B-150409, AUG. 9, 1963

B-150409, AUG. 9, 1963

TO CHICAGO, BURLINGTON AND QUINCY RAILROAD CO.:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 30, 1962, FILE REFERENCES GOVT. BILLS 274325-B, 276481-A AND 276533-A, REQUESTING A REVIEW OF THE SETTLEMENTS WHICH DISALLOWED YOUR CLAIMS FOR ADDITIONAL FREIGHT CHARGES ALLEGEDLY DUE ON YOUR BILLS BEARING THE INDICATED NUMBERS. YOUR REQUEST FOR REVIEW IS PREDICATED ON THE VIEW THAT THE COMMODITIES INVOLVED IN THE SHIPMENTS ARE RATABLE AS COMBINATION ARTICLES WITHIN THE MEANING OF RULE 18 OF THE GOVERNING FREIGHT CLASSIFICATION, AND THAT THE APPLICABLE CHARGES ARE THOSE COMPUTED BY USE OF THE CLASS 85 RATING NAMED IN THE CLASSIFICATION FOR SHIPMENTS OF FREIGHT AUTOMOBILES, THE HIGHEST RATING PROVIDED FOR ANY COMPONENT ARTICLE OF THE COMBINATION.

THE COMMODITIES WHICH MOVED ON GOVERNMENT BILLS OF LADING AF-9910087 AND AF-9910088, DATED FEBRUARY 25, 1960 (YOUR BILL 276481-A), WERE DESCRIBED THEREON AS "TRUCKS, TANK, AIRCRAFT DEMINERALIZED WATER SERVICING, 2600 GAL. CAPACITY 300 GPM, COMMERCIAL CHASSIS (IHC) AS VEHICLES MOTOR FREIGHT, SU," AND PARTS. THE ADMINISTRATIVE OFFICE CONCERNED HAS ADVISED US THAT THE ITEM IS A COMPLETE, INTEGRATED UNIT AND THAT THE WATER SERVICING MACHINERY IS OPERATED BY THE ENGINE OF THE TRUCK ITSELF. THE FACT THAT WATER CAN BE LOADED OR UNLOADED AT THE RATE OF 300 GALLONS PER MINUTE SEEMS CLEARLY TO ESTABLISH THAT THE COMMODITY IS NOT A WATER DISTRIBUTOR OR SPRAYER SUCH AS THAT INVOLVED IN THE OTHER TWO SHIPMENTS. ON THE BASIS OF THE INFORMATION AVAILABLE HERE, WE ARE OF THE VIEW THAT THE COMMODITY INVOLVED IN THIS SHIPMENT IS A SINGLE, INTEGRATED, SPECIALIZED MOBILE MACHINE FOR WATER PURIFICATION, AND NOT A COMBINATION ARTICLE. SINCE THE CLASSIFICATION CONTAINS NO SPECIFIC DESCRIPTION FOR THE COMMODITY, WE ARE OF THE VIEW THAT THE RATING FOR ,MACHINERY, NOI" IS PROPERLY APPLICABLE.

THE COMMODITY WHICH MOVED ON GOVERNMENT BILL OF LADING AF-746568 (YOUR BILL 276533-A) IS DESCRIBED THEREON AS "SPRAYER NOI, WITH OR W/O ENGINE MTD ON 2 1/2 TON TRUCK.' THE BILL OF LADING ALSO SHOWS THAT IT WAS SHIPPED FROM CEMCO INDUSTRIES, INC., GALION, OHIO, WHERE IT WAS MANUFACTURED UNDER CONTRACT AF-33/600/39334. AN EXAMINATION OF THE CONTRACT SHOWS THAT THIS COMMODITY ALSO IS SPECIALIZED SERVICING MACHINERY, A SPRAY OUTFIT DESIGNED FOR USE IN DE-ICING OR DECONTAMINATING THE EXTERIOR SURFACES OF PARKED AIRCRAFT, AND AS A MAINTENANCE PLATFORM FOR SERVICING LARGE AIRCRAFT. THE PERFORMANCE OF THIS FUNCTION REQUIRES THAT THE SPRAYER AND OTHER MACHINERY BE MOBILE, AND THIS ESSENTIAL MOBILITY IS PROVIDED BY PERMANENTLY INCORPORATING A HEAVY DUTY TRUCK CHASSIS INTO THE UNIT. HOWEVER, THE ADDITION OF THE ELEMENT OF MOBILITY DOES NOT CHANGE THE BASIC CHARACTERISTIC OF THE UNIT AS A SPRAYER. ITEM 87315, UNIFORM FREIGHT CLASSIFICATION NO. 5, MEANS A CLASS 45 CARLOAD RATING ON "SPRAYER, NOIBN, WITH OR WITHOUT ENGINES * * * LOOSE OR IN PACKAGES * * *.' THERE IS NO EXPRESS EXCLUSION OF SPRAYERS THAT ARE SELF- PROPELLED; AND THE VERY FUNCTION OF A SPRAYER IMPLIES THE NECESSITY FOR MOBILITY. WE THEREFORE ARE OF THE VIEW THAT THE COMMODITY SHIPPED CLEARLY FALLS WITHIN THE PURVIEW OF ITEM 87315, AND THAT THE SETTLEMENT ACTION TAKEN ON THAT BASIS WAS CORRECT.

