B-149930, FEB. 19, 1963

B-149930: Feb 19, 1963

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TOPEKA AND SANTA FE RAILWAY COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 14. IN THE AUDIT OF YOUR ORIGINAL BILL IT WAS DETERMINED THAT THE CHARGES BILLED. WERE PROPERLY PAID SINCE SUCH AMOUNTS WERE NOT IN EXCESS OF CHARGES COMPUTED UNDER THE PROVISIONS OF APPLICABLE TARIFFS. YOUR CLAIM WAS DISALLOWED IN THE SETTLEMENT CERTIFICATE (CLAIM NO. BECAUSE AT THAT TIME THE BOMB BODIES WERE THOUGHT TO HAVE BEEN LOADED WITH A GELATINIZED GASOLINE MIXTURE (PT-1). WERE SHIPPED WITHOUT IGNITION ELEMENT. EXPELLANT OR BURSTER AND WERE NOT CLASSED AS DANGEROUS ARTICLES UNDER INTERSTATE COMMERCE COMMISSION REGULATIONS. EMPTY" WAS APPROVED BY THE BUREAU OF EXPLOSIVES AND. THE CORRECT CLASSIFICATION WAS CONSIDERED TO HAVE BEEN ITEM 1871 OF THE CITED CLASSIFICATION SHOWING A FIFTH CLASS RATING AT A 36.

B-149930, FEB. 19, 1963

TO THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 14, 1962, YOUR FILE G-617631, IN WHICH YOU REQUESTED REVIEW OF OUR SETTLEMENT OF FEBRUARY 13, 1961, DISALLOWING YOUR CLAIM ON SUPPLEMENTAL BILL 617631 A FOR $869.17 ADDITIONAL CHARGES ALLEGED TO BE DUE FOR TRANSPORTING THREE SHIPMENTS FROM CLOVER, UTAH, TO WEBB, ARIZONA, UNDER GOVERNMENT BILLS OF LADING WY- 1680674, WY-1680675 AND WY-1680676, DATED FEBRUARY 6, 1953. THE FIRST OF THESE BILLS OF LADING COVERED A SHIPMENT DESCRIBED AS 252 DRUMS OF "SOAP, NOIBN, O/T LIQUID (THICKENER, M2)," WEIGHING 30,492 POUNDS, AND 13 BOXES OF "AERIAL BOMBS, EMPTY, ALUMINUM (BOMB, FIRE, EXTERNAL, E 74)," WEIGHING 3,965 POUNDS, AND THE OTHER TWO BILLS OF LADING COVERED TWO SHIPMENTS EACH WEIGHING 15,250 POUNDS, AND DESCRIBED AS: 50 BOXES EACH OF "AERIAL BOMBS, EMPTY, ALUMINUM (BOMBS, FIRE, EXTERNAL, E 74).'

YOUR ORIGINAL BILL 617631 ASSESSED CHARGES ON THE SUBJECT BILLS OF LADING IN THE AMOUNT OF $1,171.62 PER SHIPMENT, COMPUTED AT A FIFTH CLASS RATE OF $2.83 PER 100 POUNDS, PLUS 15 PERCENT INCREASE, SUBJECT TO A 36,000 POUND CARLOAD MINIMUM WEIGHT. IN THE AUDIT OF YOUR ORIGINAL BILL IT WAS DETERMINED THAT THE CHARGES BILLED, IN THE AMOUNT OF $1,171.62 PER SHIPMENT, WERE PROPERLY PAID SINCE SUCH AMOUNTS WERE NOT IN EXCESS OF CHARGES COMPUTED UNDER THE PROVISIONS OF APPLICABLE TARIFFS.

IN JUNE 1960, YOU SUBMITTED SUPPLEMENTAL BILL 617631-A, FOR $869.17 AS ADDITIONAL FREIGHT CHARGES DUE, BASED ON THE FIRST CLASS RATE OF $5.12 PER 100 POUNDS, PLUS 15 PERCENT INCREASE, ON A MINIMUM WEIGHT OF 20,000 POUNDS FOR EACH OF THE THREE SHIPMENTS--- APPLYING THE RATING PROVIDED BY ITEM 1820 OF CONSOLIDATED FREIGHT CLASSIFICATION NO. 20 FOR SHIPMENTS OF INCENDIARY BOMBS. YOUR CLAIM WAS DISALLOWED IN THE SETTLEMENT CERTIFICATE (CLAIM NO. TK 703200) DATED FEBRUARY 13, 1961, BECAUSE AT THAT TIME THE BOMB BODIES WERE THOUGHT TO HAVE BEEN LOADED WITH A GELATINIZED GASOLINE MIXTURE (PT-1); WERE SHIPPED WITHOUT IGNITION ELEMENT, EXPELLANT OR BURSTER AND WERE NOT CLASSED AS DANGEROUS ARTICLES UNDER INTERSTATE COMMERCE COMMISSION REGULATIONS; ALSO, THAT THE FREIGHT CLASSIFICATION "AERIAL BOMBS, EMPTY" WAS APPROVED BY THE BUREAU OF EXPLOSIVES AND, ACCORDINGLY, THE CORRECT CLASSIFICATION WAS CONSIDERED TO HAVE BEEN ITEM 1871 OF THE CITED CLASSIFICATION SHOWING A FIFTH CLASS RATING AT A 36,000 POUND CARLOAD MINIMUM WEIGHT.

