A-87097, JUNE 21, 1937, 16 COMP. GEN. 1098

A-87097: Jun 21, 1937

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HOUSEHOLD GOODS SHIPPED IN LIFT VANS ARE NOT SUBJECT TO COMMODITY RATE PRESCRIBED FOR HOUSEHOLD GOODS "BOXED. - THE LARGE BOX WE USED IN PACKING THESE GOODS IS PROPERLY DESCRIBED AS A LIFT VAN AND WAS CONSTRUCTED OF WOOD. * * * SAME * * * MEASURED 16 BY 7 BY 6 BY OR SLIGHTLY LESS. * * * WEIGHT * * * WHEN PACKED. THE SETTLEMENT EXPLAINED THE DISALLOWANCE OF $105.17 AS FOLLOWS: THE * * * SHIPMENT WAS FORWARDED IN A LIFT VAN NOT OVER 16 FEET IN LENGTH. IS CORRECT. * * * PER BOYD'S TARIFF 1009-P. APPARENTLY TARIFF NO. 1009-P NEITHER NAMED RATES FROM HAVANA TO NEW ORLEANS NOR WAS IT IN EFFECT ON THE DATE OF THIS SHIPMENT. STATING IN PERTINENT PART: * * * THE RATE IN EFFECT * * * WAS $3.30 PER 100 POUNDS ON HOUSEHOLD GOODS WHEN CRATED OR BURLAPPED AND IF A LIFT VAN IS NOT A BOX PERHAPS THE GOVERNMENT ACCOUNTING DEPARTMENT CAN EXPLAIN WHAT KIND OF A CONTAINER IT IS THAT WOULD ENTITLE IT TO A RATE OTHER THAN IN THE TARIFF DESCRIBED.

A-87097, JUNE 21, 1937, 16 COMP. GEN. 1098

TRANSPORTATION - RATES - COMMODITY OR CLASSIFICATION COMMODITY RATES APPLY ONLY ON ARTICLES CLEARLY WITHIN COMMODITY DESCRIPTION. HOUSEHOLD GOODS SHIPPED IN LIFT VANS ARE NOT SUBJECT TO COMMODITY RATE PRESCRIBED FOR HOUSEHOLD GOODS "BOXED, CRATED, OR BURLAPPED.'

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ILLINOIS CENTRAL SYSTEM, JUNE 21, 1937:

YOUR LETTER DATED MAY 24, 1937 (G-T-79936-NJB), RELATES TO SETTLEMENT T- 84048, DATED NOVEMBER 9, 1932, WHICH DISALLOWED $105.17 UPON CLAIM (BILL T -79936) OF THE ILLINOIS CENTRAL RAILROAD CO. FOR TRANSPORTATION FROM HAVANA, CUBA, TO ST. LOUIS, MO., UNDER BILL OF LADING T-124985, AUGUST 22, 1931, APPARENTLY VIA UNITED FRUIT CO. VESSEL, THE S.S. CARTAGO TO NEW ORLEANS, LA., THENCE ILLINOIS CENTRAL RAILWAY TO ST. LOUIS.

THE CARRIER CLAIMS $325.22 (INCLUDING $50.25 WHARFAGE AND HANDLING CHARGES AT HAVANA) ON BASIS OF WEIGHT OF 5,159 POUNDS AND RATE OF $5.33 PER 100 POUNDS BEING APPARENTLY COMBINATION OF RATES OF $3.30 AND $2.03 TO AND BEYOND NEW ORLEANS.

THE BILL OF LADING DESCRIBES THE SHIPMENT AS 1 "CASE" HOUSEHOLD GOODS, 5,159 POUNDS, BUT THE COMPANIA CUBANA DE ALMACENES (CUBAN WAREHOUSES CORPORATION), THE PACKER AND DRAYER OF THE SHIPMENT AT HAVANA REPORTED---

THE LARGE BOX WE USED IN PACKING THESE GOODS IS PROPERLY DESCRIBED AS A LIFT VAN AND WAS CONSTRUCTED OF WOOD.

