B-138326, JAN. 14, 1960

B-138326, JAN. 14, 1960

TO MERCHANTS FAST MOTOR LINES:

REFERENCE IS MADE TO YOUR REQUEST UNDER FILE F/B 219735, CARRIER BILL NO. 494-56-A, FOR REVIEW OF OUR DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES OF $27.78. THESE ADDITIONAL CHARGES ARE ALLEGED TO BE DUE FOR THE TRANSPORTATION OF RADIAL CYLINDER TYPE INTERNAL COMBUSTION ENGINES, WEIGHING 9,228 POUNDS, ON GOVERNMENT BILL OF LADING NO. AF- 5196761, DATED MAY 7, 1956, AND 7,114 POUNDS ON GOVERNMENT BILL OF LADING NO. AF-5196791, DATED MAY 16,1956, FROM NAVISHO, ARIZONA, TO SAN ANTONIO, TEXAS.

FOR THESE SERVICES YOU ORIGINALLY CLAIMED AND WERE PAID $547.22 AND $421.86. THEREAFTER, BY SUPPLEMENTAL BILL NO. 494-56-A, DATED JANUARY 7, 1957, YOU CLAIMED ADDITIONAL CHARGES OF $15.69 ON THE FIRST AND $12.07 ON THE SECOND BILL OF LADING, AGGREGATING AN AMOUNT OF $27.78, COMPUTED ON THE BASIS OF A FIRST-CLASS-EXCEPTIONS RATING PROVIDED IN ITEM 370, SECTION 4, OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU, TRANSCONTINENTAL TARIFF NO. 21, MF-I.C.C. NO. 86, FOR APPLICATION ON SHIPMENTS OF "ENGINES, INTERNAL COMBUSTION, NOI ..... RADIAL, CYLINDER TYPE OR JET PROPULSION YPE: LESS THAN TRUCKLOADS * * *.'

BY CERTIFICATE OF SETTLEMENT, DATED DECEMBER 18, 1958, OUR OFFICE DISALLOWED YOUR CLAIM AND SENT YOU A STATEMENT OF OVERPAYMENT, GAO FORM 1003, CONTAINING A REQUEST THAT YOU REFUND AN OVERPAYMENT OF $57.22 ON BILL OF LADING NO. AF-5196761 AND $44.11 ON BILL OF LADING NO. AF- 5196791. THE OVERPAYMENT, AGGREGATING $101.33, WAS COMPUTED ON THE BASIS OF A SECOND-CLASS-VOLUME CLASS RATE OF $5.31 PER 100 POUNDS, PROVIDED IN SECTION 10 OF R.M.M.T.B., T.C. TARIFF NO. 21, AND ITEM 61244 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 13, MF-I.C.C. NO. 7, FOR APPLICATION ON "ENGINES, INTERNAL COMBUSTION, NOI," RELEASED TO A VALUATION OF $2.50 PER POUND. THIS RATE WAS HELD BY OUR OFFICE TO BE APPLICABLE, SINCE THE HEADING TO THE RATE SHEET UNCONDITIONALLY MADE THE VOLUME CLASS RATES SUBJECT TO THE LESS-THAN-TRUCKLOAD RATINGS IN THE CURRENT CLASSIFICATION. THIS HEADING PROVIDED AS FOLLOWS:

"RATES ARE STATED IN CENTS PER 100 POUNDS, AND ARE SUBJECT TO THE LTL RATINGS IN THE CURRENT CLASSIFICATION AND TO EXCEPTIONS RATINGS SHOWN IN ITEMS 120, 170, 190 OR 340 IN SECTION 4 HEREIN.'

IN REPLY YOU URGE THAT EXCEPTIONS ITEM NO. 370 REMOVES RADIAL CYLINDER INTERNAL COMBUSTION ENGINES FROM THE CLASSIFICATION AND THAT CONSEQUENTLY, REFERENCE IN THE HEADING OF THE RATE SHEET TO LTL RATINGS IN THE CLASSIFICATION DOES NOT REFER TO LTL RATINGS FOR RADIAL CYLINDER ENGINES.

NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 13 NAMES THREE RATINGS ON INTERNAL COMBUSTION ENGINES. TWO OF THE RATINGS ARE NAMED INITEM NO. 61244, USED IN OUR AUDIT, AND ARE BASED ON RELEASED VALUATIONS; THE OTHER IS PROVIDED IN ITEM NO. 61247 AND IS BASED ON UNRELEASED VALUATIONS. UNDER SOMEWHAT SIMILAR CIRCUMSTANCE THE INTERSTATE COMMERCE COMMISSION STATED IN UPJOHN V. PENNSYLVANIA R. CO., 306 I.C.C. 325, THAT A RATING BASED ON RELEASED VALUATIONS IS SEPARATE AND DISTINCT FROM A RATING BASED ON RELEASED VALUATIONS. CONSEQUENTLY, THE COMMISSION HELD THAT AN EXCEPTIONS RATING BASED ON UNRELEASED VALUATIONS REMOVED FROM THE CLASSIFICATION ONLY THE CLASSIFICATION RATING BASED ON UNRELEASED VALUATIONS, LEAVING THE CLASSIFICATION RATING ON RELEASED VALUATIONS UNAFFECTED. SEE ALSO: DOW CHEMICAL CO. V. CHESAPEAKE AND OHIO RY., 306 I.C.C. 403.

ITEM NO. 370 IN THE EXCEPTIONS TO THE CLASSIFICATION, RELIED UPON BY YOU, PROVIDES IN NOTE 2 THAT THE RELEASED VALUATION PROVISIONS SHOWN IN ITEMS NOS. 61244 AND 61247 WILL NOT APPLY IN CONNECTION WITH THE EXCEPTIONS RATINGS. WHILE THE LANGUAGE USED IN SUCH NOTE IS AMBIGUOUS AND ITS INTENT IS NOT FREE FROM DOUBT, IT APPEARS TO MAKE THE EXCEPTIONS RATING FOR APPLICATION ONLY IN CONNECTION WITH SHIPMENTS OF UNRELEASED VALUATION ARTICLES AND THAT ITEM NO. 370 DID NOT REMOVE FROM THE CLASSIFICATION THE RELEASED VALUATION RATINGS ON INTERNAL COMBUSTION ENGINES. AT LEAST THE WORDING OF NOTE 2 IS SO AMBIGUOUS, IN THIS REGARD, THAT ANY DOUBT IN THE MATTER IS REQUIRED TO BE RESOLVED AGAINST THE CARRIER AND IN FAVOR OF THE SHIPPER.

CONDITION NO. 5, ON THE REVERSE OF BOTH THE BILL OF LADING AND THE SHIPPING ORDER, PROVIDES THAT THE SHIPMENT COVERED BY THE BILL OF LADING IS MADE AT THE RESTRICTED OR LIMITED VALUATION SPECIFIED IN THE TARIFF OR CLASSIFICATION AT OR UNDER WHICH THE LOWEST RATE IS AVAILABLE, UNLESS OTHERWISE INSTRUCTED ON THE FACE OF THE BILL OF LADING. NO CONTRARY INSTRUCTIONS APPEAR ON THE FACE OF EITHER BILL OF LADING INVOLVED IN THIS CLAIM. IT APPEARS, THEREFORE, THAT THE SHIPMENTS WERE MADE AT THE RELEASED VALUATION RATING IN THE CLASSIFICATION, AND THAT THE SECOND-CLASS VOLUME RATE USED IN OUR AUDIT WAS CORRECT. OUR AUDIT ACTION IS THEREFORE SUSTAINED.

ACCORDINGLY, THE AMOUNT OF THE OVERPAYMENT SHOULD BE REFUNDED PROMPTLY TO AVOID COLLECTION BY OTHER AVAILABLE MEANS.