B-153730, JUN. 23, 1964

B-153730, JUN. 23, 1964

TO CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 12, 1964, FILE 548-U.S. GOVERNMENT-FREIGHT-EXPORT, AND FOLLOW-UP LETTER OF JUNE 5, 1964, REQUESTING REVIEW OF THE SETTLEMENT OF YOUR CLAIMS FOR ADDITIONAL CHARGES SAID TO TOTAL APPROXIMATELY $2,500 ON SHIPMENTS MOVING TO PACIFIC COAST PORTS FOR EXPORT AND INVOLVING THE QUESTION OF WHAT PORT SERVICE CHARGES AND ALLOWANCES ARE APPLICABLE ON SUCH SHIPMENTS. SPECIFICALLY YOU REFER, AS ILLUSTRATIVE OF SUCH MATTER, TO THE DISALLOWANCE OF YOUR CLAIMS FOR ADDITIONAL CHARGES ON SUPPLEMENTAL BILLS G-239389-A FREIGHT AND G-239336-A FREIGHT, OR CLAIMS TK-754412 AND TK-756097.

THE CLAIMS TOTALING APPROXIMATELY $2,500 OTHER THAN THOSE ON YOUR TWO SUPPLEMENTAL BILLS HAVE NOT BEEN IDENTIFIED FROM YOUR LETTER. HOWEVER, SINCE A DISCUSSION OF THE BASES FOR THE TWO SETTLEMENTS WILL ASSIST IN EXPLAINING OUR VIEWS ON THE MATTER, WE WILL TREAT YOUR LETTER AS A REQUEST FOR REVIEW OF THE DISALLOWANCE OF YOUR TWO BILLS.

CLAIM TK-754412, YOUR BILL G-239389-A, INVOLVES GOVERNMENT BILLS OF LADING B-1968098 DATED NOVEMBER 16, 1961, AND B-1968099 DATED NOVEMBER 21, 1961, WHICH COVER SHIPMENTS OF GOVERNMENT PROPERTY MOVING FROM ST. LOUIS, MISSOURI, CONSIGNED TO THE RECEIVING OFFICER, NAVAL SUPPLY DEPOT, PIER 91, SEATTLE, WASHINGTON. THE BILLS OF LADING BEAR THE NOTATIONS "ECWTA SECTION 22, QUOTATION 128 TO BE EXPORTED FROM SEATTLE, WASH. TO JAPAN" AND "FOR EXPORT.' THE CONSIGNEE'S CERTIFICATE OF DELIVERY SHOW THAT THE SHIPMENTS WERE RECEIVED ON NOVEMBER 28, AND DECEMBER 1, 1961, FROM ,CHICAGO MILWAUKEE ST. PAUL AND PACIFIC RR CO. (ON SWITCH)" AT THE ACTUAL POINT OF DELIVERY--- "US NSD, SEATTLE, WASH.' THE CERTIFICATES SHOW ALSO THAT THE SHIPMENT WAS UNLOADED BY THE GOVERNMENT.

CLAIM TK-756097, YOUR BILL G-239336-A, INVOLVES FIVE GOVERNMENT BILLS OF LADING (B-3619896, B-3619899, B-3619900, B-3620092, AND B-3620093) WHICH COVER SHIPMENTS OF GOVERNMENT PROPERTY MOVING FROM COLUMBUS, OHIO, TO "TRANSPORTATION OFFICER, USATTA, SEATTLE C/O NAVY SUPPLY DEPOT, PIER 91, SEATTLE WASHINGTON.' THESE BILLS OF LADING BEAR THE NOTATION "ECWTA SECTION 22, QUOTATION 128 TO BE EXPORTED FROM SEATTLE, WASH. TO HAWAII.' THE CONSIGNEE'S CERTIFICATE OF DELIVERY ON EACH BILL OF LADING SHOWS THAT THE SHIPMENTS WERE RECEIVED FROM THE CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY (ON SWITCH). THESE CERTIFICATES SHOW THAT THE SHIPMENTS WERE UNLOADED BY THE GOVERNMENT. THE NOTATIONS ON THE BILLS OF LADING TO QUOTATION 128 ARE REFERENCES TO EXECUTIVE COMMITTEE--- WESTERN TRAFFIC ASSOCIATION SECTION 22 QUOTATION NO. 128 WHICH PERTAINS TO PROOF OF EXPORTATION UNDER SECTION 22 QUOTATIONS.

