B-132198, OCT. 9, 1957

B-132198: Oct 9, 1957

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ILLINOIS CENTRAL RAILROAD COMPANY: REFERENCE IS MADE TO YOUR LETTER OF MARCH 22. THIS ARTICLE IS DESCRIBED IN JOINT ARMY AND AIR FORCE COMMERCIAL TRAFFIC BULLETIN NO. 25 AND IT IS APPARENT FROM THE INFORMATION IN THE SAID BULLETIN THAT THE TRUCK-MOUNTED BITUMINOUS DISTRIBUTOR WAS DESIGNED TO OPERATE AS A MOBILE UNIT. THERE IS NOTHING IN THE RECORD HERE TO INDICATE THAT THE DISTRIBUTOR COULD BE READILY REMOVED FROM THE TRUCK FOR USE OR THAT. IF THE DISTRIBUTOR WERE REMOVED. THAT THE UNIT WAS A SELF-PROPELLED BITUMINOUS DISTRIBUTOR RATHER THAN A COMBINATION ARTICLE. THIS CONCLUSION IS SUPPORTED FURTHER BY HARRISON CONSTRUCTION CO. WHEREIN IT WAS HELD THAT A TRUCK-MOUNTED CONCRETE MIXER WAS A SELF-PROPELLED CONCRETE- MIXING MACHINE RATHER THAN A COMBINATION ARTICLE AND WAS SUBJECT TO THE RATING APPLICABLE ON "MACHINERY OR MACHINES.

B-132198, OCT. 9, 1957

TO AUDITOR OF FREIGHT RECEIPTS, ILLINOIS CENTRAL RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 22, 1957, CONCERNING OUR SETTLEMENT (CLAIM TK-525458) DATED DECEMBER 21, 1956, WHICH DISALLOWED YOUR CLAIM FOR $276.87, REPRESENTING ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF FOUR CARLOAD SHIPMENTS OF MACHINERY, NOIBN (DISTRIBUTOR, BITUMINOUS MATERIAL, TRUCK MOUNTED, 800 GALLON) FROM BELVIDERE, ILLINOIS, TO NEW ORLEANS, LOUISIANA, UNDER BILLS OF LADING NOS. WY-3313106, WY-3313109, WY-3313110 AND WY 3313112, DATED SEPTEMBER 17, 1953.

THIS ARTICLE IS DESCRIBED IN JOINT ARMY AND AIR FORCE COMMERCIAL TRAFFIC BULLETIN NO. 25 AND IT IS APPARENT FROM THE INFORMATION IN THE SAID BULLETIN THAT THE TRUCK-MOUNTED BITUMINOUS DISTRIBUTOR WAS DESIGNED TO OPERATE AS A MOBILE UNIT. THERE IS NOTHING IN THE RECORD HERE TO INDICATE THAT THE DISTRIBUTOR COULD BE READILY REMOVED FROM THE TRUCK FOR USE OR THAT, IF THE DISTRIBUTOR WERE REMOVED, THE MOTOR VEHICLE--- WITHOUT STRUCTURAL ALTERATIONS--- COULD BE USED FOR OTHER PURPOSES. IT SEEMS REASONABLE TO CONCLUDE, THEREFORE, THAT THE UNIT WAS A SELF-PROPELLED BITUMINOUS DISTRIBUTOR RATHER THAN A COMBINATION ARTICLE, IN WHICH EVENT THE COMBINATION ARTICLE RULE OF THE GOVERNING CLASSIFICATION HAS NO APPLICATION IN THE DETERMINATION OF THE CHARGES FOR THE TRANSPORTATION OF THIS ARTICLE. SEE, IN THIS CONNECTION, STEWART AND STEVENSON SERVICES, INC. V. BALTIMORE AND OHIO RAILROAD COMPANY, 276 I.C.C. 156, 157. THIS CONCLUSION IS SUPPORTED FURTHER BY HARRISON CONSTRUCTION CO. V. CINCINNATI, N.O. AND T.P. RY. CO., 266 I.C.C. 313, 316-18, WHEREIN IT WAS HELD THAT A TRUCK-MOUNTED CONCRETE MIXER WAS A SELF-PROPELLED CONCRETE- MIXING MACHINE RATHER THAN A COMBINATION ARTICLE AND WAS SUBJECT TO THE RATING APPLICABLE ON "MACHINERY OR MACHINES, N.O.I.B.N.' SIMILARLY, IN OAKLAND TRUCK SALES CO. V. BALTIMORE AND OHIO R. CO., 270 I.C.C. 548, IT WAS HELD THAT A TRUCK-MOUNTED CRANE WAS A SELF-PROPELLED CRANE RATHER THAN A COMBINATION ARTICLE AND WAS SUBJECT TO THE RATING APPLICABLE ON "CRANES OR DERRICKS, N.O.I.B.N.'

ITEM 31890 OF THE GOVERNING CLASSIFICATION PROVIDES A CLASS-40 RATING, SUBJECT TO A MINIMUM WEIGHT OF 24,000 POUNDS, FOR "MACHINERY OR MACHINES, NOIBN," AND THE RATING PUBLISHED IN CONNECTION WITH THE SAID DESCRIPTION APPEARS APPLICABLE ON THE SHIPMENTS HERE INVOLVED. SECTION 3 OF SOUTHERN PARTS FORIEGN FREIGHT COMMITTEE EXPORT FREIGHT TARIFF NO. 1016-J, AGENT H. M. ENGDAHL'S I.C.C. NO. 119, NAMING THE BASIC COMMODITY RATE OF 143 CENTS PER 100 POUNDS ON SELF-PROPELLED BITUMINOUS DISTRIBUTORS, ALTERNATES WITH SECTION 1, WHICH SECTION NAMES A LOWER CLASS-40 RATE OF 116 CENTS PER 100 POUNDS.

THE SETTLEMENT, WHICH WAS CONSISTENT WITH THE FOREGOING, IS NOT SHOWN TO HAVE BEEN IN ERROR OTHERWISE AND, ACCORDINGLY, IS SUSTAINED.

IN YOUR LETTER, YOU REFER ALSO TO CLAIM NO. TK-525734, YOUR BILL NO. AFR- 28349, COVERING SHIPMENTS, SIMILAR TO THOSE HERE INVOLVED, MOVING UNDER BILLS OF LADING NOS. WY-3313104 AND WY-3313111, DATED SEPTEMBER 17, 1953, ON WHICH THE FREIGHT CHARGES OF $779.42 WERE COMPUTED, IN OUR AUDIT, ON THE BASIS OF A 143-CENT RATE (PLUS 15 PERCENT OF THE CHARGES). SINCE THE ALLOWABLE CHARGES SHOULD HAVE BEEN COMPUTED ON THE BASIS OF THE CLASS-40 RATE OF 116 CENTS PER 100 POUNDS (PLUS 15 PERCENT OF THE CHARGES), MINIMUM WEIGHT 24,000 POUNDS, OUR NOTICE OF OVERPAYMENT FORM ..END :