B-143246, MAY 12, 1961

B-143246, MAY 12, 1961

TO WESTERN TRUCK LINES, LTD.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 13, 1960, IN WHICH YOU REQUEST A REVIEW OF OUR SETTLEMENT CERTIFICATE OF MAY 25, 1960. THIS SETTLEMENT DISALLOWED YOUR CLAIM ON BILL NO. G-01678 FOR ADDITIONAL FREIGHT CHARGES OF $328.40 ON A SHIPMENT OF GOVERNMENT PROPERTY TRANSPORTED FROM SAN ANTONIO, TEXAS, TO OAKLAND, CALIFORNIA, UNDER GOVERNMENT BILL OF LADING AF -4940529, DATED NOVEMBER 9, 1956.

THE SUBJECT SHIPMENT CONSISTED OF VARIOUS COMMODITIES, EACH INDIVIDUALLY PACKED AND PLACED IN A CONEX CONTAINER AND SEALED. THE SHIPMENT MOVED AS A LESS-THAN-TRUCKLOAD SHIPMENT WITH THE INDIVIDUAL WEIGHTS FOR EACH COMMODITY SHOWN ON THE BILL OF LADING.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID $627.24, COMPUTED ON THE BASIS OF THE DOUBLE-FIRST-CLASS RATE OF $14.56 PER 100 POUNDS WHICH IS THE HIGHEST RATE APPLICABLE TO ANY ARTICLE IN THE SHIPMENT. IN OUR AUDIT OF THE PAYMENT VOUCHER WE DETERMINED THAT THE CHARGES SHOULD BE COMPUTED AT THE LESS-THAN-TRUCKLOAD RATING APPLICABLE TO EACH ARTICLE IN THE SHIPMENT. THE APPLICATION OF THIS BASIS RESULTED IN AN OVERCHARGE OF $340.21, WHICH AMOUNT WAS COLLECTED BY DEDUCTION, AS AUTHORIZED BY 49 U.S.C. 66, FROM AN AMOUNT OTHERWISE DUE YOU. YOU RECLAIMED THE AMOUNT OF $340.21 BY SUPPLEMENTAL BILL NO. 49-12-5-56, WHICH CLAIM WAS DISALLOWED IN PART BY OUR CERTIFICATE OF SETTLEMENT DATED MAY 25, 1959. THE AMOUNT OF $11.81 WAS ALLOWED OWING TO A CHANGE IN THE RATING APPLICABLE TO ONE OF THE ARTICLES SHIPPED. YOU THEN RECLAIMED THE BALANCE OF $328.40 BY YOUR SUPPLEMENTAL BILL NO. G-01678 WHICH WE DISALLOWED IN FULL BY SETTLEMENT CERTIFICATE OF MAY 25, 1960.

YOU CONTEND THAT THE SHIPMENT IS PROPERLY RATABLE IN ACCORDANCE WITH THE PROVISIONS OF RULE 11 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 13, MF- I.C.C. NO. 7. THE PERTINENT PART OF RULE 11 READS,"THE CHARGE FOR A PACKAGE CONTAINING ARTICLES CLASSED OR RATED DIFFERENTLY SHALL BE AT THE RATING OR RATE PROVIDED FOR THE HIGHEST CLASSED OR RATED ARTICLE IN THE PACKAGE * * *.'

RULE 11 PROVIDES THE METHOD OF DETERMINING THE CHARGE FOR A PACKAGE CONTAINING DIFFERENTLY RATED ARTICLES. THIS RULE REFERS TO A PACKAGE, NOT A SHIPMENT. HERST-ALLEN CO. V. DORN TRANSFER CO., 311 I.C.C. 755, 757. THE ADMINISTRATIVE OFFICE ADVISES THAT THE SIZE OF THE CONEX CONTAINER WAS 8 FEET 6 INCHES LONG, 6 FEET 3 INCHES WIDE, AND 6 FEET 10 1/2 INCHES HIGH AND WEIGHED 1,575 POUNDS. ITS SIZE AND ADAPTABILITY FOR LOADING ON A FLAT BED TRAILER SUGGEST THAT IT PARTAKES OF THE NATURE OF A TRUCK BODY OR VAN AND MAY NOT PROPERLY BE CONSIDERED A PACKAGE WITHIN THE MEANING OF THE CLASSIFICATION RULE. IN CONNECTION WITH THIS VIEW SEE THE INTERSTATE COMMERCE COMMISSION'S REPORTS ON LIFT-VANS, A SIMILAR TYPE OF CONTAINER. PORTLAND VAN AND STORAGE CO. BROKER APPLICATION, 9 M.C.C. 731; CITY TRANSFER AND STORAGE CO. EXT., 17 M.C.C. 7, 8; CARPENTER COMMON CARRIER APPLICATION, 34 M.C.C. 137, 138; AND EVANSTON FIREPROOF WAREHOUSE CONTROL- ALLIED VAN LINES, 40 M.C.C. 557. THESE HOLDINGS INDICATE THAT A LIFT-VAN IS A LARGE BOX LIKE CONTAINER RESEMBLING THE VAN OF A TRUCK, SOME OF WHICH ARE COLLAPSIBLE FOR READY TRANSPORTATION WHEN EMPTY, AND THEY CAN BE LOCKED OR SEALED UNTIL DESTINATION IS REACHED. THEY ARE TRANSPORTED ON FLAT-BED TRUCKS AND BY RAIL AND STEAMSHIP. MOREOVER, THE COMMISSION, IN CONSIDERING A MATTER INVOLVING A CONTAINER SIMILAR TO THE SUBJECT CONEX CONTAINER, SAID THAT THE INVENTION OF THE CONTAINER AND THE CONTAINER CAR IS COMPARABLE TO THE INVENTION OF A NEW TYPE OF FREIGHT CAR. IN THE MATTER OF CONTAINER SERVICE, 173 I.C.C. 377, 447. CONEX CONTAINERS ARE LARGE METAL SHIPPING CONTAINERS OR BOXES AND TAKE THE PLACE OF A VAN OR BOX CAR FOR THE PURPOSE OF LOADING PACKAGE FREIGHT, AS DISTINGUISHED FROM BULK OR LIQUID FREIGHT. THEIR PURPOSE IS TO FACILITATE THE LOADING AND HANDLING OF SMALL PACKAGE FREIGHT CONSIGNED TO A SINGLE DESTINATION.

IN THE PRESENT CASE, EACH COMMODITY WAS SEPARATELY PACKED IN BOXES, CARTONS, OR CANS WHICH MET THE CLASSIFICATION REQUIREMENTS AS OUTSIDE CONTAINERS AND ALL WERE PLACED IN THE CONEX CONTAINER WHICH WAS THEN SEALED. THIS TYPE OF LOADING SUGGESTS THAT THE USE OF THE CONEX CONTAINER WAS IN THE NATURE OF AN INSTRUMENTALITY OF TRANSPORTATION, AND NOT AS A PACKAGE WITHIN THE MEANING OF RULE 11. ACCORDINGLY, AND IN VIEW OF THE FOREGOING, THE SETTLEMENT APPEARS TO BE CORRECT AND IS SUSTAINED.