B-128391, AUG. 10, 1956

B-128391: Aug 10, 1956

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TO ILLINOIS CENTRAL RAILROAD: REFERENCE IS MADE TO YOUR REQUEST UNDER FILE G-WQ-7923-A-WAG FOR REVIEW OF THE SETTLEMENT DATED JANUARY 4. YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES BASED ON A CLASS-85 RATE OF $1.83 PER HUNDRED POUNDS APPLICABLE ON SHIPMENTS OF FREIGHT MOTOR VEHICLES. UPON AUDIT OF THE PAYMENT VOUCHER IN THE TRANSPORTATION DIVISION OF THE GENERAL ACCOUNTING OFFICE THE CHARGES FOUND PROPER WERE COMPUTED ON THE BASIS OF A SIXTH CLASS RATE OF 80 CENTS PER HUNDRED POUNDS AT A MINIMUM CARLOAD WEIGHT OF 24. THE RESULTING OVERCHARGE OF $117.27 SUBSEQUENTLY WAS COLLECTED BY DEDUCTION FROM THE CHARGES OTHERWISE PAYABLE ON YOUR BILL NO. FLAME THROWER COMBAT VEHICLE" IS A COMBINATION ARTICLE RATABLE AS A FREIGHT AUTOMOBILE UNDER RULE 18 OF THE GOVERNING CLASSIFICATION.

B-128391, AUG. 10, 1956

TO ILLINOIS CENTRAL RAILROAD:

REFERENCE IS MADE TO YOUR REQUEST UNDER FILE G-WQ-7923-A-WAG FOR REVIEW OF THE SETTLEMENT DATED JANUARY 4, 1954, WHICH DISALLOWED YOUR CLAIM, PER SUPPLEMENTAL BILL NO. WQ-7923-A, FOR $117.27, REPRESENTING ADDITIONAL CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION FROM MEMPHIS, TENNESSEE, TO FORT KNOX, KENTUCKY OF A COMMODITY DESCRIBED ON GOVERNMENT BILL OF LADING NO. WW-9110126, DATED NOVEMBER 10, 1948, AT "1 TRK SPRAYERS NOIBN (SERVICE UNIT, MECH, FLAME THROWER COMBAT VEHICLE, M4).'

FOR THIS SERVICE, YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES BASED ON A CLASS-85 RATE OF $1.83 PER HUNDRED POUNDS APPLICABLE ON SHIPMENTS OF FREIGHT MOTOR VEHICLES. UPON AUDIT OF THE PAYMENT VOUCHER IN THE TRANSPORTATION DIVISION OF THE GENERAL ACCOUNTING OFFICE THE CHARGES FOUND PROPER WERE COMPUTED ON THE BASIS OF A SIXTH CLASS RATE OF 80 CENTS PER HUNDRED POUNDS AT A MINIMUM CARLOAD WEIGHT OF 24,000 POUNDS, AS PROVIDED BY ITEM 41017 OF CONSOLIDATED FREIGHT CLASSIFICATION NO. 18, I.C.C. 106, AND SECTION 1-A OF SUPPLEMENT 86 TO SOUTHERN FREIGHT TARIFF BUREAU TARIFF 717-B, I.C.C. A-517, APPLICABLE ON "SPRAYERS, NOIBN.' THE RESULTING OVERCHARGE OF $117.27 SUBSEQUENTLY WAS COLLECTED BY DEDUCTION FROM THE CHARGES OTHERWISE PAYABLE ON YOUR BILL NO. AFR 25645.

IN YOUR REQUEST FOR REVIEW YOU MAKE FURTHER CLAIM FOR THE AMOUNT OF $117.27, CONTENDING THAT THE "SERVICE UNIT, MECH, FLAME THROWER COMBAT VEHICLE" IS A COMBINATION ARTICLE RATABLE AS A FREIGHT AUTOMOBILE UNDER RULE 18 OF THE GOVERNING CLASSIFICATION. TO SUPPORT YOUR CLAIM YOU HAVE SUBMITTED LETTERS FROM THE SOUTHERN CLASSIFICATION COMMITTEE, THE SOUTHERN WEIGHING AND INSPECTION BUREAU, AND THE WESTERN WEIGHING AND INSPECTION BUREAU, WHICH EXPRESS THE OPINION FOR WHICH YOU CONTEND. HOWEVER, THE REPORTS FROM THE SOUTHERN CLASSIFICATION COMMITTEE AND THE SOUTHERN WEIGHING AND INSPECTION BUREAU INDICATE THAT THEY HAD NOT SEEN THE ARTICLE AND DID NOT HAVE A VERY CLEAR IDEA OF ITS APPEARANCE. THEREFORE, THE OPINIONS IN THOSE REPORTS CANNOT BE CONSIDERED MATERIAL.

