B-169267, SEP. 29, 1970

B-169267, SEP. 29, 1970

FREIGHT CHARGES - OVERCHARGES DECISION TO C.I. WHITTEN TRANSFER CO., ADVISING THAT THE REVISED SETTLEMENT OF JANUARY 30, 1970, FOR SHIPMENT OF EXPLOSIVES THAT RESULTED IN A PARTIAL SETTLEMENT OF THAT CLAIM IS SUSTAINED, AND THE OTHER THREE CLAIMS WHERE THE GOVERNMENT HAS STATED OVERCHARGES AGAINST THE COMPANY FOR MOVEMENT OF EXPLOSIVES, WHICH DENIED SETTLEMENT UPON REVIEW, MUST NOW BE HELD IN ABEYANCE PENDING COURT ADJUDICATION.

TO C. I. WHITTEN TRANSFER CO.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF MARCH 5, 1970, FILES O/C 8- 359, 9-047, 9-048, 8-374, AND 8-138, ASKING FOR REVIEW OF SETTLEMENTS RELATING TO OUR FILES TK-896850, TK-896837 AND TK-896842.

THE SETTLEMENT ISSUED UNDER TK-896850 (YOUR FILES O/C 8-359, 9-047 AND 9- 048) DENIED YOUR CLAIMS FOR $64.32 (GBL A-6673208), $225 (GBL D 3724629), AND $86.93 (GBL D-3724639). THESE CLAIMS ARE NOW BEFORE THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA FOR ADJUDICATION IN THE CASE OF C. I. WHITTEN TRANSFER CO. V UNITED STATES, CIVIL ACTION NO. 2750. SEE COUNTS 59, 61 AND 63 OF THE COMPLAINT FILED THEREIN. THE SETTLEMENT ISSUED UNDER TK-896837 (YOUR FILE O/C 8-374) DENIED YOUR CLAIM FOR $322.68 (GBL D-3565202) AND THAT CLAIM IS NOW PENDING IN THE SAME CASE. SEE COUNT 46 OF THE COMPLAINT. SINCE YOU HAVE PLACED THESE CLAIMS WITHIN THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR ADJUDICATION IN CIVIL ACTION NO. 2750, WE WILL NOT REVIEW THE SETTLEMENTS AT THIS TIME CONSISTENT WITH OUR POLICY IN SUCH CASES.

THE SETTLEMENT ISSUED UNDER TK-896842 (YOUR FILE O/C 8-138) DENIED YOUR CLAIM FOR $90.99 (GBL D-2757180) BUT A REVISED SETTLEMENT DATED JANUARY 30, 1970, ALLOWED YOUR COMPANY AN ADDITIONAL TEN DOLLARS SO THAT THE NET BALANCE OF YOUR PRESENT CLAIM PRESUMABLY IS $80.99. THIS CLAIM WAS NOT INCLUDED IN CIVIL ACTION NO. 2750 AND WE WILL CONSIDER THE CASE ON ITS MERITS.

THE SHIPMENT IN QUESTION CONSISTED OF ONE BOX OF CLASS C EXPLOSIVES, ELECTRIC BLASTING CAPS, WEIGHING FIVE POUNDS, AND ONE CARTON OF HIGH EXPLOSIVES, NOI, CLASS A, WEIGHING TWO POUNDS. ONE THOUSAND POUNDS OF DUNNAGE IS SHOWN AS INCLUDED WITH THE SHIPMENT FOR A TOTAL WEIGHT OF 1,007 POUNDS. CHARGES WERE BILLED AND PAID IN THE AMOUNT OF $246 BASED ON A RATE OF 328 CENTS PER 100 POUNDS APPLIED TO A MINIMUM WEIGHT OF 7,500 POUNDS. IN THE AUDIT HERE, THE APPLICABLE CHARGES WERE DETERMINED TO BE $165.01, BASED ON A RATE OF 124 CENTS PER 100 POUNDS APPLIED TO THE TWO POUNDS OF CLASS A EXPLOSIVES AND A RATE OF 75 CENTS PER 100 POUNDS APPLIED TO THE FIVE POUNDS OF BLASTING CAPS, THE 1,000 POUNDS OF DUNNAGE, AND THE 20,993-POUND DEFICIT IN THE MINIMUM WEIGHT OF 22,000 POUNDS TO WHICH THESE RATES WERE SUBJECT.

