B-142642, OCT. 6, 1960

B-142642, OCT. 6, 1960

TO THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY:

FURTHER REFERENCE IS MADE TO YOUR FILE NOS. G-613714, G-642954, AND GC 591212, IN WHICH YOU REQUEST REVIEW OF THE SETTLEMENT CERTIFICATES WHICH DISALLOWED YOUR CLAIMS, SUPPLEMENTAL BILL NO. 613714-B, FOR $246.41 (OUR CLAIM NO. TK-628744), SUPPLEMENTAL BILL NO. 642954-A, FOR $126.42 (OUR CLAIM NO. TK-674326), AND SUPPLEMENTAL BILL NO. 591212-A, FOR $333.42 (OUR CLAIM NO. TK-613459). EACH CLAIM IS FOR ADDITIONAL FREIGHT TRANSPORTATION CHARGES AND INVOLVES THE QUESTION OF THE APPLICABILITY OF COMMODITY RATES ON SHIPMENTS OF TRUCK-MOUNTED AIR COMPRESSORS.

THE SHIPMENT INCLUDED IN SUPPLEMENTAL BILL NO. 613714-B IS DESCRIBED ON GOVERNMENT BILL OF LADING NO. WV-8244724 AS "1 PC FRT. AUTOMOBILE AND AIR COMPRESSOR NOIBN, COMBINED * * *," WEIGHING 15,500 POUNDS, AND WAS TRANSPORTED FROM LATHROP, CALIFORNIA, TO ALBUQUERQUE, NEW MEXICO, IN AUGUST 1952. THE SHIPMENT INCLUDED IN SUPPLEMENTAL BILL NO. 642954 A IS DESCRIBED ON GOVERNMENT BILL OF LADING NO. AF-5198501 AS "1 PC COMPRESSOR AIR/COMPRESSOR RECIPROCATING POWER DR TRK MTD 2 1/2 TON 6X6 210 CFM," WEIGHING 17,200 POUNDS, AND WAS TRANSPORTED FROM VANCOUVER, WASHINGTON, TO ALBUQUERQUE, NEW MEXICO, IN APRIL 1957; AND THE SHIPMENT INCLUDED IN SUPPLEMENTAL BILL NO. 591212-A IS DESCRIBED ON GOVERNMENT BILL OF LADING NO. WZ-T-87568 AS "2 PC AIR COMPRESSOR MTD ON O/T GEN PURPOSE MTR FRT VEHICLES * * *,"WEIGHING 30,200 POUNDS, WHICH WAS TRANSPORTED FROM GRANITE CITY, ILLINOIS, TO OAKLAND, CALIFORNIA, AS THE OUTBOUND PART OF A THROUGH TRANSIT SHIPMENT WHICH HAD ORIGINATED AT BELLBLUFF, VIRGINIA, IN SEPTEMBER 1949.

YOUR CLAIM ON SUPPLEMENTAL BILL NO. 591212-A IS BASED ON A COMMODITY RATE ON FREIGHT AUTOMOBILES WITH BUILT-IN OR PERMANENTLY ATTACHED MACHINER, SHOWN IN ITEM 1800-D OF TRANS-CONTINENTAL FREIGHT BUREAU WEST-BOUND EXPORT TARIFF NO. 28-I, I.C.C. NO. 1526, WHEREAS IT IS OUR VIEW THAT THE ALLOWABLE CHARGES ARE BASED ON A COMMODITY RATE ON MACHINERY SHOWN IN ITEM 1470-H OF THE SAME TARIFF. THE APPLICABILITY OF ITEMS 1800 AND 1470 TO A SHIPMENT OF TRUCK-MOUNTED AIR COMPRESSORS IN CIRCUMSTANCES SUBSTANTIALLY SIMILAR TO THOSE SURROUNDING THE SHIPMENT INCLUDED IN YOUR SUPPLEMENTAL BILL NO. 591212 A WAS CONSIDERED IN OUR DECISION OF APRIL 12, 1957, B- 130554, TO YOU, COPY ENCLOSED. FOR THE REASONS STATED IN THAT DECISION, WE CONCLUDE THAT THE DISALLOWANCE OF YOUR CLAIM ON SUPPLEMENTAL BILL NO. 591212-A WAS PROPER AND, SINCE IT HAS NOT BEEN SHOWN TO HAVE BEEN IN ERROR OTHERWISE, IT IS SUSTAINED.