WITH THE EXCEPTION OF THE SHIPMENTS LISTED IN CLAIM TK-756097, YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES BASED ON THE DOMESTIC RATE PUBLISHED IN THE TRANSCONTINENTAL FREIGHT BUREAU 1-SERIES TARIFFS, PLUS A TERMINAL CHARGE OF 6 CENTS PER 100 POUNDS PROVIDED FOR IN ITEM 212 OF THE TARIFF AND IN ITEM 220-A OF THE TARIFF OF INCREASED RATES AND CHARGES X- 212, AS INCREASED TO 7 CENTS BY ITEM 220 OF TARIFF OF INCREASED RATES AND CHARGES X-223, LESS A DEDUCTION OF 3 CENTS PER 100 POUNDS ALLOWANCE, PROVIDED IN ITEM 4 OF EXECUTIVE COMMITTEE--- WESTERN TRAFFIC ASSOCIATION, SECTION 22 QUOTATION 120. IN OUR AUDIT OF THE PAYMENT VOUCHERS, IT WAS DETERMINED THAT THE CHARGES SHOULD BE COMPUTED ON THE BASIS OF THE DOMESTIC RATE IN TCFB 1-SERIES TARIFFS, LESS THE DEDUCTION OF THE 3 CENTS PER 100 POUNDS TERMINAL ALLOWANCE, BUT WITHOUT PAYMENT OF THE 7 CENTS PER 100 POUNDS TERMINAL CHARGE. IN CONNECTION WITH CLAIM TK-756097 YOU DID NOT INCLUDE THE 7-CENT CHARGE IN YOUR ORIGINAL BILL FOR THE SHIPMENTS THERE INVOLVED, BUT SUBSEQUENTLY CLAIMED SUCH CHARGE BY SUPPLEMENTAL BILL G-239336-A FREIGHT.

IT IS APPARENTLY YOUR CONTENTION THAT THE ADDITIONAL CHARGE OF 7 CENTS PER 100 POUNDS IS APPLICABLE WHENEVER AN ALLOWANCE OF 3 CENTS PER 100 POUNDS AS PROVIDED IN ITEM 4 OF EC-WTA SECTION 22 QUOTATION 120 IS MADE.

ITEM 1 OF QUOTATION 120 PROVIDES---

"RATES CURRENTLY IN EFFECT FROM TIME TO TIME IN T.C.F.B. EXPORT TARIFF NO. 29-SERIES WILL BE APPLIED BY THE RAILROADS ON TRAFFIC SHIPPED FOR OR FOR ACCOUNT OF THE VARIOUS DEPARTMENTS, BUREAUS AND AGENCIES OF THE UNITED STATES GOVERNMENT, AND ON WHICH THE UNITED STATES GOVERNMENT ASSUMES THE FREIGHT CHARGES, MOVING FROM ORIGINS AND TO UNITED STATES PACIFIC COAST PORTS NAMED IN SAID TARIFF AND FORWARDED OVERSEAS FROM SUCH PORTS TO THE DESTINATION TERRITORY NAMED IN T.C.F.B. TARIFF NO. 29-SERIES BUT WITHOUT REQUIRING COMPLIANCE UPON THE PART OF THE GOVERNMENT WITH ITEMS NOS. 760, 1055, 1130, AND 1170 OF SAID TARIFF. IT IS EXPRESSLY UNDERSTOOD THAT THERE SHALL BE THE ALTERNATIVE APPLICATION OF EITHER THE RATES MADE AVAILABLE IN THIS ITEM, OR THE DOMESTIC RATES, OR RATES MADE APPLICABLE IN OTHER SPECIFIC SECTION 22 QUOTATIONS, WHICHEVER RATE PRODUCES THE LOWEST CHARGE. RATES REFERRED TO IN THIS ITEM INCLUDE DELIVERY IN CARS TO DOCKS OR TO DESIGNATED UNLOADING POINTS OR TO SUITABLE INTERCHANGE TRACKS WITH GOVERNMENT OPERATED SWITCHING YARDS, AS THE CASE MAY BE, BUT DO NOT INCLUDE CAR UNLOADING CHARGE OR ABSORPTION OF WHARFAGE OR DOCKAGE.'

