B-148383, OCT. 18, 1962

B-148383: Oct 18, 1962

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TOPEKA AND SANTA FE RAILWAY COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 28. YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES FOR THE TRANSPORTATION OF THESE SHIPMENTS COMPUTED ON THE BASIS OF RATES OF $7.71. IN THE AUDIT OF THESE PAYMENTS IT WAS FOUND THAT OVERPAYMENTS EXISTED ON THESE SHIPMENTS. UPON YOUR FAILURE TO REFUND THE OVERPAYMENTS THEY WERE COLLECTED BY SETOFF IN MAKING PAYMENT OF AMOUNTS OTHERWISE DUE YOU. THE AMOUNTS RECLAIMED WERE COMPUTED ON THE BASIS OF THE COMMODITY RATE ON FREIGHT AUTOMOBILES OF $7.50 PER 100 POUNDS PROVIDED IN ITEM 11805 OF TRANS CONTINENTAL FREIGHT BUREAU NO. 1-G. THE AMOUNTS RECLAIMED WERE DISALLOWED ON THE BASIS OF A REPORT DATED FEBRUARY 20.

B-148383, OCT. 18, 1962

TO THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 28, 1962,FILE G 650427, CONCERNING THE PROPER FREIGHT CLASSIFICATION RATING TO BE APPLIED ON SEVEN SHIPMENTS DESCRIBED ON BILLS OF LADING NOS. WY 8994383, WY- 9932477, WY-10755204, WY-10755205, WY-10756214, WY-10756216 AND WY- 10756217 AS "TRUCKS OR TRACTORS, PLATFORM OR WAREHOUSE, NOIBN (CARRIER, LIGHT WEAPONS INFANTRY, 1/2 TON, 4 TIMES 4, M274)," OR WORDS OF LIKE IMPORT.

YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES FOR THE TRANSPORTATION OF THESE SHIPMENTS COMPUTED ON THE BASIS OF RATES OF $7.71, $7.50, OR $3.56 PER 100 POUNDS, SUBJECT TO VARYING ACTUAL OR MINIMUM WEIGHTS. IN THE AUDIT OF THESE PAYMENTS IT WAS FOUND THAT OVERPAYMENTS EXISTED ON THESE SHIPMENTS, COMPUTED ON THE BASIS OF EITHER THE CLASSIFICATION RATING AND RATE, OR THE COMMODITY RATE, APPLICABLE ON TRUCKS OR TRACTORS, PLATFORM OR WAREHOUSE, NOIBN. UPON YOUR FAILURE TO REFUND THE OVERPAYMENTS THEY WERE COLLECTED BY SETOFF IN MAKING PAYMENT OF AMOUNTS OTHERWISE DUE YOU. THEREAFTER, YOU RECLAIMED THE AMOUNT, AND IN ONE INSTANCE ONLY A PART OF THE AMOUNT, SO DEDUCTED. THE AMOUNTS RECLAIMED WERE COMPUTED ON THE BASIS OF THE COMMODITY RATE ON FREIGHT AUTOMOBILES OF $7.50 PER 100 POUNDS PROVIDED IN ITEM 11805 OF TRANS CONTINENTAL FREIGHT BUREAU NO. 1-G, OR REISSUES THEREOF. THE AMOUNTS RECLAIMED WERE DISALLOWED ON THE BASIS OF A REPORT DATED FEBRUARY 20, 1959, BY THE CLEVELAND ORDNANCE DISTRICT, 1367 EAST SIXTH STREET, CLEVELAND, OHIO, TO THE REGIONAL DIRECTOR, CENTRAL TRAFFIC REGION, MILITARY TRAFFIC MANAGEMENT AGENCY, ST. LOUIS, MISSOURI, COPY OF WHICH WAS FURNISHED TO YOU, WHICH SHOWS A DETAILED DESCRIPTION OF THE ARTICLE SHIPPED. THIS REPORT SHOWS THAT, IN THE OPINION OF THE CLEVELAND ORDNANCE DISTRICT, DUE TO THE CLOSE PHYSICAL RELATIONSHIP BETWEEN THE M-274 AND COMMERCIAL WAREHOUSE TRUCKS THE RATING ON SUCH TRUCKS IN ITEM 93440 OF THE CLASSIFICATION IS APPLICABLE THERETO. YOU NOW URGE THAT ON THE BASIS OF CERTAIN OPINIONS OF THE CLASSIFICATION COMMITTEES SHIPMENTS OF ARTICLES DESCRIBED AS "CARRIER, LIGHT WEAPONS INFANTRY, 1/2 TON, 4 BY 4, M-274" SHOULD BE RATED AS FREIGHT AUTOMOBILES, NOIBN.

