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B-141497, SEP. 1, 1960

B-141497 Sep 01, 1960
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YOUR CLAIM IS BASED ON A FIRST-CLASS LTL RATING PROVIDED IN ITEM 160-A. THIS ITEM WAS MADE SUBJECT TO A NOTE WHICH PROVIDED THAT THE EXCEPTIONS RATINGS NAMED WERE NOT CONTINGENT UPON RELEASED VALUATION. YOUR CLAIM WAS THEREFORE DISALLOWED IN ACCORDANCE WITH THE DECISIONS OF THE INTERSTATE COMMERCE COMMISSION IN UPJOHN CO. FOR THE REASON THAT THE RELEASED AND UNRELEASED RATINGS WERE SEPARATE AND DISTINCT ITEMS IN THE CLASSIFICATION. WHICH WAS NOT SUBJECT TO RELEASED VALUE. REMOVED FROM THE CLASSIFICATION ONLY THE RATING WHICH ALSO WAS NOT SUBJECT TO RELEASED VALUE. IS NOT IN ORDER. NO JET PROPULSION TYPE OR RADIAL TYPE ENGINES ARE NAMED IN THE CLASSIFICATION AND ITEM 160-A WAS PUT IN THE TARIFF TO COVER.

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B-141497, SEP. 1, 1960

TO MICHIGAN EXPRESS, INC.:

IN YOUR LETTER OF JULY 20, 1960, PRO NO. DT 74734, YOU, IN EFFECT, REQUEST RECONSIDERATION OF OUR DECISION OF MARCH 18, 1960, B-141497, IN WHICH WE SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE FOR TRANSPORTING AN LTL SHIPMENT OF JET PROPULSION TYPE INTERNAL COMBUSTION ENGINES FROM MARIETTA, PENNSYLVANIA, TO BATTLE CREEK, MICHIGAN, UNDER GOVERNMENT BILL OF LADING NO. AF-9757726, DATED APRIL 16, 1959.

YOUR CLAIM IS BASED ON A FIRST-CLASS LTL RATING PROVIDED IN ITEM 160-A, AN EXCEPTION TO THE CLASSIFICATION NAMED IN SUPPLEMENT 103 TO EASTERN CENTRAL TARIFF NO. 31-B, MF-I.C.C. NO. A-132. HOWEVER, THIS ITEM WAS MADE SUBJECT TO A NOTE WHICH PROVIDED THAT THE EXCEPTIONS RATINGS NAMED WERE NOT CONTINGENT UPON RELEASED VALUATION. YOUR CLAIM WAS THEREFORE DISALLOWED IN ACCORDANCE WITH THE DECISIONS OF THE INTERSTATE COMMERCE COMMISSION IN UPJOHN CO. V. PENNSYLVANIA R.CO., 306 I.C.C. 325 AND IN DOW CHEMICAL CO. V. CHESAPEAKE AND OHIO RY., 306 I.C.C. 403, FOR THE REASON THAT THE RELEASED AND UNRELEASED RATINGS WERE SEPARATE AND DISTINCT ITEMS IN THE CLASSIFICATION. EXCEPTIONS ITEM 160-A, WHICH WAS NOT SUBJECT TO RELEASED VALUE, REMOVED FROM THE CLASSIFICATION ONLY THE RATING WHICH ALSO WAS NOT SUBJECT TO RELEASED VALUE--- TO THE EXTENT THAT IT COVERED THE COMMODITIES NAMED--- AND LEFT IN EFFECT AND APPLICABLE ON THE SHIPMENT IN QUESTION THE RELEASED VALUE RATINGS IN THE CLASSIFICATION.

WITH YOUR REQUEST FOR RECONSIDERATION YOU ENCLOSED LETTERS OF MARCH 29 AND APRIL 6, 1960, FROM KRAMER BROS. FREIGHT LINES, INC., AN INTERMEDIATE CONNECTING CARRIER, DECLINING THE BALANCE DUE BILL WHICH YOU RENDERED TO KRAMER BROS. ON THE BASIS SET FORTH IN OUR DECISION. YOU REQUEST OUR COMMENTS ON THE ARGUMENTS SET FORTH IN THOSE LETTERS.

