B-155857, APR. 19, 1965

B-155857: Apr 19, 1965

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MOBILE AND OHIO RAILROAD COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 23. FOR THE TRANSPORTATION SERVICE INVOLVED YOUR COMPANY ORIGINALLY BILLED AND WAS PAID $347.56 (IN AUGUST 1948). IS PROVIDED FOR SHIPMENTS OF "BOXES. THE SETTLEMENT CERTIFICATE DISALLOWING YOUR SUPPLEMENTAL BILL POINTED OUT THAT THE DESCRIPTION OF THE SHIPMENT ON THE BILL OF LADING SPECIFICALLY INDICATES THAT THE BOXES WERE "USED. IT APPEARS TO BE YOUR VIEW THAT ITEM 6030 OF THE CLASSIFICATION IS A MORE SPECIFIC DESCRIPTION OF THE COMMODITY SHIPPED THAN ITEM 6110. IT IS CLEAR THAT BOTH DESCRIPTIONS ARE "NOIBN" DESCRIPTIONS AND. THE MEANINGFUL PHRASEOLOGY THEREIN USED IS NOT MERELY "BOXES. OUR TRANSPORTATION DIVISION INFORMED YOU THAT THE USED WOODEN BOXES IN THIS SHIPMENT DID NOT HAVE HINGED COVERS.

B-155857, APR. 19, 1965

TO GULF, MOBILE AND OHIO RAILROAD COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 23, 1964, IN WHICH YOU REQUESTED A REVIEW OF OUR SETTLEMENT CERTIFICATE IN CLAIM NO. TK 580464, DISALLOWING YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES OF $279.97 ON A SHIPMENT OF USED WOODEN ENGINE SHIPPING BOXES THAT MOVED FROM HILL FIELD, UTAH, TO BROOKLEY FIELD, ALABAMA, UNDER GOVERNMENT BILL OF LADING NO. WV-986851, DATED APRIL 8, 1948.

FOR THE TRANSPORTATION SERVICE INVOLVED YOUR COMPANY ORIGINALLY BILLED AND WAS PAID $347.56 (IN AUGUST 1948), COMPUTED AT THE CLASS B RATE OF $1.68 PER 100 POUNDS, INCREASED TO $2.02, PLUS 20 PERCENT UNDER APPLICABLE INCREASE TARIFF PROVISIONS. A CLASS B CARLOAD RATING, MINIMUM WEIGHT 12,000 POUNDS, IS PROVIDED FOR SHIPMENTS OF "BOXES, WOODEN, NOIBN, OLD, NOT NESTED, LOOSE OR IN PACKAGES," IN ITEM 6110, CONSOLIDATED FREIGHT CLASSIFICATION NO. 17. IN FEBRUARY 1955, YOU SUBMITTED YOUR SUPPLEMENTAL BILL, CLAIMING ADDITIONAL CHARGES OF $279.97, COMPUTED ON THE BASIS OF THE 3RD CLASS CARLOAD RATING, MINIMUM WEIGHT 12,000 POUNDS, NAMED IN ITEM 6030 OF THE CLASSIFICATION, WHICH PRESCRIBES THAT RATING FOR SHIPMENTS OF "BOXES, SHIPPING, WOODEN, OR SHEET STEEL AND WOOD COMBINED, WITH HINGES AND COVER FASTENERS OR LOCKS ATTACHED, NOIBN.' THE SETTLEMENT CERTIFICATE DISALLOWING YOUR SUPPLEMENTAL BILL POINTED OUT THAT THE DESCRIPTION OF THE SHIPMENT ON THE BILL OF LADING SPECIFICALLY INDICATES THAT THE BOXES WERE "USED," AND THEREFORE FELL WITHIN THE PURVIEW OF ITEM 6110 OF THE CLASSIFICATION.

YOU EXPRESS DISAGREEMENT AS TO THE APPLICABILITY OF ITEM 6110, NOTWITHSTANDING YOUR ORIGINAL BILLING ON THAT BASIS. IT APPEARS TO BE YOUR VIEW THAT ITEM 6030 OF THE CLASSIFICATION IS A MORE SPECIFIC DESCRIPTION OF THE COMMODITY SHIPPED THAN ITEM 6110; BUT IT IS CLEAR THAT BOTH DESCRIPTIONS ARE "NOIBN" DESCRIPTIONS AND, THEREFORE, EQUAL IN DEGREE OF SPECIFICITY. IN THOSE CIRCUMSTANCES, WE DO NOT BELIEVE THAT ITEM 6030 ACCURATELY DESCRIBES THE COMMODITY ACTUALLY SHIPPED, IN THE LIGHT OF THE BILL OF LADING DESCRIPTION. THE MEANINGFUL PHRASEOLOGY THEREIN USED IS NOT MERELY "BOXES, * * * SHIPPING; " BUT RATHER, AND MORE SPECIFICALLY INDICATIVE,"BOXES * * * ENGINE SHIPPING * * *USED.'

