B-134949, JUN. 3, 1958

B-134949: Jun 3, 1958

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TO ILLINOIS CENTRAL RAILROAD: REFERENCE IS MADE TO YOUR REQUEST. FOR THE TRANSPORTATION SERVICES INVOLVED YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES COMPUTED ON THE BASIS OF A FIRST-CLASS RATE OF $5.17 PER 100 POUNDS. IN THE AUDIT HERE IT WAS DETERMINED THAT THE CORRECT CHARGES WERE FOR COMPUTATION ON THE BASIS OF A RATE OF $1.90 PER 100 POUNDS. 863.16 WAS REFUNDED BY YOU IN DECEMBER 1956. YOUR CLAIM WAS DISALLOWED IN THE SETTLEMENT DATED NOVEMBER 8. " IN WHICH IT IS STATED: "* * * THE ARMY BULLETINS LISTING VARIOUS TYPES OF MUNITIONS AND DISTINCTIONS WERE DISCUSSED AND CONCLUSION REACHED THAT WE COULD NOT QUESTION THE APPLICATION OF THIS RATE ON LOADED CANNON CARTRIDGES BUT THAT THERE SHOULD BE A DEFINITE DISTINCTION BETWEEN CANNON CARTRIDGES AND CANNON SHELLS.'.

B-134949, JUN. 3, 1958

TO ILLINOIS CENTRAL RAILROAD:

REFERENCE IS MADE TO YOUR REQUEST, FILE WQ-67577-A-R, FOR REVIEW OF THE SETTLEMENT (CLAIM NO. TK-567603) DATED NOVEMBER 8, 1957, WHICH DISALLOWED YOUR CLAIM, PER BILL WQ-67577-A, FOR $7,863.16 ADDITIONAL TO THE AMOUNT PREVIOUSLY ALLOWED FOR THE TRANSPORTATION OF "AMMUNITION FOR CANNON WITH EXPLOSIVE PROJECTILE (3528 RDS/RIRCA/AMM 75 MM GUNS SHL HE M48" FROM ORDNANCE, OREGON, TO FORT KNOX, KENTUCKY, IN JUNE 1945, UNDER BILLS OF LADING WV-8205545, WV-8205566, WV-8205565, AND WV 8205555.

FOR THE TRANSPORTATION SERVICES INVOLVED YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES COMPUTED ON THE BASIS OF A FIRST-CLASS RATE OF $5.17 PER 100 POUNDS, REDUCED TO $3.28786 BY DEDUCTIONS FOR LAND GRANT. IN THE AUDIT HERE IT WAS DETERMINED THAT THE CORRECT CHARGES WERE FOR COMPUTATION ON THE BASIS OF A RATE OF $1.90 PER 100 POUNDS, PUBLISHED IN ITEM 4475 OF TRANS-CONTINENTAL TARIFF 3-R FOR APPLICATION ON "EXPLOSIVES, VIZ. * * * CARTRIDGES, LOADED," LESS APPROPRIATE LAND GRANT DEDUCTION. THE RESULTING OVERPAYMENT OF $7,863.16 WAS REFUNDED BY YOU IN DECEMBER 1956. THEREAFTER, YOU URGED THAT THIS RATE DID "NOT COVER COMMODITY SHIPPED" AND RECLAIMED THE AMOUNT REFUNDED. YOUR CLAIM WAS DISALLOWED IN THE SETTLEMENT DATED NOVEMBER 8, 1957.

WITH YOUR REQUEST FOR REVIEW YOU FURNISHED A COPY OF A LETTER DATED JANUARY 15, 1949, FILE H-ICC DKT. 29822-SEC. 8, FROM THE WESTERN TRAFFIC EXECUTIVE COMMITTEE TO THE MISSOURI PACIFIC LINES, CONCERNING THE RATE IN "ITEM 4475-SERIES OF THE EASTBOUND TRANS-CONTINENTAL TARIFFS," IN WHICH IT IS STATED:

"* * * THE ARMY BULLETINS LISTING VARIOUS TYPES OF MUNITIONS AND DISTINCTIONS WERE DISCUSSED AND CONCLUSION REACHED THAT WE COULD NOT QUESTION THE APPLICATION OF THIS RATE ON LOADED CANNON CARTRIDGES BUT THAT THERE SHOULD BE A DEFINITE DISTINCTION BETWEEN CANNON CARTRIDGES AND CANNON SHELLS.'

YOU STATE THAT "THERE IS A DEFINITE DISTINCTION BETWEEN CARTRIDGES AND SHELLS," AS POINTED OUT IN THAT LETTER. YOU REQUEST THAT YOU BE REPAID THE $7,863.16 WHICH YOU REFUNDED PREVIOUSLY.

THE ARTICLE SHIPPED, DESCRIBED ON THE BILLS OF LADING AS AMMUNITION FOR CANNON WITH EXPLOSIVE PROJECTILE (3,528 RDS/RIRCA), IS SHOWN ON PAGE 32 OF ARMY SERVICE CATALOG 11 SNL R-1 AS A SHELL, FIXED, HE, M48, SUPERCHARGE, W/FUSE, PD, M48A1, 15 SEC. DELAY FOR 75 MM GUNS. IN CHICAGO, BURLINGTON AND QUINCY R.R. CO. V. UNITED STATES, 73 C.CLS. 250, THERE WERE INVOLVED SHIPMENTS WHICH, AS HERE, WERE DESCRIBED ON THE BILLS OF LADING 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 DESCRIBED IN WEBSTER'S NEW INTERNATIONAL DICTIONARY 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, PLASTERBOARD, 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. THEREFORE, THE TYPE OF AMMUNITION SHIPPED IN THIS INSTANCE IS PROPERLY RATABLE AS A LOADED CARTRIDGE WITHIN THE GENERALLY ACCEPTED MEANING OF THAT TERM.