B-126767, OCT. 15, 1956

B-126767, OCT. 15, 1956

TO MALONE FREIGHT LINES, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 19, 1956, PROTESTING THE AUDIT ACTION OF OUR TRANSPORTATION DIVISION, IN CONNECTION WITH A SHIPMENT OF BURSTER CASINGS, FROM REDSTONE ARSENAL, HUNTSVILLE, ALABAMA, TO PINE BLUFF ARSENAL, PINE BLUFF, ARKANSAS, COVERED BY BILL OF LADING NO. WQ- 12872988, DATED MAY 11, 1944, AND YOUR BILL US-707.

THE PROPERTY SHIPPED WAS DESCRIBED AS "1 TRUCKLOAD (543 CTN) 54,209 CASING, BURSTER, M2, LOT B.W.1-16 (AIR TESTED)," AND WEIGHED 28,190 POUNDS. FOR THE SERVICES IN QUESTION, YOU CLAIMED AND WERE PAID FREIGHT CHARGES IN THE AMOUNT OF $487.69 PER YOUR BILL NO. US-707, ON VOUCHER NO. 819412 OF THE JUNE 1944 ACCOUNTS OF AN ARMY DISBURSING OFFICER. SUCH CHARGES APPARENTLY WERE COMPUTED ON THE BASIS OF A FIRST-CLASS RATE OF$1.73 PER 100 POUNDS, APPLIED TO THE ACTUAL WEIGHT SHIPPED, 28,190 POUNDS. IN THE AUDIT OF THE CHARGES SO PAID, IT WAS DETERMINED BY OUR TRANSPORTATION DIVISION THAT THE MAXIMUM ALLOWABLE CHARGES FOR THE SERVICES IN QUESTION WERE $288, COMPUTED ON THE BASIS OF A RATE OF 80 CENTS PER 100 POUNDS, APPLIED TO 36,000 POUNDS, AND YOU WERE REQUESTED TO REFUND THE EXCESS CHARGES PAID IN THE AMOUNT OF $199.69 ($487.69 MINUS $288). THE MAXIMUM ALLOWABLE CHARGES WERE DETERMINED BY USING THE RATING PROVIDED FOR PROJECTILE PARTS, NOI, IRON OR STEEL, EMPTY, FURTHER FINISHED THAN ROUGH MACHINED, IN ITEM 1, PAGE 218, NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 7. THE RATING IN QUESTION WAS FIFTH CLASS FOR A VOLUME MINIMUM WEIGHT 36,000 POUNDS, AND THE RATE USED WAS PUBLISHED IN THE SOUTHERN MOTOR CARRIER RATE BUREAU TARIFF NO. 5-D, MF-I.C.C. NO. 252, SUBJECT TO AGENT JACKSON'S MASTER TARIFF NO. 2, MF-I.C.C. NO. 13, WHICH PROVIDED A MINIMUM RATE OF CLASS 46, OR 80 CENTS PER 100 POUNDS, BETWEEN THE POINTS INVOLVED.

YOU PREVIOUSLY ALLEGED THAT THE BURSTER CASINGS WERE LOADED WITH HIGH EXPLOSIVES, ACCORDING TO YOUR UNDERSTANDING, AND THAT YOU THEREFORE USED THE RATE ON HIGH EXPLOSIVES ON THIS SHIPMENT. ENCLOSED ARE A COPY OF ORIGINAL BILL OF LADING NO. WQ-12872988 AND A COPY OF THE SHIPPING TICKET (TALLY-OUT) BC-68779-4 ISSUED TO COVER THIS MOVEMENT. IT WILL BE NOTED THAT NEITHER OF THESE DOCUMENTS IS MARKED "EXPLOSIVE," WHICH WOULD HAVE BEEN THE CASE HAD THESE CASINGS BEEN LOADED WITH HIGH EXPLOSIVES. YOU HAVE HERETOFORE BEEN FURNISHED A COPY OF A REPORT THAT WAS RECEIVED FROM THE KANSAS CITY RECORDS CENTER, IN WHICH WE WERE ADVISED THAT THE BURSTER CASINGS AS SHIPPED CONSISTED OF PROJECTILE PARTS, NOIBN, IRON OR STEEL, EMPTY, FURTHER FINISHED THAN ROUGH MACHINED, FOR USE IN THE 81MM MORTAR SHELL M-57, AND THAT THE ARTICLES, AS SHIPPED, DID NOT81MM MORTAR SHELL M- 57, AND THAT THE ARTICLES, AS SHIPPED, DID NOT INCLUDE ANY EXPLOSIVES. IS APPARENT THAT THE BASIS USED BY OUR TRANSPORTATION DIVISION TO DETERMINE THE MAXIMUM ALLOWABLE CHARGES ON THIS SHIPMENT WAS PROPER.

