B-130554, APR. 12, 1957

B-130554: Apr 12, 1957

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TOPEKA AND SANTA FE RAILWAY COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 29. WERE PAID ON YOUR BILL NO. 589988. THAT CLAIM WAS DISALLOWED AND YOU WERE REQUESTED TO REFUND THE AMOUNT OF $126. HOSE OR NOZZLES" WERE SPECIFICALLY NAMED IN ITEM 425 1/2. IT IS YOUR CONTENTION THAT THE COMMODITY RATE ON "COMPRESSORS. THE QUESTION PRESENTED IS ONE OF THE PROPER CONSTRUCTION OF THE WORD "TRUCKS. WHETHER IT IS PROPER TO CONSTRUE THE WORD IN THE NARROW SENSE THAT IT DOES NOT INCLUDE A SELF- PROPELLED VEHICLE. SINCE THE WORD "TRUCKS" IS UNRESTRICTED AS TO TYPE OF PROPULSION. WHICH MUST BE READ IN THE SENSE IN WHICH THEY ARE GENERALLY UNDERSTOOD AND ACCEPTED COMMERCIALLY. IT IS ALSO ESTABLISHED THAT WHEN TWO TARIFF DESCRIPTIONS ARE EQUALLY APPROPRIATE.

B-130554, APR. 12, 1957

TO AUDITOR OF FREIGHT ACCOUNTS, ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 29, 1957, FILE G-589988, REQUESTING REVIEW OF THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM, PER SUPPLEMENTAL BILL NO. 589988-A, FOR $403.50 ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF A TRUCK-MOUNTED AIR COMPRESSOR FROM KELKER, COLORADO, TO OAKLAND, CALIFORNIA, UNDER BILL OF LADING NO. WT -6492051, DATED DECEMBER 14, 1950.

FOR THIS SERVICE YOU CLAIMED ORIGINALLY, AND WERE PAID ON YOUR BILL NO. 589988, THE AMOUNT OF $2,138.22, COMPUTED ON THE BASIS OF A RATE OF $2.40 PER 100 POUNDS AT A MINIMUM WEIGHT 18,000 POUNDS PER CAR, LESS PORT ALLOWANCE OF $0.03 PER 100 POUNDS ON THE ACTUAL WEIGHT OF EACH CAR. THEREAFTER, BY SUPPLEMENTAL BILL NO. 589988-A, YOU CLAIMED AN ADDITIONAL SUM OF $403.50, COMPUTED ON THE BASIS OF THE RATE PUBLISHED IN ITEM NO. 1800 OF TRANS-CONTINENTAL FREIGHT BUREAU TARIFF NO. 29-I, AGENT L. E. KIPP'S I.C.C. NO. 1526, PLUS APPLICABLE INCREASES, AS BEING APPLICABLE ON ,FREIGHT HIGHWAY VEHICLES WITH BUILT-IN AND PERMANENTLY ATTACHED MACHINERY OR MACHINES, H.O.S.' THAT CLAIM WAS DISALLOWED AND YOU WERE REQUESTED TO REFUND THE AMOUNT OF $126, BASED UPON THE RATE PUBLISHED IN ITEM NO. 1480 OF THE CITED TARIFF FOR APPLICATION ON SHIPMENTS OF "MACHINERY OR MACHINES, OR PARTS THEREOF, AS DESCRIBED IN ITEMS 425 TO 428, INC., " SINCE "COMPRESSORS, AIR, MOUNTED ON TRUCKS OR WHEELS, WITH OR WITHOUT AIR TANKS, HOSE OR NOZZLES" WERE SPECIFICALLY NAMED IN ITEM 425 1/2. IT IS YOUR CONTENTION THAT THE COMMODITY RATE ON "COMPRESSORS, AIR, MOUNTED ON TRUCKS," ETC., DOES NOT APPLY ON COMPRESSORS MOUNTED ON MOTOR VEHICLES, AND YOU ALLEGE IN THIS CONNECTION, THAT THIS COMMODITY RATE APPLIES ONLY ON COMPRESSORS MOUNTED ON PLATFORMS OR TRUCKS COMMONLY KNOWN AS PLATFORM OR WAREHOUSE TRUCKS AND HAS NO REFERENCE TO A MOTOR VEHICLE.

