B-150937, AUG. 13, 1963

B-150937: Aug 13, 1963

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FOR TRANSPORTATION OF THE "STEPLADDERS" YOU ORIGINALLY CLAIMED AND WERE PAID FREIGHT CHARGES OF $12.70 COMPUTED AT A RATE OF $2.94 PER 100 POUNDS ON THE 432 POUNDS OF SUCH ARTICLES SHIPPED. YOUR SUPPLEMENTAL BILL WAS ACCOMPANIED BY A "STATEMENT OF UNDERCHARGE. IS DESCRIBED IN USAF STOCK LIST PUBLICATION AS: STEP LADDER. IT IS THE OPINION OF THIS OFFICE THAT ITEM HAS BEEN PROPERLY DESCRIBED ON SUBJECT BILL OF LADING IN ACCORDANCE WITH NATIONAL MOTOR FREIGHT CLASSIFICATION A-6 ITEM NUMBER 108900.'. A COPY OF THIS LETTER WAS FURNISHED TO YOU WITH CERTIFICATE OF SETTLEMENT DATED AUGUST 29. WE DO NOT BELIEVE THAT YOU OR ANYONE ELSE CAN CONSCIENTIOUSLY DISAGREE THAT THE ITEMS IN QUESTION ARE IN FACT AIRCRAFT MAINTENANCE STANDS AND THAT A MORE APPROPRIATE DESCRIPTION THAN THAT CONTAINED IN ITEM 87475.

B-150937, AUG. 13, 1963

TO THE M.R. AND R. TRUCKING COMPANY:

IN YOUR LETTER OF FEBRUARY 20, 1963, FILE MR AND R W/B 657987, YOU REQUEST REVIEW OF OUR SETTLEMENT OF DECEMBER 28, 1962, DISALLOWING $4.23 OF YOUR BILL NO. SUPP-3860-60, BY WHICH YOU CLAIMED ADDITIONAL CHARGES OF $12.70 FOR THE TRANSPORTATION OF A LESS THAN TRUCKLOAD MIXED SHIPMENT UNDER GOVERNMENT BILL OF LADING NO. A-8337672 DATED AUGUST 25, 1960, CONSISTING IN PART OF ARTICLES DESCRIBED THEREON AS "4 PCS. STEPLADDERS NOI STEEL SU," FROM BROOKLEY AIR FORCE BASE, ALABAMA, TO EGLIN AIR FORCE BASE, FLORIDA. FOR TRANSPORTATION OF THE "STEPLADDERS" YOU ORIGINALLY CLAIMED AND WERE PAID FREIGHT CHARGES OF $12.70 COMPUTED AT A RATE OF $2.94 PER 100 POUNDS ON THE 432 POUNDS OF SUCH ARTICLES SHIPPED. SUBSEQUENTLY, YOU SUBMITTED YOUR SUPPLEMENTAL BILL FOR AN ADDITIONAL AMOUNT OF $12.70, COMPUTED ON THE BASIS OF A CLASS 300 LESS THAN TRUCKLOAD RATING PROVIDED IN ITEM 87475-A, SUPPLEMENT 21 TO NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4, MF I.C.C. NO. 1, ON "STAIRWAYS; RAMPS, OTHER THAN DOCKBOARDS; PLATFORMS; STANDS; OR CHUTES; AIRCRAFT OR SHIP LOADING, UNLOADING OR SERVICE, PORTABLE, S.U.' YOUR SUPPLEMENTAL BILL WAS ACCOMPANIED BY A "STATEMENT OF UNDERCHARGE," BEARING FOLLOWING CORRECTION NOTICE:

"/AS BILLED) 4 PCS STEP-LADDERS, N.O.I., STEEL, S.U. (SHOULD READ) 4 LOOSE STANDS AIRCRAFT SERVICE PORTABLE S.U. (SEE PHOTO ATTACHED).'