YOU HAVE TAKEN THE POSITION THAT "THE COMMODITY WAS CORRECTLY DESCRIBED AS BURSTER CASINGS, AT THE TIME OF MOVEMENT, AND WE ARE NOT AGREEABLE TO ACCEPTING A CHANGE IN THE BILL OF LADING AT THIS LATE DATE.' NO ATTEMPT HAS BEEN MADE HERE TO CHANGE THE BILL OF LADING OR SHIPPING TICKET DESCRIPTION. ALL THAT WAS DONE IN OUR TRANSPORTATION DIVISION WAS TO FIND THE APPROPRIATE ITEM IN NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 7 WHICH COVERS BURSTER CASINGS. SINCE A BURSTER CASING IS, IN FACT, A STEEL TUBE USED TO CONTAIN THE BURSTER CHARGE OR EXPLOSIVE FOR THE PURPOSE OF BURSTING THE CHEMICAL WARFARE SHELL M-57 AND SCATTERING ITS CONTENTS, IT IS, IN FACT, A PROJECTILE PART, IRON OR STEEL, AND PROPERLY EMBRACED, FOR RATING PURPOSES, IN THE DESCRIPTION CONTAINED IN ITEM 1, PAGE 218 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 7. ACCORDINGLY, THERE HAS BEEN NO ARBITRARY CHANGE IN THE DESCRIPTION OF THIS SHIPMENT AFTER THE MOVEMENT, BUT SIMPLY A DETERMINATION OF THE PROPER DESCRIPTION OF THE ARTICLES SHIPPED IN THE TERMS USED IN THE APPLICABLE TARIFFS ISSUED BY THE CARRIERS.

WITH RESPECT TO THE LAPSE OF TIME BEFORE THE OVERPAYMENT WAS FOUND AND A CLAIM FOR REFUND PRESENTED TO YOU, YOUR ATTENTION IS INVITED TO SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 54 STAT. 955 (49 U.S.C.A. 66), WHICH PROVIDES:

"PAYMENT FOR TRANSPORTATION OF THE UNITED STATES MAIL AND PERSONS OR PROPERTY FOR OR ON BEHALF OF THE UNITED STATES BY ANY COMMON CARRIER SUBJECT TO THE INTERSTATE COMMERCE ACT, AS AMENDED, OR THE CIVIL AERONAUTICS ACT OF 1938, SHALL BE MADE UPON PRESENTATION OF BILLS THEREFOR, PRIOR TO AUDIT OR SETTLEMENT BY THE GENERAL ACCOUNTING OFFICE, BUT THE RIGHT IS HEREBY RESERVED TO THE UNITED STATES GOVERNMENT TO DEDUCT THE AMOUNT OF ANY OVERPAYMENT TO ANY SUCH CARRIER FROM ANY AMOUNT SUBSEQUENTLY FOUND TO BE DUE SUCH CARRIER.'

IT IS SIGNIFICANT TO NOTE THAT NO TIME LIMIT IS IMPOSED BY THIS STATUTE UPON THE RIGHT SPECIFICALLY RESERVED TO THE UNITED STATES TO RECOVER OVERPAYMENTS MADE ADMINISTRATIVELY. FURTHERMORE, IT HAS BEEN HELD THAT THE LIMITATIONS ON ACTIONS CONTAINED IN SECTION 16 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 16, DOES NOT APPLY TO CLAIMS BY OR AGAINST THE UNITED STATES GOVERNMENT. SEE SOUTHERN PACIFIC COMPANY V. UNITED STATES, 62 C.CLS. 391; UNION PACIFIC RAILROAD COMPANY V. UNITED STATES, 114 C.CLS. 714, CERTIORARI DENIED, 339 U.S. 930; SEABOARD AIR LINE RAILROAD COMPANY V. UNITED STATES, 113 C.CLS. 437; SHUTT V. UNITED STATES, CA 5TH CIR. 1955, 218 F.2D 10; AND E. I. DUPONT DE NEMOURS AND COMPANY V. DAVIS, 264 U.S. 456.

IN VIEW OF THE CIRCUMSTANCES OUTLINED ABOVE, THE AMOUNT OVERPAID, $199.69, SHOULD BE REMITTED PROMPTLY, IF IT BE YOUR DESIRE TO AVOID THE RECOVERY OF THIS AMOUNT FOUND DUE THE UNITED STATES FROM AMOUNTS OTHERWISE DUE YOUR COMPANY.