* * * SAME * * * MEASURED 16 BY 7 BY 6 BY OR SLIGHTLY LESS. * * * WEIGHT * * * WHEN PACKED, 5,159 POUNDS GROSS.

SETTLEMENT T-84048 ALLOWED $220.05 FOR THE SERVICE, BEING THE SUM OF $50.25 FOR WHARFAGE AND HANDLING AT HAVANA AND $169.80 COMPUTED ON BASIS OF MINIMUM WEIGHT OF 6,000 POUNDS AND RATES OF $1.25 PER 100 POUNDS (1ST CLASS) FROM HAVANA TO NEW ORLEANS, $1.58 PER 100 POUNDS FROM NEW ORLEANS TO ST. LOUIS. THE SETTLEMENT EXPLAINED THE DISALLOWANCE OF $105.17 AS FOLLOWS:

THE * * * SHIPMENT WAS FORWARDED IN A LIFT VAN NOT OVER 16 FEET IN LENGTH, THEREFORE ITEM 102, SUPPLEMENT NO. 2 TO BOYDS 1000-P, DOES NOT APPLY. TO ST. LOUIS IMPORT RATE APPLIES.

BY LETTER DATED NOVEMBER 20, 1934, THE CARRIER URGED IN CONNECTION WITH THE RATE FROM HAVANA TO NEW ORLEANS THAT THE UNITED FRUIT CO. HAD ADVISED- -- "THE RATE OF $3.50 (?) IS CORRECT. * * * PER BOYD'S TARIFF 1009-P, SUPPL. NO. 2, EFFECTIVE APRIL 7, 1927"--- AND "ITEM NO. 2 OF THIS TARIFF PROVIDES THAT COMMODITY RATE TAKES PREFERENCE OVER CLASS RATE WHEN HIGHER OR LOWER.'

APPARENTLY TARIFF NO. 1009-P NEITHER NAMED RATES FROM HAVANA TO NEW ORLEANS NOR WAS IT IN EFFECT ON THE DATE OF THIS SHIPMENT.

SUBSEQUENTLY THE CARRIER SUBMITTED COPY OF LETTER DATED APRIL 15, 1935, FROM THE UNITED FRUIT CO. STATING IN PERTINENT PART:

* * * THE RATE IN EFFECT * * * WAS $3.30 PER 100 POUNDS ON HOUSEHOLD GOODS WHEN CRATED OR BURLAPPED AND IF A LIFT VAN IS NOT A BOX PERHAPS THE GOVERNMENT ACCOUNTING DEPARTMENT CAN EXPLAIN WHAT KIND OF A CONTAINER IT IS THAT WOULD ENTITLE IT TO A RATE OTHER THAN IN THE TARIFF DESCRIBED.

WE DO NOT ACCEPT HOUSEHOLD GOODS UNPROTECTED OR UNPACKED. HOUSEHOLD GOODS MUST BE PACKED IN A CONTAINER AND A LIFT VAN IS CERTAINLY A CONTAINER.

REFERRING TO THIS LETTER THE CARRIER PROPOSED "ADJUSTING THE WATER RATE TO BASIS OF $3.50 CWT.' IN VIEW OF THE RATE QUOTATION OF $3.30, IT IS NOT CLEAR WHY ADJUSTMENT ON THIS LATTER BASIS SHOULD HAVE BEEN PROPOSED. ANOTHER PART OF THE RECORD INDICATES THAT THE CARRIER HERE HAS SOUGHT ADJUSTMENT WITH THE UNITED FRUIT CO. ON BASIS OF "REFUND OF $105.25" FROM THE LATTER CARRIER AND THE LETTER DATED MAY 24, 1937, SETS FORTH--- "THE I.C.R.R. IS OUTSTANDING OCEAN STEAMSHIP CHARGES $105.17, ON OUR BILL T- 79936, WHICH AMOUNT WAS DEDUCTED IN THE ORIGINAL SETTLEMENT OF OUR BILL.'