IN THE LETTER OF MARCH 29, 1960, KRAMER BROS. BASED THEIR OBJECTION ON THE GROUNDS THAT---

"RATING JET PROPULSION TYPE ENGINES BY ANALOGY AND USING ITEM 61244 IN N.M.F.C. IS NOT IN ORDER, SINCE ITEM 160-A OF E.C. 31-B SPECIFICALLY NAMES FIRST CLASS RATES ON JET PROPULSION ENGINES AND THE RELEASED VALUE DOES NOT COVER AS STATED IN THE ITEM. NO JET PROPULSION TYPE OR RADIAL TYPE ENGINES ARE NAMED IN THE CLASSIFICATION AND ITEM 160-A WAS PUT IN THE TARIFF TO COVER.

"THE U.S. SUPREME COURT HAS RECENTLY RULED THAT RATES AND RATINGS, WHEN APPROVED BY THE I.C.C. ARE JUST AND LEGAL AND THE U.S. GOVERNMENT HAD TO ABIDE BY THEM.'

AND IN THE LETTER OF APRIL 6, 1960, KRAMER BROS. STATED---

"IF YOU WILL REFER TO ITEM 200 OF E.C. 31-C YOU WILL FIND ENGINES, INTERNAL COMBUSTION, N.O.I. IN BOXES ETC. RADIAL CYLINDER TYPE, JET PROPULSION TYPE OR ROCKET PROPULSION TYPE L.T.L. 100, ON WHICH THE RELEASED VALUE DOES NOT APPLY AS SHOWN IN THE N.M.F.C. THIS ITEM WAS APPROVED BY THE I.C.C. AND THE GOVERNMENT IS BOUND BY IT.

"THE MATERIAL WAS JET PROPULSION TYPE ENGINES AND THESE ARE NOT FOUND IN THE CLASSIFICATION AND THE ANALOGY RULE DOES NOT APPLY, SINCE A SPECIFIC RATING IS SHOWN IN THE ABOVE ITEM.

"THE DECISION MENTIONED BY THE GOVERNMENT DOES NOT HAVE ANY BEARING.'

REFERENCE TO ITEM 200 OF EASTERN CENTRAL TARIFF 31-C, IN THE LETTER OF APRIL 6, IS APPARENTLY IN ERROR SINCE THAT TARIFF WAS NOT EFFECTIVE UNTIL SEPTEMBER 18, 1959, FIVE MONTHS AFTER THE PRESENT SHIPMENT MOVED. HOWEVER, THE PROVISIONS IN ITEM 200 DID NOT CHANGE THE PROVISIONS OF ITEM 160-A IN SUPPLEMENT 103 OF EASTERN CENTRAL TARIFF 31-B, WHICH WAS IN EFFECT.

THE ANALOGY RULE, RULE 14 IN THE CLASSIFICATION, APPLIES ONLY WHEN THE COMMODITY INVOLVED IS NOT COVERED BY A DESCRIPTION, SPECIFIC OR GENERAL, IN THE CLASSIFICATION. SEE WEAVER PANTS CORP. V. ATLANTIC GREAT SOUTHERN R., 223 I.C.C. 566; SMITH BROS.INC. V. LOUISVILLE AND NASHVILLE R.R., 172 I.C.C. 545, 546; CELOTEX CO. V. ATLANTIC COAST LINE R., 159 I.C.C. 727, 729, MODIFIED 179 I.C.C. 307, AND CLASSIFICATION OF JUTE PACKING, 98 I.C.C. 287, 288. THE COMMODITY IN QUESTION HAS NOT BEEN RATED BY ANALOGY TO INTERNAL COMBUSTION ENGINES, BUT IS AN INTERNAL COMBUSTION ENGINE OF A PARTICULAR TYPE AND, IN THE ABSENCE OF AN ITEM IN THE CLASSIFICATION MORE SPECIFICALLY DESCRIBING THAT PARTICULAR TYPE OF INTERNAL COMBUSTION ENGINE, IT IS INCLUDED WITHIN THE DESCRIPTION "ENGINES, INTERNAL COMBUSTION, NOI" IN ITEM 61243. UNDER THAT HEADING, ITEM 61244 NAMES RATINGS ON INTERNAL COMBUSTION ENGINES WHEN THE VALUATION HAS BEEN RELEASED IN ACCORDANCE WITH ITS TERMS, AND ITEM 61247 NAMES RATINGS NOT SUBJECT TO RELEASED VALUATIONS. ITEM 160-A OF EASTERN CENTRAL TARIFF NO. 31-B PROVIDES AN EXCEPTION RATING FOR APPLICATION ON SHIPMENTS OF JET PROPULSION TYPE INTERNAL COMBUSTION ENGINES, BUT, AS A RESULT OF THE PROVISIONS OF NOTE 1, THE EXCEPTIONS RATINGS NAMED ARE NOT SUBJECT TO RELEASED VALUATIONS.

