B-135552, JULY 9, 1958, 38 COMP. GEN. 16

B-135552: Jul 9, 1958

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TRANSPORTATION - RATES - CLASSIFICATION - REFINED COPPER A GOVERNMENT SHIPMENT OF REFINED COPPER WIREBARS AND CATHODES IS PROPERLY CLASSIFIED FOR FREIGHT RATE PURPOSES AS REFINED COPPER RATHER THAN AS COPPER PRODUCTS. THE FACT THAT THE COPPER IS CAST INTO THE SHAPE OF CATHODES AND WIRE BARS DOES NOT REMOVE IT FROM THE BROAD GENERIC DESCRIPTION FOR REFINED COPPER. THERE ARE TWO TARIFF DESCRIPTIONS EQUALLY APPROPRIATE. THE SHIPPER IS ENTITLED TO THE ONE WHICH MAKES AVAILABLE THE LOWER FREIGHT RATE. 1958: WE HAVE CONSIDERED YOUR REQUEST. L.' YOU WERE PAID. WHICH IS THE BASE RATE NAMED IN ITEM 360 OF NORTHERN PACIFIC RAILWAY COMPANY TARIFF NO. 29-C. YOU CONTEND THAT THE RATE ASSESSED WAS INAPPLICABLE VIA CHICAGO.

B-135552, JULY 9, 1958, 38 COMP. GEN. 16

TRANSPORTATION - RATES - CLASSIFICATION - REFINED COPPER A GOVERNMENT SHIPMENT OF REFINED COPPER WIREBARS AND CATHODES IS PROPERLY CLASSIFIED FOR FREIGHT RATE PURPOSES AS REFINED COPPER RATHER THAN AS COPPER PRODUCTS, WHICH EMBRACES SMELTER PRODUCTS ONLY, AND THE FACT THAT THE COPPER IS CAST INTO THE SHAPE OF CATHODES AND WIRE BARS DOES NOT REMOVE IT FROM THE BROAD GENERIC DESCRIPTION FOR REFINED COPPER. IF, IN THE DETERMINATION OF THE PROPER CLASSIFICATION OF AN ARTICLE SHIPPED UNDER A GOVERNMENT BILL OF LADING, THERE ARE TWO TARIFF DESCRIPTIONS EQUALLY APPROPRIATE, THE SHIPPER IS ENTITLED TO THE ONE WHICH MAKES AVAILABLE THE LOWER FREIGHT RATE.

TO THE CHICAGO AND EASTERN ILLINOIS RAILROAD COMPANY, JULY 9, 1958:

WE HAVE CONSIDERED YOUR REQUEST, PER FILE AUDIT BILL 3326-A-1954, FOR A REVIEW OF THE SETTLEMENT NO. TK 546481, DATED MARCH 9, 1955, WHICH DISALLOWED YOUR CLAIM FOR $14,147.86 ADDITIONAL TO THE CHARGES ALREADY PAID ON YOUR BILL 3326.

