B-145323, JUN. 4, 1962

B-145323: Jun 4, 1962

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

B-145323, JUN. 4, 1962

TO CAROLINA FREIGHT CARRIERS CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 16, 1961, ACKNOWLEDGED AUGUST 25, 1961, REQUESTING REVIEW OF THAT PORTION OF THE SETTLEMENT CERTIFICATE OF AUGUST 3, 1961, WHICH DISALLOWED YOUR CLAIM 060-1249 (OUR TK-657054) FOR $159.62 ADDITIONAL FREIGHT CHARGES FOR A SHIPMENT OF GOVERNMENT PROPERTY TRANSPORTED FROM PHILADELPHIA, PENNSYLVANIA, TO WARNER ROBINS, GEORGIA, UNDER GOVERNMENT BILL OF LADING AF-734518, DATED NOVEMBER 18, 1959. THE BILL OF LADING INDICATES THAT THE SHIPMENT WEIGHED 5,400 POUNDS AND WAS DESCRIBED AS "100 WOOD BOXES TOOLS, NOI.'

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES IN THE AMOUNT OF $338, COMPUTED AT A RATE OF $3.38 PER HUNDRED POUNDS ON A 10,000 -POUND MINIMUM WEIGHT. ON AUDIT OF THE PAYMENT VOUCHER HERE, IT WAS CONSIDERED THAT THE FREIGHT CHARGES SHOULD BE COMPUTED AT A CLASS 77 1/2 LESS-THAN-TRUCKLOAD RATE OF $3.47 PER 100 POUNDS ASSESSED ON THE ACTUAL WEIGHT OF 5,400 POUNDS. THE APPLICATION OF THIS BASIS RESULTED IN AN OVERCHARGE OF $150.62, WHICH AMOUNT WAS COLLECTED BY DEDUCTION FROM AN AMOUNT OTHERWISE DUE YOU. YOU PROTESTED THIS DEDUCTION SEVERAL TIMES AND ULTIMATELY RECLAIMED THE AMOUNT DEDUCTED CONTENDING THAT THE CLASS 77 1/2 RATING APPLICABLE ON TOOLS, NOI PUBLISHED IN NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4, MF-I.C.C. NO. 1 DID NOT APPLY BUT RATHER THE CLASS 92 1/2 RATING APPLICABLE ON ELECTRIC OR PNEUMATIC TOOLS SHOULD BE APPLIED TO THE SHIPMENT. SINCE THE OVERCHARGE WAS BASED UPON THE BILL OF LADING DESCRIPTION YOUR CLAIM WAS DISALLOWED BY SETTLEMENT CERTIFICATE OF AUGUST 3, 1961, WHICH STATED THAT IT IS INCUMBENT ON THE CARRIER TO FURNISH DOCUMENTARY PROOF THAT THE TOOLS WERE ELECTRIC OR PNEUMATIC. IN YOUR LETTER OF AUGUST 16, 1961, REQUESTING REVIEW OF THIS SETTLEMENT YOU STATE THAT YOU DISAGREE WITH OUR INTERPRETATION OF RULE 2, N.M.F.C. NO. A-4 WHICH READS AS FOLLOWS:

"WHEN CARRIER'S AGENT BELIEVES IT NECESSARY THAT THE CONTENTS OF PACKAGES BE INSPECTED, HE WILL MAKE OR CAUSE SUCH INSPECTION TO BE MADE, OR REQUIRE OTHER SUFFICIENT EVIDENCE TO DETERMINE ACTUAL CHARACTER OF THE PROPERTY. WHEN FOUND TO BE INCORRECTLY DESCRIBED, FREIGHT CHARGES MUST BE COLLECTED ACCORDING TO PROPER DESCRIPTION.'

