B-138161, OCT. 8, 1959

B-138161, OCT. 8, 1959

TO CAKE AND NEGUS, COUNSELORS AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF JULY 20, 1959, TRANSMITTING A COPY OF A LETTER DATED JUNE 13, 1959, FROM MR. CHARLES D. MATHEWS, GENERAL COUNSEL OF THE J. H. ROSE TRUCK LINE, INC., HOUSTON, TEXAS, AUTHORIZING YOU TO REPRESENT THAT CARRIER IN RESPECT TO CERTAIN OF ITS CLAIMS PENDING IN THIS OFFICE. YOU REQUEST ADVICE AS TO OUR DETERMINATION IN RESPECT TO A SUBMISSION FROM MR. MATHEWS DATED MAY 29, 1959.

THE CARRIER'S SUBMISSION RELATES TO THE APPLICATION OF EXCEPTION 2 TO ITEM NO. 145, AS AMENDED, OF ITS TARIFF NO. 1, MF-I.C.C. NO. 3--- COVERING SHIPMENTS "OF LIGHT AND BULKY ARTICLES" WHICH, BECAUSE OF PHYSICAL CHARACTERISTICS, REQUIRE THE PHYSICAL CAPACITY OF ONE OR MORE 28-FOOT TRAILERS, OR LOADING SPACE ON A LOWBOY (UNDER-SLUNG) TRAILER-- TO SHIPMENTS OF INTERNAL COMBUSTION ENGINES, ETC., WEIGHING 4,200 TO 9,000 POUNDS, AND HAVING A DENSITY OF 18 TO 40 POUNDS PER CUBIC FOOT. THE SUBMISSION COVERS, ALSO, TWO SHIPMENTS OF ONE TRUCK EACH, WEIGHING 11,500 POUNDS AND 16,000 POUNDS, RESPECTIVELY, AND TWO SHIPMENTS OF ONE BUNDLE EACH, OF PLATFORM AND STAKE TRAILERS WEIGHING 16,400 POUNDS. THE RATES IN DISPUTE ON THESE SHIPMENTS ARE THOSE PROVIDED IN J. H. ROSE TRUCK LINE, INC., LOCAL AND JOINT COMMODITY TARIFF NO. 1, MF-I.C.C. NO. 3, OR IN ITS SECTION 22 QUOTATION NO. 2, DATED AUGUST 24, 1956. THE LETTER OF MAY 29, 1959, RELATES ONLY TO THE APPLICATION OF ITEM 145-B TO THE RATES IN TARIFF NO. 1, MF-I.C.C. NO. 3.

IN THE OBJECTION TO THESE SETTLEMENTS IT IS STATED THAT THE J. H. ROSE TRUCK LINE, INC., IS NOT A REGULAR ROUTE, GENERAL COMMODITY, MOTOR CARRIER AND THAT IT IS AUTHORIZED BY CERTIFICATE MC-13250, AND SUBS THEREOF, TO TRANSPORT, AMONG OTHER THINGS,"COMMODITIES, THE TRANSPORTATION OF WHICH, BECAUSE OF THEIR SIZE OR WEIGHT, REQUIRES THE USE OF SPECIAL EQUIPMENT, AND RELATED MACHINERY PARTS AND RELATED CONTRACTOR'S MATERIALS AND SUPPLIES WHEN THEIR TRANSPORTATION IS INCIDENTAL TO THE TRANSPORTATION BY SAID CARRIER OF COMMODITIES WHICH BY REASON OF SIZE OR WEIGHT REQUIRE SPECIAL EQUIPMENT.' MR. MATHEWS URGES THAT ALL TARIFFS OF THAT CARRIER, AND ESPECIALLY ITEM 145-B OF TARIFF NO. 1, SHOULD BE CONSTRUED IN THE LIGHT OF THAT AUTHORITY. ALSO, HE ALLEGES THAT THE INTERSTATE COMMERCE COMMISSION HAS CONSISTENTLY HELD THAT COMMODITIES OF THE TYPE HERE INVOLVED, SUCH AS AIRPLANE ENGINES, COME WITHIN THE ABOVE-QUOTED COMMODITY DESCRIPTION, AND THAT ,THE COMMISSION HAS CONSISTENTLY REFUSED TO HOLD THAT THE AUTHORITY OF THE CARRIER TO TRANSPORT A GIVEN COMMODITY UNDER A COMMODITY DESCRIPTION SUCH AS THAT HELD BY ROSE WOULD BE DETERMINED ON THE BASIS OF THE CUBIC MEASUREMENT OF THE COMMODITY.' IT IS ALLEGED, ALSO, THAT THE COMMODITIES INVOLVED REQUIRE THE USE OF SPECIAL EQUIPMENT EITHER FOR THEIR LOADING AND UNLOADING OR TRANSPORTATION, AND ACCORDINGLY FALL WITHIN THE AUTHORITY OF ROSE. CONSEQUENTLY, THE PRESENT QUESTION TO BE DETERMINED IS "WHETHER THE PARTICULAR SHIPMENT WAS SUCH AS TO REQUIRE THE PHYSICAL CAPACITY OF A TRAILER OF NOT LESS THAN 28 FEET IN LENGTH, OR THE LOADING SPACE ON A LOWBOY UNDERSLUNG TRAILER.'