IN DECEMBER 1953 THE EMERGENCY PROCUREMENT SERVICE, GENERAL SERVICES ADMINISTRATION, ISSUED 17 BILLS OF LADING, NOS. GS-271383 THROUGH GS 271399, DATED JANUARY 19, JANUARY 20, AND JANUARY 21 TO COVER THE TRANSPORTATION OF 18 CARLOADS OF REFINED COPPER WIREBARS AND REFINED COPPER CATHODES FROM THE AMERICAN SMELTING AND REFINING COMPANY, FOR THE GRANBY CONSOLIDATED MINING, SMELTING AND POWER COMPANY, LIMITED, TACOMA, WASHINGTON, TO THE GRANITE CITY ENGINEER DEPOT, GRANITE CITY, ILLINOIS, ROUTED " NP-1MSTP AND SSM-IHB-C AND EI-TRRA OF ST. L.' YOU WERE PAID, FOR THIS SERVICE, AGGREGATE CHARGES OF $18,766.45, AT A RATE OF $16.25 PER NET TON, PLUS A MAXIMUM INCREASE OF $2.40 PER NET TON, WHICH IS THE BASE RATE NAMED IN ITEM 360 OF NORTHERN PACIFIC RAILWAY COMPANY TARIFF NO. 29-C, I.C.C. 9640 ON REFINED COPPER, AS DESCRIBED IN ITEM NO. 80 THEREOF. YOU CONTEND THAT THE RATE ASSESSED WAS INAPPLICABLE VIA CHICAGO; AND YOU PRESENTED YOUR SUPPLEMENTAL BILL 3326 A-1954 FOR AN ADDITIONAL $14,147.86, STATING THAT THE CORRECT CHARGES ARE $32,914.31, COMPUTED ON THE BASIS OF A COMBINATION RATE OF $21.11 PER NET TON PLUS $2.40 PER NET TON TO DANVILLE, ILLINOIS, AND $8 PER NET TON PLUS A 15 PERCENT INCREASE BEYOND TO GRANITE CITY. YOUR BILL WAS DISALLOWED MARCH 9, 1955, ON THE GROUND THAT THE RATE OF $16.25 PER NET TON PLUS $2.40 PER NET TON, AS ORIGINALLY BILLED AND PAID, WAS PROPERLY APPLICABLE. IN YOUR REQUEST FOR REVIEW, YOU URGE THAT THE DISALLOWANCE WAS PREDICATED ON AN INAPPLICABLE DESCRIPTIVE ITEM--- ITEM 80--- SOLELY BECAUSE THE RATE AVAILABLE IN CONNECTION WITH ITEM 85, WHICH YOU ALLEGE PROPERLY DESCRIBED THESE SHIPMENTS, COULD NOT BE APPLIED VIA THE ROUTE OF MOVEMENT.

ITEM 80 OF TARIFF 29-C IS ENTITLED " COPPER, REFINED" AND PROVIDES THAT "WHERE REFERENCE IS MADE TO THIS ITEM, RATES APPLY ON: COPPER, REFINED. IN STRAIGHT CARLOADS, MINIMUM WEIGHT 40,000 NDS.' ITEM 85 IS AS FOLLOWS:

COPPER PRODUCTS WHERE REFERENCE IS MADE TO THIS ITEM, RATES APPLY ON:

COPPER, VIZ.:

ANODES, BULLION, INGOTS, SCALE,

BARS, CAKES, MATTE, SLABS,

BILLETS, CATHODES, PIG, SMELTED,

BLACK, CATHODES, IN BALL PRECIPITATES, SPEISS,

BLISTER, SHAPE, RESIDUE, */4) SULPHATE,

IN STRAIGHT OR MIXED CARLOADS, MINIMUM WEIGHT 40, 1000 POUNDS. *CIRCLE REFERENCE (4) IS NOT MATERIAL HERE.

FROM TACOMA, WASHINGTON, TO CARONDELET, MISSOURI, THE BASING POINT FOR GRANITE CITY, ACCORDING TO ITEM 25, ITEM 360 OF THE TARIFF PROVIDES AN UNRESTRICTED BASE RATE OF $10.45 PER NET TON ON " COPPER, REFINED ( SEE ITEM NO. 80)," AND A BASE RATE OF $12.54 PER NET TON APPLICABLE TO " COPPER PRODUCTS (SEE ITEM NO. 85).' THE LATTER RATE IS RESTRICTED SO AS NOT TO APPLY VIA CHICAGO OR CHICAGO DISTRICT POINTS, AND THE REFERENCE TO GRANITE CITY IN ITEM 25 IS RESTRICTED SO THAT RATES TO THAT POINT ARE INAPPLICABLE VIA MINNESOTA TRANSFER AND CHICAGO IN CONNECTION WITH THE MINNEAPOLIS, ST. PAUL, AND SAULT STE. MARIE RAILWAY.