THE RECORD SHOWS "OCEAN STEAMSHIP CHARGES" OF $220.50 CLAIMED BY THE UNITED FRUIT CO. ($170.25, APPARENTLY ON BASIS OF 5,159 POUNDS AT $3.30 PER 100 POUNDS, PLUS $50.25 WHARFAGE AND HANDLING AT HAVANA). THE SETTLEMENT ALLOWED $125.25 IN THIS CONNECTION (AS 6,000 POUNDS AT $1.25 PER 100 POUNDS, PLUS $50.25) OR A DIFFERENCE OF $95.25. IN REMAINING PART ($9.92) THE DISALLOWANCE WAS OF THE DIFFERENCE BETWEEN $104.72 (5,159 POUNDS AT $2.03 PER 100 POUNDS) CLAIMED FOR RAIL TRANSPORTATION FROM NEW ORLEANS TO ST. LOUIS AND $94.80 (AS 6,000 POUNDS AT $1.58 PER 100 POUNDS) ALLOWED IN THIS CONNECTION BY THE SETTLEMENT. THERE APPEARS TO BE NO QUESTION AS TO THE APPLICATION OF THIS LAST RATE AND IN VIEW OF THIS SITUATION IT IS NOT CLEAR WHY THE CARRIER SHOULD BE "OUTSTANDING OCEAN STEAMSHIP CHARGES $105.17" AND IN EFFECT MAKING CLAIM FOR THIS LAST AMOUNT.

CONCERNING THE SERVICE FROM HAVANA TO NEW ORLEANS, IT APPEARS THAT FREIGHT TARIFF NO. 1000-P (UNITED FRUIT COMPANY STEAMSHIP SERVICE FREIGHT TARIFF NO. 321-3) ISSUED BY E. B. BOYD, NAMES RATE OF $1.25 PER 100 POUNDS FROM HAVANA TO NEW ORLEANS FOR ARTICLES TAKING FIRST CLASS RATES AND IS ,GOVERNED, EXCEPT AS OTHERWISE PROVIDED HEREIN, BY THE OFFICIAL CLASSIFICATION; " THAT TARIFF SUPPLEMENT NO. 2 (ITEM 102) NAMES "COMMODITY" RATE OF $3.30 PER 100 POUNDS FROM HAVANA TO NEW ORLEANS ON "ANY QUANTITY" SHIPMENTS OF "GOODS, HOUSEHOLD, BOXED, CRATED, OR BURLAPPED; " AND THAT TARIFF ITEM 12 PROVIDES---

COMMODITY RATES PUBLISHED HEREIN WILL GOVERN WHETHER HIGHER OR LOWER THAN CLASS RATES.

CONSOLIDATED FREIGHT CLASSIFICATION NO. 6 (OFFICIAL CLASSIFICATION NO. 50) IN EFFECT AUGUST 22, 1931, NAMES LESS-THAN-CARLOAD RATING OF FIRST CLASS, ACTUAL WEIGHT, FOR HOUSEHOLD GOODS "PREPARED FOR SHIPMENT" IN BAGS, BARRELS, BOXES, WRAPPED BUNDLES, OR CRATES; AND ALSO LESS-THAN-CARLOAD RATING OF FIRST CLASS FOR HOUSEHOLD GOODS--- "IN LIFT VANS * * * SUBJECT TO A MINIMUM CHARGE OF 6,000 POUNDS AT FIRST-CLASS RATE FOR EACH VAN AND CONTENTS"--- WITH THE FURTHER PROVISION THAT ,HOUSEHOLD GOODS IN LIFT VANS EXCEEDING 16 FEET IN LENGTH WILL BE SUBJECT TO THE CARLOAD RATING AND C.L. MINIMUM WEIGHT"- - NAMELY, SECOND CLASS AT 12,000 POUNDS.

