B-141567, JUN. 9, 1960

B-141567: Jun 9, 1960

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO THE GALVESTON TRUCK LINES: FURTHER REFERENCE IS MADE TO YOUR REQUEST FOR REVIEW OF OUR SETTLEMENT (TK-663494). FOR THIS SERVICE YOU INITIALLY BILLED AND WERE PAID CHARGES BASED ON A CLASS 77 1/2 RATE OF 507 CENTS PER 100 POUNDS. ON THE GROUND THAT THE APPLICABLE RATE ON THE ENGINES WAS A COMMODITY COLUMN 100 RATE OF 655 CENTS PER 100 POUNDS. THE CHARGES FOR THE CAPACITORS ARE NOT IN DISPUTE. OUR SETTLEMENT DISALLOWING YOUR CLAIM IS THE SUBJECT OF YOUR PRESENT REQUEST FOR REVIEW. ARE RATED IN THE GOVERNING NATIONAL MOTOR FREIGHT CLASSIFICATION AT CLASS 85 FOR LESS-THAN-TRUCKLOAD LOTS. A REFERENCE NOTE PROVIDES THAT RELEASED VALUATION PROVISIONS AS SHOWN IN THE NATIONAL MOTOR FREIGHT CLASSIFICATION WILL NOT APPLY ON ARTICLES NAMED IN THE ITEM.

B-141567, JUN. 9, 1960

TO THE GALVESTON TRUCK LINES:

FURTHER REFERENCE IS MADE TO YOUR REQUEST FOR REVIEW OF OUR SETTLEMENT (TK-663494), DATED AUGUST 14, 1959, WHICH DISALLOWED YOUR CLAIM, PER BILL NO. 14, FOR $80.36 ADDITIONAL FREIGHT CHARGES ALLEGEDLY DUE FOR THE TRANSPORTATION OF 8,200 POUNDS OF INTERNAL COMBUSTION ENGINES AND 72 POUNDS OF ELECTRIC CAPACITORS FROM CHERRY POINT, NORTH CAROLINA, TO FLOUR BLUFF, TEXAS, IN MAY 1958, UNDER BILL OF LADING N-33110516. FOR THIS SERVICE YOU INITIALLY BILLED AND WERE PAID CHARGES BASED ON A CLASS 77 1/2 RATE OF 507 CENTS PER 100 POUNDS, APPLICABLE ON THE CAPACITORS, AND A CLASS 85 RATE OF 557 CENTS PER 100 POUNDS, APPLICABLE ON THE ENGINES. THEREAFTER, YOU CLAIMED $80.36 ADDITIONAL CHARGES, ON YOUR SUPPLEMENTAL BILL NO. 14, ON THE GROUND THAT THE APPLICABLE RATE ON THE ENGINES WAS A COMMODITY COLUMN 100 RATE OF 655 CENTS PER 100 POUNDS. THE CHARGES FOR THE CAPACITORS ARE NOT IN DISPUTE. OUR SETTLEMENT DISALLOWING YOUR CLAIM IS THE SUBJECT OF YOUR PRESENT REQUEST FOR REVIEW.

INTERNAL COMBUSTION ENGINES, NOI, WHEN RELEASE TO A VALUE NOT EXCEEDING $2.50 PER POUND, ARE RATED IN THE GOVERNING NATIONAL MOTOR FREIGHT CLASSIFICATION AT CLASS 85 FOR LESS-THAN-TRUCKLOAD LOTS. ITEM 61243 OF SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 515-C, MF I.C.C. NO. 960, SPECIFIES A COMMODITY COLUMN 100 RATING ON RADIAL CYLINDER AND JET PROPULSION TYPE INTERNAL COMBUSTION ENGINES, WHEN IN LESS-THAN-TRUCKLOAD QUANTITIES OF 2,000 POUNDS OR MORE, AND A REFERENCE NOTE PROVIDES THAT RELEASED VALUATION PROVISIONS AS SHOWN IN THE NATIONAL MOTOR FREIGHT CLASSIFICATION WILL NOT APPLY ON ARTICLES NAMED IN THE ITEM. IT IS OUR POSITION, BASED ON THE PRINCIPLE ESTABLISHED IN THE CASES OF UPJOHN COMPANY. V. PENNSYLVANIA RAILROAD COMPANY, 306 I.C.C. 325, 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, THAT ITEM 61243 DOES NOT DISPLACE THE RELEASED-RATING PROVISIONS OF THE CLASSIFICATION AND IS THUS NOT APPLICABLE TO SHIPMENTS OF ENGINES FOR WHICH A RELEASED VALUATION HAS BEEN GIVEN. THE INTERSTATE COMMERCE COMMISSION HAS CONSIDERED THE EFFECT OF THIS SAME ITEM AND REACHED THE SAME CONCLUSION IN AN INFORMAL OPINION BY LETTER OF DECEMBER 16, 1959, UNDER FILE 500 536392, ADDRESSED TO THE M AND R TRUCKING COMPANY OF CRESTVIEW, FLORDIA. WE ALSO CONSIDERED THE QUESTION HERE INVOLVED IN OUR DECISION OF JANUARY 7, 1960, B-140078, TOTAMIAMI TRAIL TOURS, INC. (COPY ENCLOSED FOR YOUR CONVENIENCE), AND THAT WAS SAID THEREIN IS EQUALLY APPLICABLE TO THE SITUATION IN THIS CASE.

