B-178161, APR 15, 1974

B-178161, APR 15, 1974

ON REQUEST FOR RECONSIDERATION, OUR DECISION SUSTAINING THE DISALLOWANCE OF A CLAIM FOR REFUND OF AMOUNTS ADMINISTRATIVELY RECOVERED FOR LOSS IN TRANSIT OF ANTIQUE JAPANESE PORCELAIN VASES IS AFFIRMED, SINCE HOLDING BY COURT THAT SILVERWARE IS AN ARTICLE OF EXTRAORDINARY VALUE WITHIN MEANING OF EXCLUSIONARY PROVISION OF CARRIER'S TARIFF IS CONSISTENT WITH OUR PRIOR DECISION AND AFFORDS NO AUTHORITY FOR FINDING ANTIQUE ORIENTAL PORCELAINS TO BE IMBUED WITH NEGOTIABILITY AND EXCHANGEABILITY IN CHANNELS OF COMMERCE WITHIN THE DEFINITION OF ARTICLES OF EXTRAORDINARY VALUE AND CHARACTERISTIC OF SILVER AND SILVER PRODUCTS.

TO ALLIED VAN LINES, INC.:

BY LETTER OF FEBRUARY 12, 1974, ALLIED VAN LINES, INC. (ALLIED), REQUESTS RECONSIDERATION OF A DECISION DATED JULY 31, 1973, B-178161, 53 COMP. GEN. 61, WHICH SUSTAINED THE DISALLOWANCE OF ALLIED'S CLAIM FOR REFUND OF $10,000 SET OFF TO RECOVER THE VALUE OF TWO PACKAGES OF ANTIQUE ORIENTAL PORCELAINS VALUED IN THE AGGREGATE AT $11,000. THE PORCELAINS WERE LOST IN TRANSIT FROM A SHIPMENT OF HOUSEHOLD GOODS OWNED BY CAPTAIN RUTH C. SHEW, UNITED STATES AIR FORCE (RET.), AND TRANSPORTED IN JULY 1970 BY ALLIED FROM WILLINGBORO, NEW JERSEY, TO SARASOTA, FLORIDA, UNDER GOVERNMENT BILL OF LADING NO. F-0773689.

IN THE DECISION WE HELD THAT ALTHOUGH OF HIGH VALUE, IT DOES NOT APPEAR AND HAS NOT BEEN SHOWN THAT ANTIQUE PORCELAINS EVER HAVE BEEN LISTED IN THE CATEGORY OF ARTICLES OF EXTRAORDINARY VALUE OR THAT THEY POSSESS THE NEGOTIABILITY AND EXCHANGEABILITY IN THE CHANNELS OF COMMERCE WITHIN THE DEFINITION OF THOSE PHRASES BY THE INTERSTATE COMMERCE COMMISSION.

IN SUPPORT OF THE REQUEST FOR RECONSIDERATION, ALLIED FURNISHED A COPY OF A DECISION BY THE COLORADO SUPREME COURT, AND STATES:

"*** WE FEEL THAT THE CIRCUMSTANCES SURROUNDING THE RUTH SHEW SHIPMENT ARE SIMILAR TO A MATTER WHICH WAS DECIDED BY THE COLORADO COURT OF APPEALS. WE ARE ENCLOSING A COPY OF THAT DECISION FOR YOUR REVIEW. THE COLORADO SUPREME COURT DECISION ESTABLISHED THAT A CARTON OF SILVERWARE AND SILVERPLATE DID CONSTITUTE AN ARTICLE OF EXTRAORDINARY VALUE AND THAT THE CARRIER WOULD NOT HAVE LIABILITY FOR THE REPORTED LOSS. WE WISH TO POINT OUT THAT OUR TARIFF DOES NOT SPECIFICALLY LIST SILVERWARE OR SILVERPLATE ITEMS AS ARTICLES OF EXTRAORDINARY VALUE."

THAT DECISION IS REPORTED AS ALLIED VAN LINES, INC. V. SMITH, 470 P.2D 926 (COL. CT. APP. 1970). ON PAGE 928, THE COURT RULED THAT:

"*** UNDER THE CIRCUMSTANCES OF THIS CASE *** THE CARTON OF SILVERWARE SHIPPED BY THE PLAINTIFFS WAS AN ARTICLE OF 'PECULIARLY INHERENT OR EXTRAORDINARY VALUE' WITHIN THE MEANING OF THE PROVISIONS CONTAINED WITHIN THE BILL OF LADING AND ALLIED'S TARIFF."