IT IS TO BE NOTED THAT "EXCEPT AS OTHERWISE PROVIDED" THEREIN TARIFF NO. 1000-P IS "GOVERNED BY THE OFFICIAL CLASSIFICATION" AND IT SEEMS CLEAR THAT WITHIN THE MEANING OF THE EFFECTIVE CLASSIFICATION HOUSEHOLD GOODS IN BOXES AND HOUSEHOLD GOODS IN LIFT VANS TAKE DIFFERENT RATES. ,THE SAME ARTICLES WHEN PACKED IN DIFFERENT WAYS ARE FOR THE PURPOSE OF DETERMINING THE KIND OF SHIPMENT, DIFFERENT ARTICLES.' R. E. COBB COMPANY V. MISSOURI -KANSAS-TEXAS RAILROAD COMPANY, ET AL., 163 I.C.C. 241. TO THE SAME EFFECT IS OPINION OF THE OFFICIAL CLASSIFICATION COMMITTEE AS SET FORTH IN LETTER DATED MAY 6, 1927 (FILE "K") TO THIS OFFICE THAT--- THERE IS NO LESS CARLOAD RATING ESTABLISHED IN THE OFFICIAL CLASSIFICATION (PRIOR TO JUNE 15, 1930) ON SHIPMENTS OF HOUSEHOLD GOODS PACKED LOOSE IN LIFT VANS AND CONSEQUENTLY, THE CARLOAD RATING IS THE ONLY ONE WHICH IS AVAILABLE ON SUCH SHIPMENTS.

IT FOLLOWS, THEREFORE, THAT THE NAMING IN TARIFF NO. 1000-P OF THE $3.30 "COMMODITY" RATE ON HOUSEHOLD GOODS IN BOXES WOULD NOT BE OPERATIVE TO REMOVE THE APPLICABILITY OF THE CLASSIFICATION RATING AND CORRESPONDING RATE ON HOUSEHOLD GOODS IN LIFT VANS, THE RULE BEING WELL SETTLED THAT A COMMODITY RATE MUST BE APPLIED STRICTLY, AND NOT BY ANALOGY. BARBER MANUFACTURING COMPANY V. CENTRAL INDIANA RAILWAY COMPANY ET AL., 196 I.C.C. 691 (692). IN SUNDERLAND BROTHERS COMPANY V. ALTON RAILROAD COMPANY ET AL., 198 I.C.C. 125 (131), THE INTERSTATE COMMERCE COMMISSION SAID---

THE TARIFFS PUBLISHING THE COMMODITY RATES ARE GOVERNED BY THE CLASSIFICATION, AND TO THIS EXTENT THE CLASSIFICATION IS A PART OF THE COMMODITY TARIFFS. ACCORDINGLY, IF A COMMODITY TARIFF DESCRIPTION IS TO TAKE AN ARTICLE OUT OF THE CLASSIFICATION, SUCH DESCRIPTION MUST BE SO SPECIFIC THAT THERE CAN BE NO QUESTION THAT THE COMMODITY TARIFF DESCRIPTION CLEARLY INCLUDES THE ARTICLE SEPARATELY DESIGNATED IN THE CLASSIFICATION.

SEE, ALSO, J. HAMBURGER COMPANY, INCORPORATED, ET AL., V. ATLANTIC COAST LINE RAILROAD COMPANY, ET AL., 198 I.C.C. 295; HASKELITE MANUFACTURING CORPORATION V. ATLANTIC CITY RAILROAD COMPANY ET AL., 200 I.C.C. 503 (504).

UPON THIS RECORD, THERE APPEARS NO GOOD REASON WHY THE PRINCIPLES SET FORTH IN THE CITED DECISIONS SHOULD NOT BE APPLIED IN THE PRESENT INSTANCE AND ACCORDINGLY, SINCE THE SETTLEMENT DOES NOT APPEAR TO BE OTHERWISE IN ERROR, IT IS SUSTAINED.