IN YOUR LETTER OF MARCH 6, 1961, YOU PROTESTED THE SETTLEMENT ON THE BASIS THAT OUR CERTIFICATE OF SETTLEMENT ADVISED THAT THESE BOMBS WERE FILLED WITH GELATINIZED GASOLINE AND WERE SHIPPED WITH EXPELLANT, BURSTER OR IGNITION ELEMENT. ALTHOUGH OUR SETTLEMENT CERTIFICATE INDICATES THAT THE BOMBS WERE FILLED WITH A GELATINIZED GASOLINE MIXTURE, IT FURTHER DESCRIBED THEM AS HAVING BEEN SHIPPED WITHOUT IGNITION ELEMENT, EXPELLANT OR BURSTER.

DURING THIS PERIOD, HOWEVER, OUR INVESTIGATION WITH THE MILITARY TRAFFIC MANAGEMENT AGENCY OF SIMILARLY DESCRIBED SHIPMENTS DISCLOSED THAT SUCH BOMBS WERE IN FACT ALUMINUM BOMB SHELLS WITHOUT BOOSTER, FUZE OR FILLER OF ANY KIND, AND WHEN SHIPPED TO A DOMESTIC ACTIVITY WERE USED AFTER BEING FILLED AT THAT POINT WITH SAND, AS PRACTICE BOMBS; THAT THESE EMPTY BOMB SHELLS, WHEN PACKED TWO TO A BOX, WEIGHED 305 POUNDS PER BOX, AND MEASURED 48.5 CUBIC FEET BUT WHEN SUPPLIED WITH BOOSTER, FUZE AND FILLER, WEIGHED 750 POUNDS EACH BOMB. SINCE THESE WEIGHTS AND MEASUREMENTS ARE IDENTICAL WITH THOSE OF THE SHIPMENTS HERE INVOLVED, A COPY OF MILITARY TRAFFIC MANAGEMENT AGENCY'S LETTER OF FEBRUARY 27, 1961, WAS FURNISHED YOU WITH OUR LETTER OF REPLY DATED AUGUST 18, 1961. HOWEVER, YOU REJECTED THIS EXPLANATION BY LETTER DATED AUGUST 28, 1961, FOR THE REASON THAT THE CLASSIFICATION AND PACKING INFORMATION IN THAT LETTER DID NOT REFER TO THE BILLS OF LADING LISTED ON YOUR SUPPLEMENTAL BILL.

WE FURTHER INVESTIGATED THE DESCRIPTION AND PACKING OF THE COMMODITIES ON THE SPECIFIC BILLS OF LADING, BY LETTER OF NOVEMBER 6, 1961, TO THE MILITARY TRAFFIC MANAGEMENT AGENCY. IN ITS REPLY OF JANUARY 11, 1962, THAT AGENCY ENCLOSED 1ST INDORSEMENT, DATED DECEMBER 19, 1961, FROM TOOELE ORDNANCE DEPOT, TOOELE, UTAH, ADVISING THAT THE SUBJECT BOXES CONTAINED EMPTY ALUMINUM AERIAL BOMBS, AND THAT THE STEEL DRUMS INCLUDED ON BILL OF LADING WY-1680674 CONTAINED SOAP, O/T LIQUID; ALSO THE SHIPMENTS REQUIRED NO PLACARDS OF ANY KIND.

