B-138776, SEP. 1, 1959

B-138776: Sep 1, 1959

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TO THE UNION PACIFIC RAILROAD COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17. WERE PAID. YOUR CLAIM WAS DISALLOWED ON THE GROUNDS: "THE CARRIER HAS FURNISHED NO EVIDENCE TO SHOW THAT THESE MAILSTERS ARE TO BE CLASSIFIED OTHER THAN AS SHOWN ON THE ORIGINAL BILL OF LADING "VEHICLES. THESE ARE SELF PROPELLED VEHICLES. YOU ALSO ALLEGED THAT "ITEM NO. 93405 SUPP. 12 OF UFC NO. 4 WAS NOT EFFECTIVE AT TIME THIS SHIPMENT MOVED AND IT DOES NOT SEEM PROPER TO RATE A THREE- WHEELED MOTOR VEHICLE BY ANALOGY AT THE RATE APPLICABLE TO FREIGHT MOTOR VEHICLES WHICH HAVE FOUR WHEELS OR MORE THAN FOUR WHEELS. WAS ISSUED ON JUNE 20. SINCE THE PRESENT SHIPMENT WAS ACCEPTED FOR MOVEMENT BY THE INITIAL CARRIER ON SEPTEMBER 19.

B-138776, SEP. 1, 1959

TO THE UNION PACIFIC RAILROAD COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17, 1959, FILE GO 282288, IN WHICH YOU, IN EFFECT, REQUEST REVIEW OF OUR SETTLEMENT NO. TK- 660647, DATED JANUARY 15, 1959, WHEREBY WE DISALLOWED YOUR CLAIM, SUPPLEMENTAL BILL NO. O-282288-A, FOR ADDITIONAL FREIGHT CHARGES OF $372.17, ON A SHIPMENT FROM THE CUSHMAN MOTOR WORKS, INC., LINCOLN, NEBRASKA, TO SPOKANE, WASHINGTON, WITH A STOP TO PARTIALLY UNLOAD AT WALLA WALLA, WASHINGTON, DESCRIBED ON GOVERNMENT BILL OF LADING NO. PO-321928, DATED SEPTEMBER 19, 1957, AS "8 VEHICLES FREIGHT SU, MAILSTERS.'

YOU ORIGINALLY CLAIMED ON BILL NO. O-282288, AND WERE PAID, ON VOUCHER NO. 6898, $397.70 IN THE NOVEMBER 1957 ACCOUNTS OF J. M. BELL. THEREAFTER, BY SUPPLEMENTAL BILL NO. O-282288-A, YOU CLAIMED THE ADDITIONAL CHARGES OF $372.17 COMPUTED ON THE BASIS OF A FIRST CLASS LESS- THAN-CARLOAD RATE OF $5.42, PER 100 POUNDS, AUTHORIZED IN ITEM NO. 93410, CONSOLIDATED FREIGHT CLASSIFICATION NO. 21; AND ITEM NO. 9400, TRANSCONTINENTAL FREIGHT BUREAU TARIFF NO. 1-F. FOR SHIPMENTS OF "MOTORCYCLES OR MOTORSCOOTERS, TWO-WHEELED OR THREE-WHEELED: SU * * *," PLUS 50 PERCENT PENALTY PER ITEM NO. 550, T.C.F.B. NO. IF, AND 50 PERCENT PER RULE NO. 5, C.F.C. NO. 21.

BY SETTLEMENT CERTIFICATE, DATED JANUARY 15, 1959, YOUR CLAIM WAS DISALLOWED ON THE GROUNDS:

"THE CARRIER HAS FURNISHED NO EVIDENCE TO SHOW THAT THESE MAILSTERS ARE TO BE CLASSIFIED OTHER THAN AS SHOWN ON THE ORIGINAL BILL OF LADING "VEHICLES, FREIGHT, SET-UP MAILSTERS.' THESE ARE SELF PROPELLED VEHICLES, DESIGNED TO CARRY FREIGHT (MAIL) AND PROPERLY RATEABLE AS FREIGHT VEHICLES, ITEM 43780, UFC NO. 3. SUCH CLASSIFICATION APPLICABLE UNTIL THE INCLUSION OF ITEM 93405 IN SUPPLEMENT 12 OF UFC NO. 4, EFFECTIVE MAY 20, 1958, WHICH PROVIDED A RATING SUBSTANTIALLY THE SAME AS FOR VEHICLES, FREIGHT, SET-UP.'

