B-140620, JAN. 12, 1960

B-140620, JAN. 12, 1960

TO GULF COAST EXPRESS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 25, 1959, REQUESTING A REVIEW OF OUR SETTLEMENT CERTIFICATE OF AUGUST 19, 1959, IN CLAIM NO. TK- 671941, DISALLOWING YOUR CLAIM, PER BILL NO. 37216, IN THE AMOUNT OF $16.48. THIS BILL WAS FOR ADDITIONAL FREIGHT CHARGES FOR THE TRANSPORTATION OF INTERNAL COMBUSTION ENGINES, WEIGHING 2,995 POUNDS. THE SHIPMENT IN QUESTION CONSISTED OF ONE CAN AND ONE BOX OF RADIAL CYLINDER TYPE INTERNAL COMBUSTION ENGINES FOR AIRCRAFT AND WAS TRANSPORTED FROM NECULAR AIR BASE, MISSISSIPPI, TO KELLY AIR FORCE BASE, TEXAS, UNDER GOVERNMENT BILL OF LADING NO. AF-9369754. THE FACT OF THE BILL OF LADING WAS ANNOTATED TO SHOW: "SHIPMENT RELEASED AT MAXIMUM VALUE APPLICABLE TO THE LOWEST PUBLISHED RATE OR CLASSIFICATION RATING.'

FOR THIS SERVICE YOU ORIGINALLY BILLED AND WERE PAID $94.04 ON VOUCHER NO. 335288 IN THE FEBRUARY 1959 ACCOUNTS OF LIEUTENANT COLONEL GEORGE NO. SOCKINGER, BASED ON A CLASS 85 RATE OF $3.14 PER 100 POUNDS NAMED IN SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 505-A. IN YOUR REQUEST FOR REVIEW YOU CONTEND THAT THE APPLICABLE RATE IS A COLUMN 100 COMMODITY RATE OF $3.69 PER 100 POUNDS, PURSUANT TO THE PROVISIONS OF ITEM 61243 OF SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 515-D, WHICH SUPERSEDED TARIFF NO. 515-C IN EFFECT AT THE TIME OF THE PRESENT SHIPMENT. THIS ITEM NAMES A COLUMN 100 COMMODITY RATING ON RADIAL CYLINDER JET PROPULSION TYPE INTERNAL COMBUSTION ENGINES, AND INDICATES THAT THE RELEASED VALUATION PROVISIONS IN THE NATIONAL MOTOR FREIGHT CLASSIFICATION WILL NOT APPLY ON ARTICLES NAMED IN THIS ITEM.

ITEM 61247 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 2-4 NAMES A CLASS 150 RATING ON LESS-THAN-TRUCKLOAD SHIPMENTS OF INTERNAL COMBUSTION ENGINES, NOI, WHEN THE VALUE OF THE PROPERTY IS NOT DECLARED OR RELEASED. THE RATINGS NAMED IN ITEM 61243 OF TARIFF NO. 515-C ALSO APPLY ONLY WHEN THE VALUE OF THE PROPERTY IS NOT DECLARED OR RELEASED. THUS, THE COMMODITY RATING HAS THE EFFECT OF SUPERSEDING ONLY THE CLASSIFICATION RATING BASES TO THE EXTENT THAT IT CONCERNS RADIAL CYLINDER OR JET PROPULSION TYPE INTERNAL COMBUSTION ENGINES TENDERED TO THE CARRIERS WITHOUT A DECLARATION OF VALUE. IN OTHER WORDS, THE RELEASED VALUE CLASSIFICATION RATING BASIS IS REQUIRED TO BE APPLIED IN THE PRESENT INSTANCE, AND THE ENGINES WERE TENDERED TO THE ORIGIN CARRIER WITH THE UNDERSTANDING THAT A RELEASED VALUE RATING WOULD BE APPLIED. THE CASE OF UPJOHN COMPANY V. PENNSYLVANIA RAILROAD COMPANY, 306 I.C.C. 325, INVOLVED A SOMEWHAT SIMILAR SITUATION. IN THAT CASE THE CARRIER ARGUED THAT THE RELEASED VALUE NOTATION ON THE BILL OF LADING WAS MEANINGLESS, THAT THE CLASS RATES SUBJECT TO RELEASED VALUE PROVISIONS HAD LIMITED APPLICABILITY, AND COULD NOT BE USED ON ANY ARTICLE WHERE THERE WAS IN EFFECT A COMMODITY RATE ON THE SAME ARTICLE. HOWEVER, THE COMMISSION FOUND THAT THE RELEASED AND UNRELEASED CLASSIFICATION RATINGS SHOULD BE CONSIDERED FROM A TRANSPORTATION STANDPOINT AS SEPARATE AND DISTINCT ITEMS, AND THAT THE COMMODITY RATE, NOT SUBJECT TO A RELEASED VALUE PROVISION, SUPERSEDED ONLY THE CLASSIFICATION RATING WHICH ALSO WAS NOT SUBJECT TO A RELEASED VALUE PROVISION. SEE, ALSO, AMERICAN HOME FOODS, INC. V. DELAWARE, LACKAWANNA AND WESTERN R. CO., 303 I.C.C. 655, AND DOW CHEMICAL CO. V. CHESAPEAKE AND OHIO RY. CO., 306 I.C.C. 403.

IT IS NOTED THAT THE ASSISTANT DIRECTOR, BUREAU OF TRAFFIC, INTERSTATE COMMERCE COMMISSION, ALSO CONSIDERED THE SIGNIFICANCE OF THE SAME TARIFF PROVISION (ITEM 61243, TARIFF NO. 515-C) INVOLVED IN THE PRESENT INSTANCE IN A LETTER DATED DECEMBER 16, 1959, UNDER FILE 500-536392, ADDRESSED TO THE M. R. AND R. TRUCKING COMPANY OF CRESTVIEW, FLORIDA. IT WAS STATED IN THAT LETTER:

"AS AFORE STATED, IN THE AMERICAN HOME FOODS CASE AND IN THE UPJOHN CASE IT WAS HELD THAT WHILE FROM A COMMERCIAL STANDPOINT THERE WAS NO DIFFERENCE IN THE COMMODITIES WHETHER THEIR VALUE WAS RELEASED OR NOT RELEASED, IT WAS EQUALLY APPARENT THAT THERE WAS A DISTINCT DIFFERENCE FROM A TRANSPORTATION STANDPOINT BY REASON OF THE SHIPPER'S DECLARATION AS TO VALUE. WE THEREFORE ARE STILL OF THE VIEW THAT UNRELEASED ITEM 61243 IN SMCRC 515-C DOES NOT DISPLACE THE RELEASED PROVISIONS IN THE CLASSIFICATION AND WE DO NOT SEE THAT NOTE D THEREIN MAKES ANY MATERIAL CONTRIBUTION IN THIS INSTANCE.'

SINCE OUR SETTLEMENT OF AUGUST 19, 1959, DISALLOWING YOUR CLAIM FOR ADDITIONAL CHARGES, IS CONSISTENT WITH THE MENTIONED RULINGS OF THE COMMISSION IT IS SUSTAINED.