B-147225, FEB. 28, 1962

B-147225: Feb 28, 1962

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TO ROBINSON FREIGHT LINES: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 15. SUCH AMOUNT WAS CLAIMED AS AN ADDITIONAL TRANSPORTATION CHARGE ON TWO SHIPMENTS OF INTERNAL COMBUSTION ENGINES FROM NORTON AIR FORCE BASE. CONDITION 5 ON THE REVERSE OF GOVERNMENT BILLS OF LADING PROVIDES AS FOLLOWS: "THIS SHIPMENT IS MADE AT THE RESTRICTED OR LIMITED VALUATION SPECIFIED IN THE TARIFF OR CLASSIFICATION AT OR UNDER WHICH THE LOWEST RATE IS AVAILABLE. THAT THE EXCEPTIONS RATING IS THE ONLY RATING PUBLISHED TO APPLY ON THESE TYPE SHIPMENTS BY VIRTUE OF THE PROVISIONS OF NOTE 2 THEREIN WHICH. IT IS ALLEGED. 61248 AND 61249 SERIES IN THE CURRENT CLASSIFICATION WILL NOT APPLY IN CONNECTION WITH THE RATINGS SHOWN IN THIS ITEM.'.

B-147225, FEB. 28, 1962

TO ROBINSON FREIGHT LINES:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 15, 1961, ACKNOWLEDGED SEPTEMBER 21, 1961, REQUESTING REVIEW OF THE SETTLEMENT DATED JULY 31, 1961 (CLAIM TK-717148), WHICH DISALLOWED YOUR CLAIMS 59 OC-240 AND 59-OC- 256 FOR $137.51. SUCH AMOUNT WAS CLAIMED AS AN ADDITIONAL TRANSPORTATION CHARGE ON TWO SHIPMENTS OF INTERNAL COMBUSTION ENGINES FROM NORTON AIR FORCE BASE, SAN BERNADINO, CALIFORNIA, TO KNOXVILLE, TENNESSEE, UNDER GOVERNMENT BILLS OF LADING AF-9503769 AND AF-9497397 DATED DECEMBER 30, 1958 AND JANUARY 23, 1959, RESPECTIVELY.

CONDITION 5 ON THE REVERSE OF GOVERNMENT BILLS OF LADING PROVIDES AS FOLLOWS:

"THIS SHIPMENT IS MADE AT THE RESTRICTED OR LIMITED VALUATION SPECIFIED IN THE TARIFF OR CLASSIFICATION AT OR UNDER WHICH THE LOWEST RATE IS AVAILABLE, UNLESS OTHERWISE INDICATED ON THE FACE HEREOF.'

THE AMOUNT CLAIMED REPRESENTS THE DIFFERENCE BETWEEN THE AMOUNT FOUND TO BE DUE UNDER THE APPLICABLE RELEASED VALUE RATE REQUIRED BY THE QUOTED CONDITION 5 OF THE GOVERNMENT BILLS OF LADING AND PUBLISHED IN ITEM 61244 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4 AND THE AMOUNT ALLEGED TO BE DUE BASED ON THE EXCEPTIONS RATING PUBLISHED IN ITEM 330 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU, TRANSCONTINENTAL CLASS TARIFF NO. 21-A.

IN YOUR REQUEST FOR REVIEW YOU ARGUE, IN EFFECT, THAT THE EXCEPTIONS RATING IS THE ONLY RATING PUBLISHED TO APPLY ON THESE TYPE SHIPMENTS BY VIRTUE OF THE PROVISIONS OF NOTE 2 THEREIN WHICH, IT IS ALLEGED, HAS THE EFFECT OF ELIMINATING THE CLASSIFICATION RATING APPLIED BY OUR OFFICE. ITEM 330, ROCKY MOUNTAIN MOTOR TARIFF BUREAU TRANSCONTINENTAL CLASS TARIFF NO. 21-A, 4TH REVISED PAGE 15, EFFECTIVE FEBRUARY 1, 1958, UPON WHICH YOU RELY PROVIDES IN NOTE 2 AS FOLLOWS:

"THE RELEASED VALUATION PROVISIONS AS SHOWN IN ITEMS 61244, 61245, 61246, 61247, 61248 AND 61249 SERIES IN THE CURRENT CLASSIFICATION WILL NOT APPLY IN CONNECTION WITH THE RATINGS SHOWN IN THIS ITEM.'

NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4 NAMES THREE RATINGS ON INTERNAL COMBUSTION ENGINES. TWO OF THE RATINGS ARE NAMED IN ITEM NO. 61244, APPLIED IN THE DISALLOWANCE OF YOUR CLAIM, AND ARE BASED ON RELEASED VALUATIONS. THE OTHER IS PROVIDED IN ITEM NO. 61247 AND IS BASED ON UNRELEASED VALUATIONS. UNDER SIMILAR CIRCUMSTANCES THE INTERSTATE COMMERCE COMMISSION HELD THAT RELEASED AND UNRELEASED CLASSIFICATION RATINGS SHOULD BE CONSIDERED FROM A TRANSPORTATION STANDPOINT AS SEPARATE AND DISTINCT ITEMS AND, THEREFORE, THAT WHERE, AS HERE, THE CLASSIFICATION PROVIDES RATINGS ON THE BASIS OF BOTH RELEASED AND UNRELEASED VALUATIONS, AN EXCEPTION TO THE CLASSIFICATION OR COMMODITY RATE, WHICH IS NOT SUBJECT TO RELEASED VALUATIONS SUPERSEDES ONLY THE CLASSIFICATION RATING WHICH ALSO IS NOT SUBJECT TO A RELEASED VALUATION. SEE DOW CHEMICAL CO. V. CHESAPEAKE AND OHIO RY., 306 I.C.C. 403; UPJOHN CO. V. PENNSYLVANIA R.R. CO., 306 I.C.C. 325; AND HOME FOODS, INC. V. DELAWARE L. AND W. RY., 303 I.C.C. 655.