IN REPLY TO OUR INQUIRY FOR A COMPLETE DESCRIPTION OF THE ARTICLES SHIPPED, THE ADMINISTRATIVE OFFICE REPORTED IN FIRST INDORSEMENT OF JULY 19, 1962, SIGNED BY MAJOR ROBERT F. VIA, CHIEF, TRANSPORTATION OPERATIONS DIVISION, MOAMA, BROOKLEY AIR FORCE BASE, ALABAMA, AS FOLLOWS:

"1. COMPLETE DESCRIPTION OF ITEM DESCRIBED ON BILL OF LADING A8337672, REQUISITION 282300844900, AS STEPLADDERS, NOI, STEEL, S.U., IS DESCRIBED IN USAF STOCK LIST PUBLICATION AS: STEP LADDER, STEEL, 6 FT 9 INCHES HI MAX, UNDER STOCK NUMBER 54406840722.

"2. IT IS THE OPINION OF THIS OFFICE THAT ITEM HAS BEEN PROPERLY DESCRIBED ON SUBJECT BILL OF LADING IN ACCORDANCE WITH NATIONAL MOTOR FREIGHT CLASSIFICATION A-6 ITEM NUMBER 108900.'

A COPY OF THIS LETTER WAS FURNISHED TO YOU WITH CERTIFICATE OF SETTLEMENT DATED AUGUST 29, 1962, DISALLOWING YOUR CLAIM IN FULL. BY YOUR LETTER OF SEPTEMBER 5, 1962, ADDRESSED TO OUR TRANSPORTATION DIVISION, YOU REQUESTED RECONSIDERATION OF THE DISALLOWANCE ASSERTING IN PART:

"REGARDING THE QUESTION OF CLASSIFICATION, WE DO NOT BELIEVE THAT YOU OR ANYONE ELSE CAN CONSCIENTIOUSLY DISAGREE THAT THE ITEMS IN QUESTION ARE IN FACT AIRCRAFT MAINTENANCE STANDS AND THAT A MORE APPROPRIATE DESCRIPTION THAN THAT CONTAINED IN ITEM 87475, NMFC NO. A 4, IS VIRTUALLY UNOBTAINABLE.

"CONSIDER NOW MAJOR VIA'S LETTER AND THE SPONSORED DESCRIPTION "STEP LADDERS, N.O.I., STEEL, S.U.' AS DESCRIBED IN ITEM 108900, NMFC NO. A 6. FIRST OF ALL, THE GOVERNING CLASSIFICATION FOR THIS SHIPMENT WAS NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4 RATHER THAN A-6 AND THE ITEM NUMBER WOULD BE 56003, SUPPLEMENT 29. REFER NOW TO PAGE 1 OF NMFC NO. A-4 AND NOTE THAT THE EXPLANATION FOR THE ABBREVIATION "N.O.I.' IS "NOT MORE SPECIFICALLY DESCRIBED HEREIN.' SINCE IT IS AN ELEMENTARY RULE OF CLASSIFICATION THAT SPECIFIC DESCRIPTIONS TAKE PRECEDENCE OVER N.O.I. DESCRIPTIONS, WE SUBMIT THAT THERE IS ABSOLUTELY NO BASIS FOR THE POSITION YOUR OFFICE HAS TAKEN.'

THE PHOTOGRAPH FURNISHED BY YOU WAS FORWARDED TO THE ADMINISTRATIVE OFFICE WITH LETTER OF SEPTEMBER 26, 1962, REQUESTING VERIFICATION THAT THE PHOTOGRAPH FURNISHED BY YOU WAS REPRESENTATIVE OF THE ARTICLE SHIPPED AND ITS FURTHER VIEWS. IN REPLY OF OCTOBER 15, 1962, THE ADMINISTRATIVE OFFICE STATED:

"2. ATTACHED ARE PHOTOGRAPHS OF AN ITEM IDENTICAL TO THE ITEMS SHIPPED ON GB/L A-8337672. THE CORRECT FREIGHT DESCRIPTION IS "STEP LADDERS, METAL, OTHER THAN FOLDING," NMFC ITEM NUMBER 108850. THE NOTE UNDER NMFC ITEM NUMBER 108852 IS APPLICABLE. THIS DESCRIPTION WAS DEVELOPED FROM AN ACTUAL REVIEW OF THE ITEM.'