THE FUNCTION OF AN EXCEPTION TO THE CLASSIFICATION IS TO AMEND THE CLASSIFICATION BY REMOVING THEREFROM THE COMMODITIES AND RATINGS PROVIDED IN THE EXCEPTION, BUT AN EXCEPTION IS APPLIED STRICTLY AND WILL SUPERSEDE THE CLASSIFICATION ONLY TO THE EXTENT CLEARLY PROVIDED IN ITS TERMS AND WILL NOT APPLY ON SHIPMENTS OF SIMILAR ITEMS WHICH HAVE BEEN SEPARATELY INDEXED AND RATED IN THE CLASSIFICATION. SEE TEAGUE HARDWARE CO. V. ATLANTA AND WEST POINT, 284 I.C.C. 693, 695; STANDARD HORSE NAIL CORPORATION V. ATCHISON, TOPEKA AND SANTA FE RY., 268 I.C.C. 149, 151; DUREZ PLASTICS AND CHEMICALS, INC. V. CHICAGO, MILWAUKEE AND ST. PAUL RAILROAD, 263 I.C.C. 1, 5; AND MANLY CONSTRUCTION COMPANY V. CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RY., 152 I.C.C. 612, 613. THEREFORE, IN THE UPJOHN CO., DOW CHEMICAL CO., CASES, SUPRA, AND IN AMERICAN HOME FOODS, INC., V. DELAWARE, LACKAWANNA AND WESTERN RAILROAD, 303 I.C.C. 655, THE INTERSTATE COMMERCE COMMISSION HELD THAT AN EXCEPTIONS RATING OR A COMMODITY RATE WHICH IS NOT CONTINGENT UPON DECLARED OR RELEASED VALUE DOES NOT SUPERSEDE A CLASSIFICATION RATING WHICH IS CONTINGENT UPON DECLARED OR RELEASED VALUE, SINCE THE RELEASED AND UNRELEASED RATINGS IN THE CLASSIFICATION ON THE SAME COMMODITY ARE SEPARATE AND DISTINCT ITEMS FOR TRANSPORTATION PURPOSES. THUS, IN THE AMERICAN HOME FOODS, INC., CASE, SUPRA, THE COMMISSION FOUND THAT A CLASS-35 EXCEPTIONS RATING PUBLISHED TO APPLY ON INSTANT COFFEE, WHICH WAS NOT SUBJECT TO A RELEASED VALUE, DID NOT SUPERSEDE THE APPLICABLE CLASSIFICATION RATING WHICH WAS SUBJECT TO A RELEASED VALUE, AND WAS NOT APPLICABLE ON 40 CARLOADS OF INSTANT COFFEE TENDERED TO THE CARRIER WITH THE RELEASED VALUE DECLARED AT 50 CENTS A POUND. IN THAT CONNECTION, THE COMMISSION SAID THAT: "IT SEEMS APPARENT THAT FROM A COMMERCIAL STANDPOINT THERE WAS NO DIFFERENCE IN THE COFFEE (ASSUMING IT WAS OF THE SAME GRADE) WHETHER ITS VALUE WAS RELEASED OR NOT RELEASED, BUT IT IS EQUALLY APPARENT THAT THERE WAS A DISTINCT DIFFERENCE FROM A TRANSPORTATION STANDPOINT BY REASON OF THE SHIPPER'S DECLARATION AS TO VALUE. IF THE EXCEPTIONS RATING HAD BEEN SUBJECT TO A RELEASED VALUE OF 50 CENTS A POUND, IT OBVIOUSLY WOULD HAVE HAD NO APPLICATION IN THE ABSENCE OF A DECLARATION OF VALUE BY THE SHIPPER AND THE HIGHER UNRELEASED CLASSIFICATION RATING WOULD HAVE APPLIED. STATED DIFFERENTLY, AN EXCEPTIONS RATING SUBJECT TO A RELEASED VALUE OF 50 CENTS A POUND WOULD NOT HAVE REMOVED THE UNRELEASED RATING FROM THE CLASSIFICATION, AND CONVERSELY WE CONCLUDE THAT THE UNRELEASED EXCEPTIONS RATING DID NOT REMOVE THE RELEASED RATING FROM THE CLASSIFICATION.' THE COMMISSION REJECTED THE DEFENDANT RAILROAD'S CONTENTION THAT THE EXCEPTIONS RATING ON INSTANT COFFEE SUPERSEDED BOTH THE UNRELEASED AND THE RELEASED VALUE CLASS RATINGS.

