B-123999, SEP. 19, 1955

B-123999: Sep 19, 1955

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TO THE VIRGINIAN RAILWAY COMPANY: REFERENCE IS MADE TO YOUR TWO LETTERS OF AUGUST 2. THAT DECISION WAS TO THE EFFECT THAT AMMUNITION GENERALLY DESCRIBED ON THE BILLS OF LADING AS . AMMUNITION FOR SMALL ARMS WITH EXPLOSIVE BULLET (LOADED 20 M/M SHELLS)" WAS PROPERLY RATABLE AS AMMUNITION FOR CANNON WITH EXPLOSIVE PROJECTILE. IT IS OBSERVED THAT THE TWO BILLS OF LADING COVERED BY YOUR BILLS NOS 28885 AND 29022 DESCRIBED THE SHIPMENTS AS "CARTRIDGES. " INDICATING THAT THE SHIPMENTS WERE IDENTIFIED BY "DANGEROUS" RATHER THAN BY THE "EXPLOSIVES" PLACARDS REQUIRED FOR AMMUNITION FOR CANNON WITH EXPLOSIVE PROJECTILE UNDER THE INTERSTATE COMMERCE COMMISSION'S RULES AND REGULATIONS FOR THE TRANSPORTATION AND HANDLING OF EXPLOSIVES.

B-123999, SEP. 19, 1955

TO THE VIRGINIAN RAILWAY COMPANY:

REFERENCE IS MADE TO YOUR TWO LETTERS OF AUGUST 2, 1955, FILE 6055 LT, RELATIVE TO YOUR SUPPLEMENTAL BILLS NOS. 28885-A AND 29022-A FOR ADDITIONAL FREIGHT CHARGES ON TWO CARLOAD SHIPMENTS OF AMMUNITION MOVING FROM THORNE, NEVADA, TO PORTSMOUTH, VIRGINIA, DURING JANUARY AND FEBRUARY 1951. YOU INQUIRE AS TO WHY SETTLEMENT OF YOUR SUPPLEMENTAL BILLS SHOULD NOT BE EFFECTED ON THE BASIS OF THE HOLDING IN W. T. COWAN, INC. V. UNITED STATES, C.CLS. NO. 49306, DECIDED JANUARY 11, 1955.

THAT DECISION WAS TO THE EFFECT THAT AMMUNITION GENERALLY DESCRIBED ON THE BILLS OF LADING AS ,AMMUNITION FOR SMALL ARMS WITH EXPLOSIVE BULLET (LOADED 20 M/M SHELLS)" WAS PROPERLY RATABLE AS AMMUNITION FOR CANNON WITH EXPLOSIVE PROJECTILE. IN THIS CONNECTION, IT IS OBSERVED THAT THE TWO BILLS OF LADING COVERED BY YOUR BILLS NOS 28885 AND 29022 DESCRIBED THE SHIPMENTS AS "CARTRIDGES, SMALL ARMS, LOADED OR BLANK, NOIBN (CFC 19-1840) (CTGS. 20 MM AIRCRAFT ARMY).' BILL OF LADING NO. N-17559522, ON BILL NO. 28885, INCLUDES, IN ADDITION TO THE ABOVE LANGUAGE, THE WORD ACTICE.' BOTH BILLS OF LADING CONTAIN THE WORDS "DANGEROUS PLACARDS," INDICATING THAT THE SHIPMENTS WERE IDENTIFIED BY "DANGEROUS" RATHER THAN BY THE "EXPLOSIVES" PLACARDS REQUIRED FOR AMMUNITION FOR CANNON WITH EXPLOSIVE PROJECTILE UNDER THE INTERSTATE COMMERCE COMMISSION'S RULES AND REGULATIONS FOR THE TRANSPORTATION AND HANDLING OF EXPLOSIVES. UNDER THE CIRCUMSTANCES, IT WOULD SEEM THAT THE AMMUNITION HERE SHIPPED IS NOT OF THE SAME NATURE AS THAT CONSIDERED IN THE COWAN CASE, AS IT DOES NOT APPEAR TO BE 20 MILLIMETER AMMUNITION WITH EXPLOSIVE PROJECTILE.

THE SITUATION IN THIS INSTANCE IS ONE IN WHICH A CLAIM IS PRESENTED WITHOUT SUFFICIENT PROOF TO SUSTAIN IT, OR TO JUSTIFY ALLOWANCE ON THE BASIS OF THE AVAILABLE INFORMATION. SEE 18 COMP. GEN. 980. THERE IS SOME DOUBT THAT THE AMMUNITION IN THIS INSTANCE COMES WITHIN THE PURVIEW OF THE COWAN CASE, AND THE PRINCIPLE OF THAT CASE CANNOT BE APPLIED ON THE BASIS OF THIS RECORD.

YOUR CLAIMS ARE, THEREFORE, BEING RETURNED TO OUR TRANSPORTATION DIVISION, WITH INSTRUCTIONS TO OBTAIN AN EXACT DESCRIPTION OF THE AMMUNITION SHIPPED FROM THE ADMINISTRATIVE OFFICE. SETTLEMENT OF YOUR SUPPLEMENTAL BILLS WILL BE CONSISTENT WITH THAT INFORMATION, WHICH SHOULD FURNISH ADDITIONAL DETAILS NECESSARY TO A PROPER DETERMINATION OF THE ASSESSABLE CHARGES.