WITH YOUR REQUEST FOR REVIEW YOU SUBMITTED A COPY OF WESTERN WEIGHING AND INSPECTION BUREAU CORRECTION SHEET (DISTRICT NO. 433), DATED FEBRUARY 13, 1958, WHICH PURPORTS TO CHANGE THE BILL OF LADING DESCRIPTION TO "8 THREE WHEELED MOTORCYCLES, SU, LOOSE (STRAPPED TO FLOOR OF CAR).' YOU ALSO ALLEGED THAT "ITEM NO. 93405 SUPP. 12 OF UFC NO. 4 WAS NOT EFFECTIVE AT TIME THIS SHIPMENT MOVED AND IT DOES NOT SEEM PROPER TO RATE A THREE- WHEELED MOTOR VEHICLE BY ANALOGY AT THE RATE APPLICABLE TO FREIGHT MOTOR VEHICLES WHICH HAVE FOUR WHEELS OR MORE THAN FOUR WHEELS.

UNIFORM FREIGHT CLASSIFICATION NO. 4, I.C.C. NO. A-4, W. S. FLINT, WAS ISSUED ON JUNE 20, 1957, AND BECAME EFFECTIVE ON SEPTEMBER 10, 1957, CANCELLING APPLICATION OF U.F.C. NO. 3. SINCE THE PRESENT SHIPMENT WAS ACCEPTED FOR MOVEMENT BY THE INITIAL CARRIER ON SEPTEMBER 19, 1957, THE REFERENCE IN OUR ORIGINAL DISALLOWANCE SHOULD HAVE BEEN TO U.F.C. NO. 4 RATHER THAN TO U.F.C. NO. 3.

ITEM NO. 93340 OF U.F.C. NO. 4 PROVIDES A CLASS 85 CARLOAD RATING AT A MINIMUM CARLOAD WEIGHT OF 10,000 POUNDS FOR FREIGHT MOTOR VEHICLES IN CARS NOT EXCEEDING 40 FEET 7 INCHES IN LENGTH. NOWHERE IS THIS ITEM LIMITED TO APPLY ONLY ON FOUR-WHEELED MOTOR VEHICLES. FURTHERMORE, THE COVERING BILL OF LADING SHOWS THAT A 40 FOOT CAR WAS ORDERED AND FURNISHED. SINCE ITEM NO. 93340 (OR ITEM 43780 OF U.F.C. NO. 3) PROVIDES A 10,000 POUND MINIMUM WEIGHT IN CONNECTION WITH CARS MEASURING LESS THAN 40 FEET 7 INCHES IN LENGTH, YOUR REFERENCE TO A 12,000 POUND MINIMUM WEIGHT IN THE THIRD PARAGRAPH OF YOUR LETTER DOES NOT APPEAR PROPER.

THE W.W. AND I.B. CORRECTION SHEET SUBMITTED IN SUPPORT OF YOUR CLAIM CONSTITUTES MERELY A UNILATERAL DETERMINATION, WHICH IS NOT BINDING ON OUR OFFICE. IN OUR DECISION OF JANUARY 7, 1959, B-137451, 38 COMP. GEN. 481, TO THE CENTRAL OF GEORGIA RAILWAY COMPANY CONCERNING THIS SAME ISSUE, WE STATED, AT PAGE 482, THAT:

