B-143379, OCT. 24, 1960

B-143379: Oct 24, 1960

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BURLINGTON AND QUINCY RAILROAD COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 24. WHICH WAS. THE NEBRASKA ORDNANCE PLANT ADVISED THAT THE BILL OF LADING DESCRIPTION "AMMUNITION FOR CANNON W/EMPTY PROJECTILE" WAS INCORRECT AND THAT THE PROPER CLASSIFICATION DESCRIPTION WAS "PROJECTILE PARTS. CHARGES WERE BILLED AND PAID AT THE CLASS 55 RATE APPLICABLE TO AMMUNITION FOR CANNON WITH EMPTY PROJECTILE. THE CHARGES ALLOWED IN OUR SETTLEMENT WERE THOSE BASED ON A SECTION 22 RATE APPLICABLE ON PROJECTILE PARTS AS AUTHORIZED IN WESTERN TRUCK LINE SECTION 22 QUOTATION NO. 476. YOU ASSERT THAT YOU HAVE NOT RECEIVED FORM TC -790 OR A "WW AND IB" VERIFICATION OF THE CHANGE OF DESCRIPTION AND THAT THEREFORE YOU BELIEVE THAT THE ORDNANCE PLANT NOTICE IS NOT SUFFICIENT EVIDENCE OF THE DESCRIPTION CHANGE TO SUPPORT THE OVERCHARGE CLAIM.

B-143379, OCT. 24, 1960

TO CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 24, 1960, WHICH WAS, IN EFFECT, A REQUEST, PER FILE GOVT. BILL 248892, FOR REVIEW OF OUR SETTLEMENT CERTIFICATE DATED JUNE 14, 1960, WHICH DISALLOWED YOUR CLAIM FOR $221.10 ADDITIONAL FREIGHT CHARGES, YOUR SUPPLEMENTAL BILL NO. 248892- A, OUR CLAIM NO. TK-689616. THE SERVICE IN QUESTION CONSISTED OF THE TRANSPORTATION OF 27,924 POUNDS OF EMPTY ROCKET HEADS FROM NASHVILLE, TENNESSEE, TO FIRESTONE, NEBRASKA, UNDER BILL OF LADING WY-493354, IN FEBRUARY 1953.

THE BILL OF LADING BORE THE DESCRIPTION: "AMMUNITION FOR CANNON W/EMPTY PROJECTILE (HEAD ASSY (MPTS) FOR ROCKET 3.5.''" BY LETTER OF APRIL 27, 1955, THE NEBRASKA ORDNANCE PLANT ADVISED THAT THE BILL OF LADING DESCRIPTION "AMMUNITION FOR CANNON W/EMPTY PROJECTILE" WAS INCORRECT AND THAT THE PROPER CLASSIFICATION DESCRIPTION WAS "PROJECTILE PARTS, NOIBN, I/S, EMPTY, FURTHER FINISHED THAN ROUGH MACHINED.' CHARGES WERE BILLED AND PAID AT THE CLASS 55 RATE APPLICABLE TO AMMUNITION FOR CANNON WITH EMPTY PROJECTILE. THE CHARGES ALLOWED IN OUR SETTLEMENT WERE THOSE BASED ON A SECTION 22 RATE APPLICABLE ON PROJECTILE PARTS AS AUTHORIZED IN WESTERN TRUCK LINE SECTION 22 QUOTATION NO. 476.

IN YOUR REQUEST FOR REVIEW, YOU ASSERT THAT YOU HAVE NOT RECEIVED FORM TC -790 OR A "WW AND IB" VERIFICATION OF THE CHANGE OF DESCRIPTION AND THAT THEREFORE YOU BELIEVE THAT THE ORDNANCE PLANT NOTICE IS NOT SUFFICIENT EVIDENCE OF THE DESCRIPTION CHANGE TO SUPPORT THE OVERCHARGE CLAIM. THE QUESTION WHETHER THE SHIPMENT CONSISTED OF AMMUNITION FOR CANNON OR OF INERT PROJECTILE PARTS IS ONE OF FACT. THE PERSONNEL AT THE ORDNANCE PLANT WHO RECEIVED THIS SHIPMENT WERE IN A POSITION TO KNOW THE NATURE OF THE ARTICLES RECEIVED AND WE HAVE NO REASON TO DOUBT THE REPORT THAT THE ARTICLES WERE PROJECTILE PARTS AND NOT AMMUNITION. APART FROM THIS REPORT, HOWEVER, THERE IS OTHER EVIDENCE IN OUR RECORDS AND UNDOUBTEDLY IN YOUR OWN RECORDS WHICH INDICATES THAT THE SHIPMENT DID NOT CONSIST OF AMMUNITION FOR CANNON.

AMMUNITION FOR CANNON WITH EMPTY, SAND-LOADED, OR SOLID PROJECTILE, AS NAMED IN ITEM 1810 OF THE UNIFORM FREIGHT CLASSIFICATION, CONTAINS PROPELLANT EXPLOSIVES AS EVIDENCED BY THE FACT THAT IT IS CLASSIFIED UNDER THE GENERIC HEADING FOR EXPLOSIVE AMMUNITION. IF THIS SHIPMENT HAD CONSISTED OF AMMUNITION FOR CANNON WITH EMPTY PROJECTILE, THE CAR IN WHICH IT MOVED WOULD HAVE BEEN PLACARDED AS REQUIRED BY THE INTERSTATE COMMERCE COMMISSION'S REGULATIONS GOVERNING THE TRANSPORTATION OF EXPLOSIVES OR OTHER DANGEROUS ARTICLES. THE BILL OF LADING IN QUESTION DOES NOT SHOW ANY EVIDENCE THAT THE CAR MOVED UNDER AN "EXPLOSIVES" OR "DANGEROUS" PLACARD. THIS FACT SHOULD BE CORROBORATED BY YOUR OWN RECORDS. ADDITION, THE ARTICLES SHIPPED WERE MANUFACTURED BY THE CONSIGNOR, THE INLAND EQUIPMENT COMPANY OF NASHVILLE, TENNESSEE, WHICH IS NOT A MANUFACTURER OF EXPLOSIVES. SEE THOMAS' REGISTER OF AMERICAN MANUFACTURERS, VOLUME IV, 1955 EDITION. FURTHERMORE, THE FACT THAT THE ARTICLES WERE SHIPPED FROM A MANUFACTURER TO AN ORDNANCE PLANT INDICATES THAT THE ARTICLES WERE INERT COMPONENTS TO BE ASSOCIATED WITH THE EXPLOSIVE ELEMENTS AT THE ORDNANCE PLANT. LASTLY, THE PARENTHETICAL PART OF THE BILL OF LADING DESCRIPTION ITSELF SHOWS THAT THESE ARTICLES WERE EMPTY ROCKET HEADS.

CONSIDERING THE ADMINISTRATIVE REPORT IN THIS CASE AND THE CORROBORATING FACTS AS INDICATED, WE THINK THERE IS AMPLE SUPPORT FOR THE CONCLUSION THAT THE ARTICLES IN QUESTION WERE NOT AMMUNITION FOR CANNON BUT INERT PROJECTILE PARTS. THE SETTLEMENT HERE WAS CONSISTENT WITH THIS CONCLUSION AND IT IS, ACCORDINGLY, SUSTAINED.