B-142585, JUN. 20, 1960

B-142585: Jun 20, 1960

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 6. YOUR CLAIM WAS FOR ADDITIONAL CHARGES ALLEGEDLY DUE FOR THE TRANSPORTATION OF TWO LESS-THAN-TRUCKLOAD SHIPMENTS OF INTERNAL COMBUSTION ENGINES FROM RICHARDS-GEBAUR AIR FORCE BASE. THE ENGINES WERE RELEASED AT THE MAXIMUM VALUE APPLICABLE TO THE LOWEST PUBLISHED RATE AND YOU INITIALLY BILLED AND WERE PAID AT THE RELEASED RATING PROVIDED IN THE GOVERNING NATIONAL MOTOR FREIGHT CLASSIFICATION. IT IS YOUR CONTENTION THAT THE RELEASED VALUE RATING IN THE GOVERNING NATIONAL MOTOR FREIGHT CLASSIFICATION WAS INAPPLICABLE AND THAT THE COMMODITY RATING WAS APPLICABLE ON THE SUBJECT TRAFFIC NOTWITHSTANDING THE FACT THAT THE ENGINES WERE TENDERED AT A RELEASED VALUATION.

B-142585, JUN. 20, 1960

TO THE CAMPBELL "66" EXPRESS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 6, 1960, CONCERNING OUR SETTLEMENT CERTIFICATE DATED MARCH 29, 1960, DISALLOWING YOUR CLAIM FOR $78.38, ON YOUR SUPPLEMENTAL BILL NO. 739 69A, OUR CLAIM NO. TK-683992. YOUR CLAIM WAS FOR ADDITIONAL CHARGES ALLEGEDLY DUE FOR THE TRANSPORTATION OF TWO LESS-THAN-TRUCKLOAD SHIPMENTS OF INTERNAL COMBUSTION ENGINES FROM RICHARDS-GEBAUR AIR FORCE BASE, MISSOURI, TO BROOKLEY, ALABAMA, IN APRIL AND MAY 1959, UNDER BILLS OF LADING AF-9959123 AND AF-9959149.

THE ENGINES WERE RELEASED AT THE MAXIMUM VALUE APPLICABLE TO THE LOWEST PUBLISHED RATE AND YOU INITIALLY BILLED AND WERE PAID AT THE RELEASED RATING PROVIDED IN THE GOVERNING NATIONAL MOTOR FREIGHT CLASSIFICATION. THEREAFTER, YOU SUBMITTED YOUR SUPPLEMENTAL BILL FOR $78.38 ADDITIONAL CHARGES, BASED ON A COMMODITY COLUMN RATING PROVIDED IN ITEM 61243 OF SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 515 D, MF-I.C.C.NO. 1006. IT IS YOUR CONTENTION THAT THE RELEASED VALUE RATING IN THE GOVERNING NATIONAL MOTOR FREIGHT CLASSIFICATION WAS INAPPLICABLE AND THAT THE COMMODITY RATING WAS APPLICABLE ON THE SUBJECT TRAFFIC NOTWITHSTANDING THE FACT THAT THE ENGINES WERE TENDERED AT A RELEASED VALUATION.

IT IS OUR POSITION, BASED ON THE PRINCIPLE ESTABLISHED IN THE CASES OF UPJOHN COMPANY V. PENNSYLVANIA RAILROAD CO., 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 IN A PREDECESSOR TARIFF AND REACHED THE SAME CONCLUSION IN AN INFORMAL OPINION BY LETTER OF DECEMBER 16, 1959, UNDER FILE 500 536392, ADDRESSED TO THE M.R. AND R. TRUCKING COMPANY OF CRESTVIEW, FLORIDA. WE ALSO CONSIDERED THE QUESTION IN OUR DECISION OF JANUARY 7, 1960, B-140078, TO TAMIAMI TRAIL TOURS, INC. (COPY ENCLOSED FOR YOUR CONVENIENCE), AND WHAT WAS SAID THEREIN IS EQUALLY APPLICABLE TO THE SITUATION IN THIS CASE. IN ADDITION, SEE 39 COMP. GEN. 501.

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-D. OUR SETTLEMENT WAS CONSISTENT WITH THIS CONCLUSION AND IT IS, ACCORDINGLY, SUSTAINED.