B-142485, JUN. 22, 1960

B-142485, JUN. 22, 1960

TO GARRETT FREIGHT LINES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 30, 1960, IN WHICH YOU, IN EFFECT, REQUEST REVIEW OF OUR DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES OF $40.49, PER BILL NO. 8919-A. THE AMOUNT CLAIMED IS ALLEGED TO BE DUE FOR THE TRANSPORTATION OF ONE CAN "71060001 AIRCRAFT ENGINE INTERNAL COMBUSTION JET PROPULSION TYPE SERVICEABLE," WEIGHING 4,450 POUNDS, FROM MIDWEST CITY, OKLAHOMA, TO GOWEN FIELD (BOISE), IDAHO, UNDER GOVERNMENT BILL OF LADING NO. AF 17166111, DATED APRIL 30, 1957. YOUR CLAIM IS BASED ON AN EXCEPTIONS RATING PUBLISHED IN ITEM 370, SECTION 3 OF ROCKY MOUNT MOTOR TARIFF BUREAU TRANSCONTINENTAL CLASS TARIFF NO. 21, MF-I.C.C.NO. 86, FOR APPLICATION ON SHIPMENTS OF "ENGINES, INTERNAL COMBUSTION, NOI--- RADIAL. CYLINDER TYPE OR JET PROPULSION TYPE: LESS TRUCKLOADS * * *.'

BY SETTLEMENT CERTIFICATE DATED MARCH 9, 1960, OUR OFFICE DISALLOWED THIS CLAIM AND SENT YOU A STATEMENT OF OVERPAYMENT, GAO FORM 1003 CONTAINING A REQUEST THAT YOU REFUND AN OVERCHARGE IN THE AMOUNT OF $11.13 COMPUTED ON THE BASIS OF A SECOND-CLASS VOLUME CLASS RATE OF $7.28 PER 100 POUNDS PROVIDED IN SECTION 10 OF R.M.M.T.B., TC TARIFF NO. 21, AND ITEM NO. 61244 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 13, MF-I.C.C. NO. 7, FOR APPLICATION ON "ENGINES, INTERNAL COMBUSTION, NOI," RELEASED TO A VALUATION OF $2.50 PER POUND. THIS RATE WAS HELD BY OUR OFFICE TO BE APPLICABLE SINCE THE HEADING TO THE RATE SHEET UNCONDITIONALLY MADE THE VOLUME CLASS RATES SUBJECT TO LESS THAN TRUCKLOAD RATINGS IN THE CURRENT CLASSIFICATION. THIS HEADING PROVIDED AS FOLLOWS:

"RATES ARE STATED IN CENTS PER 100 POUNDS, AND ARE SUBJECT TO THE LTL RATINGS IN THE CURRENT CLASSIFICATION AND TO EXCEPTIONS RATINGS SHOWN IN ITEMS 120, 170, 190 OR 340 IN SECTION 4 HEREIN.'

IN YOUR REQUEST FOR REVIEW YOU STATE "THE EXCEPTION RATING IN RM TARIFF 21 SPECIFICALLY PRECLUDED THE APPLICATION OF THE RELEASED VALUATION AS SHOWN IN NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4, SO WE FEEL EXCEPTIONS HAVE JURISDICTION IN LIEU OF CLASSIFICATION DESCRIPTIONS," AND REQUEST "THAT YOU WITHDRAW THIS CLAIM (FOR $11.13 OVERPAID) AND REFUND OUR BALANCE DUE IN THE AMOUNT OF $40.49.'

NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 13 NAMES THREE RATINGS ON INTERNAL COMBUSTION ENGINES. TWO OF THE RATINGS ARE NAMED IN ITEM NO. 61244, USED IN OUR AUDIT, AND ARE BASED ON RELEASED VALUATIONS; THE OTHER IS PROVIDED IN ITEM NO. 61247 AND IS BASED ON UNRELEASED VALUATIONS. UNDER SOMEWHAT SIMILAR CIRCUMSTANCES THE INTERSTATE COMMERCE COMMISSION HAS HELD THAT A RATING BASED ON RELEASED VALUATIONS IS SEPARATE AND DISTINCT FROM A RATING BASED ON UNRELEASED VALUATIONS, AND THEREFORE THAT AN EXCEPTIONS RATING OR COMMODITY RATE BASED ON UNRELEASED VALUATIONS REMOVES FROM THE CLASSIFICATION ONLY THE CLASSIFICATION RATING BASED ON UNRELEASED VALUATIONS, LEAVING THE CLASSIFICATION RATING ON RELEASED VALUATIONS UNAFFECTED. SEE DOW CHEMICAL CO. V. CHESAPEAKE AND OHIO RY., 306 I.C.C. 403; UPJOHN COMPANY V. PENNSYLVANIA R.CO., 306 I.C.C. 325; AND AMERICAN HOME FOODS, INC. V. DELAWARE, L. AND W.RY., 303 I.C.C. 655.

FURTHERMORE, THE ASSISTANT DIRECTOR, BUREAU OF TRAFFIC, INTERSTATE COMMERCE COMMISSION, ALSO RECENTLY CONSIDERED THE SIGNIFICANCE OF A SIMILAR ITEM (ITEM 61243, SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 515-C, MF-I.C.C.NO. 960), IN A LETTER DATED DECEMBER 16, 1959, UNDER FILE 500-536392, ADDRESSED TO THE M.R. AND R. TRUCKING COMPANY OF CRESTVIEW, FLORIDA, COPY ENCLOSED, IN WHICH IT WAS STATED:

"AS AFORE STATED, IN THE AMERICAN HOME FOODS CASE AND 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 MAKES ANY MATERIAL CONTRIBUTION IN THIS INSTANCE.'

NOTE 2 TO ITEM NO. 370 IN THE EXCEPTIONS TO THE CLASSIFICATION WHICH IS SIMILAR TO NOTE D, ABOVE, PROVIDES THAT THE RELEASED VALUATION PROVISIONS SHOWN IN ITEMS NOS. 61244 AND 61247 WILL NOT APPLY IN CONNECTION WITH THE EXCEPTIONS RATINGS. WHILE THE LANGUAGE USED IN SUCH NOTE IS AMBIGUOUS AND ITS INTENT IS NOT FREE FROM DOUBT, IT APPEARS TO MAKE THE EXCEPTIONS RATING FOR APPLICATION ONLY IN CONNECTION WITH SHIPMENTS OF UNRELEASED VALUATION ARTICLES AND, THEREFORE, ITEM NO. 370 DID NOT REMOVE FROM THE CLASSIFICATION THE RELEASED VALUATION RATINGS ON INTERNAL COMBUSTION ENGINES. AT LEAST THE WORDING OF NOTE 2 IS SO AMBIGUOUS IN THIS REGARD THAT ANY DOUBT IN THE MATTER IS REQUIRED TO BE RESOLVED AGAINST THE CARRIER AND IN FAVOR OF THE SHIPPER.

CONDITION NO. 5, ON THE REVERSE OF BOTH THE BILL OF LADING AND 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 ANNOTATION ON THE FACE OF THE SUBJECT BILL OF LADING PROVIDES AS FOLLOWS:

"ENGINE NOTE: "RELEASED TO HIGHEST VALUE APPLICABLE TO THE LOWEST CLASSIFICATION RATING.'"

IT APPEARS, THEREFORE, THAT THE SHIPMENTS WERE MADE AT THE RELEASED VALUATION RATING IN THE CLASSIFICATION AND THAT THE SECOND-CLASS VOLUME RATE USED IN OUR AUDIT WAS CORRECT. THE DISALLOWANCE OF YOUR CLAIM FOR $40.49 IS ACCORDINGLY SUSTAINED AND THE AMOUNT OF THE OVERPAYMENT SHOWN ON THE FORM 1003, $11.13 SHOULD BE REFUNDED PROMPTLY TO AVOID THE NECESSITY FOR COLLECTION BY OTHER MEANS.