B-160347, APR. 3, 1967

B-160347: Apr 3, 1967

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TO UNION PACIFIC RAILROAD COMPANY: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 26. THE SHIPMENT INVOLVED WAS MADE IN A GOVERNMENT OWNED TANK CAR AND CONSISTED OF 10. IT WAS DESCRIBED ON THE BILL OF LADING AS "REFINED OIL. W-296694 AND WERE PAID AS BILLED ON VOUCHER NO. 479448 IN THE MARCH 1963 ACCOUNTS OF A. THE CHARGES WERE BASED ON THE CLASS 35 RATE OF $1.83 PER 100 POUNDS PUBLISHED IN PACIFIC SOUTH COAST FREIGHT BUREAU (PSFB) TARIFF NO. 1016. WE DETERMINED THAT THE RP-1 FUEL WAS PROPERLY CLASSIFIED UNDER ITEM 1280 OF PSFB TARIFF 260-D. A NOTICE OF OVERCHARGE (FORM 1003) WAS ISSUED SEPTEMBER 23. THE OVERCHARGE WAS COLLECTED BY DEDUCTION ON DECEMBER 3. THE QUESTION HERE IS WHETHER THE COMMODITY SHIPPED.

B-160347, APR. 3, 1967

TO UNION PACIFIC RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 26, 1966, FILE W-296694, WITH ENCLOSURE, REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE OF JUNE 9, 1966, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL TRANSPORTATION CHARGES OF $566.44. THE SHIPMENT INVOLVED WAS MADE IN A GOVERNMENT OWNED TANK CAR AND CONSISTED OF 10,177 GALLONS OF MATERIAL WEIGHING 67,168 POUNDS; IT WAS DESCRIBED ON THE BILL OF LADING AS "REFINED OIL, ILLUMINATING OR BURNING GRADE RP-1 UFC 6 ITEM 77240 FSN 9130-543-7429" AND MOVED FROM THE TIDEWATER OIL COMPANY, AVON, CALIFORNIA, TO MOUNTAIN HOME, IDAHO, UNDER GOVERNMENT BILL OF LADING A8844778, DATED DECEMBER 14, 1962.

FOR THE TRANSPORTATION SERVICE PERFORMED, YOU BILLED $1,229.17 ON BILL NO. W-296694 AND WERE PAID AS BILLED ON VOUCHER NO. 479448 IN THE MARCH 1963 ACCOUNTS OF A. G. PERRY. THE CHARGES WERE BASED ON THE CLASS 35 RATE OF $1.83 PER 100 POUNDS PUBLISHED IN PACIFIC SOUTH COAST FREIGHT BUREAU (PSFB) TARIFF NO. 1016, I.C.C. NO. 1590.

IN OUR AUDIT OF THE CHARGES, WE DETERMINED THAT THE RP-1 FUEL WAS PROPERLY CLASSIFIED UNDER ITEM 1280 OF PSFB TARIFF 260-D, I.C.C. 1689. ACCORDINGLY, A NOTICE OF OVERCHARGE (FORM 1003) WAS ISSUED SEPTEMBER 23, 1963, REQUESTING A REFUND OF $528.79, AMENDED NOVEMBER 15, 1965, TO $566.44, BASED ON A TARIFF WEIGHT FACTOR OF 7.4 POUNDS PER GALLON AND ON A RATE OF 88 CENTS PER 100 POUNDS PROVIDED IN COLUMN 2 OF ITEM 11955-B OF PSFB 260-D. WHEN YOU FAILED TO MAKE A VOLUNTARY REFUND, THE OVERCHARGE WAS COLLECTED BY DEDUCTION ON DECEMBER 3, 1965, FROM MONEY OTHERWISE DUE YOU. YOU ISSUED SUPPLEMENTAL BILL NO. W-296694-A (OUR CLAIM TK-824476), TO RECLAIM THE AMOUNT DEDUCTED AND WE DISALLOWED THE CLAIM BY THE SETTLEMENT CERTIFICATE DATED JUNE 9, 1966.