ORDINARILY THE DESCRIPTION ON THE BILL OF LADING MUST BE GIVEN PRIMA FACIE EFFECT AND THE PARTY SEEKING TO CHANGE THE DESCRIPTION HAS THE BURDEN OF PROVING THE ACCURACY OF SUCH CHANGES. SEE EASTMAN KODAK CO. V. CENTRAL VERMONT RAILROAD, 165 I.C.C. 107, 108; CONCRETE ENGINEERING CO. V. CHICAGO AND E.I. RY., 178 I.C.C. 433, 435; BUCH EXPRESS, INC. V. UNITED STATES, 132 CT.CL. 772. MANIFESTLY, OUR AUDIT MUST ASSUME, IN THE ABSENCE OF SOME INDICATION TO THE CONTRARY, THAT THE DESCRIPTION OF THE COMMODITY SHIPPED ON THE BILL OF LADING IS CORRECT AND OUR STATEMENT OF OVERCHARGE WAS BASED THEREON. YOU, IN EFFECT, ASSERTED THE TOOLS WERE PNEUMATIC OR ELECTRIC AND ASSERTED THE HIGHER CHARGES BASED UPON SUCH DESCRIPTION WITHOUT FURNISHING ANY EVIDENCE OR EVEN INDICATING ANY BASIS FOR YOUR BELIEVING THAT THE TOOLS WERE OF THAT CHARACTER. SINCE YOU THUS SOUGHT TO CHANGE THE BILL OF LADING DESCRIPTION IT APPEARS TO HAVE BEEN INCUMBENT UPON YOU TO PROVE THE ACCURACY OF THE CHANGE OR AT LEAST INDICATE THE BASIS FOR YOUR BELIEF THAT THE DESCRIPTION ON THE BILL OF LADING WAS ERRONEOUS. HOWEVER, IN AN EFFORT TO RESOLVE THE PROTRACTED DISPUTE AND ARGUMENTS AS TO THE CONSIST OF THE SHIPMENT WE CONTACTED THE ADMINISTRATIVE OFFICE INVOLVED TO ASCERTAIN THE ACTUAL NATURE OF THE COMMODITY SHIPPED. BY 2ND INDORSEMENT FROM WARNER ROBINS AIR FORCE BASE, GEORGIA, DATED FEBRUARY 5, 1962, WE WERE ADVISED THAT THE SUBJECT SHIPMENT CONSISTED OF AIRPLANE MOORING KITS. CATALOGING HANDBOOK H6-1 OF FEDERAL IDENTIFICATION GUIDES FOR SUPPLY CATALOGING SHOWS THAT AN AIRPLANE MOORING KIT IS PROPERLY CALLED AN AIRCRAFT MOORING TIE DOWN. THE HANDBOOK DESCRIBES THIS ARTICLE AS AN ITEM CONSISTING OF ROPES, CHAINS AND/OR CABLES, HAVING SUITABLE HOOKS AND/OR ATTACHING PARTS AND EQUIPPED WITH A TIGHTENING DEVICE, DESIGNED TO SECURE OR RESTRAIN MOVEMENT OF AIRCRAFT. THE ADMINISTRATIVE OFFICE STATES THAT THIS ITEM IS CURRENTLY DESCRIBED AS "WIRE, ROPE, OR STRAND, WITH EQUIPMENT.'

BASED ON THIS INFORMATION WE NOW FIND THAT THE SHIPMENT IS PROPERLY CLASSIFIED UNDER ITEM 55600 OF N.M.F.C. NO. A-4 WHICH PUBLISHES A CLASS 50 LESS-THAN-TRUCKLOAD RATING APPLYING ON "WIRE, ROPE OR STRAND, WITH EQUIPMENT OF IRON OR STEEL CHAIN, CLAMPS, CLIPS, HOOKS, SOCKETS, SHACKLES, THIMBLES, TURNBUCKLES OR COUPLING LINKS ATTACHED OR WITHOUT EQUIPMENT.' THE CORRECT CHARGES ARE PROPERLY COMPUTED AT A CLASS 50 RATE OF $2.24 PER 100 POUNDS PUBLISHED IN SOUTHERN MOTOR CARRIERS RATE CONFERENCE FREIGHT TARIFF NO. 504, MF-I.C.C. NO. 614, ON THE ACTUAL WEIGHT OF 5,400 POUNDS RESULTING IN CHARGES OF $120.96 FOR THE SERVICE AND A CORRESPONDING ADDITIONAL OVERCHARGE OF $66.42.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED AND THE ADDITIONAL OVERCHARGE OF $66.42 SHOULD BE REFUNDED PROMPTLY TO AVOID THE NECESSITY FOR FURTHER COLLECTION ACTION.