ALTHOUGH REFERENCE IS MADE IN SUCH REPORT TO ITEMS NOS. 108850 AND 108852 IN NMFC NO. A-6, MF-I.C.C. NO. A-4, SUCH ITEMS ARE IDENTICAL TO ITEMS NOS. 55990 AND 55991 IN APPLICABLE NMFC NO. A-4, MF-I.C.C. NO. 1, AND YOU WERE INFORMED BY LETTER OF DECEMBER 6, 1962, FROM THE DIRECTOR OF OUR TRANSPORTATION DIVISION THAT THE ITEMS APPEARED PROPERLY RATABLE UNDER THE CLASS 250 LESS THAN TRUCKLOAD RATING UNDER ITEMS NOS. 55990 AND 55991, NMFC NO. A-4, RATHER THAN CLASS 150 LESS THAN TRUCKLOAD UNDER ITEM NO. 56003, AND BASED UPON SUCH CLASSIFICATION YOUR CLAIM WAS ALLOWED IN THE AMOUNT OF $8.47 AND DISALLOWED IN THE AMOUNT OF $4.23. YOU THEN REQUESTED REVIEW BY THE COMPTROLLER GENERAL OF THE DISALLOWANCE OF THE SUM OF $4.23.

YOU HAVE DRAWN ATTENTION TO THE REPEATED REFERENCE BY MAJOR VIA TO THE CURRENT CLASSIFICATION RATHER THAN TO THE ONE IN EFFECT IN 1960. HOWEVER, THE VARIOUS INSTALLATIONS DO NOT ORDINARILY RETAIN SUPERSEDED PUBLICATIONS FOR INDEFINITE PERIODS AND WE ASSUME THAT IN MAKING THE REPORTS, IT IS LIKELY THE MAJOR HAD ONLY THE CURRENT PUBLICATIONS TO WHICH HE REFERRED. THUS IN THE MAJOR'S REPORT OF JULY 19, 1962, REFERENCE IS MADE TO "STOCK NUMBER 54406840722," IN THE USAF STOCK LIST PUBLICATION AS THE DESIGNATION OF THE ITEM SHIPPED. HOWEVER, THAT STOCK NUMBER FIRST APPEARED IN THE STOCK LIST OF AUGUST 1, 1962, AND REPLACED STOCK NO. 5440-245-0965, WHICH WAS THE IDENTIFYING STOCK NUMBER IN 1960, WHEN THE SHIPMENT MOVED. THE ATTACHED REPRODUCTION OF A PICTURE OF THE ARTICLE UNDER SUCH STOCK NUMBER, ILLUSTRATION NO. 872, SHOWS MORE CLEARLY THEN THE PHOTOGRAPH FURNISHED WITH YOUR LETTER WHAT THE ADMINISTRATIVE OFFICE REPORTS WAS ACTUALLY SHIPPED.

YOUR PRESENT CONTENTION IS THAT THE ITEMS FORWARDED, AS SHOWN IN THE ILLUSTRATION, SHOULD BE CLASSIFIED AS MAINTENANCE OR SERVICE STANDS UNDER ITEM NO. 87475-A OF THE GOVERNING CLASSIFICATION, WHILE OUR SETTLEMENT OF DECEMBER 28, 1962, WAS BASED ON THE VIEW THAT THE ITEM IS PROPERLY CLASSIFIED UNDER ITEM NO. 55990 AND ITEM NO. 55991. ITEMS NOS. 55990- 55991, NMFC NO. A-4, PROVIDE A CLASS 250 LESS THAN TRUCKLOAD RATING FOR

"55990 STEP LADDERS OR STEP LADDER-TRUCKS, METAL, OTHER THAN FOLDING, SEE NOTE, ITEM 55991.

"55991 NOTE--- RATINGS APPLY ONLY ON LADDERS OR LADDER-TRUCKS HAVING TWO OR MORE STEPS, WITH WHEELS OR CASTERS AND WITH OR WITHOUT HAND RAILS, SUCH AS USED FOR MAINTENANCE OR STOCK WORK.'