IN YOUR REQUEST FOR REVIEW, YOU POINT OUT THAT ITEM 180(C) OF C. I. WHITTEN TARIFF 56 PROVIDES THAT THE DEFICIT IN WEIGHT WILL BE CHARGED FOR AT THE RATE APPLICABLE TO THE LOWEST RATED ARTICLE IN THE SHIPMENT WHICH EXCEEDS 25 PERCENT OF THE TOTAL WEIGHT OF THE SHIPMENT, AND YOU ASSERT THAT THE SHIPMENT WEIGHED 1,007 POUNDS AND THAT THE LOWEST RATED ARTICLE IN THE SHIPMENT, THE BLASTING CAPS, WEIGHED ONLY FIVE POUNDS, CONSIDERABLY LESS THAN 25 PERCENT OF THE TOTAL WEIGHT OF THE SHIPMENT. CONSEQUENTLY, IT IS YOUR POSITION THAT THE BASIS OF CHARGES ASSERTED IN THE AUDIT HERE WAS INAPPLICABLE UNDER THE MIXING-RULE OF ITEM 180(C) AND THAT THE CHARGES ORIGINALLY BILLED AND PAID ARE CORRECT.

ITEM 110 OF THE TARIFF PROVIDES THAT FREIGHT CHARGES WILL BE COMPUTED BY APPLYING THE RATES IN THE TARIFF TO THE GROSS WEIGHT OF A SHIPMENT AND THAT THE GROSS WEIGHT OF A SHIPMENT WILL BE DETERMINED BY ADDING THE TOTAL WEIGHT OF THE COMMODITY OR COMMODITIES SHIPPED TO THE TOTAL WEIGHT OF THE DUNNAGE. HOWEVER, THE ITEM DOES NOT SPECIFY THE RATE TO BE APPLIED ON THE DUNNAGE IN THE CASE OF A SHIPMENT CONSISTING OF TWO OR MORE COMMODITIES TAKING DIFFERENT RATES. SINCE THE TARIFF IS SILENT ON THIS POINT, THE RESOLUTION OF THE QUESTION MOST FAVORABLE TO THE SHIPPER SHOULD BE APPLIED IF IT IS REASONABLE IN THE CIRCUMSTANCES. SINCE IT IS CUSTOMARY IN BOTH THE MOTOR CARRIER AND THE RAILROAD INDUSTRY, WHERE A CHARGE FOR DUNNAGE IS PROVIDED, TO BASE SUCH CHARGE ON THE RATE APPLICABLE TO THE LOWEST RATED COMMODITY IN A SHIPMENT (SEE, FOR EXAMPLE, ITEM 995(C), SOUTHERN MOTOR CARRIER RATE CONFERENCE TARIFF 6-A, MF-I.C.C. 1559, AND UNIFORM FREIGHT CLASSIFICATION 10, I.C.C. 6), WE CONCLUDE THAT THE SAME RESULT WAS INTENDED IN THE APPLICATION OF ITEM 110 OF THE WHITTEN TARIFF.

IT WOULD SEEM TO FOLLOW, THEREFORE, THAT THE SHIPMENT IN QUESTION CONSISTED OF THREE ARTICLES WITHIN THE MEANING OF THE WORD "ARTICLES" AS USED IN ITEM 180(C); NAMELY, HIGH EXPLOSIVES, BLASTING CAPS, AND DUNNAGE. OF THESE, THE LOWEST RATED ARTICLE WHICH EXCEEDED 25 PERCENT OF THE TOTAL WEIGHT OF THE SHIPMENT WAS THE DUNNAGE; CONSEQUENTLY, THE RATE APPLICABLE THERETO WAS PROPERLY APPLIED ON THE DEFICIT IN THE MINIMUM WEIGHT.

FOR THE REASONS STATED, WE BELIEVE THE SETTLEMENT HERE WAS CORRECT. ACCORDINGLY, IT IS SUSTAINED AND YOUR CLAIM FOR REFUND IS DENIED.