THE OPERATING AUTHORITY OF J. H. ROSE TRUCK LINE INC., AS QUOTED BY MR. MATHEWS, PERMITS THAT CARRIER TO TRANSPORT ONLY THOSE COMMODITIES "WHICH, BECAUSE OF THEIR SIZE OR WEIGHT, REQUIRES THE USE OF SPECIAL EQUIPMENT," AND RELATED ARTICLES. HOWEVER, THERE IS NO EVIDENCE OF RECORD HERE THAT WOULD ESTABLISH THE FACT THAT THE ARTICLES TRANSPORTED BY ROSE UNDER THE REFERENCED BILLS OF LADING WERE OF SUCH "SIZE OR WEIGHT" AS TO REQUIRE "THE USE OF SPECIAL EQUIPMENT.' ON THE OTHER HAND, THE RECORDS ARE FULL OF INSTANCES WHERE AIRPLANE ENGINES PACKED IN CANS, TRUCKS, AND TRAILERS ARE BEING TRANSPORTED BY COMMON CARRIERS BY RAIL AND MOTOR IN REGULAR EQUIPMENT, AND AT REGULAR TARIFF RATES. SEE IN THIS CONNECTION SAVAGE TRUCK LINES, INC. V. UNITED STATES, 209 F.2D 442, WHERE SIX AIRPLANE ENGINES IN CYLINDRICAL CONTAINERS WERE LOADED BY GOVERNMENT PERSONNEL IN THE ORDINARY OPEN-TOP TRUCK OF A COMMON CARRIER. THESE CYLINDERS WEIGHED 5,000 POUNDS EACH. THEY WERE 5 FEET 5 INCHES IN DIAMETER, AND FIVE OF THEM WERE 9 FEET 3 INCHES, AND ONE OF THEM 7 FFET 7 INCHES IN HEIGHT. SEE ALSO AIRPLANE ENGINES BETWEEN POINTS IN THE SOUTHWEST, 43 M.C.C. 242, AND RELEASED RATINGS AND RATES ON ENGINES, 47 M.C.C. 767.

THE SHIPMENTS UNDER CONSIDERATION HERE, APPARENTLY ARE DIVIDED INTO TWO CLASSES; FIRST, ENGINES AND TRUCKS TRANSPORTED PRIOR TO APRIL 1, 1956; AND SECONDLY, THE ENGINES AND TRAILERS TRANSPORTED AFTER THAT DATE.

