B-156385, NOV. 2, 1965

B-156385: Nov 2, 1965

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TO SOUTHERN PACIFIC COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTERS OF MARCH 16. EACH OF WHICH WAS ISSUED TO COVER THE MOVEMENT OF A SPRAY OUTFIT. FOR SUCH SERVICE YOU ORIGINALLY BILLED AND WERE PAID. DEDUCTIONS WERE MADE FROM AMOUNTS DUE ON SUBSEQUENT BILLS. THE OUTFITS WERE DESCRIBED ON THE BILLS OF LADING AS "VEHICLE. SINCE THIS SPRAYING APPARATUS IS A COMPLETE UNIT. SINCE NEITHER PART IS SUSCEPTIBLE OF USE ALONE WITHOUT MODIFICATION AND RECONSTRUCTION. IT IS OUR VIEW THAT IT IS PROPERLY RATABLE AS A SPRAYER. THE SETTLEMENTS DISALLOWING YOUR SUPPLEMENTAL BILLS WERE CORRECT AND THEY ARE HEREBY SUSTAINED. THE QUESTION OF THE PROPER CLASSIFICATION OF THE MB-3 TYPE SPRAYER IS AT ISSUE IN SEABOARD AIR LINE RAILROAD COMPANY V.

B-156385, NOV. 2, 1965

TO SOUTHERN PACIFIC COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF MARCH 16, 1965, FILES YM 85- 109915-M AND YM 85-110713-M, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENTS DISALLOWING YOUR SUPPLEMENTAL BILLS FOR ADDITIONAL FREIGHT CHARGES FOR TRANSPORTATION SERVICES FURNISHED UNDER GOVERNMENT BILLS OF LADING B-2785995, DATED JANUARY 8, 1962; B-4638203, DATED JUNE 4, 1962; AND B-4841617, DATED JULY 12, 1962.

THE ISSUE, AS INDICATED IN YOUR REQUESTS FOR REVIEW, RELATES TO THESHIPMENTS ON THE FIRST TWO BILLS OF LADING LISTED ABOVE, EACH OF WHICH WAS ISSUED TO COVER THE MOVEMENT OF A SPRAY OUTFIT, TYPE MB-3, FROM THE PLANT OF MANUFACTURE, CAMCO INDUSTRIES, INC., GALION, OHIO, TO OXNARD AND VAN NUYS, CALIFORNIA, RESPECTIVELY. FOR SUCH SERVICE YOU ORIGINALLY BILLED AND WERE PAID, PRIOR TO AUDIT BY THE GENERAL ACCOUNTING OFFICE, PURSUANT TO THE PROVISIONS OF 49 U.S.C. 66, THE AMOUNT OF $1,767.92 ON EACH OF THE TWO SHIPMENTS. UPON AUDIT OF THE VOUCHERS EVIDENCING SUCH PAYMENTS OUR TRANSPORTATION DIVISION DETERMINED THE APPLICABLE CHARGES ON EACH SHIPMENT TO BE $1,036.80 AND ISSUED NOTICE OF OVERCHARGE IN THE AMOUNT OF $731.12 ON EACH SHIPMENT. UPON YOUR FAILURE TO MAKE PROMPT REFUND, DEDUCTIONS WERE MADE FROM AMOUNTS DUE ON SUBSEQUENT BILLS. THE OUTFITS WERE DESCRIBED ON THE BILLS OF LADING AS "VEHICLE, MOTOR, FREIGHT," BUT BOTH BILLS SHOWED NOT ONLY A TRUCK CHASSIS NUMBER BUT ALSO A SPRAY UNIT SERIAL NUMBER, THUS INDICATING THAT THE CARGO ACTUALLY CONSISTED OF SOMETHING OTHER THAN A FREIGHT VEHICLE. THE BILLS OF LADING ALSO CONTAINED CITATION TO CONTRACT AF 33/600/-39334.

THE CONTRACT AND OTHER AVAILABLE MATERIAL RELATING TO THE COMMODITY REVEAL THAT IT CONSISTS OF A MOBILE SPRAYER, FOR DE-ICING AND DE CONTAMINATING AIRCRAFT. NEITHER THE SPRAYER NOR THE CHASSIS COULD BE USED FOR THE INTENDED PURPOSE WITHOUT THE BENEFIT OF THE OTHER. SINCE THIS SPRAYING APPARATUS IS A COMPLETE UNIT, EACH PART DEPENDENT UPON THE OTHER FOR USE, AND SINCE NEITHER PART IS SUSCEPTIBLE OF USE ALONE WITHOUT MODIFICATION AND RECONSTRUCTION, IT IS OUR VIEW THAT IT IS PROPERLY RATABLE AS A SPRAYER, NOIBN, UNDER ITEM 5105, TRANSCONTINENTAL FREIGHT BUREAU TARIFF 1-K, I.C.C. NO. 1668. ACCORDINGLY, THE SETTLEMENTS DISALLOWING YOUR SUPPLEMENTAL BILLS WERE CORRECT AND THEY ARE HEREBY SUSTAINED.

WE NOTE, HOWEVER, THE QUESTION OF THE PROPER CLASSIFICATION OF THE MB-3 TYPE SPRAYER IS AT ISSUE IN SEABOARD AIR LINE RAILROAD COMPANY V. UNITED STATES, COURT OF CLAIMS NO. 281-62, WHICH HAS BEEN REFERRED TO THE INTERSTATE COMMERCE COMMISSION, WHERE THE CASE IS STILL PENDING UNDER I.C.C. DOCKET 34489. SHOULD THE EVENTUAL RESULT IN THAT CASE WARRANT IT, RECONSIDERATION OF THIS DECISION MAY BE REQUESTED BY YOU.