B-170792, MAY 27, 1971

B-170792, MAY 27, 1971

FREIGHT CHARGES - QUANTUM MERUIT AFFIRMING PRIOR DECISION WHICH DENIED CLAIM FOR $145.12, RECOVERED BY DEDUCTION IN CONNECTION WITH A SHIPMENT OF EXPLOSIVES AND INERT MATERIAL UNDER A GBL. IT WAS PREVIOUSLY DETERMINED, IN A GAO AUDIT, THAT THE APPLICABLE CHARGES SHOULD HAVE BEEN BASED ON A MIXED TRUCKLOAD SHIPMENT, NOT A SHIPMENT OF "AMMUNITION AND/OR EXPLOSIVES AND/OR FIREWORKS" BECAUSE THE ELECTRICAL EQUIPMENT AND PROJECTILE PARTS WERE NON-EXPLOSIVE. FURTHER, SINCE THE TARIFF RATES FOR BLASTING SUPPLIES APPLY TO INERT, NON EXPLOSIVE ARTICLES, THERE WOULD SEEM TO BE NO VALID REASON WHY SUCH RATES SHOULD NOT BE USED IN COMPUTING THE CHARGES ON A QUANTUM MERUIT BASIS.

TO C. I. WHITTEN TRANSFER CO.:

WE REFER AGAIN TO YOUR LETTER DATED SEPTEMBER 9, 1970, REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE DATED JUNE 17, 1970, OUR CLAIM NO. TK- 903537. THE SETTLEMENT DISALLOWED YOUR CLAIM FOR $145.12 IN CONNECTION WITH FREIGHT TRANSPORTATION FURNISHED THE GOVERNMENT UNDER GOVERNMENT BILL OF LADING NO. D-3724521.

THE SHIPMENT IN QUESTION CONSISTED OF 2,292 POUNDS OF EXPLOSIVE ARTICLES (INCLUDING DUNNAGE AND PALLET WEIGHT), AND A TOTAL OF 1,567 POUNDS OF INERT MATERIALS (INCLUDING PALLET WEIGHT) DESCRIBED IN THE BILL OF LADING AS "PROJECTILE PARTS, NOI I/S FURTHER FINISHED THAN ROUGH MACHINED," AND AS "ELECTRICAL INSTRUMENTS, NOI." THE FACE OF THE BILL OF LADING, IN THE SPACE PROVIDED FOR THE SHOWING OF TARIFF OR SPECIAL RATE AUTHORITIES, INDICATES THAT THE SHIPMENT WAS TENDERED SUBJECT TO THE PROVISIONS OF C. I. WHITTEN TRANSFER CO. TENDER 103-B. HOWEVER, THAT TENDER APPLIES ONLY ON SHIPMENTS OF "AMMUNITION AND/OR EXPLOSIVES AND/OR FIREWORKS" AND THUS WOULD BE INAPPLICABLE TO A MIXED SHIPMENT OF EXPLOSIVES AND PROJECTILE PARTS AND ELECTRICAL INSTRUMENTS.

FREIGHT CHARGES WERE BILLED AND PAID ON THE BASIS OF THE TENDER RATE (200 PERCENT OF FIRST CLASS) APPLIED TO A MINIMUM WEIGHT OF 7,500 POUNDS. OUR AUDIT, THE APPLICABLE CHARGES WERE DETERMINED TO BE THOSE PROVIDED IN C. I. WHITTEN TRANSFER CO. TARIFF MF-I.C.C. NO. 56 FOR A MIXED TRUCKLOAD SHIPMENT WITH A MINIMUM WEIGHT OF 22,000 POUNDS. WE APPLIED CLASS A AND CLASS C EXPLOSIVES RATES TO THE EXPLOSIVES AND THE RATE APPLICABLE TO "BLASTING AGENTS, MATERIALS AND SUPPLIES (NON EXPLOSIVE)" TO THE INERT MATERIALS, I.E., THE ELECTRICAL INSTRUMENTS AND THE PROJECTILE PARTS, AND TO THE 18,141-POUND DEFICIT IN THE MINIMUM WEIGHT. THE RESULTING OVERCHARGE OF $145.12 WAS RECOVERED BY DEDUCTION UPON YOUR FAILURE TO REFUND.

IN YOUR REQUEST FOR REVIEW, YOU SAY THAT THE INERT MATERIALS IN THIS SHIPMENT - THE ELECTRICAL INSTRUMENTS AND THE PROJECTILE PARTS - CANNOT BE CONSIDERED AS "BLASTING SUPPLIES" AND THAT THE SHIPMENT THEREFORE IS PROPERLY RATED AS BILLED. IT IS APPARENT, HOWEVER, THAT IF THIS INERT MATERIAL CANNOT BE SAID TO COME WITHIN THE COMMODITY DESCRIPTION "BLASTING AGENTS, MATERIALS AND SUPPLIES (NON-EXPLOSIVE)," IT IS EVEN MORE OBVIOUS THAT IT CANNOT BE SAID TO COME WITHIN THE EXPLOSIVES DESCRIPTION GOVERNING THE RATE AT WHICH YOU INITIALLY BILLED.

IN THESE CIRCUMSTANCES, NO AGREED CHARGE, BY TARIFF OR QUOTATION, WOULD BE APPLICABLE FOR THE TRANSPORTATION OF THIS MIXED TRUCKLOAD SHIPMENT AND THUS THE CARRIER WOULD BE ENTITLED TO CHARGES BASED ON QUANTUM MERUIT PRINCIPLES. SINCE THE TARIFF RATES FOR BLASTING SUPPLIES APPLY TO INERT, NONEXPLOSIVE ARTICLES, THERE WOULD SEEM TO BE NO VALID REASON WHY SUCH RATES SHOULD NOT BE USED IN COMPUTING THE MEASURE OF THE QUANTUM MERUIT CHARGES DUE FOR THIS MIXED TRUCKLOAD SHIPMENT.

SINCE THE SETTLEMENT HERE WAS CONSISTENT WITH THIS BASIS OF CHARGES, IT IS AFFIRMED.