B-154285, NOV. 5, 1964

B-154285, NOV. 5, 1964

TO LEHIGH VALLEY RAILROAD COMPANY:

YOUR LETTER OF MAY 20, 1964, FILE 600-G-174414, IS, IN EFFECT, A REQUEST FOR REVIEW OF OUR SETTLEMENT OF MAY 23, 1962, WHICH DISALLOWED $324.53 OF YOUR CLAIM (PER SUPPLEMENTAL BILL 174414-A) FOR $327.43. THE CLAIM WAS FOR ADDITIONAL CHARGES ON SHIPMENTS OF 38,296 POUNDS OF FROZEN DRESSED POULTRY ORIGINATING IN LITCHFIELD, MINNESOTA, ON AUGUST 8, 1960, AND 7,062 POUNDS OF BUTTER ORIGINATING IN LACROSSE, WISCONSIN, ON FEBRUARY 5, 1960, WHICH WERE STORED IN TRANSIT AT BAYONNE, NEW JERSEY. THESE SHIPMENTS, WITH OTHER COMMODITIES, WERE FORWARDED FROM BAYONNE, NEW JERSEY, TO BROOKLYN, NEW YORK, FOR EXPORT, UNDER GOVERNMENT BILL OF LADING AT-262845, DATED SEPTEMBER 7, 1960.

FROM THE ORIGIN POINTS IN WISCONSIN AND MINNESOTA TO BROOKLYN, NEW YORK, WESTERN TRUNK LINES TARIFF NO. 329-M, I.C.C. A-4326, A COMMODITY TARIFF PUBLISHING EXPORT RATES, PROVIDES, IN ITEM 910, A THROUGH RATE OF $1.32 PER 100 POUNDS ON THE BUTTER, WHILE ITEM 911 PROVIDES THE SAME RATE ON THE POULTRY. ALLOWING THE GOVERNMENT THE TRANSIT PRIVILEGE, YOU INITIALLY CLAIMED THIS RATE ON THESE COMMODITIES, WHEREUPON YOU WERE PAID THE AMOUNT CLAIMED. SUBSEQUENTLY, YOU RECOMPUTED THE CHARGES AND CLAIMED, BY YOUR SUPPLEMENTAL BILL 174414 A, AN ADDITIONAL AMOUNT OF $327.43 (OF WHICH $324.53 WAS DISALLOWED), BASED UPON A RATE OF $1.74 ON THE BUTTER AND $2.09 ON THE POULTRY, AS PROVIDED IN TRUNK LINES TARIFF BUREAU TARIFF NO. 107-C, I.C.C. NO. A 767, A CLASS TARIFF APPLYING ALSO TO EXPORT SHIPMENTS.

YOUR ACTION WAS BASED UPON THOSE PROVISIONS OF ITEMS 910 AND 911 OF TARIFF NO. 329-M WHICH EXCEPT THE APPLICATION OF THOSE ITEMS FROM WATERBORNE TRAFFIC. YOU EXTEND THE APPLICATION OF THESE PROVISIONS, REFERRING TO WATERBORNE TRAFFIC, TO INCLUDE A SUBSEQUENT MOVEMENT BY WATER AFTER COMPLETION OF THE CONTRACT OF AFFREIGHTMENT, REPRESENTED BY THE GOVERNMENT BILL OF LADING, AND THE DELIVERY OF THE PROPERTY AT THE DESTINATION SPECIFIED THEREIN. THUS, YOU URGE THAT BECAUSE THE PROPERTY WAS INTENDED FOR MOVEMENT OVERSEAS, A PRIOR ALL-RAIL MOVEMENT, COMPLETE UNDER THE TRANSPORTATION CONTRACT AND COVERED FROM ORIGIN TO DESTINATION BY PROPER TARIFF PUBLICATION, MUST BE CONSIDERED "WATERBORNE TRAFFIC" AND THE RATES IN ITEMS 910 AND 911 TREATED AS INAPPLICABLE.

