B-146482, JAN. 18, 1962

B-146482: Jan 18, 1962

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JAMES: REFERENCE IS MADE TO YOUR LETTER OF JULY 19 AND 29. WHICH WAS TRANSPORTED FROM FERGUSON. FOR THIS SERVICE YOUR CLIENT ORIGINALLY CLAIMED AND WAS PAID $2. IT WAS DETERMINED THAT THE PROPER CHARGES WERE $1. A NOTICE OF OVERPAYMENT WAS ISSUED REQUESTING A REFUND OF $874. SUCH AMOUNT WAS RECOVERED BY DEDUCTION FROM A SUBSEQUENT BILL OF YOUR CLIENT. YOU CONTEND THAT "LAUNCHERS" HAVE LOST THEIR IDENTITY AS MACHINES OR MACHINERY. THEREFORE ARE NOT RATABLE UNDER JEFFRIES TARIFF NO. 5. THE COMMISSION WAS CONSTRUING THE SCOPE OF THE CERTIFICATES. "GIVING EFFECT THEN TO WHAT WAS OBVIOUSLY INTENDED (IN THE CERTIFICATE) AND TO TRADE USAGES AND PRACTICES. EVEN THOUGH THE COMMISSION THERE FOUND THAT AIRCRAFT ENGINES WERE NOT MACHINERY OR MACHINERY PARTS WITHIN THE INTENDED COVERAGE OF THE CERTIFICATE.

B-146482, JAN. 18, 1962

TO MR. THOMAS E. JAMES:

REFERENCE IS MADE TO YOUR LETTER OF JULY 19 AND 29, AND OF NOVEMBER 8, 1961, RELATING TO THE CLAIM OF J. H. ROSE TRUCK LINE, INC., FOR $874 IN ADDITIONAL FREIGHT CHARGES ON THE SHIPMENT OF ONE "MACHINERY, NOIBN (LAUNCHER)," WEIGHING 38,000 POUNDS, WHICH WAS TRANSPORTED FROM FERGUSON, MISSOURI, TO TWENTY-NINE PALMS, CALIFORNIA, UNDER BILL OF LADING A- 1753419, DATED MARCH 3, 1960.

FOR THIS SERVICE YOUR CLIENT ORIGINALLY CLAIMED AND WAS PAID $2,306.85 BASED ON A RATE OF $1.31 PER HUNDRED POUNDS TO OKLAHOMA CITY AND A RATE OF $4.61 PER HUNDRED BEYOND, PLUS PERMIT AND ESCORT VEHICLE SERVICES TOTALING $57.25. IN THE AUDIT OF YOUR CLIENT'S BILL 429635 BY OUR OFFICE, IT WAS DETERMINED THAT THE PROPER CHARGES WERE $1,432.85 BASED ON THE RATE OF $3.62 PER HUNDRED POUNDS NAMED IN ITEM 310, SUPPLEMENT 11, OF H. J. JEFFRIES TRUCK LINE MOTOR FREIGHT COMMODITY TARIFF NO. 5, MF-I.C.C. 8, ON "HEAVY MACHINERY AND HEAVY MACHINERY PARTS COMMODITIES THE TRANSPORTATION OF WHICH BECAUSE OF SIZE OR WEIGHT REQUIRE THE USE OF SPECIAL EQUIPMENT AND PARTS OF SUCH COMMODITIES..., " PLUS THE PERMIT AND ESCORT VEHICLE CHARGES OF $57.25. BASED THEREON, A NOTICE OF OVERPAYMENT WAS ISSUED REQUESTING A REFUND OF $874, AND UPON THE FAILURE OF YOUR CLIENT TO MAKE SUCH REFUND, SUCH AMOUNT WAS RECOVERED BY DEDUCTION FROM A SUBSEQUENT BILL OF YOUR CLIENT.

IN REQUESTING REVIEW, YOU CONTEND THAT "LAUNCHERS" HAVE LOST THEIR IDENTITY AS MACHINES OR MACHINERY, NOIBN, AND THEREFORE ARE NOT RATABLE UNDER JEFFRIES TARIFF NO. 5. IN SUPPORT OF THIS CONTENTION YOU FURNISH CITATIONS TO SEVERAL INTERSTATE COMMERCE COMMISSION DECISIONS INVOLVING DETERMINATIONS BY THE COMMISSION WITH RESPECT TO THE COVERAGE OF VARIOUS CARRIERS' AUTHORITIES TO TRANSPORT CERTAIN ARTICLES UNDER THEIR CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY. IN MAKING THESE DETERMINATIONS, HOWEVER, THE COMMISSION WAS CONSTRUING THE SCOPE OF THE CERTIFICATES, AND NOT THE CLASSIFICATION OF ARTICLES FOR RATE MAKING PURPOSES. FOR EXAMPLE, THE COMMISSION STATED IN THE L. C. JONES EXTENSION CASE, 52 M.C.C. 29, 31,"GIVING EFFECT THEN TO WHAT WAS OBVIOUSLY INTENDED (IN THE CERTIFICATE) AND TO TRADE USAGES AND PRACTICES, WE CONCLUDE THAT THE PHRASE "MACHINERY AND MACHINERY PARTS" AS USED IN PETITIONER'S CERTIFICATES DOES NOT INCLUDE AIRCRAFT AND PARTS THEREOF...' EVEN THOUGH THE COMMISSION THERE FOUND THAT AIRCRAFT ENGINES WERE NOT MACHINERY OR MACHINERY PARTS WITHIN THE INTENDED COVERAGE OF THE CERTIFICATE, IT WILL BE NOTED THAT AIRCRAFT ENGINES ARE RATABLE UNDER THAT GENERIC HEADING IN THE CLASSIFICATION. SEE UNITED STATES V. STRICKLAND TRANSPORTATION CO., INC., 200 F.2D 234, 235, AFFIRMED 204 F.2D 325, CERTIORARI DENIED 346 U.S. 856; AND HUGHES TRANSPORTATION, INC. V. UNITED STATES, 109 FED.SUPP. 373.

