B-125974, JUL. 20, 1956

B-125974, JUL. 20, 1956

TO THE ILLINOIS CENTRAL RAILROAD:

REFERENCE IS MADE TO YOUR REQUEST FOR REVIEW OF THE SETTLEMENT, DATED AUGUST 9, 1954, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES OF $523.52 FOR THE TRANSPORTATION OF WROUGHT IRON PIPE, INSULATED WITH ASBESTOS AND COVERED WITH ALUMINUM, IN A MIXED CARLOAD WITH OTHER ARTICLES FROM BARBERTON, OHIO, TO MILLINGTON, TENNESSEE, ON GOVERNMENT BILL OF LADING NO. N-14848953, DATED SEPTEMBER 25, 1950, AND TWO CARLOADS OF AMBULANCES FROM LIMA, OHIO, TO MILLINGTON, TENNESSEE, ON GOVERNMENT BILLS OF LADING NOS. WT-7179710 AND WT-7179712, DATED OCTOBER 14 AND 16, 1950, RESPECTIVELY.

THE CLAIM FOR ADDITIONAL FREIGHT CHARGES ON THE SHIPMENT OF WROUGHT IRON PIPE IS BASED ON THE PREMISE THAT IN AS MUCH AS THE ARTICLE IS NOT SPECIFICALLY NAMED IN THE CLASSIFICATION, THE APPLICABLE FREIGHT CHARGES SHOULD BE COMPUTED UNDER THE PROVISIONS OF RULE 18 OF CONSOLIDATED FREIGHT CLASSIFICATION NO. 19, APPLICABLE TO COMBINATION ARTICLES. YOU FURTHER ASSERT THAT ITEM 13435, WHICH PROVIDES RATINGS ON WROUGHT IRON PIPE, INSULATED AND JACKETED WITH FIBREBOARD OR IRON, APPLIED BY THE TRANSPORTATION DIVISION OF OUR OFFICE IN THE SETTLEMENT OF YOUR BILL, IS NOT APPLICABLE FOR THE REASON THAT THE RATINGS WERE ESTABLISHED TO COVER SMALLER SIZED WROUGHT IRON PIPES ENCASED IN INSULATING MATERIAL AND INSERTED IN A LARGER SIZE OF SHEET METAL PIPE. IT IS ADDED THAT SUCH PIPES ARE DIFFERENT THAN THE PIPE HERE SHIPPED; YOUR MEANING IN THIS REGARD APPARENTLY BEING THAT THE RATING NAMED IN ITEM 13435 MAY NOT BE APPLIED AS A BASIS FOR DETERMINING RATINGS ON THE SUBJECT SHIPMENTS.

REGARDING THE CONTENTION THAT RULE 18 MUST BE USED TO DETERMINE THE APPLICABLE RATING, IT IS OBSERVED THAT THESE PIPES ARE COMPOSED OF A BASIC WROUGHT IRON PIPE, INSULATING ASBESTOS, AND AN OUTSIDE JACKET OF ALUMINUM, ALL OF WHICH ARE INCORPORATED INTO THE COMPLETE ARTICLE TO FORM A SINGLE ENTITY, WHICH IS DESIGNED TO BE USED AS A UNIT. THE RULE IN THIS CONNECTION IS THAT THE COMBINATION ARTICLES RULE HAS NO APPLICATION TO ARTICLES HAVING THE CHARACTERISTICS OF AN ENTITY, ITS APPLICATION BEING RESTRICTED TO COMBINATIONS OF ARTICLES WHICH ARE SUITABLE OR ADAPTABLE TO SEPARATE USES. SEE STEWARD AND STEVENSON SERVICES, INC. V. BALTIMORE AND OHIO RY. CO., 276 I.C.C. 156, AND CASES CITED THEREIN. IN OTHER WORDS, RULE 18 IS APPLICABLE ONLY TO THOSE ARTICLES MADE OR COMBINED SO AS TO PERFORM A DUAL FUNCTION, OR FOR SEPARATE AND DISTINCT USES, SUCH AS A COMBINATION STOOL AND STEPLADDER. FURTHERMORE, THE RULE IS THAT WHEN NO RATE OR RATING IS PROVIDED FOR THE SPECIFIC ARTICLE TENDERED FOR SHIPMENT, THEN UNDER RULE 17 OF THE CLASSIFICATION THE RATE OR RATING PROVIDED FOR THAT ARTICLE WHICH IS MOST ANALOGOUS WILL BE APPLIED TO THE ARTICLE TENDERED. SINCE THERE IS NO SPECIFIC RATING FOR INSULATED WROUGHT IRON PIPES JACKETED WITH ALUMINUM, NO NOIBN RATING WHICH COULD COVER THE PIPES IN QUESTION, AND THE ARTICLE TENDERED FOR SHIPMENT WAS A SINGLE ENTITY, THE ANALOGOUS ARTICLES RULE IS APPLICABLE.

