B-143603, FEB. 2, 1961

B-143603: Feb 2, 1961

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 20. AF-3023696 WAS ISSUED ON OCTOBER 19. THE ROCKET AMMUNITION WITHOUT PROJECTILE (ROCKET MOTORS) WAS DESIGNATED ON THE BILL OF LADING AS "CLASS B AMMUNITION" AND THE BILL OF LADING WAS STAMPED "DANGEROUS.'. AS TO THIS PART OF THE SHIPMENT YOU ORIGINALLY BILLED AND WERE PAID $838.14. THE ALLOWABLE CHARGES ON THE ENTIRE SHIPMENT WERE FOUND TO BE $1. WAS SUBSEQUENTLY DEDUCTED FROM AMOUNTS OTHERWISE DUE YOUR COMPANY. WE AGREE THAT THE ROCKET HEADS SHOULD BE PROPERLY CLASSIFIED UNDER ITEM 4110 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 12 AND THAT THE APPLICABLE RATE IS $4.27 PER 100 POUNDS. IN YOUR FREIGHT BILL THERE IS AN ERROR IN EXTENSION AND WE FIND YOU ARE PROPERLY DUE $7.61.

B-143603, FEB. 2, 1961

TO BROWN EXPRESS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 20, 1960, YOUR CLAIM O/C 91331, F/B 607755 10-22-54, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE DATED MAY 20, 1961, DISALLOWING YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES ON A SHIPMENT MOVING UNDER GOVERNMENT BILL OF LADING NO. AF-3023696, IN OCTOBER 1954.

BILL OF LADING NO. AF-3023696 WAS ISSUED ON OCTOBER 19, 1954, TO COVER A SHIPMENT OF 12,200 POUNDS OF ROCKET AMMUNITION WITHOUT PROJECTILES (5 INCH ROCKET MOTORS) 11,045 POUNDS OF ALUMINUM TANKS, SET UP; ROCKET HEADS, PLASTER LOADED; AND ROCKET BODY PARTS, NOIBN, IRON OR STEEL, MOVING FROM GEORGE AIR FORCE BASE, CALIFORNIA, TO FOSTER AIR FORCE BASE, TEXAS. THE ROCKET AMMUNITION WITHOUT PROJECTILE (ROCKET MOTORS) WAS DESIGNATED ON THE BILL OF LADING AS "CLASS B AMMUNITION" AND THE BILL OF LADING WAS STAMPED "DANGEROUS.' AS TO THIS PART OF THE SHIPMENT YOU ORIGINALLY BILLED AND WERE PAID $838.14, COMPUTED ON THE BASIS OF A FIRST-CLASS RATE OF $6.87 PER 100 POUNDS AND FOR THE ALUMINUM TANKS YOU COLLECTED $566.02, BASED ON A THREE TIMES FIRST-CLASS RATE OF $20.62, PER 100 POUNDS. THE CHARGES COLLECTED ON THE ENTIRE SHIPMENT TOTALED $1,782.80. IN OUR AUDIT OF THE PAYMENT VOUCHER WE DETERMINED THE CORRECT CHARGES FOR THE ROCKET MOTORS TO BE $578.28, BASED ON A FOURTH-CLASS RATE OF $4.74 PER 100 POUNDS AND $169.09 FOR THE ALUMINUM TANKS, BASED ON A SECOND-CLASS RATE OF $6.16 PER 100 POUNDS. THE ALLOWABLE CHARGES ON THE ENTIRE SHIPMENT WERE FOUND TO BE $1,126.01, AND THE AMOUNT OF THE OVERCHARGE, $656.79, WAS SUBSEQUENTLY DEDUCTED FROM AMOUNTS OTHERWISE DUE YOUR COMPANY, PURSUANT TO 49 U.S.C. 66.