THE QUESTION HERE IS WHETHER THE COMMODITY SHIPPED, RP-1, FALLS WITHIN THE COMMODITY DESCRIPTION IN ITEM 1280, PSFB 260-D, WHICH READS IN PERTINENT PART:

"PETROLEUM AND PETROLEUM PRODUCTS, NOT SUITABLE FOR ILLUMINATING PURPOSES, AND NOT SUITABLE FOR BURNING IN BURNERS OR OTHER DEVICES WHICH FEED BY CAPILLARY ATTRACTION, VIZ.:

"PETROLEUM FUEL OIL, RESIDUAL OR DISTILLATE, THE FLASH POINT OF EACH BEING 110 DEGREES FAHRENHEIT OR HIGHER, PENSKY-MARTENS CLOSED TESTER, AND THE VISCOSITY OF EACH BEING 300 SECONDS OR LESS AT 122 DEGREES FAHRENHEIT, SAYBOLT FUROL VISCOSIMETER * * *.'

WE FIRST NOTE THAT REGARDLESS OF THE BILL OF LADING DESCRIPTION, IT IS WELL SETTLED THAT THE APPLICABILITY OF FREIGHT CHARGES IS GOVERNED BY THE COMMODITY ACTUALLY SHIPPED RATHER THAN BY WHAT WAS BILLED. UNITED WELDING CO. V. BALTIMORE AND OHIO R.CO., 196 I.C.C. 79 (1933); PENN FACING MILLS CO. V. ANN ARBOR R.CO., 182 I.C.C. 614, 615 (1932); HARRIS BROS. CO. V. DIRECTOR GENERAL, 60 I.C.C. 428, 430 (1921). SEE ALSO UNIFORM FREIGHT CLASSIFICATION 6, I.C.C. A-6, RULE 2, SECTION 2.

BILL OF LADING A8844778 BEARS FEDERAL STOCK NO. 9130-543-7429; IN FEDERAL SUPPLY CATALOG C9100-SL, 1 JULY 1962, THAT NUMBER SHOWS THE FOLLOWING DESCRIPTION:

"PROPELLANT, KEROSENE: SPEC MIL-R-25576, GRADE RP-1.

USE: FOR ROCKET ENGINE FUEL. MILITARY SYMBOL RP-1.'

THE CHEMICAL PROPULSION INFORMATION AGENCY, THE JOHNS HOPKINS UNIVERSITY, APPLIED PHYSICS LABORATORY (APL), 8621 GEORGIA AVENUE, SILVER SPRING, MARYLAND, IN A LETTER DATED MAY 31, 1963, FILE CLI-1213, ADVISES US THAT THE FLASH POINT OF THE FUEL IS 110 DEGREES F. OR HIGHER BY THE PENSKY- MARTENS CLOSED TESTER AND THAT THE VISCOSITY OF THE FUELIS 300 SECONDS OR LESS AT 122 DEGREES FAHRENHEIT, SAYBOLT FUROL VISCOSIMETER. MILITARY SPECIFICATION MIL-R-25576B ALSO CONFIRMS THE FLASH POINT OF RP-1 FUEL. THE REPORT OF THE APPLIED PHYSICS LABORATORY ALSO ADVISES THAT RP-1 FUEL WOULD BE CLASSIFIED AS A PETROLEUM FUEL OIL DISTILLATE.

THE BUREAU OF SAFETY AND SERVICE, INTERSTATE COMMERCE COMMISSION, IN LETTER OF MARCH 28, 1963, FILE 300-RF, TO US, STATES IN PART:

"RP-1 A LIGHTER CUT KEROSENE THAN RJ-1. IT BOASTS FEW CONTAMINATING AROMATICS WITH A HIGH LEVEL OF BURNABILITY. (RJ-1, A THERMALLY STABLE KEROSENE HAVING A HIGHER ENERGY CONTENT THAN THE JP FAMILY.) FLASH POINT PLUS 110 DEGREES F. MINIMUM.'