WE THINK THAT THE INCLUSION OF THE TERM "USED" IN THE CLASSIFICATION DESCRIPTION RENDERS THAT DESCRIPTION MORE SPECIFICALLY APPLICABLE TO A PARTICULAR ARTICLE WHICH HAS BEEN USED, EVEN THOUGH THE USED ARTICLE OTHERWISE FALLS WITHIN THE PURVIEW OF ANOTHER GENERAL COMMODITY DESCRIPTION. FURTHERMORE, ON JULY 17, 1959, OUR TRANSPORTATION DIVISION INFORMED YOU THAT THE USED WOODEN BOXES IN THIS SHIPMENT DID NOT HAVE HINGED COVERS, BUT THAT THE COVERS WERE FASTENED BY ANGLE BARS REACHING FROM TOP TO BOTTOM OF THE BOX AND BOLTED TOGETHER. ONE OF THE DESCRIPTIVE TERMS OF ITEM 6030 IS "WITH HINGES.' THE INTERSTATE COMMERCE COMMISSION HAS REPEATEDLY HELD THAT WHEN AN ARTICLE IS CLEARLY EMBRACED WITHIN OVERLAPPING CLASSIFICATION DESCRIPTIONS AND CONFLICTING RATINGS, THE RATING WHICH MOST SPECIFICALLY AND ACCURATELY DESCRIBES IT IS APPLICABLE. BREYER ICE CREAM COMPANY V. PENNSYLVANIA RAILROAD COMPANY, 195 I.C.C. 757, 759 (1933); SOCONY-VACUUM OIL CO. V. LEHIGH VALLEY RAIL ROAD, 210 I.C.C. 301 (1935).

MOREOVER, THE INCLUSION IN THE CLASSIFICATION OF THE GENERAL COMMODITY DESCRIPTION NAMING REDUCED RATINGS ON SHIPMENTS OF USED WOODEN BOXES MANIFESTLY REPRESENTS A CONTINUATION OF THE LONG ESTABLISHED PRACTICE, APPROVED MANY TIMES BY THE INTERSTATE COMMERCE COMMISSION, OF PROVIDING LOWER RATINGS ON USED, RETURNED, SHIPPING CONTAINERS IN THE INTEREST OF ECONOMIC USAGE OF RESOURCES. AS THE COMMISSION POINTED OUT IN ASSOCIATED GENERAL CONTRACTORS OF AMERICA V. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, 144 I.C.C. 305, 310 (1928), SHIPPING CONTAINERS, GENERALLY SPEAKING, HAVE A RELATIVELY LOW INITIAL COST, AND A GENERAL SCALE OF RATES WHICH WILL INDUCE THEIR RETURN AND RE-USE PREVENTS THEIR WASTAGE AND RESULTS IN THE CONSERVATION OF NATURAL RESOURCES AND PROMOTES THE GENERAL WELFARE. IN THIS CONNECTION, SEE JOHN A. CARROTTO V. DIRECTOR GENERAL, 77 I.C.C. 89 (1922); BRADLEY AND WOERTZ V. NASHVILLE, CHATTANOOGA AND ST. LOUIS RAILWAY, 93 I.C.C. 512, 515 (1924); AND I. AND S. DOCKET NO. 3130, SOUTHWESTERN RATES, 173 I.C.C. 662, 707 (1931). THE COMMISSION'S VARIOUS APPROVALS OF REDUCED RATINGS AND RATES ON USED CONTAINERS AND ITS CONSISTENT APPLICATION OF SUCH RATINGS AND RATES, WHEN AVAILABLE, ON SHIPMENTS OF SUCH USED COMMODITIES MAKE IT CLEAR THAT THE AFOREMENTIONED ITEM 6110 IS PROPERLY APPLICABLE ON THE INSTANT SHIPMENT.

ACCORDINGLY, WE ARE OF THE VIEW THAT THE PERTINENT SETTLEMENT CERTIFICATE DISALLOWING YOUR CLAIM WAS CORRECT, AND IT IS SUSTAINED.