THIS SHIPMENT OF THREE METAL CASES OF ENGINES, INTERNAL COMBUSTION, N.O.I., AIRCRAFT (TYPE NO. R-3350-89), WEIGHING 17,220 POUNDS, SET OUT IN MR. MATHEWS' EXAMPLE 1, WAS TRANSPORTED FROM BROOKLEY AIR FORCE BASE, BROOKLEY, ALABAMA, BY THE BELL TRANSFER COMPANY, APPARENTLY TO NEW ORLEANS, LOUISIANA, AND THE J. H. ROSE TRUCK LINE BEYOND TO TRAVIS AIR FORCE BASE, CALIFORNIA, UNDER BILL OF LADING NO. AF-4529202, IN MAY 1955. FOR THIS TRANSPORTATION THE J. H. ROSE TRUCK LINE CLAIMED ON ITS FREIGHT BILL NO. 334869, AND WAS PAID ON VOUCHER NO. 026554, CHARGES OF $726, COMPUTED ON THE BASIS OF A RATE OF 57 CENTS TO NEW ORLEANS, LOUISIANA, AND A RATE OF 304 CENTS BEYOND TO TRAVIS AIR FORCE BASE, CALIFORNIA, AT A MINIMUM WEIGHT 20,000 POUNDS. IN THE AUDIT OF THIS PAYMENT WE FOUND PUBLISHED IN ITEM NO. 200-C OF J. H. ROSE'S LOCAL AND JOINT COMMODITY TARIFF NO. 1, MF-I.C.C. NO. 3, AS AMENDED BY SUPPLEMENT 9, A COMMODITY RATE ON INTERNAL COMBUSTION ENGINES WHICH APPLIED BETWEEN "ALL POINTS AND PLACES IN THE STATES OF ARK., KANS.; LA., N.M., OKLA., AND TEX., " AND "POINTS AND PLACES IN THE COUNTIES NAMED BELOW IN THE STATE OF LIFORNIA,"- -- INCLUDING THE COUNTY OF SOLANO, HERE INVOLVED--- OF 304 CENTS PER 100 POUNDS, SUBJECT TO A TRUCKLOAD MINIMUM WEIGHT OF 14,000 POUNDS. ACCORDINGLY, THE CHARGES ON THIS SHIPMENT BETWEEN NEW ORLEANS AND TRAVIS AIR FORCE BASE WERE RECOMPUTED ON THE BASIS OF THE RATE OF 304 CENTS PER 100 POUNDS--- NAMED IN ITEM 200-C AND USED BY THE CARRIER--- AT THE ACTUAL WEIGHT OF THE SHIPMENT, 17,220 POUNDS, THAT WEIGHT BEING GREATER THAN THE TRUCKLOAD MINIMUM WEIGHT OF 14,000 POUNDS. THE CARRIER WAS REQUESTED TO REFUND THE OVER PAYMENT OF $84.51.

THE CARRIER'S OBJECTION TO THE REFUND OF THIS OVERPAYMENT RESTS UPON ITS INTERPRETATION OF ITEM 145-B OF THAT TARIFF, AS AMENDED BY SUPPLEMENT 6. THIS ITEM IS INCLUDED IN THE GENERAL RULES AND REGULATIONS OF THE TARIFF, AND IS ENTITLED "DEFINITION OF SHIPMENT.' THE ITEM IS, IN PERTINENT PART, AS FOLLOWS:

"A SHIPMENT IS A LOT OF FREIGHT RECEIVED FROM ONE SHIPPER, AT ONE POINT OF ORIGIN, AT ONE TIME, FOR ONE CONSIGNEE, AT ONE DESTINATION AND COVERED BY ONE BILL OF LADING (SEE EXCEPTIONS AND ITEM NOS. 85, 90 AND 155).

"EXCEPTION 2. EXCEPT AS PROVIDED IN EXCEPTION 3, WHEN SHIPMENT CONSISTING WHOLLY OR IN PART, OF LIGHT AND BULKY ARTICLES, WHICH BECAUSE OF PHYSICAL CHARACTERISTICS REQUIRES THE PHYSICAL CAPACITY OF ONE OR MORE 28 FOOT TRAILERS, OR LOADING SPACE ON A LOWBOY (UNDERSLUNG) TRAILER, EACH TRUCK AND TRAILER SHALL BE CONSIDERED AS BEING LOADED WITH A TRUCKLOAD AND LADING THEREON TREATED AS A SEPARATE SHIPMENT AT APPLICABLE RATE AND ACTUAL WEIGHT, SUBJECT TO MINIMUM WEIGHT OF 20,000 POUNDS PER TRUCK LOAD.'

