B-144420, FEB. 19, 1961

B-144420, FEB. 19, 1961

TO BROWN EXPRESS:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 7, 1960, IN WHICH YOU ASK FOR A REVIEW OF THE DISALLOWANCE OF YOUR CLAIM ON BILLS NOS. 7911 B AND 7911-C FOR ADDITIONAL FREIGHT CHARGES ON A SHIPMENT OF INTERNAL COMBUSTION RADIAL CYLINDER AIRCRAFT ENGINES. THE SHIPMENT MOVED FROM CORPUS CHRISTI, TEXAS, TO GRAND PRAIRIE, TEXAS, ON GOVERNMENT BILL OF LADING N-33940130, DATED OCTOBER 13, 1958, WHICH BORE THE LEGEND "RELEASED VALUATION NOT EXC $2.50 PER LB.'

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID $103.01, COMPUTED ON THE BASIS OF A FIRST-CLASS UNRELEASED COMMODITY RATE OF $3.35 PER 100 POUNDS, AUTHORIZED IN ITEM 4790 OF SOUTHWESTERN MOTOR FREIGHT BUREAU TARIFF NO. 25-F, MF-I.C.C. NO. 274 - R.C.T. NO. 29. IN OUR AUDIT OF THE PAYMENT VOUCHER WE DETERMINED THAT THE PROPER CHARGES WERE THOSE COMPUTED ON THE BASIS OF A SECOND-CLASS RELEASED-VALUE CLASSIFICATION RATE OF $2.85 PER 100 POUNDS, AUTHORIZED IN ITEM 61244 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 14, MF-I.C.C. NO. 1 - R.C.T. NO. 7, AND PUBLISHED IN SWMFB TARIFF NO. 25-F, SUPPLEMENT 17. THE APPLICATION OF THIS BASIS RESULTED IN AN OVERCHARGE OF $15.37 ON BILL OF LADING N-33940130 AND WAS INCLUDED IN THE TOTAL AMOUNT OF $55.11 STATED ON A FORM 1003 ISSUED TO RECOVER OVERCHARGES ON THE SUBJECT SHIPMENT AND TWO OTHER SIMILAR SHIPMENTS (OVERCHARGES OF $19.87 ON EACH OF THE OTHER TWO SHIPMENTS). THE AMOUNT OF $55.11 WAS COLLECTED BY DEDUCTION FROM AN AMOUNT OTHERWISE DUE YOU ON YOUR BILL NO. 129.

YOU PRESENTED SUPPLEMENTAL BILL NO. 7911-B, RECLAIMING THE AMOUNT OF $19.87 IN CONNECTION WITH BILL OF LADING N-33940130, WHICH WE DENIED BY OUR FORM LETTER T-70-F, DATED NOVEMBER 2, 1960, BECAUSE THE CLAIM COVERED THE SAME BILL OF LADING (N-33940130) AS YOUR SUPPLEMENTAL BILL NO. 7911-C, BY WHICH YOU WERE RECLAIMING THE AMOUNT OF $15.37. SUPPLEMENTAL BILL NO. 7911-C FOR $15.37 WAS DISALLOWED IN FULL BY OUR SETTLEMENT CERTIFICATE OF OCTOBER 25, 1960, WHICH STATED:

"THE EXCEPTION RATING ON WHICH YOU RELY IS NOT DEPENDENT ON RELEASED VALUATION AND IS THEREFORE AN UNRELEASED VALUE RATING. SEE IN THIS CONNECTION UNITED STATES COURT OF CLAIMS NO. 217-54. (BENTON RAPID EXPRESS, INC. V. UNITED STATES, 171 F. SUPP. 868.) THIS UNRELEASED EXCEPTION RATING DOES NOT REMOVE FROM THE CLASSIFICATION THOSE RATINGS WHICH ARE DEPENDENT ON RELEASED VALUATION. THE SUBJECT SHIPMENT WAS TENDERED TO THE CARRIER RELEASED IN VALUE FOR THE PURPOSE OF OBTAINING THE LOWEST AVAILABLE RATE AS EVIDENCED BY THE NOTATION ON THE BILL OF LADING.'

YOU OBJECT TO THIS SETTLEMENT BECAUSE ITEM 4790 OF SWMFB TARIFF NO. 25-F PROVIDES THAT RATINGS PROVIDED THEREIN REMOVE THE APPLICATION OF CLASSIFICATION RATINGS ON THE SAME SHIPMENT. YOU ALSO STATE:

"YOUR OFFICE IS APPARENTLY RELYING, FOR SELF-SERVING PURPOSES, ON THE DECISION OF THE INTERSTATE COMMERCE COMMISSION IN DOCKET 31706 INVOLVING UPJOHN V. PENNSYLVANIA RAILROAD COMPANY. AS WE HAVE PREVIOUSLY POINTED OUT, ANY DECISION OF THE INTERSTATE COMMERCE COMMISSION CANNOT BE USED AS A YARDSTICK IN THE DETERMINATION OF ISSUES INVOLVING INTERSTATE TRAFFIC.'

