B-166192, SEP 15, 1969

B-166192, SEP 15, 1969

TRANSPORTATION - FREIGHT CHARGES - MIXED SHIPMENTS DECISION TO RED BALL MOTOR FREIGHT, INC. AUTHORIZING REVISION OF SETTLEMENT WHICH DISALLOWED CLAIM FOR ADDITIONAL FREIGHT CHARGES FOR MIXED TRUCKLOAD SHIPMENT OF ENGINES, ETC., FROM TRAVIS AIR FORCE BASE TO RED RIVER ARMY DEPOT. CARRIER'S CONTENTION THAT QUOTATION RATE AND CLASS RATE CANNOT BE COMMINGLED DUE TO ABSENCE OF COMMON MIXING RULE BETWEEN TWO TARIFFS IS NOT SUSTAINABLE. SINCE SHIPMENT INVOLVED ARTICLES SUBJECT TO QUOTATION RATES IN CONNECTION WITH WHICH THE USE OF THE EXCEPTIONS RULE WAS PRECLUDED THAT RULE HAS NO APPLICATIOM AND THE CLASSIFICATIOM RULE WAS NOT SUPPLANTED. THEREFORE CLASSIFICATION RULE GOVERNS FREIGHT CHARGES. HOWEVER ON REVIEW FOUND THAT ENGINES WERE SUBJECT TO I.C.C. 19 RATES AND THAT STEEL MACHINE PARTS WERE NOT SUBJECT TO SUCH RATES HENCE SETTLEMENT WILL BE REOPENED AND FREIGHT CHARGES RECOMPUTED.

RED BALL MOTOR FREIGHT, INC.:

WE REFER AGAIN TO YOUR LETTER OF FEBRUARY 13, 1969, FILE OC-77236, IN WHICH YOU REQUEST REVIEW OF OUR SETTLEMENT CERTIFICATE OF DECEMBER 19, 1969 (OUR CLAIM FILE NO . TK-881169). THE SETTLEMENT DISALLOWED YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES OF $33.32, ALLEGED TO BE DUE FOR THE TRANSPORTATION OF A MIXED TRUCKLOAD SHIPMENT FORM TRAVIS AIR FORCE BASE, CALIFORNIA, TO RED RIVER ARMY DEPOT, TEXARKANA, TEXAS, UNDER GOVERNMENT BILL OF LADING NO. D-4449052, DATED APRIL 27, 1967. THE SHIPMENT CONSISTED OF 28,956 POUNDS OF INTERNAL COMBUSTION ENGINES, OTHER THAN AIRCRAFT, LOADED ON A NAVAJO FLAT BED TRAILER, 4,760 POUNDS OF MACHINE PARTS, NOIBN, 30 POUNDS OF ALUMINUM TUBING, 2,300 POUNDS OF CARTRIDGE CASES, AND 5,481 POUNDS OF INTERNAL COMBUSTION ENGINES, OTHER THAN AIRCRAFT, LOADED IN A NAVAJO VAN.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID FREIGHT CHARGES OF $1,805.92, APPARENTLY BASED ON THE RATE OF $3.72 PER 100 POUNDS IN ROCKY MOUNTAIN MOTOR TARIFF BUREAU (RMMTB) 26-B, MF-I.C.C. 155, AS APPLIED TO THE 34,437 POUNDS OF INTERNAL COMBUSTION ENGINES, AND ON THE ALL-FREIGHT RATE OF $4.65 PER 100 POUNDS IN U.S. GOVERNMENT QUOTATION I.C.C. NO. 19 (HEREAFTER I.C.C. 19), AS APPLIED TO THE BALANCE OF THE WEIGHT OF THE SHIPMENT (7,090 POUNDS), PLUS THE ARBITRARY OF $0.47 PER 100 POUNDS IN SUPPLEMENT 1 OF RMMTB 26-B ON THE ENTIRE WEIGHT. ON AUDIT OF THE PAYMENT VOUCHER IN OUR OFFICE, THE SAME CHARGE BASIS WAS USED EXCEPT THAT THE ARBITRARY WAS DISALLOWED ON THE WEIGHT OF THE SHIPMENT RATED UNDER I.C.C.19 RESULTING IN AN OVERCHARGE OF $33.32.

AFTER RESPONSES WERE WRITTEN TO SEVERAL OF YOUR PROTESTS (UNRELATED TO THE QUESTION OF THE APPLICABILITY OF THE ARBITRARY) THE OVERCHARGE WAS COLLECTED BY DEDUCTION, 49 U.S.C. 66; YOUR SUBSEQUENT CLAIM FOR $33.32 WAS DISALLOWED IN THE SETTLEMENT UNDER REVIEW.

