B-144956, NOV. 28, 1961

B-144956: Nov 28, 1961

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 27. THE ABOVE BILLS OF LADING WERE ISSUED TO COVER THE TRANSPORTATION OF TWO SHIPMENTS OF COMMODITIES DESCRIBED AS "COMMON FIREWORKS. FOR SUCH SERVICES YOUR ORIGINALLY CLAIMED AND WERE PAID $1. IT WAS DETERMINED THAT THE APPLICABLE CHARGES FOR EACH SHIPMENT IS $861.13. LEAVING A BALANCE DUE OF $172.22 WHICH WAS COLLECTED BY DEDUCTION FROM AMOUNTS SUBSEQUENTLY DUE YOU. WAS APPLICABLE BECAUSE THE TWO SHIPMENTS WERE PART OF THE SAME OVERALL MOVEMENT INVOLVING OTHER SHIPMENTS ON WHICH THE INCREASE HAD BEEN ALLOWED. " AND FROM SUCH NOTATION IT WAS CONCLUDED THAT THE SMOKE POTS WERE NOT IN PACKAGES. SINCE THE TWO BILLS OF LADING HERE INVOLVED INDICATED THAT THE SMOKE POTS WERE IN DRUMS.

B-144956, NOV. 28, 1961

TO RISS AND COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 27, 1961, YOUR REFERENCE RISS OC 3696A C/B 3603, IN WHICH YOU REQUEST A REVIEW OF OUR SETTLEMENT CERTIFICATE (CLAIM NO. TK-704514) DATED DECEMBER 14, 1960, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $172.22 DEDUCTED IN CONNECTION WITH THE AUDIT OF YOUR BILL FOR TRANSPORTATION SERVICES RENDERED UNDER GOVERNMENT BILLS OF LADING WT-6460781 AND WT-6904213, DATED OCTOBER 12, 1951.

THE ABOVE BILLS OF LADING WERE ISSUED TO COVER THE TRANSPORTATION OF TWO SHIPMENTS OF COMMODITIES DESCRIBED AS "COMMON FIREWORKS, SMOKE POTS, NON- POISONOUS (POT, SMOKE, FLOATING HC M4A2)" FROM PINE BLUFF ARSENAL, ARKANSAS, TO THE ARMY CHEMICAL CENTER, EDGEWOOD, MARYLAND. FOR SUCH SERVICES YOUR ORIGINALLY CLAIMED AND WERE PAID $1,224.90 ON EACH SHIPMENT, COMPUTED AT THE FIRST CLASS RATE OF $4.31, BASED ON CLASSIFICATION OF THE ITEM AS COMMON FIREWORKS. UPON AUDIT OF THE PAYMENT VOUCHER, IT WAS DETERMINED THAT THE APPLICABLE CHARGES FOR EACH SHIPMENT IS $861.13, COMPUTED ON THE BASIS OF THE THIRD CLASS RATING PROVIDED IN ITEM 79560, NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 11, FOR NON-POISONOUS SMOKE POTS, AND THE THIRD CLASS RATE OF $3.03 PER 100 POUNDS PROVIDED IN EASTERN MOTOR CARRIER ASSOCIATION TARIFF NO. 20-B, MF-I.C.C. NO. A-55. YOU REFUNDED THE TOTAL AMOUNT OF $555.32 OF THE OVERCHARGES ASSESSED ON THE TWO SHIPMENTS, LEAVING A BALANCE DUE OF $172.22 WHICH WAS COLLECTED BY DEDUCTION FROM AMOUNTS SUBSEQUENTLY DUE YOU.