THE TARIFF INVOLVED, SWMFB TARIFF NO. 25-F, PUBLISHES CLASS AND COMMODITY RATES APPLICABLE ON BOTH INTERSTATE TRAFFIC AND TEXAS INTRASTATE TRAFFIC AND IS FILED WITH BOTH THE INTERSTATE COMMERCE COMMISSION AND THE RAILROAD COMMISSION OF TEXAS. WE VIEW THE LOWER RATE DERIVED FROM THE RELEASED VALUE RATING IN ITEM 61244 OF NMFC NO. 14 AS APPLICABLE, RATHER THAN THE HIGHER UNRELEASED COMMODITY RATING PUBLISHED IN ITEM 4790 OF SWMFB TARIFF NO. 25-F, ON THE THEORY THAT A COMMODITY RATING NOT SUBJECT TO A RELEASED VALUATION SUPERSEDES ONLY A CLASSIFICATION RATING ALSO NOT SUBJECT TO RELEASED VALUATION. ALTHOUGH WE DID NOT CITE AS AUTHORITY THE RULING IN UPJOHN COMPANY V. PENNSYLVANIA R. CO., 306 I.C.C. 325, IN OUR SETTLEMENT; NEVERTHELESS, OUR INTERPRETATION IS IN ACCORD WITH THAT RULING. AS YOU KNOW, THE INTERSTATE COMMERCE COMMISSION FOUND IN THAT CASE, WHICH INVOLVED A SOMEWHAT SIMILAR SITUATION, THAT FROM A TRANSPORTATION STANDPOINT THE RELEASED AND THE UNRELEASED VALUE CLASSIFICATION RATINGS SHOULD BE CONSIDERED AS TWO SEPARATE AND DISTINCT ITEMS, AND THAT THE COMMODITY RATE, NOT SUBJECT TO A RELEASED VALUE PROVISION, SUPERSEDED ONLY THE CLASSIFICATION RATING WHICH ALSO WAS NOT SUBJECT TO A RELEASED VALUE PROVISION. SEE, ALSO, AMERICAN HOME FOODS, INC. V. DELAWARE, L. AND W.R.CO., 303 I.S.C. 655, AND DOW CHEMICAL CO. V. CHESAPEAKE AND OHIO R.CO., 306 I.C.C. 403.

WHILE WE AGREE THAT THE INTERSTATE COMMERCE COMMISSION MAY BE WITHOUT JURISDICTION IN THE MATTER OF INTERPRETING AN INTRASTATE TARIFF; NEVERTHELESS, SINCE WE ARE CONCERNED HERE WITH A JOINT TARIFF COVERING BOTH INTERSTATE AND INTRASTATE TRAFFIC, IT WOULD PRESENT AN ANOMALOUS SITUATION IF THE TARIFF WERE CONSTRUED DIFFERENTLY WHERE INTERSTATE TRAFFIC IS INVOLVED THAN WHERE INTRASTATE TRAFFIC IS INVOLVED. ALSO, YOU HAVE MADE REFERENCE TO NO DECISION OF ANY COURT OR OF THE GOVERNING REGULATORY AGENCY IN SUPPORT OF YOUR POSITION ON THIS CONTROVERSIAL ISSUE. WHERE THE APPLICABLE TARIFF AND CLASSIFICATION, AS WELL AS THE RATE AND RATING, ARE APPLICABLE EQUALLY ON EITHER INTERSTATE OR INTRASTATE SHIPMENTS IT SEEMS HIGHLY IMPROBABLE THAT A DIFFERENT PRINCIPLE WOULD BE FOUND TO APPLY ON AN INTRASTATE SHIPMENT THAN ON MOVEMENTS OF A SIMILAR COMMODITY BETWEEN THE SAME POINTS IN INTERSTATE COMMERCE. WHILE WE AGREE THAT DECISIONS OF THE INTERSTATE COMMERCE COMMISSION MAY NOT NECESSARILY BE CONTROLLING IN ISSUES ARISING OUT OF THE INTRASTATE MOVEMENT OF PROPERTY, WE BELIEVE THAT SUCH DECISIONS ARE ENTITLED TO GREAT RESPECT, REPRESENTING AS THEY DO THE OPINION OF A BODY OF EXPERTS UPON MATTERS WITHIN THE RANGE OF THEIR SPECIAL KNOWLEDGE AND EXPERIENCE. CAPITAL TRANSIT CO. V. UNITED STATES, 97 F.SUPP. 614, 616. THIS SITUATION SEEMS TO BE SOMEWHAT ANALOGOUS TO THOSE IN WHICH THE COURT APPLIES THE LAW OF THE FORUM, UNLESS THE APPLICABLE LAW OF A SISTER STATE OR FOREIGN COUNTRY IS PLEADED AND PROVED. MEDINA V. HARTMAN, 260 F.2D 569, 570; KRASNOW V. NATIONAL AIRLINES, 228 F.2D 326; EX PARTE GUINN, 284 S.W. 2D 721; PRUDENTIAL PETROLEUM CORP. V. RAUSCHER, PIERCE CO., 281 S.W. 2D 457; KANSAS CITY TITLE INS. CO. V. BUTLER, 265 S.W. 2D 154.

IN THE AUDIT OF THE FREIGHT CHARGES INVOLVED WE HAVE DETERMINED THAT THE APPLICABLE RATING IS THE RELEASED CLASSIFICATION RATING AND HAVE SUPPORTED THIS DETERMINATION WITH CITATIONS TO RULINGS OF A COMPETENT BODY OF EXPERTS MADE IN CASES INVOLVING SIMILAR CIRCUMSTANCES. WE CAN PERCEIVE OF NO VALID REASON WHY THE RULE ESTABLISHED BY SUCH HOLDINGS SHOULD NOT BE GIVEN EFFECT IN DETERMINING THE PROPER CHARGES ON THE SUBJECT SHIPMENT.

THE SETTLEMENT OF OCTOBER 25, 1960, WHICH IS CONSISTENT WITH THE CONCLUSIONS STATED ABOVE, IS SUSTAINED.