B-169710, DEC. 15, 1970

B-169710: Dec 15, 1970

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WHERE THE FREIGHT CHARGES FOR A MIXED-TRUCK LOAD SHIPMENT OF EXPLOSIVES AND NON-EXPLOSIVES WERE COMPUTED AT THE CLASS A EXPLOSIVES RATE APPLIED TO TOTAL SHIPMENT. DEDUCTION OF THE $150.03 OVER CHARGE WAS JUSTIFIED AND. EVEN THOUGH THE DEDUCTION WAS BASED ON THE CLASS C RATE OSTENSIBLY APPLICABLE TO "BLASTING AGENTS. MATERIALS & SUPPLIES (NON-EXPLOSIVE)" SUCH RATE IS AN ADEQUATE MEASURE. I. WHITTEN TRANSFER CO.: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 11. INDICATES THAT THE SHIPMENT WAS TENDERED SUBJECT TO THE PROVISIONS OF C. CHARGES WERE BILLED AND PAID ON THE BASIS OF THE TARIFF RATE FOR CLASS A EXPLOSIVES APPLIED TO THE TOTAL WEIGHT OF THE SHIPMENT. THE APPLICABLE CHARGES WERE DETERMINED TO BE MIXED-SHIPMENT CHARGES BASED ON THE CLASS A EXPLOSIVES RATE APPLIED TO THE 10.

B-169710, DEC. 15, 1970

TRANSPORTATION CHARGES - EXPLOSIVES DENIAL OF CLAIM FOR $150.03 IN CONNECTION WITH TRANSPORTATION OF 10,933 POUNDS OF CLASS A EXPLOSIVES AND 12,399 POUNDS OF INERT MATERIALS INCLUDING MACHINERY, MACHINERY PARTS, ETC. WHERE THE FREIGHT CHARGES FOR A MIXED-TRUCK LOAD SHIPMENT OF EXPLOSIVES AND NON-EXPLOSIVES WERE COMPUTED AT THE CLASS A EXPLOSIVES RATE APPLIED TO TOTAL SHIPMENT, DEDUCTION OF THE $150.03 OVER CHARGE WAS JUSTIFIED AND, EVEN THOUGH THE DEDUCTION WAS BASED ON THE CLASS C RATE OSTENSIBLY APPLICABLE TO "BLASTING AGENTS, MATERIALS & SUPPLIES (NON-EXPLOSIVE)" SUCH RATE IS AN ADEQUATE MEASURE, ON A QUANTUM MERUIT BASIS, OF CHARGES FOR THE MACHINERY SHIPPED.

TO C. I. WHITTEN TRANSFER CO.:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 11, 1970, AND EARLIER LETTER, FILE O/C 8-355, ASKING FOR REVIEW OF SETTLEMENT TK-896845, WHICH DENIED YOUR CLAIM FOR $150.03 IN CONNECTION WITH FREIGHT TRANSPORTATION UNDER GOVERNMENT BILL OF LADING E-6038189.

THE SHIPMENT IN QUESTION CONSISTED OF 10,933 POUNDS OF CLASS A EXPLOSIVES (DETONATING FUZES), AND 12,399 POUNDS OF INERT MATERIALS VARIOUSLY DESCRIBED IN THE BILL OF LADING AS ARMING DRIVE ASSEMBLY, MACHINERY, MACHINERY PARTS, ETC. THE FACE OF THE BILL OF LADING, IN THE SPACE PROVIDED FOR THE SHOWING OF TARIFF OR SPECIAL RATE AUTHORITIES, INDICATES THAT THE SHIPMENT WAS TENDERED SUBJECT TO THE PROVISIONS OF C. I. WHITTEN TRANSFER CO. TARIFF MF-I.C.C. NO. 56.

CHARGES WERE BILLED AND PAID ON THE BASIS OF THE TARIFF RATE FOR CLASS A EXPLOSIVES APPLIED TO THE TOTAL WEIGHT OF THE SHIPMENT. IN THE AUDIT HERE, THE APPLICABLE CHARGES WERE DETERMINED TO BE MIXED-SHIPMENT CHARGES BASED ON THE CLASS A EXPLOSIVES RATE APPLIED TO THE 10,933 POUNDS OF CLASS A EXPLOSIVES IN THE SHIPMENT AND THE TARIFF RATE APPLICABLE TO CERTAIN SPECIFIED CLASS C EXPLOSIVES APPLIED TO THE 12,399 POUNDS OF INERT MATERIALS. THE TARIFF RATE APPLICABLE TO THE SPECIFIED CLASS EXPLOSIVES ALSO APPLIES ON INERT MATERIALS COVERED BY THE GENERIC COMMODITY DESCRIPTION "BLASTING AGENTS, MATERIALS AND SUPPLIES (NON-EXPLOSIVE)." THE RESULTING OVERCHARGE OF $150.03 WAS RECOVERED BY DEDUCTION UPON YOUR FAILURE TO MAKE REFUND.

IN YOUR REQUEST FOR REVIEW, YOU SAY THAT THE INERT MATERIAL IN THIS SHIPMENT--ARMING DRIVE ASSEMBLIES, MACHINERY, ETC.--CANNOT BE CONSIDERED AS "BLASTING SUPPLIES" AND THAT THE SHIPMENT THEREFORE IS PROPERLY RATED AS BILLED. IT IS APPARENT, HOWEVER, THAT IF THIS INERT MATERIAL CANNOT BE SAID TO COME WITHIN THE COMMODITY DESCRIPTION "BLASTING AGENTS, MATERIALS AND SUPPLIES (NON-EXPLOSIVE)," IT IS EVEN MORE OBVIOUS THAT IT CANNOT BE SAID TO COME WITHIN THE COMMODITY DESCRIPTION APPLICABLE TO CLASS A EXPLOSIVES GOVERNING THE RATE AT WHICH YOU INITIALLY BILLED.

IN THESE CIRCUMSTANCES, NO AGREED CHARGE, BY TARIFF OR QUOTATION, WOULD BE APPLICABLE FOR THE TRANSPORTATION OF THIS MIXED-TRUCKLOAD SHIPMENT AND THUS THE CARRIER WOULD BE ENTITLED TO CHARGES BASED ON QUANTUM MERUIT PRINCIPLES. SINCE THE TARIFF RATES FOR BLASTING SUPPLIES APPLY TO NON- EXPLOSIVE, INERT ARTICLES, THERE WOULD SEEM TO BE NO VALID REASON WHY SUCH RATES SHOULD NOT BE USED IN COMPUTING THE MEASURE OF THE QUANTUM MERUIT CHARGES DUE FOR THIS MIXED-TRUCKLOAD SHIPMENT.

THE SETTLEMENT HERE WAS CONSISTENT WITH THIS BASIS OF CHARGES. ACCORDINGLY, IT IS SUSTAINED AND ..END :