THE COMMODITY MOVING ON GOVERNMENT BILL OF LADING WY-7769732 (YOUR BILL 274325-B) WAS DESCRIBED AS "1 EA FREIGHT AUTOMOBILES, COMBINED WITH MACHINERY, NOIHN (DISTRIBUTOR), WATER, TANK TYPE, TRUCK MTD * * *.' THE APPLICABLE CHARGE AS COMPUTED BY OUR TRANSPORTATION DIVISION IS BASED ON THE CLASS 45 RATING PROVIDED IN ITEM 63220 OF THE CLASSIFICATION FOR CARLOAD SHIPMENTS OF ,MACHINERY OR MACHINES, NOIBN.' IN YOUR LETTER OF NOVEMBER 30, 1962, YOU CONTEND THAT MOBILE WATER DISTRIBUTORS SHOULD BE CLASSIFIED IN ACCORDANCE WITH THE COMBINATION ARTICLE RULE BECAUSE, WHILE THE WATERING MECHANISM MAY BE OPERATED FROM THE TRUCK ENGINE, THE TRUCK ENGINE CAN BE USED INDEPENDENTLY TO PROPEL THE TRUCK WITHOUT USING THE WATERING DEVICE AND, CONVERSELY, THE WATERING DEVICE CAN BE OPERATED SEPARATELY WITHOUT PROPELLING THE VEHICLE.

WE DO NOT AGREE THAT THE MERE OPERATING INDEPENDENCE OF THE COMPONENTS IS CONTROLLING. WE BELIEVE THAT THE DETERMINATIVE FACTOR IS THE FACT THAT THE COMPONENTS CONSTITUTE INTEGRAL PARTS OF A COMPLETE WORKING UNIT. THE WATER DISTRIBUTOR, LIKE THE OTHER TWO ITEMS OF MACHINERY, DOES CONSTITUTE SUCH A SINGLE COMPLETE MOBILE WORKING UNIT. IT IS OUR UNDERSTANDING THAT THE PRIMARY FUNCTION OF THE WATER DISTRIBUTOR UNIT IS FOR SOIL STABILIZATION WORK, THROUGH THE APPLICATION OF AN ACCURATELY METERED DISTRIBUTION OF WATER TO SURFACES THAT HAVE BEEN TREATED WITH CEMENT OR OTHER MATERIALS OR OTHERWISE REQUIRE MEASURED QUANTITIES OF WATER FOR PROPER COMPACTION. A FIFTH WHEEL TACHOMETER ASSEMBLY IS USED TO PERMIT DISPENSING A PREDETERMINED QUANTITY OF WATER OR OTHER LIQUID HAVING SIMILAR VISCOSITY TO A GIVEN AREA. THE PERFORMANCE OF THIS FUNCTION REQUIRES THE SIMULTANEOUS OPERATION OF ALL OF THE MAJOR COMPONENTS.

IN THE LIGHT OF THE FOREGOING CONSIDERATIONS, WE ARE OF THE VIEW THAT THREE COMMODITIES INVOLVED IN THE PRESENT SHIPMENTS WERE INTEGRATED, MOBILE MACHINES OF A SPECIALIZED NATURE, AND NOT A COMBINATION OF ARTICLES WITHIN THE PURVIEW OF RULE 18 OF THE CLASSIFICATION. THE MATTER OF THE PROPER CLASSIFICATION OF MOBILE WATER DISTRIBUTORS IS NOW PENDING BEFORE THE INTERSTATE COMMERCE COMMISSION ON REFERRAL FROM THE UNITED STATES COURT OF CLAIMS (ATLANTIC COAST LINE R.CO. V. UNITED STATES, CT.CL. NO. 91 -62, I.C.C. DOCKET NO. 34248; AND SEABOARD AIR LINE RAILROAD COMPANY V. UNITED STATES, CT.CL. NO. 119-62, I.C.C. DOCKET NO. 34284, SUB. 1). THE ISSUE AS TO THE PROPER CHARGE BASIS FOR THE SPRAYER (DECONTAMINATING APPARATUS) IS PENDING IN THE UNITED STATES COURT OF CLAIMS IN UNION PACIFIC RAILROAD CO. V. UNITED STATES, CT.CL. 102-62; UNION PACIFIC RAILROAD CO. V. UNITED STATES, CT.CL. 264-62; AND GREAT NORTHERN RAILWAY CO. V. UNITED STATES, CT.CL. 76-62. THE DECISIONS OF THE COMMISSION AND THE COURT IN THE PENDING ACTIONS MAY PROVIDE A DEFINITIVE DETERMINATION OF THE ISSUES.

IN THE MEANTIME, HOWEVER, THE ALLOWABLE CHARGES ON THE SHIPMENTS HERE INVOLVED MUST BE LIMITED TO THOSE COMPUTED ON THE BASIS OF THE CLASS 45 CARLOAD RATINGS. SINCE YOU HAVE ALREADY BEEN PAID THE AMOUNTS PROPERLY DUE ON THAT BASIS, THE SETTLEMENTS DISALLOWING YOUR CLAIMS 274325-B, 276481-A AND 276533-A ARE CORRECT, AND THEY ARE SUSTAINED.