B-142489, APR. 28, 1961

B-142489: Apr 28, 1961

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TOPEKA AND SANTA FE RAILWAY COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED MARCH 30. WE ARE OF THE OPINION THAT ITEM 8205. IS PROPERLY APPLICABLE ON THE SHIPMENTS INVOLVED IN YOUR CLAIMS G-601024. WE ARE TODAY INSTRUCTING OUR TRANSPORTATION DIVISION TO RECOMPUTE THE CHARGES ON THOSE SHIPMENTS ON THAT BASIS AND THE AMOUNTS PROPERLY ALLOWABLE SHOULD BE RECEIVED IN DUE COURSE. THE GOVERNING TARIFF SITUATION IS ENTIRELY DIFFERENT FROM THAT CONCERNED IN THE CASE OF THE BITUMINOUS DISTRIBUTORS MENTIONED ABOVE. IS THE CLASS 85 RATING APPLICABLE ON MOTOR VEHICLE CHASSIS PROVIDED BY ITEMS 43770 AND 43775 OF THE CLASSIFICATION. WHICH RATING IS HIGHER THAN THE CLASS 45 RATING PROVIDED BY ITEM 27425 FOR BITUMINOUS DISTRIBUTORS OR APPLICATORS.

B-142489, APR. 28, 1961

TO ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED MARCH 30, 31, APRIL 13 AND MAY 10, 1960, REQUESTING REVIEW OF THE SETTLEMENT ACTION TAKEN ON YOUR BILLS NOS. G-622312-A, G-623116, G-620307, G-601024, G-626362, AND G- 624460, COVERING SHIPMENTS OF BITUMINOUS DISTRIBUTORS AND WATER DISTRIBUTORS, MOVING TO DESTINATIONS IN TRANSCONTINENTAL AND WESTERN TRUNK LINE TERRITORIES DURING 1951, 1953, AND 1954.

UPON REVIEW OF THE MATTER, WE ARE OF THE OPINION THAT ITEM 8205, TRANSCONTINENTAL FREIGHT TARIFFS 1-A AND 1-B, IS PROPERLY APPLICABLE ON THE SHIPMENTS INVOLVED IN YOUR CLAIMS G-601024, G-620307, AND G 622312-A, OUR NOS. TK-570022, TK-561868, AND TK-571338. WE ARE TODAY INSTRUCTING OUR TRANSPORTATION DIVISION TO RECOMPUTE THE CHARGES ON THOSE SHIPMENTS ON THAT BASIS AND THE AMOUNTS PROPERLY ALLOWABLE SHOULD BE RECEIVED IN DUE COURSE.

AS TO YOUR BILL NO. G-623116, OUR CLAIM NO. TK-568779, COVERING THE SHIPMENT OF WATER DISTRIBUTOR FROM SOUTH BEND, INDIANA, TO WICHITA, KANSAS, DURING AUGUST 1953, THE GOVERNING TARIFF SITUATION IS ENTIRELY DIFFERENT FROM THAT CONCERNED IN THE CASE OF THE BITUMINOUS DISTRIBUTORS MENTIONED ABOVE. THE CONTROLLING CLASSIFICATION, UNIFORM FREIGHT CLASSIFICATION NO. 1, CONTAINS NO SPECIFIC DESCRIPTION FOR WATER DISTRIBUTORS, OR FOR FREIGHT HIGHWAY VEHICLES WITH PERMANENTLY ATTACHED MACHINERY. YOU URGE THAT THE APPLICABLE RATING, UNDER THE COMBINATION ARTICLE RULE (RULE 18 OF THE CLASSIFICATION), IS THE CLASS 85 RATING APPLICABLE ON MOTOR VEHICLE CHASSIS PROVIDED BY ITEMS 43770 AND 43775 OF THE CLASSIFICATION, WHICH RATING IS HIGHER THAN THE CLASS 45 RATING PROVIDED BY ITEM 27425 FOR BITUMINOUS DISTRIBUTORS OR APPLICATORS, OTHER THAN KETTLES, WHEELED OR NOT WHEELED, OTHER THAN SELF-PROPELLED. YOU URGE THAT SUCH DESCRIPTION INCLUDES, BY ANALOGY, THE WATER DISTRIBUTION MACHINERY MOUNTED ON THE CHASSIS.