WITH YOUR REQUEST FOR REVIEW, YOU FURNISHED A COPY OF A LETTER DATED DECEMBER 11, 1963, FROM THE TRANS-CONTINENTAL FREIGHT BUREAU, WEIGHING AND INSPECTION DEPARTMENT, STATING THAT THE SUPPLIER, THE TIDEWATER OIL COMPANY, DESCRIBED THE COMMODITY AS FOLLOWS:

"ROCKET FUEL, RP-1, MEETING MILITARY SPECIFICATION MIL-R-25576B, AS MANUFACTURED AT AVON, IS A PETROLEUM DISTILLATE WHICH HAS BEEN SUBJECTED TO CHEMICAL TREATMENT AND HAVING A CONTROLLED BOILING RANGE, ALL SO AS TO MEET THE DETAILED REQUIREMENTS OF THE SPECIFICATION, AND WHICH MAY CONTAIN CHEMICAL INHIBITORS OR DYE AS REQUIRED BY THE PURCHASER. THE MANUFACTURING PROCESS IS SIMILAR TO THAT FOR KEROSENE AND THE MATERIAL MAY, BUT WOULD NOT NECESSARILY BE SUITABLE FOR USE AS ILLUMINATING OIL. IT WOULD ALSO BE SUITABLE FOR USE AS STOVE OIL AND FOR DIESEL FUEL IN SOME, BUT NOT ALL, DIESEL ENGINES.'

IT THUS APPEARS THAT RP-1 JET FUEL IS A DISTILLED PETROLEUM PRODUCT MANUFACTURED TO CONFORM TO PRESCRIBED SPECIFICATIONS AND INTENDED FOR USE AS A FUEL, NOT AS AN ILLUMINANT, AND THAT IT MEETS ALL THE SPECIFICATIONS FOR A PETROLEUM FUEL OIL DISTILLATE TAKING RATES UNDER ITEM 1280. OTHER WORDS, IT MUST BE ASSUMED THAT ANY PETROLEUM FUEL OIL DISTILLATE THAT MEETS THE TARIFF ITEM'S SPECIFIC REQUIREMENTS AS TO FLASH POINT AND VISCOSITY MUST, FOR THE PURPOSE OF THE GENERAL RESTRICTION OF ITEM 1280, BE UNSUITABLE FOR ILLUMINATING PURPOSES AND FOR BURNING IN DEVICES FEEDING BY CAPILLARY ATTRACTION.

WHILE YOU DO NOT SPECIFICALLY STATE WHY SUCH RATES ARE NOT FOR APPLICATION, IT WOULD APPEAR FROM THE LETTER OF THE TRANS-CONTINENTAL FREIGHT BUREAU, WHICH IS REFERRED TO ABOVE, THAT YOU CONTEND THE COMMODITY SHIPPED WAS "SUITABLE" FOR ILLUMINATING PURPOSES AND FOR BURNING IN BURNERS OR OTHER DEVICES WHICH FEED BY CAPILLARY ATTRACTION THUS MAKING ITEM 1280 INAPPLICABLE TO THE SHIPMENT. AS NOTED, UNDER OUR INTERPRETATION OF THE TARIFF ITEM, PRODUCTS MEETING THE FLASH POINT AND VISCOSITY SPECIFICATIONS SET FORTH IN THE ITEM ARE, FOR TARIFF PURPOSES,"NOT SUITABLE FOR ILLUMINATING PURPOSES, AND NOT SUITABLE FOR BURNING IN BURNERS OR OTHER DEVICES WHICH FEED BY CAPILLARY ATTRACTION," AND IT IS IMMATERIAL WHETHER THE COMMODITY SHIPPED IN FACT POSSESSES PROPERTIES FOR THOSE USES. ASSUMING THAT ACTUAL SUITABILITY FOR THOSE USES IS MATERIAL, WE STILL BELIEVE THAT ITEM 1280 IS APPLICABLE TO THE SHIPMENT.

