B-143246, NOV. 20, 1961

B-143246, NOV. 20, 1961

TO WESTERN TRUCK LINES, LTD.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 15, 1961, REQUESTING RECONSIDERATION OF OUR DECISION OF MAY 12, 1961, B-143246, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM ON BILL G-01678 FOR ADDITIONAL FREIGHT CHARGES ON A SHIPMENT WHICH MOVED UNDER GOVERNMENT BILL OF LADING AF- 4940529, DATED NOVEMBER 9, 1956.

THE SHIPMENT CONSISTED OF SEVERAL CARTONS, BOXES AND CANS OF VARIOUS TYPES OF FREIGHT WHICH WERE SHIPPED IN A CONEX CONTAINER. THE WEIGHTS OF EACH TYPE OF FREIGHT INCLUDING THEIR CONTAINERS, THE WEIGHT OF THE CONEX CONTAINER, AND THE TOTAL WEIGHT OF THE SHIPMENT, WERE SHOWN ON THE BILL OF LADING.

YOU BILLED AND WERE PAID CHARGES OF $627.24 ON THE THEORY THAT THE CONEX CONTAINER AND ITS CONTENTS CONSTITUTED A PACKAGE UNDER RULE 11 OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 13, MF-I.C.C. NO. 7, AND WAS PROPERLY RATABLE AT THE RATING OR RATE APPLICABLE TO THE HIGHEST CLASSED OR RATED ARTICLE INCLUDED IN THE CONEX CONTAINER. THE CHARGES PAID WERE ADJUSTED TO $298.84 BY OUR OFFICE, THE AMOUNT ALLOWED BEING COMPUTED ON THE BASIS OF THE CLASSIFICATION RATINGS AND RATES APPLICABLE ON EACH INDIVIDUAL TYPE OF FREIGHT SHIPPED INCLUDING THE CONEX CONTAINER WHICH WAS RATED UNDER ITEM 19986 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 13, MF -I.C.C. NO. 7 AS TAKING A FIRST CLASS LESS-THAN-TRUCKLOAD RATING. SUCH ITEM COVERS "CONTAINERS, STEEL, 16 GAUGE OR THICKER, NOT LESS THAN 165 GALLONS OR 22 CUBIC FEET CAPACITY.'

OUR DECISION OF MAY 12, 1961, SUSTAINED THE ADJUSTMENT OF THE CHARGES TO $298.84 ON THE BASIS THAT THE SIZE AND WEIGHT OF THE CONEX CONTAINER 8 FEET 6 INCHES LONG, 6 FEET 3 INCHES WIDE AND 6 FEET 10 1/2 INCHES HIGH WEIGHING 1,575 POUNDS SUGGESTS THAT IT PARTAKES OF THE NATURE OF AN INSTRUMENTALITY OF TRANSPORTATION RESEMBLING TO SOME EXTENT THE VAN OF A TRUCK AND MAY NOT PROPERLY BE CONSIDERED AS A PACKAGE WITHIN THE MEANING OF RULE 11 OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION.

YOUR LETTER NOW EXPRESSES THE VIEW THAT IF THE CONEX CONTAINER IS ANALOGOUS TO A TRUCK BODY, CHARGES THEREFOR SHOULD BE BASED ON ITEM 6080 OF THE CLASSIFICATION WHICH ESTABLISHES A CLASS 2 1/2 RATING FOR "BODIES, FREIGHT, OR SUBURBAN (COMBINATION PASSENGER AND FREIGHT BODIES).'

WHILE THE CONEX CONTAINER IS USED AS A CONTAINER FOR ARTICLES SHIPPED THEREIN AND HENCE IS IN THE NATURE OF AN INSTRUMENTALITY OF TRANSPORTATION IN SOME RESPECTS SIMILAR TO A TRUCK BODY IN THAT IT AFFORDS PROTECTION TO THE FREIGHT SHIPPED THEREIN, IT IS OF COURSE NOT A TRUCK BODY AND APPEARS FAIRLY TO BE ENCOMPASSED IN THE DESCRIPTION OF CONTAINER AS SET OUT IN ITEM 19986 OF THE CLASSIFICATION. SINCE IT IS OUR VIEW THAT IT IS SUCH A CONTAINER, ITEM 19986 APPEARS SPECIFICALLY APPLICABLE THERETO AND THE FIRST-CLASS RATE ALLOWED IN OUR COMPUTATION FOR THE CONEX CONTAINER APPEARS TO BE THE APPLICABLE RATING. ACCORDINGLY, WE PERCEIVE NO PROPER BASIS, ON THE PRESENT RECORD, FOR MODIFYING OUR PRIOR DECISION.

HOWEVER, THE QUESTION OF THE PROPER CLASSIFICATION OF CONEX CONTAINERS IS PRESENTLY PENDING IN ILLINOIS CENTRAL RAILROAD V. UNITED STATES, COURT OF CLAIMS NO. 296-59, THE CARRIER THERE CONTENDING IT IS A LIFT VAN, WHILE THE GOVERNMENT CONTENDS IT IS PROPERLY RATABLE AS A CONTAINER. IN THE EVENT THE FINAL JUDICIAL DECISION IN THAT CASE IS ADVERSE TO THE UNITED STATES, WE WILL, BASED UPON SUCH FINAL DECISION, UPON YOUR REQUEST, RECONSIDER OUR CONCLUSION HEREIN. IF LIFT VAN RATES ARE FOUND PROPERLY APPLICABLE, IT APPEARS THAT IN THIS CASE, UNDER ITEM 20430 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 13, CLASS 1 1/2 RATINGS WOULD APPLY TO THE WEIGHT OF THE CONEX CONTAINER.