ITEM 4 OF THE QUOTATION PROVIDES---

"* * * THE PACIFIC COAST TERMINAL LINES WILL MAKE A FLAT ALLOWANCE TO THE GOVERNMENT OF THREE (3) CENTS PER 100 POUNDS ON ALL TRANS CONTINENTAL OFF- SHORE TRAFFIC FOR POINTS WITHIN THE DESTINATION AREA COVERED BY T.C.F.B. EXPORT TARIFF NO. 29-SERIES WHEN THE RATE APPLIED UNDER THIS QUOTATION IS PUBLISHED IN THE EXPORT OR DOMESTIC TRANS CONTINENTAL FREIGHT BUREAU TARIFFS * * *.'

ITEM 212 OF TCFB 1-SERIES TARIFFS PROVIDES THAT THE INCREASES OF 6 CENTS AND 1 CENT PER 100 POUNDS TERMINAL CHARGE PUBLISHED IN ITEM 220 OF TARIFFS OF INCREASED RATES AND CHARGES X-212 AND X-223 ARE APPLICABLE ONLY ON RATES APPLYING TO SHIPSIDE, EITHER BY REASON OF SUCH APPLICATION BEING SO STATED IN TARIFFS OR BY REASON OF ABSORPTION, IN WHOLE OR IN PART, BY RAILROADS OF LOADING CHARGES, UNLOADING CHARGES OR WHARFAGE 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 CHANGE 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). THEREFORE, IT APPEARS THE 7-CENT CHARGE IS FOR PORT TERMINAL SERVICES, WHERE PERFORMED, AND, INASMUCH AS THE RECORD HERE INDICATES THAT ALL THE SUBJECT SHIPMENTS WERE DELIVERED BY YOUR RAILROAD TO GOVERNMENT TRACKS AT THE NAVAL SUPPLY DEPOT AT PIER 91, SEATTLE, WITH THE GOVERNMENT PERFORMING ALL INTERNAL SWITCHING AT THE INSTALLATION, AND ALL UNLOADING PERFORMED BY GOVERNMENT PERSONNEL, YOUR COMPANY WOULD NOT APPEAR TO BE ENTITLED TO THE 7-CENT SERVICE CHARGE.

CONSEQUENTLY, IT IS OUR VIEW THAT ITEMS 1 AND 4 OF QUOTATION 120 AUTHORIZE USE OF THE DOMESTIC RATE PUBLISHED TO TCFB TARIFF 1-SERIES AND PROVIDE FOR AN ALLOWANCE OF 3 CENTS PER 100 POUNDS ON ALL OFFSHORE TRANSCONTINENTAL TRAFFIC BUT THAT ITEMS 212 AND X-223 OF THE TARIFF HAVE NO APPLICATION IN CONNECTION WITH THE DOMESTIC TARIFF RATES AUTHORIZED UNDER THIS QUOTATION SINCE THE RATES PUBLISHED IN TCFB TARIFF 1 ARE NOT SHIPSIDE RATES AND THE RAILROADS DID NOT PERFORM THE UNLOADING OR WHARFAGE SERVICES NOR ABSORB ALL OR ANY PART OF THE CHARGES THEREFOR.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM TK-754412 AND TK-756097 APPEARS PROPER AND IS SUSTAINED.