THESE ITEMS DO NOT ESTABLISH AN N.O.I. CLASSIFICATION, AS WAS THE CASE IN CONNECTION WITH THE ORIGINAL BILLING AND CLASSIFICATION UNDER ITEM NO. 56003, SUP. 29 TO MOTOR FREIGHT CLASSIFICATION NO. A-4.

A LADDER IS DEFINED IN WEBSTER'S NEW INTERNATIONAL DICTIONARY, SECOND EDITION, AS AN APPLIANCE OF WOOD, METAL, OR ROPE, USUALLY PORTABLE, CONSISTING, IN ITS SIMPLEST FORM, OF TWO LONG SIDE PIECES, USUALLY PARALLEL; JOINED AT SHORT INTERVALS BY CROSS PIECES CALLED ROUNDS, RUNDLES, OR MORE COMMONLY RUNGS, ON WHICH A PERSON MAY STEP ASCENDING OR DESCENDING. IN A STEPLADDER THE RUNGS ARE REPLACED WITH FLAT COMPARATIVELY BROAD STEPS. THE DEFINITION IN FUNK AND WAGNALLS NEW STANDARD DICTIONARY, 1942, IS SIMILAR. SEE DAVIS V. BUSS MACHINE WKS. 135 N.W. 303, 304. A STAND IS DEFINED HOWEVER AS A STRUCTURE UPON WHICH PERSONS OR THINGS MAY STAND, OR ON WHICH ARTICLES MAY BE KEPT OR DISPLAYED, OR AS A STRUCTURE UPON WHICH PERSONS MAY SIT OR STAND, AS A PLATFORM OR A SERIES OF RAISED SEATS. AND A PLATFORM IS DEFINED AS ANY FLOOR OR FLAT SURFACE USUALLY HIGHER THAN THE ADJOINING GROUND OR ADJACENT LEVEL, AS A DAIS, TERRACE OR SCAFFOLD. OR, IN WEBSTER-S, AS HORIZONTAL AND GENERALLY FLAT SURFACE, USUALLY HIGHER, AND RARELY LOWER, THAN THE ADJOINING GROUND OR FLOOR. THE LATTER DEFINITION WAS QUOTED IN ASEN V. JOS. SCHLITZ BREWING CO., 106 N.W.2D 269, 273; AND IN BIANCHI V. SEARS ROEBUCK AND CO., 116 N.Y.S.2D 512, 517. THEREFORE ANY LADDER UPON WHICH A PERSON STANDS FOR MAINTENANCE OR OTHER WORK BECOMES A STAND; AND ANY STEP ON THE LADDER MAY BE A PLATFORM, BUT THE ITEM REMAINS MORE SPECIFICALLY DESCRIBED AS A LADDER. LADDERS USED FOR MAINTENANCE ARE SPECIFICALLY CLASSIFIED IN ITEM NO. 55990 AS INDICATED IN THE NOTE IN ITEM NO. 55991. ALSO THE ILLUSTRATION OF THE ITEM ON PAGE 202 OF THE STOCK CATALOG CLEARLY SHOWS THAT THE LADDER IS EQUIPPED WITH CASTORS AS REQUIRED BY THAT NOTE. MOREOVER, IF THE LANGUAGE OF THE CLASSIFICATION IS CONSIDERED SO AMBIGUOUS OR DOUBTFUL THAT THE ARTICLES SHIPPED REASONABLY COULD BE CONSIDERED AS PROPERLY CLASSIFIABLE UNDER EITHER ITEM 87475-A OR 55990 55991 OF THE CLASSIFICATION, ANY AMBIGUITY IS REQUIRED TO BE CONSTRUED AGAINST THE CARRIER AND IN FAVOR OF THE SHIPPER. ATLANTIC COMMISSION CO. V. ALABAMA G.S.R. CO., 253 I.C.C. 399, 404.

ACCORDINGLY, IT IS OUR VIEW THAT THE ARTICLES SHIPPED ARE PROPERLY CLASSIFIED UNDER ITEMS 55990 AND 55991 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4 AND THE DISALLOWANCE OF $4.23 OF YOUR CLAIM IS SUSTAINED.