ON THE BASIS OF THE ABOVE INFORMATION THE SETTLEMENT WAS RECONSIDERED AND IT WAS DETERMINED THAT $256.25 OF THE $857.21 CLAIMED ON BILL OF LADING WY -1680674 WAS ALLOWABLE ON THE BASIS THAT THE BOMB SHELLS AND SOAP, NOIBN, OTHER THAN LIQUID, WERE PACKED IN SEPARATE CONTAINERS AND THEREFORE, IN ACCORDANCE WITH RULE 10 OF CONSOLIDATED FREIGHT CLASSIFICATION NO. 20, THE DRUMS OF SOAP WERE PROPERLY RATABLE AT THE FIFTH CLASS CARLOAD RATING, MINIMUM WEIGHT 36,000 POUNDS, PROVIDED BY ITEM 40865 OF THE CLASSIFICATION, AND THE 3,965 POUNDS OF EMPTY BOMBS WERE RATABLE AS A LESS -THAN-CARLOAD SHIPMENT AT THE FIRST CLASS RATING AND ACTUAL WEIGHT, AS PROVIDED FOR ALUMINUM ARTICLES, THE SAME INFORMATION, CHARGES ON BILLS OF LADING NOS. WY-1680675 AND WY 1680676 WERE RECOMPUTED AT THE CLASS 75 RATING, SUBJECT TO A MINIMUM WEIGHT OF 14,000 POUNDS; THAT IS, AT THE CARLOAD RATING APPLICABLE TO ALUMINUM ARTICLES, NOIBN, NAMED IN ITEM 1540, RESULTING IN OVERCHARGES IN THE SUM OF $837.52, AGAINST WHICH $256.25 ALLOWED ON BILL OF LADING WY-168074 WAS APPLIED AS AN OFFSET, LEAVING A BALANCE OF $581.27 DUE THE UNITED STATES, AS SHOWN IN DETAIL IN OUR OVERCHARGE NOTICE (FORM 1003) TO YOU DATED FEBRUARY 26, 1962.

IN YOUR PRESENT LETTER YOU ASK THAT WE MAKE A COMPLETE INVESTIGATION AS TO THE TRUE IDENTITY OF THE COMMODITY SHIPPED. IN THIS CONNECTION, WE HAVE RECEIVED FROM THE DEFENSE TRAFFIC MANAGEMENT SERVICE A 1ST INDORSEMENT--- WHICH APPARENTLY WAS IN RESPONSE TO YOUR INQUIRY TO THAT AGENCY OF MAY 11, 1962, CONCERNING THE ACTUAL COMMODITY SHIPPED UNDER THE SUBJECT BILLS OF LADING--- WHICH READS IN PERTINENT PART AS FOLLOWS:

"1. REFERENCE PARAGRAPH 2 OF BASIC LETTER. THE SUBJECT ITEM, AERIAL BOMB, ALUMINUM EMPTY, E 74 IS NOTHING MORE THAN AN ALUMINUM SKIN AND COMPLETELY INERT. THIS ITEM HAS BEEN STANDARDIZED AND ASSIGNED MODEL NUMBERS M 116 AND M 116A1 WITH FEDERAL STOCK NUMBER 1325-305 5728-E-150.

"2. THIS BOMB IS NOT TO BE CONFUSED WITH BOMB, INCENDIARY M74, WHICH IS A SMALL 10 LB. PT1 FILLED BOMB USED IN INCENDIARY CLUSTERS, FEDERAL STOCK NUMBER 1325-219-8451-E611.

"3. THE BOMB THAT WAS SHIPPED WAS A CLASS "C" ITEM UNDER I.C.C. REGULATIONS AND DID NOT REQUIRE PLACARDS. THE THICKENER M2, FEDERAL STOCK NUMBER 1365-277-3034-K923 IS A GRANULAR SOAP AND NOT A LIQUID.'

ON THE BASIS OF THIS INDORSEMENT AND PREVIOUS REPORTS (WHICH WERE FORWARDED TO YOU) WE ARE SATISFIED THAT THE BOMBS SHIPPED WERE, IN FACT, EMPTY.

WE FEEL, HOWEVER, THAT THE DESCRIPTION "AERIAL BOMBS, EMPTY" CONTAINED IN ITEM 1871 OF CLASSIFICATION NO. 20 EMBRACES THE EMPTY ALUMINUM AERIAL BOMBS CONTAINED IN THESE SHIPMENTS AND IS MORE SPECIFIC THAN THE DESCRIPTION "ALUMINUM ARTICLES, NOIBN.' ACCORDINGLY, WE HAVE RE-EXAMINED THE BASIS OF CHARGES ON THE BOMB PORTION OF THE SHIPMENTS IN THE LIGHT OF ITEM 1871 OF THE CLASSIFICATION (FIFTH CLASS AT A 36,000 POUND MINIMUM CARLOAD WEIGHT) AND, SINCE THE SOAP PORTION OF THE FIRST SHIPMENT TAKES THE SAME RATING AND MINIMUM WEIGHT UNDER ITEM 40865, THE CHARGES AS NOW COMPUTED ARE THE SAME AS THOSE ORIGINALLY BILLED AND PAID TO YOUR COMPANY. THEREFORE, WE HAVE WITHDRAWN OUR NOTICE OF OVERCHARGE OF FEBRUARY 26, 1962, FOR $837.52-- WHICH HAS THE EFFECT OF NULLIFYING OUR SETTLEMENT OF FEBRUARY 21, 1962, IN WHICH YOU WERE ALLOWED $256.25--- AND ARE SUSTAINING THE PRIOR SETTLEMENT WHICH DISALLOWED YOUR CLAIM FOR $869.17 IN ITS ENTIRETY.