YOUR PRESENT SUPPLEMENTAL BILL FOR $658.39 INCLUDES A CLAIM FOR AN ADDITIONAL $1.60 ON THE 5,850 POUNDS OF ROCKET HEADS INCLUDED IN THE SHIPMENT. WE AGREE THAT THE ROCKET HEADS SHOULD BE PROPERLY CLASSIFIED UNDER ITEM 4110 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 12 AND THAT THE APPLICABLE RATE IS $4.27 PER 100 POUNDS. HOWEVER, IN YOUR FREIGHT BILL THERE IS AN ERROR IN EXTENSION AND WE FIND YOU ARE PROPERLY DUE $7.61. THIS AMOUNT WILL BE ALLOWED IN A REVISED SETTLEMENT CERTIFICATE.

YOU CONTEST THE AUDIT ACTION WE TOOK ON THE ALUMINUM TANKS PORTION OF THE SHIPMENT SINCE YOU CONTEND THAT THE TANKS ARE SUBJECT TO A RATING FOR ALUMINUM TANKS THINNER THAN 18 GAUGE. WE PREVIOUSLY FURNISHED YOU A COPY OF A LETTER FROM THE MILITARY TRAFFIC MANAGEMENT AGENCY STATING THAT THE TANKS WERE 18 GAUGE OR THICKER. THE QUESTION AS TO THE PROPER CLASSIFICATION OF AN ARTICLE IS ONE OF FACT, AND DEPENDS ON WHAT WAS ACTUALLY SHIPPED. THE MILITARY TRAFFIC MANAGEMENT AGENCY WHICH IS CHARGED WITH THE DUTY OF HANDLING TRAFFIC MANAGEMENT PROBLEMS FOR THE DEPARTMENT OF DEFENSE IS BEST QUALIFIED TO FURNISH AN ACCURATE DESCRIPTION OF THE CHARACTERISTICS OF THESE ALUMINUM TANKS FOR THE PURPOSE OF PROPER FREIGHT CLASSIFICATION. SEE BUCH EXPRESS, INC. V. UNITED STATES, 132 CT.CL. 772, 777. IT IS INCUMBENT UPON YOU AS THE CARRIER TO PROVE THE VALIDITY OF YOUR CHARGES DESPITE THE FACT THAT THE GOVERNMENT HAS MADE A DEDUCTION UNDER ITS STATUTORY AUTHORITY CONTAINED IN 49 U.S.C. 66. SEE UNITED STATES V. NEW YORK, NEW HAVEN AND HARTFORD .CO., 355 U.S. 253. MOREOVER, WHERE THERE IS A DISPUTE AS TO THE FACTS IN A PARTICULAR CASE, IT HAS BEEN THE LONG-STANDING RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT THE FACTS AS STATED BY THE ADMINISTRATIVE AGENCY UNLESS THE CLAIMANT IS ABLE TO PRODUCE SUBSTANTIAL EVIDENCE TO THE CONTRARY. COMP. GEN. 473; 16 ID. 1105.

YOU ALSO CONTEST OUR ADJUSTMENT OF THE CHARGE ON THE ROCKET MOTORS WHICH YOU SAY SHOULD BE PROPERLY CLASSIFIED UNDER ITEM 3830 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 12, COVERING AMMUNITION, FIXED, NOI, FOR CANNON, APPARENTLY ON THE ASSUMPTION THAT THE EXPLOSIVE OR PROPELLANT CHARGE WHICH IS CONTAINED IN THE MOTOR PRECLUDES THE USE OF RATING APPLICABLE ON CANNON CARTRIDGES, BLANK.

PARAGRAPH 10 OF THE DEPARTMENT OF THE ARMY TECHNICAL MANUAL 9-1950 DESCRIBES A ROCKET MOTOR AS THAT COMPONENT WHICH PROPELS THE ROCKETS AND IS ASSEMBLED AT THE REAR OF THE ROCKET HEADS. THE MOTOR CONTAINS THE PROPELLING CHARGE, THE PROPELLING CHARGE SUPPORT AND THE IGNITER. CONSISTS OF A STEEL TUBE WHICH IS CLOSED AT THE FORWARD END BY ITS ATTACHMENT TO THE ROCKET HEAD.

