B-126952, SEP. 13, 1956

B-126952, SEP. 13, 1956

TO MISSOURI PACIFIC RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR REQUEST, FILE 6-GR-48238-B, FOR REVIEW OF THE CERTIFICATES OF SETTLEMENT NOS. 642109 AND 641990, DATED OCTOBER 24, 1955, WHICH DISALLOWED $55,430.83 ON YOUR CLAIM PER BILL NO. 48238 A FOR $62,067.76 ADDITIONAL TO THE AMOUNT OF $23,894.58 PAID ON YOUR BILL NO. 48238 FOR THE TRANSPORTATION OF ARTICLES DESCRIBED ON THE COVERING BILLS OF LADING AS ,FIXED AMMUNITION FOR CANNON W/EXPLOSIVE PROJECTILE," ETC., FROM ARMY POINT, CALIFORNIA, TO BALDWIN, ARKANSAS, DURING 1945.

FOR THE TRANSPORTATION SERVICES INVOLVED YOU ORIGINALLY CLAIMED AND WERE PAID AT A RATE OF $1.46 PER 100 POUNDS WHICH IS NAMED IN ITEM 3200 OF TRANS-CONTINENTAL FREIGHT BUREAU TARIFF NO. 3-R, I.C.C. NO. 1506, LESS LAND-GRANT. IN THE AUDIT OF THE PAID BILL BY OUR OFFICE NOTICE OF OVERPAYMENT FORM 1003 WAS ISSUED FOR AN OVERCHARGE OF $1,037.64 BASED ON THE $1.46 RATE SUBJECT TO LAND-GRANT DEDUCTIONS VIA A DIFFERENT ROUTE. THEREAFTER, BY SUPPLEMENTAL BILL NO. 48238-A YOU CLAIMED $62,067.76 ADDITIONAL BASED ON A RATE OF $3.54 PER 100 POUNDS (65 PERCENT OF FIRST- CLASS RATE), CITING AS AUTHORITY AAR SECTION 22 QUOTATION 14-A. YOU WERE ALLOWED $6,636.93 IN THE ABOVE CERTIFICATES OF SETTLEMENT, ON THE BASIS OF $1.90 PER 100 POUNDS NAMED IN ITEM 4475 OF TRANS-CONTINENTAL FREIGHT BUREAU TARIFF NO. 3-R, ON "EXPLOSIVES, VIZ. * * * CARTRIDGES, LOADED," LESS LAND-GRANT.

IN YOUR REQUEST FOR REVIEW YOU CONTEND THAT THE CLASS-65 RATING PROVIDED IN AAR QUOTATION NO. 14-A SHOULD BE APPLIED ON THE SHIPMENTS IN QUESTION, AND THAT THE COMMODITY TARIFF ITEM ONLY DISPLACES THE CLASSIFICATION RATINGS ON SMALL ARMS AMMUNITION CONTAINED IN ITEM 1840 OF THE CLASSIFICATION AND DOES NOT DISPLACE THE EXPLOSIVE PROJECTILE RATINGS OF FIRST CLASS SHOWN IN ITEM 1815 OF THE CLASSIFICATION. IN THIS CONNECTION IT IS NOTED THAT THE DESCRIPTION IN ITEM 1815 OF THE CLASSIFICATION IS BROAD ENOUGH TO COVER EXPLOSIVE FIXED AMMUNITION FOR CANNON, BUT THE DESCRIPTION IN ITEM 4475 OF TARIFF NO. 3-R FAIRLY COMPREHENDS THE ARTICLES HERE CONCERNED. RULE 38 OF CLASSIFICATION NO. 15 PROVIDES THAT WHEN A COMMODITY RATE IS ESTABLISHED ON A GIVEN SHIPMENT THAT RATE AND NOT THE CLASS RATE MUST BE APPLIED, SUBJECT TO CERTAIN LIMITATIONS NOT APPLICABLE HERE.