COMMODITY DESCRIPTIONS IN TARIFFS MUST BE TAKEN IN THE SENSE IN WHICH THEY ARE GENERALLY UNDERSTOOD AND ACCEPTED COMMERCIALLY. PEABODY LUMBER CO. V. WHEELING AND L.E.R.CO., 171 I.C.C. 121 (1930); SCHIMMEL V. MALLORY S.S.CO., 152 I.C.C. 51 (1929); STATE OF NORTH DAKOTA V. NORTHERN P.RY.CO., 153 I.C.C. 215, 218 (1929); FOYE V. ATCHISON, T.ANDS.F.RY.CO., 251 I.C.C. 108, 109 (1942).

IT HAS BEEN HELD THAT THE PORTION OF THE COMMODITY DESCRIPTION IN A TARIFF FOLLOWING THE ABBREVIATION "VIZ.' (GENERALLY READ AS "NAMELY" OR "TO WIT") IN A COMMODITY DESCRIPTION IS CONTROLLING AND THE WORDS PRECEDING IT ARE A HEADING ONLY. MARBLE PRODUCTS V. LOUISVILLE AND N.R.CO., 155 I.C.C. 293, 295 (1929). AND IN THAT REPORT IT IS STATED THAT THE INTERSTATE COMMERCE COMMISSION FOUND INFORMALLY THAT THE RATES NAMED IN AN ITEM READING "LUMBER AND ARTICLES MANUFACTURED THEREFROM, VIZ.: SASH, DOORS, ETC.' APPLIED ONLY ON SASH, DOORS, ETC.

IN PARAFFIN COMPANIES, INC. V. SOUTHERN PACIFIC CO., 128 I.C.C. 421, 423 (1927), A TARIFF ITEM ,TOYS, IN BOXES OR BARRELS (EXCEPT AS OTHERWISE PROVIDED), VIZ.:BALLOONS, PAPER, BANKS, IRON, BANKS, NOT OTHERWISE SPECIFIED HEREIN, GAMES, NOT OTHERWISE SPECIFIED HEREIN, GAMES, TOY," WAS HELD TO BE APPLICABLE TO A SHIPMENT OF MAH-JONGG GAMES (MAH-JONGG IS A CHINESE GAME, NOT A TOY, PLAYED WITH TILES AND REQUIRING A CERTAIN AMOUNT OF SKILL).

THE COMMISSION STATED (PAGE 423/---

"WE HAVE CONSISTENTLY FOUND THAT COMMODITY RATES MUST BE APPLIED STRICTLY, FROM WHICH IT FOLLOWS THAT ONLY THE ARTICLE OR ARTICLES CLEARLY COMPREHENDED WITHIN THE DESCRIPTIVE TERMS OF THE COMMODITY RATE CAN BE CONSIDERED AS HAVING BEEN REMOVED FROM THE CLASSIFICATION. THE ABBREVIATION "VIZ., " AS USED IN THE ABOVE MENTIONED ITEM, IS GENERALLY READ "NAMELY" OR "TO WIT," AND IS COMMONLY EMPLOYED TO MAKE SPECIFIC THAT WHICH HAS THERETOFORE BEEN STATED IN GENERAL TERMS. IN THIS INSTANCE, HOWEVER, THE ABBREVIATION APPEARS TO HAVE BEEN EMPLOYED TO INCLUDE ARTICLES HAVING SIMILAR CHARACTERISTICS BUT WHICH DID NOT COME WITHIN THE GENERAL TERMS THERETOFORE STATED. UNDER THE OBVIOUS MEANING OF THE DESCRIPTIVE TERMS EMPLOYED, THE ITEM NAMES RATES ON TOY GAMES AND ALSO ON GAMES WHICH CANNOT BE DESCRIBED AS TOY GAMES. ANY OTHER INTERPRETATION WOULD RENDER MEANINGLESS THE DESCRIPTIVE TERM "GAMES, NOT OTHERWISE SPECIFIED HEREIN.' WE HAVE ALSO FREQUENTLY STATED THAT WHERE THERE IS DOUBT AS TO THE MEANING OF A TARIFF, SO LONG AS IT IS A REASONABLE DOUBT, IT MUST BE RESOLVED IN FAVOR OF THE SHIPPER AND AGAINST THE CARRIER.'

