B-142500, JUN. 27, 1960

B-142500: Jun 27, 1960

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 1. SUCH ADDITIONAL CHARGES WERE ALLEGED TO BE DUE ON SHIPMENTS OF "ENGINES. IN THIS CONNECTION STATE: "OUR ORIGINAL CLAIMS WERE IN ERROR DUE TO THE APPLICATION THE WRONG MINIMUM WEIGHT. WE ARE. FOR THE SERVICE PERFORMED YOU ORIGINALLY CLAIMED AND WERE PAID $384 ON BILL 1028 AND $521.66 ON BILL 1064. THE CLAIMS WERE DISALLOWED AND A STATEMENT OF OVERPAYMENT. WAS ISSUED FOR OVERCHARGES IN THE AMOUNT OF $57.60 ON BILL NO. 1064. THIS OVERCHARGE WAS COMPUTED ON THE BASIS OF THE SAME CLASS-45 RATE AS WAS ORIGINALLY CLAIMED BY YOU BUT AT A MINIMUM WEIGHT OF 20. WILL NOT APPLY IN CONNECTION WITH THE RATINGS SHOWN IN THIS ITEM.'. WHICH IS NOT SUBJECT TO RELEASED VALUATIONS.

B-142500, JUN. 27, 1960

TO DIXIE OHIO EXPRESS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 1, 1960, IN WHICH YOU, IN EFFECT, REQUEST REVIEW OF OUR SETTLEMENTS DISALLOWING YOUR CLAIMS, SUPPLEMENTAL BILLS NOS. 1028-A AND 1064-A, FOR ADDITIONAL FREIGHT CHARGES OF $154.20 AND $96.60, RESPECTIVELY. SUCH ADDITIONAL CHARGES WERE ALLEGED TO BE DUE ON SHIPMENTS OF "ENGINES, INTERNAL COMBUSTION, NOI, JET PROPELLED," TRANSPORTED FROM PLATTSBURGH AFB, NEW YORK, TO EVENDALE, OHIO, UNDER GOVERNMENT BILLS OF LADING AF-8736659, DATED SEPTEMBER 12, 1958, COVERING 12,720 POUNDS, AND AF-8736651, DATED AUGUST 29, 1958, COVERING 12,650 POUNDS LOADED ON ONE TRUCK WITH AN OVERFLOW OF 4,170 POUNDS LOADED ON A SECOND TRUCK. WITH YOUR REQUEST FOR REVIEW, HOWEVER, YOU AMENDED THE AMOUNT CLAIMED ON SUPPLEMENTAL BILL NO. 1028-A TO $84 AND ON BILL NO. 1064 -A TO $16.40, AND IN THIS CONNECTION STATE:

"OUR ORIGINAL CLAIMS WERE IN ERROR DUE TO THE APPLICATION THE WRONG MINIMUM WEIGHT. WE ARE, THEREFORE, RESUBMITTING OUR CLAIMS BASED ON A MINIMUM WEIGHT OF 20,000 LBS. IN LIEU OF 23,000 LBS. TARIFF AUTHORITY REMAINS THE SAME.'

FOR THE SERVICE PERFORMED YOU ORIGINALLY CLAIMED AND WERE PAID $384 ON BILL 1028 AND $521.66 ON BILL 1064, BASED ON A CLASS-45 VOLUME RATE OF $1.92 PER 100 POUNDS, MINIMUM WEIGHT 20,000 POUNDS, PROVIDED IN EASTERN CENTRAL MOTOR CARRIERS ASSOCIATION TARIFF NO. 31-B, MF-I.C.C. NO. A-132 AND ITEM NO. 61243 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4, MF- I.C.C. NO. 1, FOR APPLICATION ON INTERNAL COMBUSTION ENGINES, NOI, WHEN RELEASED TO A VALUE NOT EXCEEDING $2.50 PER POUND. THEREAFTER, YOU SUBMITTED SUPPLEMENTAL BILLS NOS. 1028-A AND 1064-A FOR THE ADDITIONAL FREIGHT CHARGES CLAIMED, BASED UPON A CLASS-55 EXCEPTIONS RATE OF $2.34 PER 100 POUNDS SUBJECT TO VOLUME MINIMUM WEIGHT OF 23,000 POUNDS CALLING ATTENTION TO ITEM 160-A, SUPPLEMENT NO. 80, E.C.M.C.A. TARIFF NO. 31-B, UNDER THE GENERIC HEADING "MACHINERY OR MACHINES OR PARTS NAMED," VIZ.,

"ENGINES, INTERNAL COMBUSTION, N.O.I. (SEE NOTE 1) IN BOXES, CRATES, IN STEEL CONTAINERS 16 GAUGE OR THICKER OR ON SKIDS OR DOLLIES:

"RADIAL CYLINDER TYPE, JET PROPULSION OR ROCKET PROPULSION TYPE.'