GENERALLY, THE RESPONSIBILITY FOR CLASSIFICATION OF EXPLOSIVES AND DANGEROUS ARTICLES AND THE PROMULGATION OF REGULATIONS FOR THEIR TRANSPORTATION IN INTERSTATE COMMERCE IS VESTED IN THE INTERSTATE COMMERCE COMMISSION. THE INTERSTATE COMMERCE COMMISSION'S BUREAU OF EXPLOSIVES IS THE ORGANIZATION WHICH USUALLY SETS UP THE STANDARDS, PRESCRIBES TEST OF EXPLOSIVES AND DANGEROUS ARTICLES, AND SEES THAT THE COMMISSION'S REGULATIONS ARE REFLECTED IN THE CARRIERS' TARIFFS. IN CARRYING OUT THESE DUTIES THE BUREAU OF EXPLOSIVES IS, BY LAW, AUTHORIZED TO UTILIZE THE SERVICES OF THE RAILROAD'S BUREAU OF EXPLOSIVES AND ANY DEPARTMENT, COMMISSION OR BOARD OF THE GOVERNMENT. SEE 18 U.S.C. 835. IN ORDER TO SATISFY THE REQUIREMENTS PUBLISHED BY THE BUREAU OF EXPLOSIVES IT HAS BEEN NECESSARY FOR THE MILITARY DEPARTMENTS TO DETERMINE WHETHER A GIVEN TYPE OF ROCKET MOTOR IS CLASS A OR CLASS B AMMUNITION. IN THIS INSTANCE THERE WAS A DETERMINATION MADE BY THE MILITARY TRAFFIC MANAGEMENT AGENCY THAT THE ROCKET MOTORS WERE CLASS B AMMUNITION AND THE BILL OF LADING WAS SO ANNOTATED. WE DO NOT DISPUTE THE FACT THAT THE HAZARD ELEMENT IS AN IMPORTANT FACTOR IN THE CLASSIFICATION OF EXPLOSIVES AND OTHER DANGEROUS ARTICLES (RATES ON POWDER AND HIGH EXPLOSIVES, 151 I.C.C. 155, 163), BUT INASMUCH AS A PRESUMPTION OF CORRECTNESS EXISTS IN FAVOR OF THE BILL OF LADING INFORMATION, WE MUST ACCEPT THE BILL OF LADING AS THE BEST EVIDENCE AS TO THE ACTUAL CONSIST OF THE SHIPMENT. WE HAVE NO EVIDENCE CONTRADICTING THE BILL OF LADING INFORMATION.

PRIOR TO DECEMBER 28, 1954, THE CARRIERS FAILED TO SPECIFICALLY NAME ROCKET MOTORS IN THEIR TARIFFS AND IT WAS NECESSARY TO RESORT TO ANALOGY TO CLASSIFY THESE ITEMS. SINCE CANNON CARTRIDGES, BLANK (ITEM 3870 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 12) ARE CLASS B ITEMS, ROCKET MOTORS WERE PROPERLY CLASSIFIED UNDER THE ANALOGOUS ARTICLE RULE. SUPPLEMENT NO. 13 TO NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 12, AND SUPPLEMENT 6 TO NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-2, EFFECTIVE DECEMBER 28, 1954, ADDED ITEM 3870-A WHICH SPECIFICALLY COVERED ROCKET MOTORS. THE NEW ITEM READS "CARTRIDGES, CANNON, BLANK; OR ROCKET MOTORS.'

ACCORDINGLY, WE WOULD NOT BE WARRANTED UNDER THESE CIRCUMSTANCES IN ALLOWING YOUR SUPPLEMENTAL BILL FOR ADDITIONAL FREIGHT CHARGES ON THE ROCKET MOTORS AND ALUMINUM TANKS IN THE SHIPMENT INVOLVED. OUR DETERMINATION OF THE ALLOWABLE CHARGES FOR THE TRANSPORTATION OF THOSE PARTS OF THE SHIPMENTS HAS NOT BEEN SHOWN TO BE IN ERROR AND THE ADJUSTMENT OF SUCH CHARGES IS SUSTAINED.