B-148395, JUL. 11, 1963
Highlights
TO JERSEY CENTRAL LINES: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 24. IN REQUESTING REVIEW OF THIS MATTER YOU TAKE THE POSITION THAT THE CLAIMS COVERED BY YOUR SUPPLEMENTAL BILL 27564-53-F ARE IDENTICAL WITH THOSE PREVIOUSLY CONSIDERED ON YOUR SUPPLEMENTAL BILL 27564-53-E (TK- 532376) WHICH WERE ALLOWED. ON THE BILLS OF LADING THE COMMODITY SHIPPED WAS DESCRIBED AS "ROCKET AMMUNITION WITHOUT PROJECTILES (CARTRIDGE. THE ARTICLES WERE RESHIPPED FROM FORT ESTILL. WERE DESCRIBED ON THE BILLS OF LADING AS ROCKET AMMUNITION WITHOUT PROJECTILES (5.0 INCHES ROCKET MOTOR WITHOUT FIN - S9GNA). THAT THE COMMODITY SHIPPED INBOUND AND OUTBOUND WAS NOT THE SAME. THESE SHIPMENTS WERE THE SUBJECT OF A THOROUGH INVESTIGATION.
B-148395, JUL. 11, 1963
TO JERSEY CENTRAL LINES:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 24, 1963, AND PRIOR CORRESPONDENCE, REQUESTING REVIEW OF THE SETTLEMENT CERTIFICATE DATED JANUARY 24, 1962, UNDER OUR FILES TK-658978, DISALLOWING YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES OF $3,429.75 ON YOUR SUPPLEMENTAL BILL 27564-53 -F. IN REQUESTING REVIEW OF THIS MATTER YOU TAKE THE POSITION THAT THE CLAIMS COVERED BY YOUR SUPPLEMENTAL BILL 27564-53-F ARE IDENTICAL WITH THOSE PREVIOUSLY CONSIDERED ON YOUR SUPPLEMENTAL BILL 27564-53-E (TK- 532376) WHICH WERE ALLOWED.
THE SHIPMENTS INVOLVED IN YOUR BILLS UNDER THE 27564-53 SERIES ORIGINATED AT SHUMAKER, ARKANSAS, AND MOVED BY RAIL ON GOVERNMENT BILLS OF LADING INTO STORAGE AT FORT ESTILL, KENTUCKY. ON THE BILLS OF LADING THE COMMODITY SHIPPED WAS DESCRIBED AS "ROCKET AMMUNITION WITHOUT PROJECTILES (CARTRIDGE, CANNON BLANK).' THEREAFTER, THE ARTICLES WERE RESHIPPED FROM FORT ESTILL, KENTUCKY, TO EARLE, NEW JERSEY, AND WERE DESCRIBED ON THE BILLS OF LADING AS ROCKET AMMUNITION WITHOUT PROJECTILES (5.0 INCHES ROCKET MOTOR WITHOUT FIN - S9GNA). IN YOUR LETTER OF MARCH 9, 1962, PROTESTING OUR SETTLEMENT ACTION IN TK 658978 YOU REFER TO THIS DIFFERENCE IN NOMENCLATURE AS "SUBSTITUTION OF ROCKET MOTORS FOR ROCKET AMMUNITION WITHOUT PROJECTILES" CONTENDING, IN EFFECT, THAT THE COMMODITY SHIPPED INBOUND AND OUTBOUND WAS NOT THE SAME.
IN VIEW OF YOUR REPRESENTATIONS, THESE SHIPMENTS WERE THE SUBJECT OF A THOROUGH INVESTIGATION. OUR RECORDS NOW CONTAIN A LETTER DATED APRIL 1, 1963, FROM THE CENTRAL TRAFFIC REGION, DEFENSE TRAFFIC MANAGEMENT SERVICE, ST. LOUIS, MISSOURI, FORWARDING A COPY OF A FIRST INDORSEMENT, COPY ATTACHED, DATED MARCH 26, 1963, FROM THE BLUE GRASS ARMY DEPOT, RICHMOND, KENTUCKY, WHICH READS, IN PERTINENT PART, AS FOLLOWS:
"1. THE COMMODITY SHIPPED INBOUND AND OUTBOUND CONSISTED OF THE SAME MATERIAL IE ROCKET MOTOR ASSEMBLY, 5.0 IN. ROCKET MKIO, MOD 7 (S9GNA) WITHOUT FIN; FSN: 1340-309-5056-J165. BILL OF LADING DESCRIPTION ON THE INBOUND AND OUTBOUND MOVEMENT SHOULD HAVE BEEN IDENTICAL.'
IT IS WELL ESTABLISHED THAT THE COMMODITY DESCRIPTION IN THE BILL OF LADING IS NOT CONTROLLING FOR TRANSPORTATION PURPOSES--- THE IMPORTANT FACT IS WHAT MOVED, NOT WHAT WAS BILLED. PENN FACING MILLS CO. V. ANN ARBOR R., 182 I.C.C. 614; UNITED WELDING CO. V. BALTIMORE AND OHIO R.CO., 196 I.C.C. 79; FIRESTONE TIRE AND RUBBER CO. V. NORWALK TRUCK LINE CO., 54 M.C.C. 640.
AS A RESULT OF OUR INVESTIGATION WE NOW FIND THAT THE SETTLEMENTS OF BOTH YOUR SUPPLEMENTAL BILLS 27564-53-E AND 27564-53-F WERE IN ERROR, AND THAT YOU HAVE BEEN OVERPAID THE SUM OF $16,703.57 ON YOUR SUPPLEMENTAL BILL 27564-53-E (OUR TK-532376) AND THAT YOU ARE DUE THE SUM OF $794.17 ON YOUR SUPPLEMENTAL BILL 27564-53-F (OUR TK-658978). ACCORDINGLY, OUR TRANSPORTATION DIVISION IS BEING INSTRUCTED TO REOPEN THE SETTLEMENT OF YOUR SUPPLEMENTAL BILLS 27564-53-E AND F ON THE BASIS OF THE EXPANDED RECORD AND TO ISSUE A NOTICE OF OVERPAYMENT IN CONNECTION WITH YOUR SUPPLEMENTAL BILL 27564-53-E EXPLAINING IN DETAIL THE BASIS AND AUTHORITY FOR OUR PRESENT COMPUTATIONS. THE AMOUNT NOW FOUND TO BE DUE IN CONNECTION WITH YOUR SUPPLEMENTAL BILL 27564-53-F WILL BE APPLIED IN PARTIAL LIQUIDATION OF YOUR INDEBTEDNESS TO THE UNITED STATES UNDER THE GOVERNMENT'S RIGHT TO SET-OFF. SEE UNITED STATES V. MUNSEY TRUST CO., 332 U.S. 234, CITING ..END :