WITH YOUR REQUEST FOR REVIEW OF THE SETTLEMENT, YOU ENCLOSED A MEMORANDUM DATED JUNE 17, 1959, AND A MEMORANDUM DATED DECEMBER 11, 1959, BOTH FROM HERRIN TRANSPORTATION COMPANY, AS SUPPORT FOR YOUR CLAIM. THE FIRST MEMORANDUM ASSERTS THAT TRANSPORTATION OVERPAYMENT DEDUCTION ACTION BY OUR OFFICE IS BARRED AFTER THE LAPSE OF TWO YEARS FROM THE DATE OF DELIVERY OF A SHIPMENT, CITING UNITED STATES V. DEQUEEN AND EASTERN RAILROAD COMPANY, IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS, 167 F.SUPP. 545. THE COURT THERE HELD THAT THE UNITED STATES WAS SUBJECT TO THE TIME LIMITATIONS SPECIFIED IN THE INTERSTATE COMMERCE ACT, BUT THE DECISION WAS REVERSED IN FAVOR OF THE UNITED STATES BY THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT. SEE UNITED STATES. V. DEQUEEN AND EASTERN RAILROAD COMPANY, 271 F.2D 597. THE CASE HAD, HOWEVER, NO RELEVANCY TO THE INSTANT MATTER AS OUR OFFICE HAS NOT MADE ANY DEDUCTION OR ASSERTED ANY OVERPAYMENT IN CONNECTION WITH THE SUBJECT ACCOUNT.

THE OTHER MEMORANDUM SETS FOR THE PROPOSITION THAT CONDITION 5 ON THE BACK OF THE GOVERNMENT BILL OF LADING IS NOT A PROPER VALUATION RELEASE IN INSTANCES WHERE A TARIFF REQUIRES THE RELEASE TO BE STATED IN A PARTICULAR FORM ON THE FACE OF THE BILL OF LADING. THE MEMORANDUM QUOTES EXTENSIVELY FROM OUR DECISION OF MAY 18, 1959, B-138736 (38 COMP. GEN. 768), WHICH CONCERNED THE QUESTION WHETHER CONDITION 5 SATISFIED A CONDITION PRECEDENT TO THE APPLICATION OF A SECTION 22 QUOTATION. APART FROM THE FACT THAT THE DECISION CONCERNED A WHOLLY DIFFERENT MATTER, ANY CONSIDERATION OF IT AND OF THE ARGUMENT SET FORTH IN THE MEMORANDUM IS IRRELEVANT IN THE INSTANT CASE BECAUSE THE BILL OF LADING IN QUESTION BORE ON ITS FACE A NOTATION SHOWING THAT THE ENGINES HERE INVOLVED WERE RELEASED TO A VALUE NOT EXCEEDING $2.50 PER POUND.

IN VIEW OF THE FOREGOING, WE WOULD NOT BE WARRANTED IN ALLOWING ADDITIONAL CHARGES BASED ON THE APPLICATION OF ITEM 61243 OF TARIFF NO. 515-C. THE SETTLEMENT WAS CONSISTENT WITH THIS CONCLUSION AND IT IS, ACCORDINGLY, SUSTAINED.