IN A REPORT DATED MARCH 9, 1955, THE WESTERN WEIGHING AND INSPECTION BUREAU REPRESENTATIVE STATES THAT ON THE BASIS OF INFORMATION TAKEN FROM GOVERNMENT RECORDS IT HAS BEEN DEVELOPED THAT THE ARTICLE CONSISTED OF ONLY THE SERVICE UNIT FOR A FLAME THROWER MOUNTED ON ANY ARMY MOTOR TRUCK FROM WHICH IT CAN BE REMOVED, AND THE TRUCK USED INDEPENDENTLY. ON THE OTHER HAND, A REPORT FROM THE DEPARTMENT OF THE ARMY DESCRIBES THE SERVICE UNIT, MECHANICAL FLAME THROWER, COMBAT VEHICLE, M-4, AS AN ARTICLE COMPOSED OF FOUR PRINCIPAL ASSEMBLY GROUPS MOUNTED ON A TRUCK CHASSIS, WHICH HAS BEEN PERMANENTLY MODIFIED BY INSTALLATION OF HEAVY DUTY POWER- TAKE-OFF AND DECLUTCHING ASSEMBLIES TO DRIVE THE FOUR ASSEMBLY GROUPS, AND BY SPECIAL CONNECTIONS TO THE ENGINE JACKET COOLING SYSTEM TO PROVIDE THE HEAT NEEDED FOR FUEL MANUFACTURE IN COLD WEATHER. IT IS DESIGNED TO MANUFACTURE AND TO SUPPLY COMPRESSED AIR AND PROPER FUEL TO FLAME THROWERS.

IN CLAIMS INVOLVING DISPUTED QUESTIONS OF FACT BETWEEN A CLAIMANT AND THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT, IT IS THE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT THE STATEMENT OF FACTS FURNISHED BY THE ADMINISTRATIVE OFFICERS IN THE ABSENCE OF CONVINCING EVIDENCE TO THE CONTRARY. SEE 16 COMP. GEN. 325; AND 14 ID. 927, 929. THEREFORE, ON THE BASIS OF THE DESCRIPTION FURNISHED BY THE DEPARTMENT OF THE ARMY, IT APPEARS THAT THE UNIT IS A SELF PROPELLED FUEL SERVICING MACHINE FOR FLAME THROWERS, CONSTRUCTED AS AN ENTITY, NONE OF THE PARTS OF WHICH ARE SUITABLE OR ADAPTABLE TO SEPARATE USES. WHILE IT MAY BE THAT THE ARTICLE IS NOT ADEQUATELY DESCRIBED AS A SPRAYER, RATABLE UNDER ITEM 41017, C.F.C. NO. 18, IT SEEMS EQUALLY CLEAR THAT IT IS NOT PROPERLY RATABLE UNDER THE COMBINATION ARTICLE RULE, SINCE THAT RULE HAS NO APPLICATION TO ARTICLES WHICH HAVE THE CHARACTERISTICS OF AN ENTITY. SEE STEWART AND STEVENSON SERVICE,INC. V. BALTIMORE AND O.R. CO., 276 I.C.C. 156, 157. IN CASES INVOLVING SIMILAR ARTICLES ARE SELF-PROPELLED MACHINES, PROPERLY CLASSIFIED UNDER THE GENERAL HEADING OF MACHINERY OR MACHINES. SEE OAKLAND TRUCK SALES CO. V. BALTIMORE AND O.R. CO., 270 I.C.C. 548; HARRISON CONSTRUCTION CO. V. CINCINNATI N.O. AND T.P. RY. CO., 266 I.C.C. 313, 316; BRYANT PAVING CO. V. CHICAGO B. AND Q.R. CO., 153 I.C.C. 799, 800; LAWRENCE CONSTRUCTION CO. V. LOUISVILLE AND N.R. O., 115 I.C.C. 439, 440. THEREFORE, IN THE ABSENCE OF A MORE SPECIFIC DESCRIPTION, IT APPEARS THAT THE "SERVICE UNIT, MECH, FLAME THROWER COMBAT VEHICLE, M4" IS PROPERLY CLASSIFIED UNDER ITEM 31890 OF CONSOLIDATED FREIGHT CLASSIFICATION NO. 18 AS "MACHINERY OR MACHINES, NOIBN," AND SINCE THAT CLASSIFICATION IS SUBJECT TO THE SAME RATING AND CARLOAD MINIMUM WEIGHT AS "SPRAYERS, NOIBN," NO MODIFICATION OF THE SETTLEMENT IS REQUIRED.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE SETTLEMENT DISALLOWING YOUR CLAIM FOR $117.27 IS SUSTAINED.