THE COURT, THEREFORE, EXPRESSLY LIMITED ITS DECISION TO THE FACTS OF THAT PARTICULAR CASE. THE RESULT, HOWEVER, IS IN ACCORDANCE WITH THE DECISIONS OF THE INTERSTATE COMMERCE COMMISSION AND OF THE COURTS, WHICH, AS POINTED OUT IN OUR PRIOR DECISION, DEFINE THE PHRASE "ARTICLES OF EXTRAORDINARY VALUE" AS ARTICLES OF HIGH VALUE, COUPLED WITH NEGOTIABILITY AND EXCHANGEABILITY IN CHANNELS OF COMMERCE, SUCH AS SILVER BULLION AND SILVER PRODUCTS, AND AS NOT SYNONYMOUS WITH THE TERM "HIGH VALUE."

THUS, IN NAVAJO FREIGHT LINES, INC., EXTENSION-SILVER, 95 M.C.C. 551 (1964), CITED IN OUR DECISION, THE COMMISSION, CONSIDERING THE CARRIAGE OF SILVER BULLION BY A COMMON CARRIER OF GENERAL COMMODITIES, HELD THAT BECAUSE OF THE HIGH VALUE, COUPLED WITH NEGOTIABILITY AND EXCHANGEABILITY IN CHANNELS OF COMMERCE, SILVER BULLION WAS AN ARTICLE OF UNUSUAL VALUE WITHIN THE RESTRICTION IN THE OPERATING AUTHORITY OF MOTOR COMMON CARRIERS OF GENERAL COMMODITIES.

AGAIN, IN LOUISVILLE & N.R.R. V. UNITED STATES, 106 F. SUPP. 999 (W.D. KY. 1952) AFF. 221 F.2D 698 (6TH CIR. 1952), THE COURT STATED ON PAGE 1006: "SILVER HAS ALWAYS BEEN AND IS NOW, IN COMMON ACCEPTATION AND IN ORDINARY MEANING, A 'PRECIOUS METAL'"; THE COURT HELD THAT ELECTRONIC MACHINERY CONTAINING LARGE PROPORTIONS OF SILVER WERE PRECIOUS METALS WITHIN THE PRECIOUS METALS EXCEPTION OF THE CARRIER'S TARIFF. AND RULE 12 OF ALLIED'S TARIFF 139-C, MF-I.C.C. 155, THE GOVERNING PROVISION, TITLED "PERISHABLE ARTICLES OR ARTICLES OF EXTRAORDINARY VALUE," READS, IN PARAGRAPH (A):

"(A) THE CARRIER WILL NOT ASSUME ANY LIABILITY WHATSOEVER FOR: *** PRECIOUS METALS OR ARTICLES MANUFACTURED THEREFROM WHICH ARE NOT SPECIFICALLY LISTED ON THE BILL OF LADING."

THUS, AND WHILE NOT SPECIFICALLY LISTED BY NAME IN ALLIED'S TARIFF RULE, SILVER AND SILVER PRODUCTS ARE DEFINED AS PRECIOUS METALS AND HAVE ALWAYS BEEN SO CONSIDERED.

IN CONTRAST TO SILVER AND SILVER PRODUCTS AND AS OBSERVED HERE AND IN OUR PRIOR DECISION, ALTHOUGH OF HIGH VALUE, IT HAS NOT BEEN SHOWN THAT ANTIQUE PORCELAINS EVER HAVE BEEN LISTED IN THE CATEGORY OF ARTICLES OF EXTRAORDINARY VALUE OR THAT THEY POSSESS THE NEGOTIABILITY AND EXCHANGEABILITY IN THE CHANNELS OF COMMERCE WITHIN THE DEFINITIONS OF THOSE PHRASES BY THE INTERSTATE COMMERCE COMMISSION OR BY THE COURTS.

THE ANTIQUE IMARI AND KUTANI PORCELAINS HAVE NOT BEEN SHOWN TO BE ARTICLES OF EXTRAORDINARY VALUE, AND OUR DECISION SUSTAINING THE DISALLOWANCE OF ALLIED'S CLAIM IS AFFIRMED.