THE PRIMARY ISSUE PRESENTED BY THIS SITUATION IS TWO-FOLD: WHETHER THE BARS AND CATHODES SHIPPED WERE IN FACT REFINED COPPER, AND, IF SO, WHETHER THEY WERE PROPERLY WITHIN THE DESCRIPTION ,COPPER, REFINED," IN ITEM 80, OR WHETHER THEY WERE COPPER PRODUCTS WITHIN THE MEANING OF ITEM 85. THE MATTER OF ROUTING BECOMES MATERIAL ONLY IF THE ARTICLES WERE RATABLE UNDER THE DESCRIPTION IN ITEM 85.

THE RECORD SHOWS THAT THE BILLS OF LADING DESCRIBED THE ARTICLES SHIPPED EITHER AS " COPPER WIRE BARS REFINED COPPER," OR AS " COPPER REFINED COPPER CATHODES.' THE GENERAL SERVICES ADMINISTRATION HAS ADVISED US THAT ITS EMERGENCY PROCUREMENT SERVICE, THE PURCHASING AGENCY, REPORTED THAT THE SHIPMENTS WERE IN FACT REFINED COPPER. THE SHIPPER, THE AMERICAN SMELTING AND REFINING COMPANY, HAS ALSO INFORMED US THAT THE EMERGENCY PROCUREMENT SERVICE, WHICH ISSUED THE BILLS OF LADING, THEREON DESCRIBED THE ARTICLES AS "COPPER," AND THAT THE SHIPPING CLERK AT THE TACOMA PLANT, IN THE LIGHT OF SHIPPING INSTRUCTIONS FROM THE GENERAL SERVICES ADMINISTRATION, APPARENTLY ADDED THE MORE DETAILED DESCRIPTIONS TO THE BILLS OF LADING AT THE TIME OF SHIPMENT. CLEARLY, THE MATERIAL SHIPPED WAS IN FACT "REFINED COPPER," AND YOU APPARENTLY WOULD NOT HAVE QUESTIONED THE CORRECTNESS OF YOUR ORIGINAL BILLING HAD THE BILLS OF LADING DESCRIPTIONS NOT PARTICULARIZED AS TO THE FORM IN WHICH THIS REFINED COPPER WAS CAST FOR SHIPMENT. WHILE YOUR ARGUMENT IS BASED ON THE ALLEGED MISROUTING OF THESE SHIPMENTS, AND ASSUMES THAT OUR SETTLEMENT WOULD HAVE BEEN MADE ON THE "COPPER PRODUCTS" RATE IF IT HAD BEEN AVAILABLE VIA THE ROUTE OF MOVEMENT, THE REASONING BEHIND YOUR ASSUMPTION SEEMS TO BE THAT IDENTIFICATION OF THE TYPE OR FORM OF CASTING IN WHICH THE REFINED COPPER IS SHIPPED TAKES IT OUT OF THE BROAD GENERIC DESCRIPTION IN ITEM 80, AND THAT IT IS THEN WITHIN THE SCOPE OF ITEM 85, WHICH LISTS "BARS" AND "CATHODES" AMONG THE COPPER PRODUCTS NAMED.