AS NOTED IN OUR DECISION TO YOU OF JULY 21, 1958, B-129703, AND RECONSIDERATION DATED SEPTEMBER 18, 1958, YOUR FILE GC 201989,THE COMMODITY INVOLVED CONSTITUTED A COMPLETE, INTEGRATED MACHINE. THE TANK AND DISTRIBUTING MACHINERY WERE PERMANENTLY BUILT IN AND ATTACHED TO THE VEHICLE, AND COULD NOT BE DETACHED AND REMOVED WITHOUT DESTROYING THE UTILITY OF BOTH COMPONENTS. THE RECORD IS REPLETE WITH DETAIL DEMONSTRATING THAT THE COMMODITY HERE INVOLVED WAS A COMPLETE, SELF- PROPELLED WATER DISTRIBUTOR, AND THAT NONE OF ITS FUNCTIONING COMPONENTS WAS SUITABLE OR FEASIBLY ADAPTABLE FOR OTHER USE. IT IS WELL SETTLED THAT RULE 18 IS NOT APPLICABLE WHERE THE COMMODITIES ARE DESIGNED TO OPERATE AS COMPLETE UNITS AND STRUCTURAL CHANGES WOULD BE REQUIRED BEFORE THE TRUCK WOULD BE USEFUL FOR THE TRANSPORTATION OF FREIGHT. SEE AUGUST PLANTZ, INC. V. LONG ISLAND RAILROAD CO., 281 I.C.C. 172; OAKLAND TRUCK SALES CO. V. BALTIMORE AND OHIO RAILROAD CO., 270 I.C.C. 548 AND HARRISON CONSTRUCTION COMPANY V. CINCINNATI, NEW ORLEANS AND TEXAS PACIFIC RAILWAY CO., 266 I.C.C. 313. IN THE ABSENCE OF A MORE SPECIFIC DESCRIPTION FOR WATER DISTRIBUTORS IN THE UNIFORM FREIGHT CLASSIFICATION, THE MACHINERY, N.O.I.B.N. RATING IS PROPERLY APPLICABLE. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM G 623116 WAS PROPER AND IS SUSTAINED.

YOUR CLAIMS G-624460 AND G-626362, OUR NOS. TK-644596 AND TK 644597, BITUMINOUS DISTRIBUTORS OR APPLICATORS, ROAD MAKING, SELF PROPELLED, FROM BIRMINGHAM, ALABAMA, TO TOPEKA, KANSAS, AND TO GALLAHER, NEW MEXICO, RESPECTIVELY, IN FEBRUARY AND JANUARY 1954. THESE COMMODITIES FALL SQUARELY WITHIN THE PURVIEW OF ITEM 27425 OF UNIFORM FREIGHT CLASSIFICATION NO. 2, EFFECTIVE DECEMBER 10, 1953, WHICH PROVIDES A CLASS 45 CARLOAD RATING ON "BITUMINOUS DISTRIBUTORS OR APPLICATORS, ROAD MAKING, OTHER THAN KETTLES, WHEELED OR NOT WHEELED, SELF-PROPELLED OR OTHER THAN SELF-PROPELLED, LOOSE OR IN PACKAGES.' IT APPEARING FROM THE FILE THAT YOU HAVE ALREADY BEEN PAID THE AMOUNTS PROPERLY DUE ON THAT BASIS, THE DISALLOWANCE OF YOUR CLAIMS NOS. G-624460 AND G-626362 WAS CORRECT AND IS ALSO SUSTAINED.