B-132017, SEP. 17, 1963

B-132017: Sep 17, 1963

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AT ISSUE IS THE APPLICABLE MOTOR FREIGHT CLASSIFICATION RATING ON THE ARTICLES SHIPPED. RELYING UPON AN ADMINISTRATIVE DETERMINATION THAT THE SHIPMENTS WERE PROPERLY DESCRIBED AS ALUMINUM FORGINGS. WE HELD THAT THE ARTICLES SHIPPED ARE RATABLE AS ALUMINUM ARTICLES. THE MAIN THRUST OF YOUR ARGUMENT IS THAT "THE ULTIMATE PURPOSE OF THE ARTICLE. AS WE HAVE PREVIOUSLY POINTED OUT. THE AUTHORITIES WE HAVE EXAMINED SUPPORT REJECTION OF THE CONCEPT OF USE AT DESTINATION AS A LEGITIMATE BASIS FOR DETERMINING APPLICABLE RATES AND RATINGS. THE NATURE OF THE ARTICLE WHEN SHIPPED IS THE SIGNIFICANT FACTOR FOR CONSIDERATION. AS CONSISTENT WITH THE VIEW THAT THE ARTICLES SHIPPED ARE PROPERLY DESCRIBED AS ALUMINUM FORGINGS AND THUS ARE PROPERLY RATABLE AS ALUMINUM ARTICLES RATHER THAN AS AIRPLANE PARTS.

B-132017, SEP. 17, 1963

TO DIXIE OHIO EXPRESS, INC:

IN YOUR LETTER OF FEBRUARY 25, 1963, YOU AGAIN URGE THAT WE FURTHER CONSIDER OUR DECISION OF SEPTEMBER 11, 1957, AND LATER AFFIRMANCES, INVOLVING CLAIMS FOR ADDITIONAL FREIGHT CHARGES ON VARIOUS SHIPMENTS OF GOVERNMENT PROPERTY MOVING DURING 1952 AND 1953 FROM DETROIT, MICHIGAN, TO THE LOCKHEED AIRCRAFT CORPORATION AT MARIETTA, GEORGIA, ON COMMERCIAL BILLS OF LADING CONVERTED AT DESTINATION TO GOVERNMENT BILLS OF LADING.

AT ISSUE IS THE APPLICABLE MOTOR FREIGHT CLASSIFICATION RATING ON THE ARTICLES SHIPPED. THE CARRIER CONTENDS--- AND HAS THE BURDEN OF PROVING-- - THAT THE SHIPMENTS CONSISTED OF AND SHOULD BE RATED AS AIRPLANE PARTS, NOI; IN OUR DECISIONS, RELYING UPON AN ADMINISTRATIVE DETERMINATION THAT THE SHIPMENTS WERE PROPERLY DESCRIBED AS ALUMINUM FORGINGS, WE HELD THAT THE ARTICLES SHIPPED ARE RATABLE AS ALUMINUM ARTICLES, NOIBN. THAT HOLDING HAS BEEN AFFIRMED THREE TIMES.

WITH YOUR LETTER OF FEBRUARY 25, YOU PRESENT NO NEW MATERIAL EVIDENCE TENDING TO ESTABLISH THAT THE SHIPMENTS CONSISTED OF AND SHOULD BE RATED AS AIRPLANE PARTS. INSTEAD, YOU URGE THAT THE EVIDENCE NOW OF RECORD JUSTIFIES A LEGAL CONCLUSION TO THAT EFFECT.

THE MAIN THRUST OF YOUR ARGUMENT IS THAT "THE ULTIMATE PURPOSE OF THE ARTICLE, SHALL DETERMINE THE RATE PROPERLY APPLICABLE.' HOWEVER, AS WE HAVE PREVIOUSLY POINTED OUT, THE AUTHORITIES WE HAVE EXAMINED SUPPORT REJECTION OF THE CONCEPT OF USE AT DESTINATION AS A LEGITIMATE BASIS FOR DETERMINING APPLICABLE RATES AND RATINGS. THE NATURE OF THE ARTICLE WHEN SHIPPED IS THE SIGNIFICANT FACTOR FOR CONSIDERATION.

IN THESE CIRCUMSTANCES, AND AFTER RE-EXAMINATION OF THE RECORDS PERTAINING TO THESE SHIPMENTS, WE CONTINUE TO ACCEPT AS FINAL THE ADMINISTRATIVE DETERMINATION AND, WITH THE REST OF THE RECORD, AS CONSISTENT WITH THE VIEW THAT THE ARTICLES SHIPPED ARE PROPERLY DESCRIBED AS ALUMINUM FORGINGS AND THUS ARE PROPERLY RATABLE AS ALUMINUM ARTICLES RATHER THAN AS AIRPLANE PARTS. OUR PREVIOUS DECISIONS SUSTAINING THE DISALLOWANCE OF YOUR CLAIM GIVE PROPER EFFECT TO THAT BASIS, AND, ACCORDINGLY, THE CONCLUSION REACHED THEREIN IS REAFFIRMED.