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B-141535, MAR. 30, 1960

B-141535 Mar 30, 1960
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TO CRUTCHER TRANSFER LINE: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 16. FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID THE AMOUNT OF $204.60 BASED ON A CLASS 85 LESS-THAN-TRUCKLOAD RATE OF $3.67 PER 100 POUNDS. WHICH PROVIDES THAT THE RELEASED VALUATION PROVISIONS AS SHOWN IN THE NATIONAL MOTOR FREIGHT CLASSIFICATION WILL NOT APPLY ON ARTICLES NAMED IN THE ITEM. SUPERSEDED ONLY THE CLASSIFICATION RATING WHICH ALSO WAS NOT SUBJECT TO A RELEASED VALUE PROVISION. IT IS NOTED THAT THE ASSISTANT DIRECTOR. IT WAS STATED IN THAT LETTER: "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.

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B-141535, MAR. 30, 1960

TO CRUTCHER TRANSFER LINE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 16, 1959, IN WHICH YOU, IN EFFECT, REQUEST REVIEW OF THE DISALLOWANCE OF YOUR CLAIM, SUPPLEMENTAL BILL NO. 1602-A, FOR ADDITIONAL FREIGHT CHARGES OF $34.69 ALLEGED TO BE DUE ON A MIXED SHIPMENT CONSISTING IN PART OF "2 ENGINES, INTERNAL COMBUSTION, NO. 1 RADIAL CYLINDER," TRANSPORTED FROM FORT WORTH, TEXAS, TO FORT KNOX, KENTUCKY, UNDER GOVERNMENT BILL OF LADING NO. WY- 9007970 DATED JULY 2, 1958.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID THE AMOUNT OF $204.60 BASED ON A CLASS 85 LESS-THAN-TRUCKLOAD RATE OF $3.67 PER 100 POUNDS, PROVIDED IN SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 505 -A, MF-I.C.C. NO. 843 AND ITEM NO. 61243 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4, MF-I.C.C. NO. 1, FOR APPLICATION ON INTERNAL COMBUSTION ENGINES, NOI, WHEN RELEASED TO A VALUE NOT EXCEEDING $2.50 PER POUND. THEREAFTER, BY YOUR SUPPLEMENTAL BILL NO. 1602-A YOU CLAIMED THE PRESENT ADDITIONAL CHARGES ON THE BASIS OF A COLUMN 100 COMMODITY RATING PROVIDED IN ITEM 61243 OF S.M.C.R.C. TARIFF NO. 515 C, MF-I.C.C. NO. 960 FOR APPLICATION ON LTL SHIPMENTS OF RADIAL CYLINDER OR JET PROPULSION TYPE INTERNAL COMBUSTION ENGINES. IN YOUR REQUEST FOR REVIEW YOU ARGUE THAT THE HIGHER COMMODITY RATING APPLIES PURSUANT TO RULE 26 OF NMFC NO. A-4, SECTION 1, WHICH PROVIDES, IN PERTINENT PART:

"THE ESTABLISHMENT OF A COMMODITY RATE REMOVES THE APPLICATION OF THE CLASS RATE ON THE SAME ARTICLE BETWEEN THE SAME POINTS OVER THE SAME ROUTE

ITEM NO. 61243 OF S.M.C.R.C. NO. 515-C IN SUBJECT TO NOTE D, WHICH PROVIDES THAT THE RELEASED VALUATION PROVISIONS AS SHOWN IN THE NATIONAL MOTOR FREIGHT CLASSIFICATION WILL NOT APPLY ON ARTICLES NAMED IN THE ITEM. CONSEQUENTLY, THIS ITEM APPLIES ONLY ON ARTICLES OF UNRELEASED VALUATION. ITEM NO. 61243 OF NMFC A-4, APPLIED IN THE DISALLOWANCE OF YOUR CLAIM, APPLIES ON SHIPMENTS RELEASED TO A VALUATION OF $2.50 A POUND WHILE ITEM NO. 61247 PROVIDING A CLASS 150 LTL RATING APPLIES ON SHIPMENTS OF UNRELEASED VALUATION.

IN UPJOHN COMPANY V. PENNSYLVANIA RAILROAD COMPANY, 306 I.C.C. 325, INVOLVING A SOMEWHAT SIMILAR SITUATION, THE INTERSTATE COMMERCE COMMISSION HELD THAT THE RELEASED AND UNRELEASED CLASSIFICATION RATINGS SHOULD BE CONSIDERED FROM A TRANSPORTATION STANDPOINT AS SEPARATE AND DISTINCT ITEMS, AND THAT THE COMMODITY RATE, NOT SUBJECT TO A RELEASED VALUE PROVISION, SUPERSEDED ONLY THE CLASSIFICATION RATING WHICH ALSO WAS NOT SUBJECT TO A RELEASED VALUE PROVISION. SEE ALSO, AMERICAN HOME FOODS, INC. V. DELAWARE, LACKAWANNA AND WESTERN R.CO., 303 I.C.C. 655; AND DOW CHEMICAL CO. V. CHESAPEAKE AND OHIO RY.CO., 306 I.C.C. 403.

IN ADDITION, IT IS NOTED THAT THE ASSISTANT DIRECTOR, BUREAU OF TRAFFIC, INTERSTATE COMMERCE COMMISSION, ALSO CONSIDERED THE SIGNIFICANCE OF THE IDENTICAL TARIFF PROVISION (ITEM 61243, TARIFF NO. 515-C) INVOLVED IN THE PRESENT INSTANCE IN A LETTER DATED DECEMBER 16, 1959, UNDER FILE 500- 536392, ADDRESSED TO THE M.R. AND R. TRUCKING COMPANY, CRESTVIEW, FLORIDA. IT WAS STATED IN THAT LETTER:

"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 SMCEC 515-C DOES NOT DISPLACE THE RELEASED PROVISIONS IN THE CLASSIFICATION AND WE DO NOT SEE THAT NOTE D THEREIN MAKES ANY MATERIAL CONTRIBUTION IN THIS INSTANCE.'

CONDITION NO. 5 ON THE REVERSE OF THE GOVERNMENT BILL OF LADING AND OF THE SHIPPING ORDER COVERING THIS SHIPMENT, 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 BILL OF LADING WAS ANNOTATED TO PROVIDE THAT THE SHIPMENT WAS RELEASED AT THE MAXIMUM VALUE APPLICABLE TO THE LOWEST PUBLISHED RATE OR LOWEST CLASSIFICATION RATING. IT APPEARS, THEREFORE, THAT THE PRESENT SHIPMENT WAS MADE AT THE RELEASED VALUATION RATING PROVIDED IN ITEM NO. 61243 OF THE CLASSIFICATION, RATHER THAN AT THE UNRELEASED COMMODITY RATING CLAIMED BY YOU. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM APPEARS TO BE CORRECT AND IS SUSTAINED.

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