THROUGH ROUTES. ASSUMING COMPLIANCE WITH THAT REQUIREMENT, THE CARRIER HAD BEEN INFORMED AS TO THE ROUTE AND CONNECTIONS INVOLVED BEFORE ITS BILL FOR THIS SERVICE WAS PRESENTED, AS INDICATED BY RUBBER STAMP, ON JULY 21, 1944. THAT THE ROUTING USED WAS NOT CONSIDERED THEN AS INVOLVING OTHER THAN A USUALLY TRAVELED ROUTE IS SUFFICIENTLY ESTABLISHED BY THE FACT THAT THE CARRIER'S BILL WAS PRESENTED, AND PAID, ON THE BASIS OF A NET RATE AVAILABLE ONLY THROUGH THE APPLICATION OF THE EQUALIZATION AGREEMENT. VIEW OF THE REQUIREMENT OF THE AGREEMENT FOR THE APPORTIONMENT OF TRAFFIC AND THE COURSE FOLLOWED IN THE BILLING AND PAYMENT FOR THE SERVICE, IT DOES NOT APPEAR THAT THE TERMS OF THE AGREEMENT SHOULD PRECLUDE EQUALIZATION IN THIS INSTANCE.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND THE SETTLEMENT IS SUSTAINED.