WROUGHT IRON PIPE WRAPPED WITH ASBESTOS INSULATING MATERIAL AND COVERED ON THE OUTSIDE WITH AN ALUMINUM JACKET DOES NOT, IN ITS ESSENTIAL CHARACTERISTICS, SEEM TO DIFFER SUBSTANTIALLY FROM A WROUGHT IRON PIPE WRAPPED WITH INSULATING MATERIAL AND JACKETED WITH SHEET METAL AND, FOR THAT REASON, ITEM 13435 OF CONSOLIDATED FREIGHT CLASSIFICATION NO. 19 APPEARS TO PROVIDE, BY RULE OF ANALOGY, A PROPER RATING FOR THE SHIPMENT IN QUESTION.

IN CLAIMING ADDITIONAL FREIGHT CHARGES FOR THE TRANSPORTATION OF THE AMBULANCES, YOU CONTEND THAT THE COMMODITY RATE NAMED IN ITEM 1625-B OF SUPPLEMENT 32 TO CENTRAL FREIGHT ASSOCIATION COMMODITY TARIFF NO. 15-X FOR APPLICATION ON PASSENGER AUTOMOBILES, S.U., WHICH WAS APPLIED BY THE TRANSPORTATION DIVISION OF OUR OFFICE ON THESE SHIPMENTS, IS NOT APPLICABLE TO AMBULANCES. IN SUPPORT OF YOUR CONTENTION YOU STATE:

"IF THE COMMODITY RATE IN CFA-15-X PASSENGER AUTOS WAS MEANT TO INCLUDE AMBULANCES IT WOULD HAVE STATED SO SPECIFICALLY IN THE CLASSIFICATION AND THERE WOULD HAVE BEEN NO NECESSITY FOR SHOWING RATES ON AMBULANCES SEPARATELY.'

THE MEANING OF YOUR STATEMENT IS NOT ENTIRELY CLEAR. THERE IS NO SEPARATE RATE STATED FOR AMBULANCES IN CFA-15-X, NEITHER IS THERE A SEPARATE RATING PROVIDED IN CONSOLIDATED FREIGHT CLASSIFICATION NO. 19. IN ITEM 43785, UNDER THE GENERAL HEADING OF MOTOR VEHICLES PASSENGER, CONSOLIDATED FREIGHT CLASSIFICATION NO. 19 PROVIDES A FIRST CLASS RATING FOR PASSENGER AUTOMOBILES, INCLUDING AMBULANCES AND HEARSES. THE FRAMERS OF THE CLASSIFICATION APPARENTLY UNDERSTOOD THE TERM "PASSENGER AUTOMOBILE" TO INCLUDE AMBULANCES. IN THE SAME MANNER COMMODITY TARIFF 15 -X PROVIDES RATES ON FREIGHT AUTOMOBILES IN ITEM 1620-A, AND ON PASSENGER AUTOMOBILES IN ITEM 1625-B. THESE APPEAR TO BE THE ONLY MOTOR VEHICLES LISTED IN THE TARIFF. THE INTERSTATE COMMERCE COMMISSION IN DIAMOND T. MOTOR CAR CO. V. HAWKEYE MOTOR EXP., 48 M.C.C. 213, HELD THAT THE TERM "AUTOMOBILE" IS A GENERIC TERM DESIGNATING ANY VEHICLE DESIGNED FOR ROAD TRAVEL AND CONTAINING ITS SOURCE OF POWER WITHIN ITSELF. THIS DEFINITION OBVIOUSLY INCLUDES AMBULANCES. THEREFORE, IN THE ABSENCE OF A CLEAR LIMITATION IN THE TARIFF ITEM, THE COMMODITY RATE PROVIDED FOR PASSENGER AUTOMOBILES APPLIES TO AMBULANCES. ACCORDINGLY, WE CONCLUDE THAT THE TRANSPORTATION DIVISION OF OUR OFFICE CORRECTLY APPLIED ITEM 1625-B TO THESE SHIPMENTS OF AMBULANCES.