THESE "CARRIERS" ARE DESCRIBED ON PAGE 44 OF DEPARTMENT OF THE ARMY TECHNICAL MANUAL 9-236, DATED SEPTEMBER 1960. THE MANUAL GIVES THE DIMENSIONS OF THE CARRIER AS 118.25 INCHES LONG, 49.75 INCHES WIDE, AND 49.12 INCHES HIGH; ITS WEIGHT AS 760 TO 795 POUNDS, AND SHOWS THAT IT CARRIES A PAY LOAD OF 1000 POUNDS ON THE HIGHWAY, AND 865 POUNDS OFF THE HIGHWAY. THE CARRIER HAS A SPEED FROM A LOW OF FOUR TO A HIGH OF TWENTY- FIVE MILES PER HOUR, AND ITS COMPUTED GRADE ABILITY IN LOWEST GEAR WHEN LOADED IS 60 PERCENT. THE PURPOSE OF THE CARRIER IS:

"TO TRANSPORT LIGHT WEIGHT INFANTRY WEAPONS AND EQUIPMENT OVER CROSS- COUNTRY TERRAIN AND KEEP PACE WITH RIFLEMEN AT FOOT SPEEDS IN COMBAT.'

FURTHER, THE MANUAL SHOWS THAT:

"VEHICLE HAS OPTIONAL 2-WHEEL OR 4-WHEEL STEERING DRIVE AND LOW THROTTLED SPEED ENABLING DRIVER TO WALK OR RIDE. WHEN WALKING, IT IS POSSIBLE TO OPERATE THE VEHICLE IN REVERSE WITH STEERING WHEEL TILTED FOR EASE OF HANDLING.

"VEHICLE HAS 11 HAND HOLES AROUND PLATFORM EDGE FOR MANHANDLING WHEN NECESSARY OR FOR HELICOPTER PICKUP.'

THE FIRST INDORSEMENT DATED FEBRUARY 13, 1959, FROM THE TRANSPORTATION OFFICER, CLEVELAND ORDNANCE DISTRICT, CLEVELAND, OHIO, TO THE REGIONAL DIRECTOR, CENTRAL TRAFFIC REGION, MILITARY TRAFFIC MANAGEMENT AGENCY, ST. LOUIS, MISSOURI, STATES:

"THE VEHICLES POWER PLANT IS A FOUR CYLINDER, FOUR CYCLE, AIR COOLED ENGINE, SUCH AS USED ON POWER MOWERS OR MARINE OUTBOARD ENGINES, CAPABLE OF GENERATING 25 HORSEPOWER AND IS STARTED WITH A PULL-CORD. THIS VEHICLE DOES NOT HAVE AN ELECTRICAL SYSTEM AND CANNOT BE DRIVEN ON PUBLIC HIGHWAYS, AS TOP SPEED IS APPROXIMATELY 25 MILES PER HOUR. ALSO, IT DOES NOT HAVE HEADLIGHTS, TAIL LIGHTS OR STOP LIGHTS. ITS BRAKE SYSTEM CONSISTS OF A 5 1/2 INCH DIAMETER DRUM MOUNTED ON THE PROPELLER SHAFT WHICH DOES NOT MEET OVER THE ROAD REQUIREMENTS.' IT IS STATED, ALSO, THAT:

"IT IS THE OPINION OF THIS OFFICE THAT THE DESCRIPTION "FREIGHT AUTOMOBILE" AS PER ITEM 93340 U.F.C. DOES NOT APPLY TO THIS VEHICLE, BUT THAT IS MORE PROPERLY DESCRIBED UNDER ITEM 93440 AS ,TRUCK, WAREHOUSE, NOIBN.'

"INASMUCH AS THE COMMISSION HAS REPEATEDLY HELD THAT DIFFERENCES IN CLASSIFICATION MUST BE BASED ON DIFFERENCES IN THE NATURE OF THE ARTICLE AND NOT ON THE USE TO WHICH IT IS PUT, AND THE CLOSE PHYSICAL RELATIONSHIP BETWEEN THE M-274 AND COMMERCIAL WAREHOUSE TRUCKS, THIS OFFICE MAINTAINS THE OPINION THAT ITEM 93440 APPLIES TO THIS VEHICLE.'

