B-127595, JUL. 11, 1956

B-127595, JUL. 11, 1956

TO EDWARD F. CAULFIELD, VICE PRESIDENT, ICELAND STEAMSHIP COMPANY, LTD.:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF MARCH 29, 1956, FILE T 57-D- DL-4036, IN WHICH YOU REQUESTED REVIEW OF THE AUDIT ACTION TAKEN IN OUR TRANSPORTATION DIVISION ON FOUR SHIPMENTS OF BEER WHICH WERE TRANSPORTED FROM NEW YORK TO KEFLAVIK, ICELAND, IN 1952 AND 1953, BY THE ICELAND STEAMSHIP COMPANY.

FREIGHT CHARGES ON THE BEER TRANSPORTED UNDER BILLS OF LADING WV 9798771, WV-9798731, AND WY-777568 BY THE S.S. TROLLAFOSS AND THE S.S. GODAFOSS, WHICH SAILED MARCH 11, FEBRUARY 28, AND NOVEMBER 6, 1952, WERE BILLED AT ACTUAL WEIGHT AND A CLASS 3 C RATE OF $2.75 PER 100 POUNDS, AND THE CHARGES WERE PAID ON VOUCHERS 01517, 01518, AND 4434 OF THE NOVEMBER 1952 AND MARCH 1953 ACCOUNTS OF H. L. MADDEN. THE CHARGES ON THE BEER SHIPPED ON BILL OF LADING WY-892944, ON THE S.S. GODAFOSS WHICH SAILED DECEMBER 17, 1952, WERE BILLED ON THE BASIS OF THE ACTUAL WEIGHT, 47,000 POUNDS, AT A CLASS 3 C RATE OF $2.61 PER 100 POUNDS, AND WERE PAID BY H. L. MADDEN ON VOUCHER 05559 OF HIS MAY 1953 ACCOUNTS. IN THE AUDIT HERE, THE CORRECT CHARGES WERE DETERMINED TO BE THOSE COMPUTED ON THE BASIS OF THE CLASS 1 RATING, PUBLISHED ON PAGE 44 OF THE ICELAND STEAMSHIP COMPANY CLASSIFICATION TARIFF, VALID FROM SEPTEMBER 12, 1945, FROM APPLICATION ON "MALT BEER.' THE CHARGES WERE COMPUTED AT THE CLASS 1 RATE OF $1.52 PER 100 POUNDS AND YOUR COMPANY WAS ASKED TO REFUND OVERPAYMENTS OF $1,715.78, $1,350.77, $1,764.75, AND $512.30. THE FIRST THREE AMOUNTS HAVE BEEN COLLECTED BY DEDUCTION FROM AMOUNTS OTHERWISE DUE THE CARRIER, BUT THE FOURTH HAS NOT YET BEEN COLLECTED.

IN YOUR LETTER OF MARCH 29, 1956, YOU URGE THAT THE CLASSIFICATION DESCRIPTION "MALT BEER" DOES NOT APPLY TO BEER BUT ONLY TO MALT FOR MAKING BEER, THAT THE USE OF THE SAME RATE FOR MALT AND BEER WOULD BE UNJUSTLY DISCRIMINATORY, THAT ICELANDIC LAW FORBIDS THE IMPORTATION OF BEER, THAT A SPECIAL INTERGOVERNMENTAL AGREEMENT WAS MADE TO PERMIT THE UNITED STATES TO IMPORT BEER FOR ITS TROOPS, AND THAT THE "BEVERAGE CONCENTRATES" RATING OF CLASS 3 C IS A FAIR ONE TO CHARGE ON THESE SHIPMENTS OF BEER.