THE DECISION IN THE AMERICAN HOME FOODS, INC., CASE WAS FOLLOWED IN UPJOHN COMPANY V. PENNSYLVANIA R.CO., SUPRA, WHICH COVERED A SHIPMENT OF MEDICINES IN CARLOADS FROM UPJOHN, MICHIGAN, TO DALLAS, TEXAS,TENDERED TO THE CARRIER WITH A RELEASED VALUE DECLARED. THE INTERSTATE COMMERCE COMMISSION HELD THAT A COMMODITY RATE ON MEDICINES BETWEEN THE SAME POINTS BUT NOT CONTINGENT ON DECLARED OR RELEASED VALUE DID NOT APPLY, AND THAT A CLASSIFICATION RATING PUBLISHED IN THE UNIFORM FREIGHT CLASSIFICATION TO APPLY ON MEDICINES RELEASED TO A VALUE OF 50 CENTS A POUND DID APPLY, SINCE THE RELEASED AND UNRELEASED RATINGS IN THE CLASSIFICATION SHOULD BE CONSIDERED FROM A TRANSPORTATION STANDPOINT AS SEPARATE AND DISTINCT ITEMS, AND, AS THERE WAS NO COMMODITY RATE COMPARABLE TO THE RELEASED CLASSIFICATION RATING, THAT RATING WAS NOT REMOVED FROM THE CLASSIFICATION BUT APPLIED TO THE SHIPMENT IN QUESTION. ALSO, IN THE DOW CHEMICAL COMPANY CASE, SUPRA, THE COMMISSION HELD, CITING AND QUOTING FROM THE DECISION IN AMERICAN HOME FOODS CASE, THAT ON SEVERAL TANK CARLOADS OF ANILINE OIL SHIPPED FROM MIDLAND, MICHIGAN, TO KINGSPORT, TEXAS, BETWEEN JUNE 1952 AND OCTOBER 1953, TENDERED TO THE CARRIER WITH THE RELEASED VALUE DECLARED, THE EXCEPTIONS RATE ON ANILINE OIL NOT CONDITIONED UPON RELEASED VALUATION WAS INAPPLICABLE. THE CLASSIFICATION RATING ON ANILINE OIL WAS APPLICABLE WHEN THE RELEASED VALUE WAS DECLARED, SINCE THE CLASSIFICATION NAMED RATINGS ON THE BASIS OF BOTH RELEASED AND UNRELEASED VALUATION, AND, IN VIEW OF THE FINDING IN THE AMERICAN HOME FOODS CASE, THAT THE RELEASED AND UNRELEASED CLASSIFICATION ITEMS WERE SEPARATE AND DISTINCT, THERE WAS NO EXCEPTION RATE WHICH COULD DISPLACE THE RATE BASED ON THE RELEASED CLASSIFICATION RATING.