EXCEPTION NO. 3 RELATES TO SHIPMENTS "CONSISTING WHOLLY OR IN PART OF BOATS; AIRPLANES; AIRPLANE FUSELAGES; AIRPLANE WINGS OR AIRPLANE RUDDERS," AND HAS NO APPLICATION TO THE SHIPMENTS UNDER CONSIDERATION HERE. IT WILL BE CLEARLY SEEN THAT EXCEPTION 2 RELATES FIRST TO SHIPMENTS ,CONSISTING WHOLLY OR IN PART, OF LIGHT AND BULKY ARTICLES," AND, AS TO SUCH ARTICLES, IS LIMITED IN ITS APPLICATION TO THOSE WHICH, BECAUSE OF THEIR PHYSICAL CHARACTERISTICS, REQUIRE THE PHYSICAL CAPACITY OF A 28 FOOT TRAILER OR LOADING SPACE ON A LOWBOY (UNDERSLUNG) TRAILER. THE WORDS ,LIGHT AND BULKY ARTICLES," IN CONNECTION WITH OTHER WORDS USED IN TARIFFS, ARE TO BE ACCORDED THEIR PLAIN, COMMON, AND ORDINARY MEANING. AMERICAN RAILWAY EXPRESS CO., INC. V. PRICE BROS., INC., 54 F.2D 67; AND RAYMOND CITY COAL AND TRANSPORTATION CO. V. NEW YORK CENTRAL RAILROAD, 103 F.2D 56.

THE SHIPMENT UNDER CONSIDERATION HERE CONSISTED OF INTERNAL COMBUSTION ENGINES, RADIAL CYLINDER TYPE OR JET PROPULSION TYPE, COMPACTLY PACKED IN IRON OR STEEL CONTAINERS OR CANS. THE ADMINISTRATIVE OFFICE HAS REPORTED THAT SO PACKED THEY HAVE A DENSITY OF FROM 17 TO 40 POUNDS PER CUBIC FOOT. SEE IN THIS CONNECTION EXAMPLE 5 SET OUT IN MR. MATHEWS' LETTER WHERE TWO ENGINES, INTERNAL COMBUSTION, NOI, RADIAL CYLINDER TYPE (POWER PACK), WEIGHING 18,000 POUNDS WITH A CUBIC MEASUREMENT OF 478 CUBIC FEET, WERE SHIPPED FROM TRAVIS AFB, CALIFORNIA, TO SAN ANTONIO, TEXAS, ON BILL OF LADING NO. AF 5186739, DATED MARCH 20, 1956. THERE THE WEIGHT WAS OVER 37 POUNDS PER CUBIC FOOT. THE INTERSTATE COMMERCE COMMISSION, IN CONSIDERING THE QUESTION OF WHAT ARTICLES CAN BE CONSIDERED "LIGHT AND BULKY ARTICLES," HAS LIMITED ITS CONSIDERATION TO THOSE ARTICLES HAVING A CUBIC FOOT DENSITY OF 15 POUNDS AND LESS. SEE INCANDESCENT ELECTRIC LAMPS OR BULBS, 54 M.C.C. 501 AT 513; CLASSIFICATION OF SHEET STEEL CANS, 54 M.C.C. 605; AND BELL POTATO CHIP CO. V. ABERDEEN TRUCK LINE, 43 M.C.C. 337. RULES ON LIGHT AND BULKY ARTICLES, 302 I.C.C. 775. ACCORDINGLY, IT IS CLEAR THAT THESE INTERNAL COMBUSTION ENGINES, WEIGHING OVER 5,000 POUNDS EACH, ARE NOT "LIGHT AND BULKY ARTICLES" WHICH, BECAUSE OF THEIR PHYSICAL CHARACTERISTICS, REQUIRE THE PHYSICAL CAPACITY OF A 28-FOOT TRAILER.