THE LATTER AMOUNT REPRESENTS THE 10 PERCENT INCREASE IN CHARGES YOU ALLEGE TO BE DUE ON THE TWO SHIPMENTS FOR IMPROPER PACKAGING. YOU ASSERTED THAT THIS INCREASE, AUTHORIZED BY RULE 5 OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION, WAS APPLICABLE BECAUSE THE TWO SHIPMENTS WERE PART OF THE SAME OVERALL MOVEMENT INVOLVING OTHER SHIPMENTS ON WHICH THE INCREASE HAD BEEN ALLOWED. THE COVERING BILLS OF LADINGON WHICH THE INCREASE HAD BEEN ALLOWED. THE COVERING BILLS OF LADING ON SUCH OTHER SHIPMENTS SHOWED THE FORM OF SHIPMENT AS "LOOSE," AND FROM SUCH NOTATION IT WAS CONCLUDED THAT THE SMOKE POTS WERE NOT IN PACKAGES. HOWEVER, SINCE THE TWO BILLS OF LADING HERE INVOLVED INDICATED THAT THE SMOKE POTS WERE IN DRUMS, YOUR CLAIM FOR CHARGES ON THE BASIS OF A ,LOOSE" SHIPPING FORM WAS DISALLOWED.

IN YOUR LETTER OF JANUARY 27, 1961, YOU STATE THAT IT IS EVIDENT THAT "THE SHIPMENTS WERE NOT PACKED IN DRUMS, AS THE WEIGHT OF EACH POT IN ALL SIX CLAIMS IS NO 49.' YOU ALSO STATE THAT THE DRUM IS THE SMOKE POT ITSELF, AND THAT, IF NOT, IT IS OUR DUTY TO FILE CLAIMS FOR THE AMOUNT OF THE PACKING PENALTY (10 PERCENT INCREASE IN CHARGES) ALLOWED ON OTHER SHIPMENTS.

IN VIEW OF YOUR ALLEGATIONS WE OBTAINED A REPORT ON THE MATTER FROM THE ADMINISTRATIVE OFFICE. THE RECORD NOW AVAILABLE SHOWS THAT THE TWO SHIPMENTS HERE INVOLVED, AS WELL AS THE OTHERS TO WHICH YOU REFERRED, WERE ALL PORTIONS OF A CONSIGNMENT OF 12,643 SMOKE POTS WEIGHING A TOTAL OF 619,507 POUNDS FROM THE PINE BLUFF ARSENAL TO EDGEWOOD ARSENAL IN 23 TRUCKLOADS. THE RECORD NOW CONCLUSIVELY SHOWS THAT THE SMOKE POTS, COMPLETE BUT UNPACKAGED, WEIGHED ABOUT 35 POUNDS EACH, AND WHEN THE SMOKE POTS WERE PACKED FOR SHIPMENT IN METAL DRUMS THE COMPLETE PACKAGE WEIGHED ABOUT 49 POUNDS EACH. THE ADMINISTRATIVE OFFICE REPORTS THAT FIBERBOARD SPACERS WERE USED BETWEEN THE DRUMS. ATTACHED HERETO IS A COPY OF PAGES 22, 23 AND 24 OF DEPARTMENT OF THE ARMY TECHNICAL MANUAL TM 3-300, ISSUED MARCH 1950, SHOWING THE METHOD OF PACKAGING THIS ARTICLE IN A STEEL DRUM.

IN THE LIGHT OF THE FACTS NOW OF RECORD IT IS CLEAR THAT THE PACKAGES AND PACKING OF THE TWO SHIPMENTS HERE INVOLVED, AS WELL AS THE REMAINDER OF THE ENTIRE MOVEMENT, FULLY COMPLIED WITH THE REQUIREMENTS OF RULE 5 OF THE AFOREMENTIONED NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 11, AND THAT THE 10 PERCENT INCREASE IN CHARGES ASSESSABLE UNDER THE PROVISIONS OF SECTION 6 (C) OF RULE 5 IS NOT APPLICABLE ON ANY OF THE SHIPMENTS INVOLVED IN THE ENTIRE MOVEMENT. ACCORDINGLY, THE SETTLEMENT OF DECEMBER 16, 1960, WAS CORRECT AND IS HEREBY SUSTAINED.

CONSISTENT WITH THE FOREGOING, THE PAYMENT VOUCHERS PERTAINING TO THE REMAINING 21 SHIPMENTS INVOLVED IN THE ENTIRE MOVEMENT CONCERNED, INCLUDING THOSE MENTIONED IN YOUR LETTER OF JANUARY 27, 1961, WILL BE EXAMINED TO DETERMINE IF THE CHARGES ON THOSE SHIPMENTS HAVE BEEN OVERPAID.