IN YOUR LETTER OF FEBRUARY 13, 1969 (AND IN YOUR SEVERAL PROTEST LETTERS), YOU CONTEND THAT THE SHIPMENT CANNOT BE RATED PARTLY UNDER PUBLISHED CLASS RATES AND PARTLY UNDER I.C.C. 19 BECAUSE I.C.C. 19 IS GOVERNED BY NATIONAL MOTOR FREIGHT CLASSIFICATION (NMFC) RULE 645 (MIXED SHIPMENTS - TL) AND THE DOMESTIC CLASS RATE IN RMMTB 26-B IS GOVERNED BY ITEM 550 OF RMMTB 20, WHICH IS AN EXCEPTION TO RULE 645 OF THE NMFC, AND THAT THEREFORE THE QUOTATION RATE AND THE CLASS RATE CANNOT BE COMMINGLED, DUE TO THE ABSENCE OF A COMMON MIXING RULE BETWEEN THE TWO TARIFFS.

THE "TARIFF OR SPECIAL RATE AUTHORITIES" SPACE ON BILL OF LADING NO. D- 4449052, REFERS TO I.C.C. 19. ITEM 20, TITLED "GOVERNING PUBLICATIONS," OF I.C.C. 19, NAMES NMFC A-9, MF-ICC 9, AS THE GOVERNING CLASSIFICATION AND IN YOUR SEVERAL LETTERS YOU AGREE THAT BY THIS INCORPORATION THE QUOTATION IS SUBJECT TO RULE 645 OF NMFC A-9, THE RULE COVERING MIXED TRUCKLOAD SHIPMENTS. ITEM 550 OF RMMTB 20-F IS AN EXCEPTION TO NMFC RULE 645; BUT "EXCEPTION 1" IN ITEM 20 OF I.C.C. 19 SPECIFICALLY PROVIDES THAT:

"EXCEPT AS OTHERWISE PROVIDED IN CONNECTION WITH INDIVIDUAL RATES AND/OR ITEMS IN THIS QUOTATION SHIPMENTS MOVING UNDER RATES NAMED IN THIS QUOTATION ARE NOT SUBJECT TO PROVISIONS OF THE FOLLOWING TARIFF ITEM AND RULES: ***

ITEMS 550 AND 720 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU, INC., AGENT, TARIFF 20-F, MF-I.C.C. 157."

IT THUS SEEMS CLEAR THAT THE MIXING RULE GOVERNING THE SHIPMENT MOVING UNDER BILL OF LADING NO. D-4449052 IS RULE 645 OF NMFC A-9.

IN A SOMEWHAT SIMILAR CASE, FORD MOTOR COMPANY V MCNAMARA MOTOR EXPRESS, INC., 305 I.C.C. 49 (1958), INVOLVING MIXED SHIPMENTS OF ARTICLES SUBJECT TO A COMMODITY RATE IN CONNECTION WITH WHICH THE USE OF AN EXCEPTION TO THE CLASSIFICATION MIXING RULE WAS PRECLUDED, AND OF ARTICLES SUBJECT TO CLASS RATES IN CONNECTION WITH WHICH THE SAME MIXING RULE DID APPLY, THE INTERSTATE COMMERCE COMMISSION (ICC) HELD THAT THE SHIPMENTS WERE SUBJECT TO THE CLASSIFICATION MIXING RULE. THE ICC STATED THAT SINCE THE SHIPMENTS: "*** INCLUDED ARTICLES SUBJECT TO COMMODITY RATES IN CONNECTION WITH WHICH THE USE OF THE EXCEPTIONS RULE WAS PRECLUDED, THAT RULE COULD HAVE NO APPLICATION TO THE INDIVIDUAL SHIPMENTS. SINCE THE EXCEPTIONS RULE WAS NOT SUPPLANTED. THUS, THE LATTER RULE GOVERNED THE DETERMINATION OF CHARGES ON THE MIXED SHIPMENTS HERE UNDER CONSIDERATION."

SINCE THE SHIPMENT HERE INVOLVED INCLUDED ARTICLES SUBJECT TO THE QUOTATION RATES IN CONNECTION WITH WHICH THE USE OF THE EXCEPTIONS RULE WAS PRECLUDED, THAT RULE COULD HAVE NO APPLICATION TO THE SHIPMENT, AND THE CLASSIFICATION RULE WAS NOT SUPPLANTED. THEREFORE, THE CLASSIFICATION RULE GOVERNS THE DETERMINATION OF CHARGES ON THE SUBJECT SHIPMENT.

HOWEVER, IN REVIEWING THIS SETTLEMENT, WE FIND, AMONG OTHER THINGS, THAT THE INTERNAL COMBUSTION ENGINES, OTHER THAN AIRCRAFT INCLUDED IN THE SHIPMENT, ARE SUBJECT TO THE RATES IN I.C.C. 19 AND THAT TWO BOXES OF STEEL MACHINE PARTS WEIGHING 240 POUNDS AND HAVING A DENSITY OF LESS THAN 6 POUNDS PER CUBIC FOOT, ALSO INCLUDED IN THE SHIPMENT, ARE NOT SUBJECT TO THE RATES IN I.C.C. 19 (SEE ITEM 210 OF THE QUOTATION). ACCORDINGLY, WE TODAY HAVE INSTRUCTED OUR TRANSPORTATION DIVISION TO REOPEN THE SETTLEMENT AND TO RECOMPUTE THE APPLICABLE FREIGHT CHARGES. NOTICE OF ANY CHANGE IN THE SETTLEMENT SHOULD REACH YOU IN DUE COURSE.