IN THE REMAINING TWO CLAIMS SUBSTANTIALLY SIMILAR COMMODITY DESCRIPTIONS APPLY TO THE COMMODITY RATES RELIED ON BY YOU AND TO THOSE RELIED ON BY THE GOVERNMENT. THE CHARGE BASIS ASSESSED BY YOU ON THE SHIPMENT TRANSPORTED ON GOVERNMENT BILL OF LADING NO. WV-8244724, YOUR SUPPLEMENTAL BILL NO. 613704-B, IS BASED ON A COMMODITY RATE PUBLISHED IN ITEM 6820 OF TRANS-CONTINENTAL FREIGHT BUREAU EAST-BOUND TARIFF NO. 2-R, I.C.C. NO. 1547, UNDER THE GENERIC HEADING "VEHICLES, MOTOR AND PARTS THEREOF, VIZ:," TO APPLY ON A COMMODITY DESCRIBED AS "FREIGHT HIGHWAY VEHICLES WITH BUILT- IN AND PERMANENTLY ATTACHED MACHINERY OR MACHINES, N.O.S.' THE GOVERNMENT'S CHARGE BASIS ON THE SAME SHIPMENT UTILIZES A COMMODITY RATE PUBLISHED IN ITEM 1310-A, SUPPLEMENT NO. 46 OF THE SAME TARIFF, UNDER THE GENERIC HEADING "MACHINERY OR MACHINES, OR PARTS THEREOF AS DESCRIBED UNDER HEADING "MACHINERY AND MACHINES AND PARTS THEREOF" IN WESTERN CLASSIFICATION * * " THE TERM "WESTERN CLASSIFICATION" IS DEFINED IN ITEM 8 OF THE TARIFF AS REFERRING TO ,CONSOLIDATED FREIGHT CLASSIFICATION NO. 19 * * *; " ITEM 28180 OF THAT CLASSIFICATION, UNDER THE GENERIC HEADING "MACHINERY OR MACHINES OR PARTS NAMED," COVERS A COMMODITY DESCRIBED AS ,COMPRESSORS, AIR, WITH OR WITHOUT AIR TANKS, HOSE OR NOZZLES, MOUNTED OR NOT MOUNTED * * *.'

YOU ALLEGE IN SUBSTANCE THAT THE TRUCK-MOUNTED AIR COMPRESSOR IS A COMBINATION ARTICLE; THAT IS TO SAY, A FREIGHT AUTOMOBILE CHASSIS COMBINED WITH AN AIR COMPRESSOR IN SUCH A WAY THAT WITHOUT ANY STRUCTURAL MODIFICATIONS EACH UNIT OF THE COMBINATION COULD BE USED INDEPENDENTLY, AND THAT, AS A COMBINATION ARTICLE, IT IS EMBRACED WITHIN THE COMMODITY DESCRIPTION IN ITEM 6820 OF TARIFF NO. 2-R COVERING "FREIGHT HIGHWAY VEHICLES WITH BUILT-IN AND PERMANENTLY ATTACHED MACHINERY OR MACHINES N.O.S.'

ALTHOUGH MOUNTED ON A FREIGHT VEHICLE, IT SEEMS CLEAR THAT THE ARTICLE IN QUESTION IS NOT A COMBINATION ARTICLE AND THAT IT WAS DESIGNED SOLELY FOR USE AS A SELF-PROPELLED AIR COMPRESSOR. SEE THE ENCLOSED COPIES OF OUR DECISION OF FEBRUARY 12, 1955, B-112970, TO YOU, AND OF OUR LETTER OF JUNE 15, 1956, B-112970, TO YOU, BOTH CONCERNING THE CLASSIFICATION OF THESE AIR COMPRESSORS.

IN ADDITION TO WHAT WAS SAID IN DECISION B-112970, IT IS OBSERVED THAT THE COMMODITY DESCRIPTION IN ITEM 6820, WHICH IS RELIED ON BY YOU, CONTAINS THE QUALIFYING INITIALS "N.O.S.' ITEM 1 OF TARIFF NO. 2 R STATES THAT WHEN N.O.S. IS USED IN CONNECTION WITH AN ARTICLE IN AN ITEM OF TARIFF NO. 2-R CARRYING CARLOAD COMMODITY RATES, IT MEANS THAT THE ARTICLE IN QUESTION IS "NOT OTHERWISE SPECIFIED IN ANY OTHER ITEM OF (TARIFF NO. 2 -R) CARRYING WESTBOUND CARLOAD COMMODITY RATES BETWEEN THE SAME POINTS * * *.' IT IS OUR VIEW THAT THE ARTICLE IS OTHERWISE SPECIFIED IN ANOTHER ITEM OF TARIFF NO. 2-R CARRYING CARLOAD COMMODITY RATES BETWEEN THE SAME POINTS. IT IS SPECIFIED IN ITEM 1310-A, WHICH COVERS "COMPRESSORS, AIR, WITH OR WITHOUT AIR TANKS, HOSE OR NOZZLES MOUNTED OR NOT MOUNTED.' THERE IS NO RESTRICTION IN THE ITEM TO INDICATE THAT IT WILL NOT APPLY ON SELF- PROPELLED AIR COMPRESSORS. FURTHERMORE, EVEN ASSUMING THAT THE AIR COMPRESSOR IS FAIRLY EMBRACED WITHIN THE TWO COMMODITY DESCRIPTIONS, THE MORE SPECIFIC DESCRIPTION (AIR COMPRESSORS) WOULD TAKE PRECEDENCE OVER THE GENERAL DESCRIPTION. CELLULOID CORP. V. LEHIGH VALLEY R.CO., 216 I.C.C. 533, 534.

THE SETTLEMENTS DISALLOWING YOUR CLAIMS ON SUPPLEMENTAL BILLS NOS. 613704 -B AND 642954-A WERE CONSISTENT WITH THE FOREGOING AND ARE NOT SHOWN TO HAVE BEEN IN ERROR OTHERWISE. ACCORDINGLY, THEY ARE SUSTAINED.