A RATE OR RATING PROFFERED UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C.A. 22, IS A SPECIAL RATE EXISTING BY REASON OF CONTRACT, BID OR OTHER ARRANGEMENT BETWEEN THE GOVERNMENT AND THE CARRIERS. UNITED STATES V. SOUTHERN PACIFIC CO., 25 I.C.C. 255, 258. THE RIGHT OF THE CARRIERS TO TRANSPORT GOVERNMENT PROPERTY FREE OR AT REDUCED RATES IS ELECTIVE AND NOT MANDATORY, AND IS NOT DEPENDENT UPON TARIFF AUTHORIZATION. UNITED STATES OF AMERICA V. UNION PACIFIC R.CO., 28 I.C.C. 518, 524. THE VOLUNTARY FILING OF A SPECIAL RATE APPLICABLE ONLY ON SHIPMENTS OF GOVERNMENT PROPERTY, HOWEVER, DOES NOT SUPERSEDE REGULARLY PUBLISHED RATES OR NULLIFY THE RIGHT OF THE GOVERNMENT TO SHIP AT THE LOWEST TARIFF RATE OPEN TO THE PUBLIC. ILLINOIS CENTRAL RAILROAD COMPANY V. THE UNITED STATES, 58 CT.CL. 182, 183 AND 184. ALSO, THE RULE IS WELL SETTLED AND OF LONG STANDING THAT GOVERNMENT OFFICERS ARE WITHOUT AUTHORITY TO CONTRACT FOR TRANSPORTATION SERVICE AT RATES HIGHER THAN THOSE TENDERED TO THE PUBLIC IN DULY PUBLISHED AND AUTHORIZED TARIFFS. MISSOURI PACIFIC R.CO. V. UNITED STATES, 71 CT.CL. 650, 661; UNITED STATES LINES OPERATIONS, INC. V. UNITED STATES, 99 CT.CL. 744. THEREFORE, IT IS CLEAR THAT EVEN THOUGH THE CARRIERS INVOLVED FILED SECTION 22 QUOTATIONS OFFERING TO CARRY AMONG OTHER ARTICLES "MACHINERY, NOI OR PARTS THEREOF" AND "GUIDED MISSILES, OR PARTS THEREOF" AT SPECIFIC RATES, THE UNITED STATES WAS NOT REQUIRED TO PAY SUCH RATES WHERE LOWER RATES, AS IN THIS CASE, WERE AVAILABLE TO THE GENERAL PUBLIC--- INCLUDING THE UNITED STATES- -- ON HEAVY MACHINERY OR HEAVY MACHINERY PARTS IN JEFFRIES TARIFF NO. 5.

REGARDING THE APPLICATION OF THE MACHINE OR MACHINERY, NOIBN, RATINGS NAMED IN JEFFRIES TARIFF NO. 5, ATTENTION IS INVITED TO LAWRENCE CONSTRUCTION COMPANY V. LOUISVILLE AND NASHVILLE R.CO., 115 I.C.C. 439, 440, WHEREIN THE INTERSTATE COMMERCE COMMISSION POINTED OUT THAT MOST MACHINES ARE GENERALLY REFERRED TO BY THEIR INDIVIDUAL NAMES, BUT THAT SUCH REFERENCE DOES NOT MAKE THEM ANY LESS MACHINES. IN THAT CASE THE COMMISSION FOUND THE EXCEPTION RATING FOR MACHINERY AND MACHINES APPLIED EVEN THOUGH THE ROAD ROLLER WAS SPECIFICALLY NAMED IN THE CLASSIFICATION. SEE ALSO ATLANTIC BRIDGE CO. V. ATLANTIC COAST LINE R.CO., 56 F.2D 163, WHEREIN THE COURT FOUND THE MACHINERY AND MACHINES RATING APPLIED ON CRANES OR DERRICKS. THUS, IN THE ABSENCE OF A SPECIFIC RATING ON LAUNCHERS IN JEFFRIES TARIFF NO. 5, IT IS OUR VIEW THAT THE RATING FOR MACHINES OR MACHINERY, NOIBN, IS PROPER FOR APPLICATION IN COMPUTING THE CHARGES ON THE SHIPMENT AND THAT THE LOWER RATE SPECIFIED IN THE TARIFF RATHER THAN THE HIGHER RATE IN THE SECTION 22 QUOTATIONS IS CONTROLLING. WE ACCORDINGLY PERCEIVE NO PROPER BASIS FOR REFUNDING THE AMOUNT RECOVERED BY DEDUCTION AS AUTHORIZED BY 49 U.S.C. 66.