IN CONNECTION WITH THE FOREGOING, SEE THE ENCLOSED COPY OF A LETTER DATED DECEMBER 16, 1959, FILE 500-536392, ADDRESSED TO THE M.R. AND R. TRUCKING COMPANY OF CRESTVIEW, FLORIDA, IN WHICH THE ASSISTANT DIRECTOR, BUREAU OF TRAFFIC, INTERSTATE COMMERCE COMMISSION, RECENTLY CONSIDERED THE SIGNIFICANCE OF SIMILAR TARIFF PROVISIONS (ITEM 61243, TARIFF NO. 515-C). IN THAT LETTER THE ASSISTANT DIRECTOR STATED AS FOLLOWS:

"AS AFORE STATED, IN THE AMERICAN HOME FOODS CASE AND IN THE UPJOHN CASE IT WAS HELD THAT WHILE FROM A COMMERCIAL STANDPOINT THERE WAS NO DIFFERENCE IN THE COMMODITIES WHETHER THEIR VALUE WAS RELEASED OR NOT RELEASED, IT WAS EQUALLY APPARENT THAT THERE WAS A DISTINCT DIFFERENCE FROM A TRANSPORTATION STANDPOINT BY REASON OF THE SHIPPER'S DECLARATION AS TO VALUE. WE THEREFORE ARE STILL OF THE VIEW THAT UNRELEASED ITEM 61243 IN SMCRC 515-C DOES NOT DISPLACE THE RELEASED PROVISIONS IN THE CLASSIFICATION AND WE DO NOT SEE THAT NOTE D THEREIN (WHICH IS SIMILAR TO NOTE 1 IN THE PRESENT EXCEPTIONS ITEM) MAKES ANY MATERIAL CONTRIBUTION IN THIS INSTANCE.'

INTERNAL COMBUSTION ENGINES SUBJECT TO RELEASED VALUATIONS ARE, IN THE PRESENT INSTANCE, INDEXED AND RATED SEPARATELY IN THE CLASSIFICATION FROM INTERNAL COMBUSTION ENGINES NOT SUBJECT TO RELEASED VALUATIONS. CONSEQUENTLY, ALTHOUGH EXCEPTIONS ITEM 160-A IS MORE SPECIFIC, IT IS NOT SUBJECT TO RELEASED VALUATIONS AND DOES NOT PROVIDE THAT IT WILL DISPLACE THE RELEASED VALUATION RATINGS PROVIDED IN ITEM 61244 OF THE CLASSIFICATION. AS A RESULT OF THE DECISIONS OF THE COMMISSION IN THE UPJOHN, DOW CHEMICAL AND AMERICAN HOME FOODS CASES, THE RATING PROVIDED IN EXCEPTIONS ITEM 160-A SUPERSEDE ONLY THE RATINGS PROVIDED IN ITEM 61247 OF THE CLASSIFICATION WHICH ALSO ARE NOT SUBJECT TO RELEASED VALUATIONS, AND THE RELEASED VALUATION RATINGS IN ITEM 61244 CONTINUE TO APPLY TO SHIPMENTS OF RADIAL CYLINDER TYPE, JET PROPULSION TYPE OR ROCKET PROPULSION TYPE INTERNAL COMBUSTION ENGINES, AS WELL AS OTHER INTERNAL COMBUSTION ENGINES WHEN THE VALUE OF THE ENGINES IS RELEASED.

AS STATED IN OUR DECISION OF MARCH 18, 1960, CONDITION NO. 5, ON THE REVERSE OF THE GOVERNMENT BILL OF LADING AND OF THE SHIPPING ORDER, PROVIDES THAT THE SHIPMENT COVERED BY THE BILL OF LADING IS MADE AT THE RESTRICTED OR LIMITED VALUATION SPECIFIED IN THE TARIFF OR CLASSIFICATION AT OR UNDER WHICH THE LOWEST RATE IS AVAILABLE, UNLESS OTHERWISE INSTRUCTED ON THE FACE OF THE BILL OF LADING. THE FACE OF THE PRESENT BILL OF LADING, HOWEVER, WAS ALSO ANNOTATED TO INDICATE THAT IT WAS RELEASED TO A VALUE NOT EXCEEDING $2.50 A POUND. ACCORDINGLY, THE PRESENT SHIPMENT WAS MADE AT THE RELEASED VALUE, SECOND CLASS LTL, RATING IN ITEM 61244 OF NATIONAL MOTOR FREIGHT CLASSIFICATION A-4, AND NOT AT THE UNRELEASED RATINGS PROVIDED IN EXCEPTIONS ITEM 160-A. THEREFORE, OUR DECISION SUSTAINING THE DISALLOWANCE OF YOUR CLAIM IS AFFIRMED.

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