B-125158, FEB. 13, 1956

B-125158, FEB. 13, 1956

TO ACCOUNTING DEPARTMENT, CENTRAL OF GEORGIA RAILWAY COMPANY:

WE HAVE YOUR LETTERS OF OCTOBER 19 AND DECEMBER 30, 1955, FILE N 51045-G- A, REQUESTING RECONSIDERATION OF OUR DECISION OF OCTOBER 3, 1955, B- 125158, ON THE BASIS OF ISSUES NOT PREVIOUSLY RAISED.

YOU NOW URGE THAT THIS WAS 105-MILLIMETER HOWITZER AMMUNITION, SHIPPED WITH THE POWDER CHARGE IN BAGS AND THE PROJECTILES SEPARATE; THEREFORE, IT COULD NOT BE RATED AS "CARTRIDGES LOADED.' THE RECORD HERE, HOWEVER, DOES NOT SUPPORT THIS CONTENTION, NOR HAVE YOU OFFERED ANY PROOF THAT CHARGE AND PROJECTILE WERE SEPARATE. ARMY TECHNICAL MANUAL TM 9-1901, WHICH DESCRIBES ALL TYPES OF 105-MILLIMETER HOWITZER AMMUNITION, AND ARMY SUPPLY CATALOG ORD 11 SML'S R-1, R-5, R-6, WHICH DESCRIBES AMMUNITION PACKING AND SHIPPING, INDICATE THAT THIS AMMUNITION IS SHIPPED AS A COMPLETE ROUND WITH THE PROPELLANT ENCLOSED IN A STEEL OR BRASS CARTRIDGE CASE WHICH, IN TURN, IS AFFIXED TO THE PROJECTILE.

YOU ALSO URGE THAT AMMUNITION FOR CANNON WITH EXPLOSIVE PROJECTILE IS NOT RATABLE AS ,CARTRIDGES, LOADED," RELYING UPON THE OPINION OF THE COURT OF CLAIMS IN W. T. COWAN, INC. V. THE UNITED STATES, 130 C.CLS. 585, AND THE PRINCIPLE STATED IN GIDEON-ANDERSON LUMBER CO. V. ST. LOUIS SOUTHWESTERN RY. CO., 88 F.2D 232, THAT WHEN A COMMODITY IS INCLUDED IN MORE THAN ONE TARIFF DESIGNATION, THE MORE SPECIFIC WILL BE APPLIED. THE HOLDING IN THE COWAN CASE HAS NO RELEVANCY TO THE QUESTION PRESENTED HERE. IT WAS THERE HELD THAT 20-MILLIMETER AMMUNITION WAS AMMUNITION FOR CANNON AND NOT PROPERLY SUBJECT TO A RATE PUBLISHED FOR APPLICATION ON "CATRIDGES, SMALL ARM, BLANK OR LOADED, IN BOXES: "

THE COMMODITY RATE USED IN OUR SETTLEMENT OF APRIL 2, 1953 (CLAIM NO. TK- 380161), WAS NOT RESTRICTED TO SMALL ARMS CARTRIDGES. IT WAS PUBLISHED SPECIFICALLY FOR USE IN CONNECTION WITH LOADED CARTRIDGES, WITHOUT LIMITATION OR RESTRICTION AS TO THE TYPE, CHARACTER, SIZE, WEIGHT, OR OTHER QUALITY OF THE LOADED CARTRIDGES COMING WITHIN ITS SCOPE. ITS APPLICATION TO CARTRIDGES FOR CANNON (AMMUNITION FOR CANNON WITH EXPLOSIVE PROJECTILE) CONTROVERTS NEITHER THE PRINCIPLE ENUNCIATED IN THE GIDEON- ANDERSON CASE NOR THE HOLDING IN THE COWAN CASE. AS A MATTER OF INFORMATION, YOUR ATTENTION IS DIRECTED TO THE CHESAPEAKE AND OHIO RAILWAY COMPANY V. UNITED STATES, IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, CIVIL ACTION NO. 1127, IN WHICH THE PLAINTIFF SOUGHT TO ATTACK THE APPLICATION OF THE "CARTRIDGES, LOADED" RATE ON AMMUNITION FOR CANNON WITH EXPLOSIVE PROJECTILES. BY CONSENT OF THE PARTIES, THE COURT ENTERED AN ORDER ON NOVEMBER 17, 1955, DISMISSING THE COMPLAINT WITH PREJUDICE.