THE QUESTION INVOLVED AS TO THESE SHIPMENTS IS WHETHER OR NOT THE ARTICLES SHIPPED ARE CARTRIDGES WITHIN THE MEANING OF THE TARIFF DESCRIPTION OF "EXPLOSIVES, VIZ. * * * CARTRIDGES, LOADED," AS SHOWN IN ITEM 4475 OF TARIFF NO. 3-R. AS NOTED ABOVE THE SHIPMENTS ARE DESCRIBED ON THE BILLS OF LADING AS "FIXED AMMUNITION FOR CANNON W/EXPLOSIVE PROJECTILE.' IN CHICAGO, BURLINGTON AND QUINCY R.R. CO. V. THE UNITED STATES, 73 C.CLS. 250, THERE WERE INVOLVED SHIPMENTS WHICH, AS HERE, THE BILLS OF LADING DESCRIBED AS AMMUNITION FOR CANNON WITH EXPLOSIVE PROJECTILE. IN THE CITED CASE THE COURT DETERMINED THE APPLICABLE RATE TO BE A COMMODITY RATE WHICH, UNDER TARIFF PROVISIONS, WAS APPLICABLE ON "FIXED AMMUNITION.' THIS TERM IS DEFINED IN WEBSTER'S NEW INTERNATIONAL DICTIONARY, 2D ED., 1951, AS "AMMUNITION IN WHICH THE PROJECTILE IS PERMANENTLY ATTACHED TO A CASE WHICH CONTAINS THE PRIMER AND THE PROPELLANT.' THE SAME DICTIONARY DEFINES A CARTRIDGE AS "A CASE, CAPSULE, SHELL, OR BAG OF METAL, PASTEBOARD, OR OTHER MATERIAL, HOLDING A COMPLETE CHARGE FOR A FIREARM, IN SMALL ARMS AND SOME CANNON CONTAINING ALSO THE PROJECTILE.' PAGE 20 OF WAR DEPARTMENT TECHNICAL MANUAL TM 9-1904, DATED MARCH 2, 1944, SETS FORTH THAT FIXED AMMUNITION COMPRISES A CARTRIDGE CASE (WHICH CONTAINS THE PROPELLANT) WHOSE BASE CONTAINS THE PRIMER, AND WHOSE FORWARD OPENING IS CRIMPED TO THE PROJECTILE SO THAT THE ENTIRE ROUND IS INTEGRAL AND ALL COMPONENTS ARE LOADED INTO THE WEAPON IN ONE OPERATION.

IN VIEW OF THE FOREGOING, IT WOULD SEEM THAT THE TYPE OF AMMUNITION SHIPPED IN THIS INSTANCE IS PROPERLY DESCRIBABLE AS A LOADED CARTRIDGE WITHIN THE GENERALLY ACCEPTED MEANING OF THAT TERM. ACCORDINGLY, SUCH ITEMS WOULD BE ENTITLED TO THE APPLICATION OF THE RATES NAMED IN ITEM 4475 OF TARIFF NO. 3-R ON "CARTRIDGES, LOADED," UNDER THE CAPTION ,EXPLOSIVES, VIZ., " SINCE NO LIMITATION OR RESTRICTION AS TO TYPE, CHARACTER, SIZE, WEIGHT, OR OTHER QUALITY OF THE LOADED CARTRIDGES IS INCLUDED IN THE CITED ITEM.

AS TO YOUR SUGGESTION THAT ITEM 4475 OF TARIFF NO. 3-R WAS INTENDED TO COVER ONLY ITEM 1840 ,CARTRIDGES, SMALL ARM, BLANK OR LOADED," IT MAY BE NOTED THAT ITEM 4475 PLACES NO RESTRICTION ON THE TYPE, CHARACTER, SIZE, WEIGHT, OR OTHER QUALITY OF THE LOADED CARTRIDGES. TARIFFS ARE TO BE CONSTRUED ACCORDING TO THEIR LANGUAGE; THE INTENTION OF THE FRAMERS IS NOT CONTROLLING; AND THEIR TERMS SHOULD BE SO CLEARLY STATED AS TO AVOID MISINTERPRETATION OR MISUNDERSTANDING. LARABEE FLOUR MILLS CORP. V. ATCHISON, TOPEKA AND SANTA FE RAILWAY CO., 168 I.C.C. 335, 337. TO BE LIMITED IN APPLICATION A TARIFF ITEM MUST BE APPROPRIATELY QUALIFIED AND NO SUCH QUALIFICATION CAN BE READ INTO IT LATER. ALLEN MANUFACTURING COMPANY V. LOUISVILLE AND NASHVILLE RAILROAD COMPANY, 194, I.C.C. 209, 211. THE DESCRIPTION IN ITEM 1815 OF THE APPLICABLE CONSOLIDATED FREIGHT CLASSIFICATION READING,"AMMUNITION, FIXED, NOIBN, FOR CANNON," UNDER THE GENERAL CAPTION ,AMMUNITION, EXPLOSIVE," ETC., AND THAT IN ITEM 4475 OF TARIFF NO. 3-R READING, "CARTRIDGES, LOADED, IN BOXES," UNDER THE CAPTION "EXPLOSIVES, VIZ.' APPEAR TO BE EQUALLY APPROPRIATE TO THESE SHIPMENTS, AND IN SUCH CASES THE SHIPPER IS ENTITLED TO HAVE APPLIED THE ONE SPECIFYING THE LOWER RATE. UNITED STATES V. GULF REFINING CO., 268 U.S. 542.

IN THE CIRCUMSTANCES OUR OFFICE IS NOT RELYING ON THE RULE OF ANALOGY AS YOUR REQUEST FOR REVIEW IMPORTS. WE ARE BASING OUR POSITION ON THE PREMISE THAT THE ARTICLES SHIPPED ARE, IN FACT, "CARTRIDGES" WITHIN THE GENERALLY ACCEPTED MEANING OF SUCH TERM AND THAT THE RATE USED IN THE AUDIT HERE APPLIES SPECIFICALLY TO THE INVOLVED SHIPMENTS.

ACCORDINGLY, THE SETTLEMENTS, WHICH WERE CONSISTENT WITH THE FOREGOING AND ARE NOT SHOWN TO HAVE BEEN IN ERROR OTHERWISE, ARE SUSTAINED.