THE QUESTION PRESENTED IS ONE OF THE PROPER CONSTRUCTION OF THE WORD "TRUCKS," AS USED IN THIS COMMODITY ITEM, AND WHETHER IT IS PROPER TO CONSTRUE THE WORD IN THE NARROW SENSE THAT IT DOES NOT INCLUDE A SELF- PROPELLED VEHICLE, OR IF THE WORD SHOULD BE GIVEN ITS MORE COMMONLY ACCEPTED MEANING, AS BEING "/D) ANY STRONG HEAVY CART OR WAGON, HORSEDRAWN OR SELF-PROPELLED, FOR HEAVY HAULING.' WEBSTER'S NEW INTERNATIONAL DICTIONARY, 1951 EDITION. IN OTHER WORDS,"TRUCKS" CAN BE EITHER SELF- PROPELLED OR OTHER THAN SELF-PROPELLED, AND SINCE THE WORD "TRUCKS" IS UNRESTRICTED AS TO TYPE OF PROPULSION, NO REASON APPEARS WHY THE ITEM SHOULD BE HELD TO BE RESTRICTED TO NONSELF PROPELLED VEHICLES ONLY. THIS CONNECTION, SEE BISHOP V. STATE, 88 S.E.2D 746, IN WHICH THE COURT HELD THAT A "TRUCK" COMES WITHIN THE GENERALLY AND LEGALLY ACCEPTED DEFINITION OF AN AUTOMOBILE.

IT WELL ESTABLISHED THAT WORDS IN A TARIFF MUST BE CONSTRUED ACCORDING TO THEIR TERMS, WHICH MUST BE READ IN THE SENSE IN WHICH THEY ARE GENERALLY UNDERSTOOD AND ACCEPTED COMMERCIALLY. BRUNSWICK BALKE COLLENDER CO. V. BALTIMORE AND OHIO R.R. CO., 201 I.C.C. 506, 512; LIQUID CARBONIC CORP. V. CHICAGO, BURLINGTON AND QUINCY R.R. CO., 211 I.C.C. 365, 366; BURGER BREWING CO. V. PENNSYLVANIA R.R. CO., 255 I.C.C. 515, 517. IT IS ALSO ESTABLISHED THAT WHEN TWO TARIFF DESCRIPTIONS ARE EQUALLY APPROPRIATE, THE SHIPPER IS ENTITLED TO HAVE APPLIED THE ONE SPECIFYING THE LOWER RATES. BOISE COMMERCIAL CLUB V. ADAMS EXPRESS CO., 17 I.C.C. 115.

IN HOBARD MANUFACTURING CO. V. BALTIMORE AND OHIO R. CO., ET AL., 284 I.C.C. 417, THE COMMISSION CITED DUREZ PLASTICS AND CHEMICALS V. CHICAGO, N., ST. P. AND P.R. CO., 259 I.C.C. 335, WHERE AT PAGES 337 338, IT WAS SAID:

"THE BASIC RULE IS THAT TARIFFS MUST BE GIVEN A FAIR AND REASONABLE CONSTRUCTION. IT IS NOT A STRAINED OR UNNATURAL CONSTRUCTION TO HOLD THAT WHEN THE CARRIERS PUBLISH A RATE APPLICABLE TO A BROAD AND UNRESTRICTED COMMODITY DESCRIPTION AND AN ARTICLE IS SHIPPED THAT CLEARLY FALLS WITHIN THAT DESCRIPTION, THE RATE PUBLISHED IN CONNECTION THEREWITH IS APPLICABLE, EVEN THOUGH A MORE SPECIFIC DESCRIPTION IS CONTAINED IN THE CLASSIFICATION. WHEN IT IS THE INTENTION OF THE TARIFF FRAMERS TO RESTRICT A BROAD COMMODITY ITEM, IT HAS LONG BEEN THE PRACTICE TO APPEND A QUALIFICATION, SUCH AS THE INITIALS N.O.I.B.N. * * *.IF THAT IS NOT DONE, THE CARRIER SHOULD NOT BE HEARD TO DISAVOW THE PLAIN MEANING OF THE WORDS THAT ARE USED.'

ITEM 1800 OF THE CITED TARIFF UPON WHICH YOU RELY READS AS FOLLOWS:

"FREIGHT HIGHWAY VEHICLES WITH BUILT-IN AND PERMANENTLY ATTACHED MACHINERY OR MACHINES, N.O.S.'

THUS, THAT ITEM APPLIES ONLY ON SUCH ARTICLES AS ARE "NOT OTHERWISE SPECIFIED" IN TARIFF NO. 29-I. IT SEEMS THAT THE DESCRIPTION IN ITEM 425 1/2 OF "COMPRESSORS, AIR, MOUNTED ON TRUCKS" ADEQUATELY AND COMPLETELY DESCRIBES THE ARTICLES INCLUDED IN THESE SHIPMENTS. FOR THE REASONS STATED, THE SETTLEMENT IS SUSTAINED.