IN SUPPLEMENT NO. 16 TO LOCAL AND JOINT COMMODITY TARIFF NO. 1, MF I.C.C. NO. 3, EFFECTIVE MARCH 14, 1956, THE RATE OF 304 CENTS PER 100 POUNDS, TRUCKLOAD MINIMUM WEIGHT 14,000 POUNDS, WAS INCREASED TO 325 CENTS PER 100 POUNDS, AND RESTRICTED SO AS NOT TO APPLY ON "ENGINES, INTERNAL COMBUSTION, NOI, RADIAL TYPE OR JET PROPULSION TYPE, OR PARTS THEREOF.' HOWEVER, THERE WAS PUBLISHED IN ITEM 200-E OF THAT SUPPLEMENT, A SPECIFIC COMMODITY RATE OF 443 CENTS APPLICABLE ON ,ENGINES, INTERNAL COMBUSTION, NOI, RADIAL CYLINDER TYPE OR JET PROPULSION TYPE, OR PARTS THEREOF, (A.Q. ANY QUANTITY)," BETWEEN POINTS AND PLACES IN THE STATE OF CALIFORNIA AND "ALL POINTS AND PLACES IN THE STATES OF ARK., KAN., LA., N.MEX., OKLA., AND TEX.' IN SUPPLEMENT NO. 18 TO TARIFF NO. 1, THE RATE OF ENGINES, ANY QUANTITY, OF 443 CENTS WAS REDUCED TO 439 CENTS, EFFECTIVE MARCH 21, 1956. THESE ANY QUANTITY RATES OF 443 CENTS AND 439 CENTS APPLIED ON ONE OR ANY NUMBER OF ENGINES TRANSPORTED BETWEEN THOSE POINTS. OTHERWISE, THE TARIFF SITUATION REMAINED THE SAME THROUGHOUT THE PERIOD COVERED BY THE 10 EXAMPLES MENTIONED IN THE CARRIER'S OBJECTION TO THESE SETTLEMENTS.

ONE OTHER SITUATION REQUIRES MENTION. THE CARRIER'S ITEM 8 COVERS A SHIPMENT OF TWO AIRCRAFT ENGINES, INTERNAL COMBUSTION, JET PROPULSION TYPE SERVICEABLE "S/M 604169-604184," WEIGHING 16,800 POUNDS. THIS SHIPMENT WAS TRANSPORTED FROM MIDWEST CITY, TINKER AIR FORCE BASE, OKLAHOMA, TO NORTON AIR FORCE BASE, CALIFORNIA, UNDER BILL OF LADING AF-6768587, JANUARY 3, 1957. THE CARRIER CLAIMED, PER FREIGHT BILL NO. 90213, $588 FOR THIS TRANSPORTATION. THE AMOUNT CLAIMED WAS COMPUTED ON THE BASIS OF A RATE OF 350 CENTS PER 100 POUNDS AND THE ACTUAL WEIGHT OF THE SHIPMENT. AT THE TIME THIS SHIPMENT WAS TRANSPORTED THERE WAS IN EFFECT THE CARRIER'S SECTION 22 QUOTATION NO. 2. UNDER THIS QUOTATION THE CARRIER OFFERED TO TRANSPORT ENGINES, INTERNAL COMBUSTION, FROM TINKER AIR FORCE BASE, MIDWEST CITY, OKLAHOMA, TO ALL POINTS AND PLACES IN THE STATE OF CALIFORNIA, FOR "350 CENTS PER CWT 10000 LBS. MIN.' OR "275 CENTS PER CWT 20000 LBS. MIN.' THE RATES QUOTED WERE MADE SUBJECT TO THE TERMS AND PROVISIONS OF THE CARRIER'S LOCAL COMMODITY TARIFF NO. 2, MF-I.C.C. NO. 4. UNDER THE PROVISIONS OF ITEM 190 OF THAT TARIFF THE CHARGES COMPUTED AT THE HIGHER RATE AND LOWER MINIMUM MAY NOT EXCEED THE CHARGES COMPUTED AT THE LOWER RATE AND HIGHER MINIMUM. THEREFORE, IT WAS DETERMINED THAT THE MAXIMUM CHARGE FOR THE SERVICE WAS $550, COMPUTED ON THE BASIS OF THE RATE OF 275 CENTS AT THE MINIMUM OF 20,000 POUNDS NAMED IN THE QUOTATION. THE CARRIER HAS BEEN REQUESTED TO REFUND THE OVERPAYMENT OF $38.

ACCORDINGLY, THE OVERPAYMENTS AGAINST THIS CARRIER APPEAR TO HAVE BEEN COMPUTED ON THE PROPER ..END :