THERE DOES NOT APPEAR TO BE ANY BASIS, HOWEVER, FOR THE ASSUMPTION THAT IDENTIFICATION OF THE FORM IN WHICH REFINED COPPER IS SHIPPED REMOVES THE APPLICATION OF ITEM 80. THE END PRODUCT OF REFINING--- THE FINAL STAGE IN THE PROCESSES BY WHICH COPPER METAL IS EXTRACTED FROM ORE, SEPARATED FROM THE OTHER METALLIC AND CHEMICAL CONTENT OF THE ORE, AND FREED FROM IMPURITIES--- IS THE COMMERCIAL CATHODE (A FORM OR SHAPE OF SOLID, 99.8 PERCENT PURE COPPER). IT IS SOMETIMES SHIPPED AS SUCH FROM THE REFINERY; IT IS SOMETIMES MELTED AND CAST INTO WIREBARS, INGOTS, CAKES, OR OTHER FORMS. SEE, IN THIS CONNECTION, THE ARTICLES OF THE ELECTRO-CHEMICAL INDUSTRY AND ON COPPER IN THE ENCYCLOPEDIA AMERICANA, 1939 EDITION, VOLUMES 10 AND 7, AND THE ARTICLE ON COPPER IN THE ENCYCLOPEDIA BRITANNICA, 1952, EDITION, VOLUME 6. THE "COPPER PRODUCTS" LISTED IN ITEM 85, ON THE OTHER HAND, SEEM TO INCLUDE NOT ONLY THE PRODUCTS AND BY- PRODUCTS OF THE VARIOUS STAGES IN SMELTING--- THE INTERMEDIATE PROCESSES BETWEEN EXTRACTION OF THE ORE FROM THE MINE AND THE REFINING PROCESS, I.E., PRECIPITATES, MATTE, RESIDUE, SCALE, SPEISS, SULPHATES, BULLION, SMELTED COPPER, BLACK COPPER, BLISTER COPPER, AND PIG COPPER, BUT ALSO THE NAMES OF THE FORMS IN WHICH THEY ARE CAST, I.E., ANODES, BARS, BILLETS, CAKES, CATHODES, AND INGOTS. ALL OF THESE ARE KNOWN TO THE INDUSTRY AS SMELTER PRODUCTS. SMELTER PRODUCTS ARE "COPPER BULLION, ANODES, BLISTER (BLACK), PRECIPITATES, CAKES, CATHODES, BARS, MATTE, PIG, RESIDUE, SULPHATES, NITRATES, SLABS, SCALE, AND SPEISS.' SAN PEDRO CHAMBER OF COMMERCE V. ATCHISON TOPEKA AND SANTA FE RAILWAY, 178 I.C.C. 25, 35. SEE ALSO ITEM 625 OF TARIFF 29-C, WHICH PROVIDES CERTAIN RATES ON "* * * SMELTER PRODUCTS ( COPPER), VIZ.: ANODE, BLACK, BLISTER, BAR, CAKE, CATHODE, INGOT, PIG, SLAB, PRECIPITATES, SMELTED, RESIDUE, AND MATTE; * *

IT IS CLEAR THAT THE RECORD ESTABLISHES THE MATERIAL SHIPPED WAS REFINED COPPER AS NAMED AND IT SEEMS THAT REGARDLESS OF THE FACT THAT THE REFINED COPPER MAY HAVE BEEN CAST INTO THE SHAPE OF CATHODES AND WIREBARS IT WAS ENTITLED TO BE TRANSPORTED AT THE $10.45 PER NET TON BASE RATE PROVIDED IN ITEM 360 FOR " COPPER, REFINED (SEE ITEM NO. 80).' IT FURTHER SEEMS THAT THE $12.54 PER NET TON BASE RATE PROVIDED FOR COPPER PRODUCTS LISTED IN ITEM 85 CONTEMPLATED SMELTER PRODUCTS ONLY AND WAS INAPPLICABLE TO REFINED COPPER. EVEN ASSUMING, HOWEVER, THAT REFINED COPPER CATHODES AND WIREBARS COULD BE CONSIDERED TO BE EMBRACED WITHIN THE COPPER PRODUCTS LIST IN ITEM 85, AS WELL AS WITHIN THE REFINED COPPER DESCRIPTION IN ITEM 80, THE SAME RESULT WOULD OBTAIN. IT IS WELL SETTLED THAT WHERE TWO TARIFF DESCRIPTIONS ARE EQUALLY APPROPRIATE, THE SHIPPER IS ENTITLED TO THAT ONE WHICH MAKES AVAILABLE THE LOWER RATE. WEST COAST PRODUCTS CORPORATION V. SOUTHERN PACIFIC COMPANY, 226 F.2D 830, 832; BUCH'S EXPRESS V. UNITED STATES, 132 F.1SUPP. 473, 476; CERT. DEN. 351 U.S. 940.

IN THE CIRCUMSTANCES, NO ISSUE CONCERNING ROUTING ARISES. THE SETTLEMENT ISSUED BY OUR TRANSPORTATION DIVISION WAS PROPER AND IT IS SUSTAINED.