YOU SUGGEST THAT UNDER THE POSITION TAKEN BY US--- THE MANNER IN WHICH WE CONSTRUE THE EXCEPTION--- THE SHIPMENT HERE CONCERNED WOULD NOT BE WATERBORNE UNLESS IT WAS TRANSPORTED VIA LAKE MICHIGAN FERRY ROUTES, OR VIA LIGHTERS OR CAR FLOATS. BUT, EVEN IN THAT EVENT, THE SHIPMENT STILL WOULD BE CONSIDERED TO HAVE MOVED VIA AN ALL-RAIL ROUTE. BERGSTROM PAPER COMPANY V. DIRECTOR GENERAL, 93 I.C.C. 591, 592. ALSO, IT IS FOR NOTING THAT THE TERM "RAILROAD" IS DEFINED IN SECTION 1 (3) (A) OF THE INTERSTATE COMMERCE ACT (49 U.S.C. 1 (30 (A) ( AS INCLUDING "ALL BRIDGES, CAR FLOATS, LIGHTERS, AND FERRIES USED BY OR OPERATED IN CONNECTION WITH ANY RAILROAD.'

INSOFAR AS WE CAN DETERMINE, THE RESTRICTION PUBLISHED IN CONNECTION WITH THE $1.32 RATE IN ITEMS 910 AND 911 OF WESTERN TRUNK LINES TARIFF NO. 329- M APPLIES TO THE MOVEMENT FROM LITCHFIELD, MINNESOTA, AND LACROSSE, WISCONSIN, TO BROOKLYN, NEW YORK, AND NOT TO A SUBSEQUENT MOVEMENT UNDER A NEW BILL OF LADING (CONTRACT OF AFFREIGHTMENT). THE TARIFF PUBLISHING THE RATE TO BROOKLYN CONTAINS NO DEFINITION OF THE TERM "WATERBORNE TRAFFIC," NOR IS THERE ANY SHOWING THAT IT IS A ,WORD OF ART," I.E., A WORD IN THE VOCABULARY OR TERMINOLOGY OF A PARTICULAR ART OR SCIENCE, AND ESPECIALLY A WORD OR EXPRESSION IDIOMATIC OR PECULIAR TO IT--- IN THIS INSTANCE--- A WORD WITH A PARTICULAR MEANING WELL KNOWN TO THOSE ENGAGED IN THE LAND AND SEA TRANSPORTATION FIELD. CARGILL V. THOMPSON, 59 N.W. 638, 640. ALSO, SEE BLACK'S LAW DICTIONARY--- 3RD EDITION.

THERE IS A COMPLETE ABSENCE IN THE RECORD BEFORE US OF ANY AUTHORITATIVE DEFINITION OR SHOWING IN ANY OTHER MANNER OF THE MEANING OF THE TERM "WATERBORNE TRAFFIC," AS APPLIED TO THIS PARTICULAR KIND OF SITUATION; THERE IS NO SHOWING THAT THERE EXISTS ANY DEFINITION THAT IS WELL KNOWN AND UNDERSTOOD BY THOSE ENGAGED IN THE TRANSPORTATION INDUSTRY; AND YOU HAVE CITED NOTHING TO PROVE THAT AS A MATTER OF LAW THE ALL-RAIL MOVEMENT FROM INTERIOR POINTS TO THE PORT-- UNDER A DOMESTIC BILL OF LADING--- IS SO INTIMATELY RELATED TO THE OUTBOUND OCEAN MOVEMENT UNDER AN EXPORT BILL OF LADING THAT THE LATTER WOULD PREDOMINATE AND THE COMBINED MOVEMENT--- ALL RAIL AND OCEAN--- CONSTITUTE "WATERBORNE TRAFFIC.'

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE SETTLEMENT MUST BE, AND IS, SUSTAINED.