THE RULING OF THE CLASSIFICATION COMMITTEE THAT THESE LIGHT WEAPONS CARRIERS SHOULD BE RATED AS FREIGHT AUTOMOBILES, NOIBN, WOULD INDICATE THAT THE COMMITTEE HAD COMPLETELY OVERLOOKED THE DIFFERENCES BETWEEN THE LIGHT WEAPONS CARRIER AND A FREIGHT AUTOMOBILE. "AUTOMOBILE" IS A GENERAL NAME ADOPTED BY POPULAR APPROVAL FOR ALL FORMS OF SELF PROPELLING VEHICLES FOR USE ON HIGHWAYS AND STREETS FOR GENERAL FREIGHT AND PASSENGER SERVICE. STANLEY V. TOMLIN, 129 S.E. 379, 382; LIFE AND CASUALTY INS. CO. OF TENNESSEE V. METCALF, 42 S.W. 2D 909, 910. FURTHER, THE WORD ,AUTOMOBILE" AS USED IN AN AUTOMOBILE LIABILITY POLICY MEANS A MOTOR DRIVEN VEHICLE MOUNTED ON FOUR WHEELS, WHETHER A SEDAN, A DELIVERY WAGON OR A TRUCK. CONTINENTAL CASUALTY COMPANY V. THE BUCKEYE UNION CASUALTY COMPANY, 143 N.E.2D 169, 172; AND COMBINED AMERICAN INSURANCE COMPANY V. MRS. CORDIE GANZER, 350 S.W.2D 211, 212. THUS, IT SEEMS THAT A FREIGHT AUTOMOBILE, AS THE TERM USUALLY IS UNDERSTOOD, MUST BE A VEHICLE CAPABLE OF BEING USED ON STREETS AND HIGHWAYS. THE LIGHT WEAPONS CARRIER, INFANTRY, 1/2 TON, 4 BY 4, M274, OR SO-CALLED "ARMY MULE," AS SHOWN ABOVE IS NOT USUALLY CONSIDERED AS A VEHICLE USED ON THE STREETS AND PUBLIC HIGHWAYS. THE PLATFORM OF THE CARRIER IS ONLY 27.50 INCHES ABOVE GROUND; IT HAS NO ELECTRICAL SYSTEM OR HEADLIGHTS, ETC., ITS SPEED IS ONLY 4 TO 25 MILES PER HOUR AND ITS BRAKING SYSTEM WILL NOT QUALIFY IT FOR USE ON THE HIGHWAYS. ACCORDINGLY, WE MUST CONCLUDE THAT THE M274 CARRIER IS NOT A SELF-PROPELLED VEHICLE CAPABLE OF BEING OPERATED OVER THE HIGHWAYS AND STREETS, SO AS TO COME WITHIN THE LEGAL DEFINITION OF A FREIGHT AUTOMOBILE. ON THE OTHER HAND, THE NATURE OF THE CARRIER AND ITS USE SEEM TO MAKE IT ANALOGOUS TO A PLATFORM OR WAREHOUSE TRUCK. THERE IS NO SPECIFIC RATING OR RATE ON THESE LIGHT WEAPONS CARRIERS. THEREFORE, WE BELIEVE THAT THESE CARRIERS SHOULD BE RATED UNDER THE RULE OF ANALOGY AS PLATFORM OR WAREHOUSE TRUCKS, NOIBN, UNDER ITEM 93440 OF THE CLASSIFICATION.

CONCERNING THE INDIVIDUAL SHIPMENTS, THE CHARGES ON THE SHIPMENTS COVERED BY BILLS OF LADING WY-8994383, WY-10756216, AND WY-10756217 HAVE BEEN SETTLED UNDER THE RULE OF ANALOGY ON THE RATING FOR WAREHOUSE OR PLATFORM TRUCKS. THEREFORE, THE SETTLEMENTS ON THESE THREE SHIPMENTS ARE AFFIRMED. THE CHARGES ON THE SHIPMENTS COVERED BY BILLS OF LADING NOS. WY -9732477 AND WY-10756214 WILL BE RECOMPUTED BY OUR TRANSPORTATION DIVISION ON THE BASIS OF CLASSIFICATION RATING AND CLASS RATE ON TRUCKS OR TRACTORS, PLATFORM OR WAREHOUSE, NOIBN, AND SETTLEMENT WILL BE MADE ON THAT BASIS. IT HAS BEEN NOTED THAT A PART OF THE SHIPMENT COVERED BY BILL OF LADING WY-10756214 WAS ACCORDED TRANSIT. THE SHIPMENTS COVERED BY BILLS OF LADING WY-10755204 AND WY 10755205 WERE ACCORDED TRANSIT AT WEST YERMO AND NEBO, CALIFORNIA, RESPECTIVELY, AND MOVED OUTBOUND TO PORT HUENEME, CALIFORNIA, FOR EXPORT TO OKINAWA, ON BILLS OF LADING NOS. M-T 05729 AND M-T 05730 VIA ,ATSF-SP-VC.' SETTLEMENT OF THE CHARGES FOR THE THROUGH MOVEMENT HAS BEEN MADE WITH THE SOUTHERN PACIFIC COMPANY ON ITS BILLS F-102256 NOV 1960 AND F-102132 NOV 1960. THEREFORE THE DISALLOWANCE OF YOUR CLAIMS ON THESE TWO SHIPMENTS IS SUSTAINED.