PAGE 44 OF THE CLASSIFICATION LISTS "MALT BEER" AT A RATING OF CLASS 1. PAGE 11 LISTS "BEER MALT" AT THE SAME RATING. THE CLASSIFICATION DOES NOT SUPPORT YOUR ARGUMENT THAT "MALT BEER" MEANS ONLY THE MALT FOR MAKING BEER; IN FACT, HAD THIS BEEN THE CLEAR INTENT OF THE FRAMERS, THE ADDITION OF A COMMA BETWEEN THE TWO WORDS WOULD HAVE MADE THAT INTENTION ABUNDANTLY CLEAR. WHERE ITEMS ARE REPEATED TWICE IN THE CLASSIFICATION, A COMMA IS USED BETWEEN NOUN AND ADJECTIVE TO MAKE CLEAR THE COMMODITY DESIGNATED. SEE, FOR EXAMPLE, PAGE 11 "BARS, IRON," "BEANS, COCOA," AND PAGE 20,"COCOA BEANS," AND PAGE 36,"IRON BARS.'

THE UNITED STATES MARITIME COMMISSION HAS HELD THAT "A PROPER TEST IS WHETHER THE ARTICLE MAY BE REASONABLY IDENTIFIED BY THE TARIFF DESCRIPTION.' NATIONAL CABLE AND METAL COMPANY V. AMERICAN-HAWAIIAN S.S. CO., 2 U.S.M.C. 470 (473); ACME NOVELTY CO. V. AMERICAN-HAWAIIAN S.S. CO., 2 U.S.M.C. 412 (413). IT SEEMS UNQUESTIONABLE THAT THE BEER COMPRISING THESE SHIPMENTS MAY BE REASONABLY IDENTIFIED BY THE TARIFF DESCRIPTION OF "MALT BEER.' SINCE THIS RATE HAS BEEN DULY PUBLISHED AND FILED, IT SEEMS TO BE THE ONLY LEGAL RATE TO BE APPLIED AND THE QUESTION OF WHETHER IT UNDULY DISCRIMINATES AGAINST SHIPMENTS OF MALT FOR MAKING BEER IS NOT PROPERLY WITHIN OUR JURISDICTION.

AS TO THE OTHER POINTS YOU RAISED, WHILE THE EMBASSY OF ICELAND HAS INFORMED US THAT THE MANUFACTURE AND SALE OF BEER AND ALCOHOLIC BEVERAGES IS A GOVERNMENT MONOPOLY IN ICELAND, WE HAVE NOT BEEN ABLE TO VERIFY YOUR STATEMENT THAT THE IMPORTATION OF BEER IS FORBIDDEN. SINCE, AS YOU STATED, THE UNITED STATES IS PERMITTED TO IMPORT BEER FOR THE USE OF ITS TROOPS STATIONED THERE, IT IS REASONABLE TO ASSUME THAT THE ICELAND STEAMSHIP COMPANY WOULD MAINTAIN A TARIFF RATE FOR THE TRANSPORTATION OF BEER TO ICELAND. AS A MATTER OF FACT, UNDER DATE OF FEBRUARY 8, 1954, THE U.S. MARITIME ADMINISTRATION WAS ADVISED BY THE ICELAND STEAMSHIP COMPANY, LTD. (THULE SHIP AGENCY, C., AGENTS) THAT"THE FREIGHT RATE ON BEER FROM NEW YORK/REYKJAVIK HAS BEEN CHANGED TO CLASS 2 ($1.77 PER 100 POUNDS).' AS TO THE APPLICATION OF THE "BEVERAGE CONCENTRATES" RATE ON THESE SHIPMENTS OF BEER, WHILE THE BEER TRANSPORTED WAS NOT IN CONCENTRATED FORM NO CONSIDERATION OF THIS POINT IS NECESSARY, SINCE THE TARIFF CONTAINS A SPECIFIC PUBLISHED RATE APPLICABLE TO "MALT BEER.'

IN VIEW OF THE FOREGOING, THE AUDIT ACTION OF OUR TRANSPORTATION DIVISION IS SUSTAINED. THE OVERPAYMENT OF $512.30 ON BILL OF LADING WY-892944 SHOULD BE REFUNDED PROMPTLY.