IN ADDITION, THE ASSISTANT DIRECTOR, BUREAU OF TRAFFIC, INTERSTATE COMMERCE COMMISSION, ALSO RECENTLY CONSIDERED THE SIGNIFICANCE OF SIMILAR TARIFF PROVISIONS (ITEMS 61243 SMCRC TARIFF NO. 515-C, MF I.C.C. NO. 960) IN A LETTER DATED DECEMBER 16, 1959, UNDER FILE 500 536392, ADDRESSED TO THE M.R. AND R. TRUCKING COMPANY OF CRESTVIEW, FLORIDA, COPY ENCLOSED, IN WHICH IT WAS STATED IN PART:

"AS AFORE STATED, IN THE AMERICAN HOME FOODS CASE AND IN THE UPJOHN CASE IT WAS HELD THAT WHILE FROM A COMMERCIAL STANDPOINT THERE WAS NO DIFFERENCE IN THE COMMODITIES WHERE THEIR VALUE WAS RELEASED OR NOT RELEASED, IT WAS EQUALLY APPARENT THAT THERE WAS A DISTINCT DIFFERENCE FROM A TRANSPORTATION STANDPOINT BY REASON OF THE SHIPPER'S DECLARATION AS TO VALUE. WE THEREFORE ARE STILL OF THE VIEW THAT UNRELEASED ITEM 61243 IN SMCRC 515-C DOES NOT DISPLACE THE RELEASED PROVISIONS IN THE CLASSIFICATION AND WE DO NOT SEE THAT NOTE D THEREIN MAKES ANY MATERIAL CONTRIBUTION IN THIS INSTANCE.'

NOTE 2 TO ITEM NO. 330 IN THE EXCEPTIONS TO THE CLASSIFICATION, WHICH IS SIMILAR TO NOTE D REFERRED TO IN THE ABOVE QUOTATION, PROVIDES THAT THE RELEASED VALUATION PROVISIONS SHOWN IN ITEMS NOS. 61244, 61245 AND 61246 WILL NOT APPLY IN CONNECTION WITH THE EXCEPTIONS RATINGS. WHILE THE LANGUAGE USED IN SUCH NOTE IS NOT ENTIRELY CLEAR AND ITS INTENT IS NOT COMPLETELY FREE FROM DOUBT, IT APPEARS TO MAKE THE EXCEPTIONS RATING FOR APPLICATION ONLY IN CONNECTION WITH SHIPMENTS OF UNRELEASED VALUATION ARTICLES AND CONSEQUENTLY ITEM NO. 330 DID NOT REMOVE FROM THE CLASSIFICATION THE RELEASED VALUATION RATINGS ON INTERNAL COMBUSTION ENGINES. AT LEAST THE WORDING OF NOTE 2 IS SO AMBIGUOUS IN THIS REGARD THAT ANY DOUBT IN THE MATTER IS REQUIRED TO BE RESOLVED AGAINST THE CARRIER AND IN FAVOR OF THE SHIPPER. SEE UNITED STATES V. STRICKLAND TRANSPORTATION CO., 204 F.2D 325, CERT. DENIED, 346 U.S. 856; PETALUMA AND SANTA ROSA R. V. COMMODITY CREDIT CORP., 83 F.SUPP. 639, AFFIRMED 190 F.2D 438; LOUISVILLE AND N.R. V. ST. REGIS PAPER CO., 102 F.SUPP. 713, AFFIRMED 201 F.2D 371; TIDE WATER ASSOCIATED OIL CO. V. ALTON AND S.R., 289 I.C.C. 42, 47; CHARLESTON AND W.C. RY. CO. V. MERRY BROS. BRICK AND TILE CO. (GA.CT. OF APP.), 70 S.E.2D 798.

IN THIS CONNECTION IT IS PERTINENT TO NOTE THAT IN APPARENT RECOGNITION OF THE FACT THAT NOTE 2 DID NOT HAVE THE EFFECT FOR WHICH YOU CONTEND, THE NOTE WAS AMENDED EFFECTIVE NOVEMBER 14, 1959, IN 3RD REVISED PAGE 18, R.M.M.T.B. NO. 21-B, TO PROVIDE AS FOLLOWS:

"NOTE--- THE PROVISIONS OF THIS ITEM REMOVE ALL CLASS RATINGS, INCLUDING THE RELEASED VALUATION PROVISIONS, SHOWN IN ITEM 61244, 61245, 61246, 61247, 61248 AND 61249 SERIES OF THE CURRENT CLASSIFICATION. NEITHER THE RATINGS NOR THE RELEASED VALUATION PROVISIONS SHOWN IN ITEM 61244, 61245, 61246, 61247, 61248 AND 61249 SERIES OF THE CURRENT CLASSIFICATION APPLY IN CONNECTION WITH RATES IN THIS TARIFF.'

IN VIEW OF WHAT HAS BEEN SAID IT APPEARS THAT ONLY ITEM 61247 OF THE CLASSIFICATION PROVIDING UNRELEASED VALUATION RATING WAS SUPERSEDED BY ITEM 330 OF R.M.M.T.B. TARIFF NO. 21-A, AND ITEM 61244 NAMING THE RELEASED VALUATION RATINGS REMAINED IN FULL FORCE AND EFFECT.