B-141497, MAR. 18, 1960

B-141497, MAR. 18, 1960

TO MICHIGAN EXPRESS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 9, 1959, PRO NO. DT- 74734-AO-29159, IN WHICH YOU, IN EFFECT, REQUEST REVIEW OF OUR DISALLOWANCE OF YOUR CLAIM, PER SUPPLEMENTAL BILL NO. AO-29159, DT 74734, FOR ADDITIONAL FREIGHT CHARGES IN THE AMOUNT OF $53.90 ALLEGED TO BE DUE FOR TRANSPORTING A SHIPMENT OF JET PROPULSION TYPE INTERNAL COMBUSTION ENGINES WEIGHING 9,800 POUNDS FROM MARIETTA, PENNSYLVANIA, TO BATTLE CREEK, MICHIGAN, UNDER GOVERNMENT BILL OF LADING AF-9757726 DATED APRIL 16, 1959.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID $288.12 COMPUTED ON THE BASIS OF A SECOND-CLASS LESS-THAN-TRUCKLOAD RATE OF $2.94 PER ONE HUNDRED POUNDS AS PROVIDED IN ITEM 61244 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4 MF-I.C.C.NO. 1, AND EASTERN CENTRAL MOTOR CARRIER RATE CONFERENCE, AGENT TARIFF NO. 31-B, MF I.C.C.NO. A-132, FOR APPLICATION ON "ENGINES, INTERNAL COMBUSTION, NOI," SUBSEQUENTLY, YOU CLAIMED THE ADDITIONAL AMOUNT OF $53.90 COMPUTED ON THE BASIS OF THE FIRST -CLASS LESS-THAN-TRUCKLOAD RATE OF $3.49 PER ONE HUNDRED POUNDS AS PROVIDED IN ITEM 160-A, AN EXCEPTION TO THE CLASSIFICATION NAMED IN SUPPLEMENT NO. 103 OF EASTERN CENTRAL TARIFF NO. 31-B. BY OUR SETTLEMENT CERTIFICATE OF NOVEMBER 25, 1959, YOUR CLAIM WAS DISALLOWED ON THE BASIS THAT THE RELEASED VALUE CLASSIFICATION RATING AND RATE WAS APPLICABLE IN ACCORDANCE WITH CONDITION 5 ON THE REVERSE OF THE BILL OF LADING. REFERENCE WAS ALSO MADE TO THE DECISION OF THE INTERSTATE COMMERCE COMMISSION IN UPJOHN CO. V. PENNSYLVANIA R.CO., 306 I.C.C. 325.

IN YOUR REQUEST FOR REVIEW YOU ARGUE THAT ITEM 160-A OF EASTERN CENTRAL TARIFF NO. 31-B PROVIDED AN EXCEPTION RATING APPLICABLE TO THE COMMODITY SHIPPED AND, THAT, THEREFORE, THERE IS NO CLASSIFICATION RATING APPLICABLE TO THE COMMODITY SHIPPED, SINCE SECTION 2 (A) OF RULE 26, N.M.F.C.NO. A-4, SUPPLEMENT 5 PROVIDES THAT THE ESTABLISHMENT OF AN EXCEPTION RATING TO APPLY ON LTL OR AQ QUANTITIES REMOVES THE APPLICATION OF THE LTL OR AQ RATING SHOWN IN THE CLASSIFICATION ON THE SAME COMMODITIES.

NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4 NAMES THREE RATINGS ON INTERNAL COMBUSTION ENGINES. TWO OF THE RATINGS ARE NAMED IN ITEM NO. 61244, APPLIED IN THE DISALLOWANCE OF YOUR CLAIM, AND ARE BASED ON RELEASED VALUATIONS; THE OTHER IS PROVIDED IN ITEM NO. 61247 AND IS BASED ON UNRELEASED VALUATIONS. UNDER SOMEWHAT SIMILAR CIRCUMSTANCES THE INTERSTATE COMMERCE COMMISSION STATED IN UPJOHN CO. V. PENNSYLVANIA R.CO., CITED IN OUR SETTLEMENT CERTIFICATE, SUPRA, THAT A RATING BASED ON UNRELEASED VALUATIONS IS SEPARATE AND DISTINCT FROM A RATING BASED ON RELEASED VALUATIONS AND HELD, THEREFORE, THAT AN EXCEPTIONS RATING BASED ON UNRELEASED VALUATIONS REMOVED FROM THE CLASSIFICATION ONLY THE CLASSIFICATION RATING BASED ON UNRELEASED VALUATIONS LEAVING THE CLASSIFICATION RATING ON RELEASED VALUATIONS UNAFFECTED. SEE ALSO DOW CHEMICAL CO. V. CHESAPEAKE AND OHIO RY., 306 I.C.C. 403.

ITEM NO. 160-A IN THE EXCEPTIONS TO THE CLASSIFICATION, RELIED UPON BY YOU, PROVIDES IN NOTE 1 THAT THE RELEASED VALUATION PROVISIONS AS SHOWN IN THE CLASSIFICATION WILL NOT APPLY IN CONNECTION WITH THE EXCEPTIONS RATINGS. WHILE THE LANGUAGE USED IN THIS NOTE IS NOT ENTIRELY CLEAR, AND THE MEANING IS NOT FREE FROM DOUBT, IT APPEARS TO MAKE THE EXCEPTIONS RATING APPLY ONLY IN CONNECTION WITH SHIPMENTS OF UNRELEASED VALUATION ARTICLES. CONSEQUENTLY, ITEM NO. 160-A DOES NOT APPEAR TO ESTABLISH AN EXCEPTIONS RATING TO APPLY ON SHIPMENTS OF RELEASED VALUATION WITHIN THE MEANING OF SECTION 2 (A) OF RULE 26, AND, THEREFORE, DOES NOT REMOVE RELEASED VALUATION RATINGS ON INTERNAL COMBUSTION ENGINES FROM THE CLASSIFICATION. IN ANY EVENT THE WORDING OF NOTE 1 IS AMBIGUOUS IN THIS REGARD AND ANY DOUBT IS REQUIRED TO BE RESOLVED AGAINST THE CARRIER AND IN FAVOR OF THE SHIPPER.

CONDITION NO. 5, ON THE REVERSE OF THE BILL OF LADING AND OF THE SHIPPING ORDER, PROVIDES THAT THE SHIPMENT COVERED BY THE BILL OF LADING IS MADE AT THE RESTRICTED OR LIMITED VALUATION SPECIFIED IN THE TARIFF OR CLASSIFICATION AT OR UNDER WHICH THE LOWEST RATE IS AVAILABLE UNLESS OTHERWISE INSTRUCTED ON THE FACE OF THE BILL OF LADING. THE FACE OF THE BILL OF LADING WAS ANNOTATED AS FOLLOWS: "RELEASED AT MAXIMUM VALUE APPLICABLE TO LOWEST PUBLISHED RATE OR CLASSIFICATION RATING," THEREBY SUBSTANTIATING THE PROVISIONS OF CONDITION NO. 5. IT APPEARS, THEREFORE, THAT THIS SHIPMENT WAS MADE AT THE RELEASED VALUATION RATING IN THE CLASSIFICATION, RATHER THAN AT THE UNRELEASED VALUATIONS REMOVED FROM THE CLASSIFICATION BY THE EXCEPTIONS ITEM UPON WHICH YOUR CLAIM IS BASED.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM APPEARS TO BE CORRECT AND IS SUSTAINED.