"THE "MAILSTER" MEASURES 101 1/4 INCHES IN LENGTH. IT IS 52 INCHES WIDE, 66 1/2 INCHES HIGH, WEIGHS 860 POUNDS UNCRATED, AND IS POWERED BY AN ENGINE RATED AT 7 HORSEPOWER. SIMILAR TO ANY CONVENTIONAL MOTOR VEHICLE, POWER IS TRANSMITTED TO THE REAR AXLE OF THE "MAILSTER" THROUGH A DRIVE SHAFT AND NOT THROUGH THE SPROCKET CHAIN ARRANGEMENT NORMALLY ASSOCIATED WITH MOTORCYCLES. THE DISPLACEMENT OF THE CARGO COMPARTMENT IS 34.1 CUBIC FEET AND A "RUB RAIL" WHICH FUNCTIONS AS A BUMPER IS ATTACHED EXTERNALLY TO THE CARGO COMPARTMENT. THE OPERATOR'S CAB IS A "HARD-TOP" STEEL ENCLOSURE IDENTICAL IN APPEARANCE WITH A CONVENTIONAL TRUCK CAB, AND A FLOOR-BOARD IS LOCATED DIRECTLY UNDER THE OPERATOR'S LEGS. ON THE OTHER HAND "A MOTORCYCLE WAS ORIGINALLY AND STILL IS A BICYCLE TO WHICH IS APPLIED A GASOLINE MOTOR.' MOTORCYCLE MANUFACTURER'S ASSOCIATION V. BALTIMORE AND OHIO RAILROAD, 26 I.C.C. 127 (1913), ECLIPSE MACHINE COMPANY V. HARLEY DAVIDSON MOTOR COMPANY, 252 F. 805 CERTIORARI DENIED 248 U.S. 563 (1918). SEE, ALSO 60 C.J.C. MOTOR VEHICLES SEC. 6. A MOTORCYCLE HAS NO FRONT OR REAR PROTECTION IN THE FORM OF FENDERS OR BUMPERS. NO CAB PROTECTS THE OPERATOR FROM THE PERILS OF THE HIGHWAY, WHEREAS THE INSTANT VEHICLE HAS A HARD-TOP CAB. WE ARE ADVISED, MOREOVER, THAT THE UNIFORM CODE, REVISED IN 1956, PUBLISHED BY THE NATIONAL COMMITTEE ON UNIFORM TRAFFIC LAWS AND ORDINANCES, DEFINES A MOTOR-DRIVEN CYCLE AS EVERY MOTORCYCLE, INCLUDING EVERY MOTOR SCOOTER, WITH A MOTOR WHICH PRODUCES NOT IN EXCESS OF 5 HORSEPOWER.

"FROM THE DESCRIPTION OF THE VEHICLE IN QUESTION THERE EXISTS NO BASIS FOR SUBSCRIBING TO THE VIEW THAT "CUSHMAN MAILSTERS"ARE PROPERLY RATABLE AS "MOTORCYCLES" WITHIN THE MEANING OF ITEM 43815 OF UNIFORM FREIGHT CLASSIFICATION NO. 3 * * *.'

THE SAME CONCLUSION APPEARS TO BE WARRANTED IN THE PRESENT CASE. ACCORDINGLY, OUR DISALLOWANCE OF YOUR CLAIM ON THE BASIS OF PROPER CLASSIFICATION OF THE "MAILSTER" IS SUSTAINED. IT APPEARS, HOWEVER, THAT YOUR ORIGINAL CLAIM MAY NOT HAVE BEEN PROPERLY COMPUTED TAKING INTO CONSIDERATION THE CARLOAD MINIMUM AND YOU THEREFORE MAY BE ENTITLED TO AN ADDITIONAL ALLOWANCE. ACCORDINGLY, YOUR CLAIM HAS BEEN RETURNED TO OUR TRANSPORTATION DIVISION FOR FURTHER CONSIDERATION, AND YOU WILL BE FURTHER ADVISED AS TO THE ACTION TAKEN BY IT AT A LATER DATE.