B-99995, SEP. 18, 1956

B-99995: Sep 18, 1956

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TO MISSOURI PACIFIC RAILROAD COMPANY: REFERENCE IS MADE TO YOUR REQUEST. WERE PAID ON YOUR BILL NO. 13998. IN THE AUDIT OF THE PAYMENT VOUCHER OUR TRANSPORTATION DIVISION FOUND THAT THE ALLOWABLE CHARGES WERE $1. WHICH IS REPORTED TO HAVE BEEN ADJUSTED BY APPROPRIATE DEDUCTION FROM AN AMOUNT OTHERWISE FOUND DUE ON YOUR BILL NO. 67043. YOU STATE THAT THE INTERSTATE COMMERCE COMMISSION HAD CONSISTENTLY HELD THAT COMMODITY TARIFFS MUST BE STRICTLY CONSTRUED AND THAT UNTIL THE SPECIFIC COMMODITY DESCRIPTION IS PHYSICALLY INCORPORATED INTO THE COMMODITY TARIFF THE CLASS RATE MUST BE APPLIED. YOU SUGGEST THAT WE ARE RELYING ON THE RULE OF ANALOGY. OUR OFFICE IS NOT RELYING ON THE RULE OF ANALOGY.

B-99995, SEP. 18, 1956

TO MISSOURI PACIFIC RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR REQUEST, PER FILE 6-GP-13998-A, FOR REVIEW OF OUR SETTLEMENT DATED JUNE 21, 1955, WHICH DISALLOWED YOUR CLAIM PER BILL NO. S-13998-A, FOR $1,619.07 ADDITIONAL TO THE AMOUNT OF $1,237.40 PAID ON YOUR BILL NO. 13998 FOR THE TRANSPORTATION OF 1,215 BOXES OF ,AMMUNITION FOR CANNON WITH SMOKE PROJECTILES" FROM OGDEN, UTAH, TO PINE BLUFF, ARKANSAS, UNDER GOVERNMENT BILL OF LADING NO. WQ-14021173, DATED MARCH 22, 1943.

FOR THIS SERVICE YOU CLAIMED ORIGINALLY, AND WERE PAID ON YOUR BILL NO. 13998, THE AMOUNT OF $ 3,076.57, COMPUTED ON THE BASIS OF A WEIGHT OF 80,190 POUNDS AT A RATE OF $4.64 PER 100 POUNDS REDUCED TO $3.8366 BY DEDUCTIONS FOR LAND GRANT. IN THE AUDIT OF THE PAYMENT VOUCHER OUR TRANSPORTATION DIVISION FOUND THAT THE ALLOWABLE CHARGES WERE $1,237.40, COMPUTED ON THE BASIS OF A COMMODITY RATE OF $1.90 PER 100 POUNDS PUBLISHED IN ITEM NO. 2165 OF TRANS-CONTINENTAL FREIGHT BUREAU TARIFF NO. 3-P, AGENT L. E. KIPP'S I.C.C. NO. 1483 AS BEING APPLICABLE ON "EXPLOSIVES, VIZ. * * * CARTRIDGES, LOADED, IN BOXES.' THE AUDIT BASIS REFLECTED AN OVERPAYMENT OF $1,839.17 ($3,076.57 LESS $1,237.40), WHICH IS REPORTED TO HAVE BEEN ADJUSTED BY APPROPRIATE DEDUCTION FROM AN AMOUNT OTHERWISE FOUND DUE ON YOUR BILL NO. 67043.

IN REQUESTING A REVIEW OF THE MATTER YOU APPARENTLY TAKE THE POSITION THAT THE ARTICLES SHIPPED SHOULD BE CLASSIFIED AND RATED UNDER ITEM NO. 1865 OF CONSOLIDATED FREIGHT CLASSIFICATION NO. 15, WHICH NAMES, UNDER THE GENERAL CAPTION "AMMUNITION, EXPLOSIVE, INCENDIARY OR GAS, SMOKE OR TEAR PRODUCING," A FIRST-CLASS RATING FOR "PROJECTILES, FOR CANNON, LOOSE OR IN PACKAGES," IN CARLOADS. IN THIS CONNECTION, YOU STATE THAT THE INTERSTATE COMMERCE COMMISSION HAD CONSISTENTLY HELD THAT COMMODITY TARIFFS MUST BE STRICTLY CONSTRUED AND THAT UNTIL THE SPECIFIC COMMODITY DESCRIPTION IS PHYSICALLY INCORPORATED INTO THE COMMODITY TARIFF THE CLASS RATE MUST BE APPLIED. YOU SUGGEST THAT WE ARE RELYING ON THE RULE OF ANALOGY. INDICATED IN OUR DECISION OF SEPTEMBER 13, 1956, B-126952, CONCERNING YOUR FILE 6-GR-48238-B, ON A QUESTION SIMILAR TO THAT INVOLVED HERE, OUR OFFICE IS NOT RELYING ON THE RULE OF ANALOGY, BUT IS BASING ITS POSITION ON THE PREMISE THAT THE ARTICLES ARE IN FACT "CARTRIDGES" WITHIN THE GENERALLY ACCEPTED MEANING OF SUCH TERMS AND THAT THE COMMODITY RATE USED IN OUR AUDIT SPECIFICALLY APPLIES TO THE SUBJECT SHIPMENT. THE PROPRIETY OF APPLYING THE RATE ON "CARTRIDGES" ON ARTICLES HAVING GENERAL CHARACTERISTICS SIMILAR TO THOSE UNDER CONSIDERATION IN THIS INSTANCE WAS DISCUSSED IN THE ABOVE-MENTIONED DECISION B-126952, AND THE REASONS THERE GIVEN IN SUPPORT OF SUCH RATE APPEAR TO BE EQUALLY APPLICABLE IN THE PRESENT MATTER.

ACCORDINGLY, AS OUR SETTLEMENT ON YOUR BILL NO. S-13998-A WAS CONSISTENT WITH THE FOREGOING, IT IS SUSTAINED.