B-151173, AUG. 1, 1963

B-151173, AUG. 1, 1963

TO CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 25, 1963, FILE GOV-T BILL 277865, REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE (OUR TK-742859) DATED JANUARY 22, 1963, WHICH DISALLOWED YOUR CLAIM FOR $647.87 ADDITIONAL FREIGHT CHARGES ON BILL NO. 277865-A. THIS BILL WAS RENDERED IN CONNECTION WITH A SHIPMENT DESCRIBED ON GOVERNMENT BILL OF LADING A-8623639, DATED NOVEMBER 29, 1960, AS "2 N/A SPRAYER N.O.I. WITH OR W/O ENGINE MOUNTED ON 2 1/2 TON TRUCK," MOVING FROM GALION, OHIO, TO LINCOLN AIR FORCE BASE, NEBRASKA.

FOR THIS SERVICE, YOU ORIGINALLY CLAIMED AND WERE PAID TRANSPORTATION CHARGES OF $1,583.87 COMPUTED ON THE BASIS OF A CLASS 85 RATE OF $3.68 PER 100 POUNDS ON 43,040 POUNDS. IN OUR AUDIT OF THE PAYMENT VOUCHER IT WAS CONSIDERED THAT THE APPLICABLE CHARGES SHOULD BE $936 COMPUTED ON THE BASIS OF A CLASS 45 RATE OF $1.95 PER 100 POUNDS ON 24,000 POUNDS MINIMUM WEIGHT FOR EACH OF THE TWO 40-FOOT FLAT CARS (24,000 PLUS 24,000 EQUALS 48,000) ORDERED BY THE SHIPPER. THE APPLICATION OF THIS BASIS RESULTED IN AN OVERCHARGE OF $647.87, WHICH AMOUNT WAS COLLECTED BY DEDUCTION FROM AMOUNTS OTHERWISE DUE YOUR COMPANY. THE CLASS 45 RATING AND MINIMUM WEIGHT OF 24,000 POUNDS SUBJECT TO RULE 34 USED IN OUR BASIS OF CHARGE IS THAT APPLICABLE ON "SPRAYERS, NOIBN PROVIDED BY ITEM 87315 OF UNIFORM FREIGHT CLASSIFICATION NO. 5.

IN YOUR REQUEST FOR REVIEW, YOU CONTEND THAT EACH OF THE TWO ARTICLES SHIPPED WAS A COMBINATION ARTICLE RATABLE AS A MOTOR VEHICLE CHASSIS UNDERRULE 18 OF UNIFORM FREIGHT CLASSIFICATION NO. 5. THIS RULE PROVIDES IN PART:

"WHEN NOT SPECIFICALLY CLASSIFIED, ARTICLES WHICH HAVE BEEN COMBINED OR ATTACHED TO EACH OTHER WILL BE CHARGED AT THE RATING FOR THE HIGHEST CLASSED ARTICLE OF THE COMBINATION * * *.'

YOU CONTEND THE ARTICLES SHIPPED ARE MACHINERY, MOUNTED ON TRUCK CHASSIS, AND THAT THE CLASS 85 RATING FOR THE CHASSIS BEING THE HIGHER RATING OF THE COMBINATION, IT IS APPLICABLE TO THE SHIPMENT.

BILL OF LADING A-8623639 SHOWS THAT THE ARTICLES SHIPPED WERE MADE PURSUANT TO THE TERMS AND CONDITIONS OF CONTRACT AF 33/600/39334. THIS CONTRACT, WITH CEMCO INDUSTRIES, INC., GALION, OHIO, SHOWS THAT EACH OF THE ARTICLES SHIPPED WAS A

"SPRAY OUTFIT - TYPE MB-3, DE-ICING OR DECONTAMINATING FLUID, TRUCK MOUNTED; FOR USE IN DE-ICING, DEFROSTING AND DECONTAMINATING THE EXTERIOR SURFACE OF PARKED AIRCRAFT AND AS A MAINTENANCE PLATFORM FOR MAINTAINING, INSPECTING AND SERVICING LARGE AIRCRAFT * * *.'

THE ADMINISTRATIVE OFFICE ADVISES THAT

"* * * THE ITEM IS A TRUCK MOUNTED SPRAYER, USED FOR DEFROSTING, DECONTAMINATING AND DE-ICING AIRCRAFT. NEITHER THE SPRAYER NOR THE TRUCK CHASSIS COULD BE USED FOR ITS INTENDED PURPOSE WITHOUT BENEFIT OF THE OTHER.'

SINCE THESE SPRAYING OUTFITS ARE COMPLETE UNITS, EACH PART OF THE UNIT BEING DEPENDENT UPON THE OTHER FOR USE AND NEITHER BEING SUSCEPTIBLE OF USE BY ITSELF WITHOUT MODIFICATION AND RECONSTRUCTION, THEY APPEAR TO FALL WITHIN THE CLASS OF ARTICLES WHICH HAVE BEEN HELD TO CONSTITUTE COMPLETE ENTITIES, AND NOT COMBINATION ARTICLES SUBJECT TO RULE 18 OF THE UNIFORM FREIGHT CLASSIFICATION. SEE STEWART AND STEVENSON SERVICES, INC. V. B. AND O.RY.CO., 276 I.C.C. 156, 157 (1949). ALDO SEE, OAKLAND TRUCK SALES CO. V. B. AND O.RY.CO., 270 I.C.C. 548 (1948) AND HARRISON CONSTRUCTION CO. V. CINCINNATI, N.O. AND T.P. RY.CO., 266 I.C.C. 313 (1946).

IN VIEW OF THE FOREGOING AND SINCE YOU OFFER NO EVIDENCE TO SHOW THAT THE COMMODITY SHOULD BE CLASSIFIED OTHER THAN AS A SPRAYER, IT APPEARS THAT OUR BASIS OF CHARGES IS PROPER. IN THIS CONNECTION, THE BURDEN IS UPON CLAIMANTS TO PRESENT EVIDENCE SATISFACTORILY PROVING THEIR CLAIMS AND ALL MATTERS INCIDENTAL THERETO REQUISITE TO ESTABLISH THE CLEAR LIABILITY OF THE UNITED STATES AND THE CLAIMANT'S RIGHT TO PAYMENT UNDER THE APPROPRIATIONS INVOLVED. UNITED STATES V. NEW YORK, N.H. AND H.R.CO., 355 U.S. 253 (1957), 17 COMP. GEN. 831, 18 ID. 980, 37 ID. 535.

ACCORDINGLY IT APPEARS THAT THE SETTLEMENT ACTION DISALLOWING YOUR CLAIM WAS PROPER AND IS SUSTAINED.