SO, TOO, IN THE TARIFF ITEM HERE INVOLVED, IT WOULD APPEAR THAT TO GIVE EFFECT TO THE PHRASE ,NOT SUITABLE FOR ILLUMINATING PURPOSES, AND NOT SUITABLE FOR BURNING IN BURNERS OR OTHER DEVICES WHICH FEED BY CAPILLARY ATTRACTION" WOULD RENDER MEANINGLESS THE SECOND PARAGRAPH FOLLOWING IZ.' SINCE THE PETROLEUM PRODUCTS POSSESSING THE FLASH POINT AND VISCOSITY, ETC., SPECIFIED IN THE SECOND PARAGRAPH OF THE ITEM POSSIBLY COULD BE USED FOR ILLUMINATING PURPOSES AND FOR BURNING IN BURNERS OR DEVICES WHICH FEED BY CAPILLARY ATTRACTION. THE ITEM IN THIS SENSE IS AMBIGUOUS AND AS INDICATED ABOVE THE COMMISSION HAS FREQUENTLY STATED THAT WHERE THERE IS DOUBT IT MUST BE RESOLVED IN FAVOR OF THE SHIPPER AND AGAINST THE CARRIER.

WE ARE ENCLOSING A COPY OF LETTER OF MARCH 13, 1967, FROM THE APPLIED PHYSICS LABORATORY WHICH STATES THAT ALTHOUGH FROM A CHEMICAL POINT OF VIEW RP-1 COULD BE USED FOR ILLUMINATING PURPOSES, AND COULD BE BURNED IN DEVICES FEEDING BY CAPILLARY ATTRACTION, RP-1 IS PRODUCED SPECIFICALLY FOR USE AS A ROCKET FUEL AND IS NOT INTENDED FOR THOSE USES.

THE TIDEWATER OIL COMPANY STATEMENT APPEARS TO BE EQUIVOCAL AND DOES NOT DEFINITELY STATE THAT RP-1 JET FUEL IS SUITABLE FOR ILLUMINATING PURPOSES OR FOR BURNING IN BURNERS OR DEVICES FEEDING BY CAPILLARY ATTRACTION. MOREOVER, THE STATEMENT INDICATES THAT RP-1 JET FUEL MAY CONTAIN A CHEMICAL INHIBITOR OR DYE WHICH WOULD DISTINGUISH THE FUEL FROM THE ORDINARY COMMERCIAL VARIETY OF KEROSENE.

IT APPEARS FROM THE RECORD THAT RP-1 JET FUEL IS DIFFERENT IN MANY WAYS FROM COMMERCIAL KEROSENE AND IT IS UNLIKELY THAT SUCH FUEL COULD OR WOULD BE USED FOR ILLUMINATING PURPOSES OR FOR BURNING IN BURNERS OR DEVICES FEEDING BY CAPILLARY ATTRACTION. THUS, WE BELIEVE IT IS GENERALLY UNDERSTOOD AND ACCEPTED COMMERCIALLY THAT RP-1 JET FUEL IS "NOT SUITABLE" FOR ILLUMINATING PURPOSES AND IS "NOT SUITABLE" FOR BURNING IN BURNERS OR OTHER DEVICES WHICH FEED BY CAPILLARY ATTRACTION. RP-1 JET FUEL IS A PETROLEUM DISTILLATE WITH A FLASH POINT OF 110 DEGREES FAHRENHEIT OR HIGHER, PENSKY-MARTENS CLOSED TESTER, AND HAS A VISCOSITY OF 300 SECONDS OR LESS AT 122 DEGREES FAHRENHEIT, SAYBOLT FUROL VISCOSIMETER. CONSEQUENTLY, WE BELIEVE RP-1 JET FUEL FULFILLS ALL THE SPECIFIC REQUIREMENTS FOR THE APPLICATION OF THE RATES PROVIDED BY ITEM 1280 OF PSFB TARIFF 260-D.

ACCORDINGLY, SINCE THE SETTLEMENT OF JUNE 9, 1966, IS ON THAT BASIS, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.