BY OUR SETTLEMENT CERTIFICATES DATED MAY 27, 1959, AND JUNE 18, 1959, THE CLAIMS WERE DISALLOWED AND A STATEMENT OF OVERPAYMENT, G.A.O. FORM 1003, WAS ISSUED FOR OVERCHARGES IN THE AMOUNT OF $57.60 ON BILL NO. 1064. THIS OVERCHARGE WAS COMPUTED ON THE BASIS OF THE SAME CLASS-45 RATE AS WAS ORIGINALLY CLAIMED BY YOU BUT AT A MINIMUM WEIGHT OF 20,000 POUNDS ON THE FIRST VEHICLE AND AT THE ACTUAL WEIGHT OF 4,170 POUNDS ON THE SECOND VEHICLE.

IN YOUR REQUEST FOR REVIEW YOU ALLEGE, QUOTING NOTE 1 TO EXCEPTIONS ITEM 160-A, THAT THE RELEASED VALUATION RATING HAD BEEN REMOVED FROM THE CLASSIFICATION CITING THE DECISIONS OF DIVISION 2 OF THE INTERSTATE COMMERCE COMMISSION IN DOCKET NO. 31789, AMERICAN HOME FOODS, INC. V. DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, ET AL., DECIDED FEBRUARY 15, 1957, 300 I.C.C. 23, AND DOW CHEMICAL COMPANY V. CHESAPEAKE AND OHIO RY. CO., 296 I.C.C. 544. NOTE 1 TO THE EXCEPTIONS ITEM PROVIDES:

"THE RELEASED VALUATION PROVISIONS, AS SHOWN IN THE N.M.F.C. NO. A 4, WILL NOT APPLY IN CONNECTION WITH THE RATINGS SHOWN IN THIS ITEM.'

ON RECONSIDERATION OF THE CITED DECISIONS, HOWEVER, IN AMERICAN HOME FOODS, INC. V. DELAWARE, LACKAWANNA AND WESTERN RAILWAY, 303 I.C.C. 655, DECIDED APRIL 30, 1958, AND IN DOW CHEMICAL V. CHESAPEAKE AND OHIO RAILWAY, 306 I.C.C. 403, THE INTERSTATE COMMERCE COMMISSION REVERSED THE PRIOR HOLDINGS UPON WHICH YOU RELY. IN THE LATER DECISIONS, THE COMMISSION HELD THAT RELEASED AND UNRELEASED CLASSIFICATION RATINGS SHOULD BE CONSIDERED FROM A TRANSPORTATION STANDPOINT AS SEPARATE AND DISTINCT ITEMS AND, THEREFORE, WHERE, AS HERE, THE CLASSIFICATION PROVIDES RATINGS ON THE BASIS OF BOTH RELEASED AND UNRELEASED VALUATIONS, AN EXCEPTION TO THE CLASSIFICATION, WHICH IS NOT SUBJECT TO RELEASED VALUATIONS, SUPERSEDES ONLY THE CLASSIFICATION RATING WHICH ALSO IS NOT SUBJECT TO A RELEASED VALUATION. SEE ALSO UPJOHN CO. V. PENNSYLVANIA R. CO., 306 I.C.C. 325. IN ADDITION THE ASSISTANT DIRECTOR, BUREAU OF TRAFFIC, INTERSTATE COMMERCE COMMISSION, ALSO RECENTLY CONSIDERED THE SIGNIFICANCE OF SIMILAR TARIFF PROVISIONS (ITEM 61243, TARIFF NO. 515 C) IN A LETTER DATED DECEMBER 16, 1959, UNDER FILE 500-536392, ADDRESSED TO THE M.R. AND R. TRUCKING COMPANY OF CRESTVIEW, FLORIDA, COPY ENCLOSED. IN THAT LETTER THE ASSISTANT DIRECTOR STATED AS FOLLOWS:

"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 (WHICH IS SIMILAR TO NOTE 1 QUOTED IN YOUR REQUEST) MAKES ANY MATERIAL CONTRIBUTION IN THIS INSTANCE.'

CONSEQUENTLY, ONLY ITEM 61247 OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION, PROVIDING AN UNRELEASED VALUATION RATING WAS SUPERSEDED BY ITEM 160-A, SUPP. 8, ECMCA TARIFF NO. 31-B, AND, ITEM 61244 OF THE CLASSIFICATION NAMING RELEASED VALUATIONS REMAINED IN FULL FORCE AND EFFECT.

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. ON THE FACE OF BOTH BILLS OF LADING IS THE FOLLOWING ANNOTATION:

"RELEASED TO LOWEST VALUATION NMFC A-4 IT 61244.'

THEREFORE, BOTH SHIPMENTS WERE MADE AT THE RELEASED VALUATION RATING PROVIDED IN ITEM 61244 OF THE CLASSIFICATION, AND THE CLASS-45 VOLUME RATE APPLIED IN OUR AUDIT APPEARS TO BE PROPER. ACCORDINGLY, THE DISALLOWANCE OF YOUR TWO CLAIMS IS SUSTAINED. THE AMOUNT OF THE OVERPAYMENT SHOWN ON OUR FORM 1003, $57.60, SHOULD BE REFUNDED PROMPTLY TO AVOID THE NECESSITY FOR COLLECTION BY OTHER MEANS.