B-123251, NOV. 25, 1955

B-123251, NOV. 25, 1955

TO W. F. GERROW, AUDITOR OF FREIGHT TRAFFIC, THE LONG ISLAND RAIL ROAD COMPANY:

WE HAVE CONSIDERED YOUR REQUEST, PER FILE 144-81-861-46260-A, FOR REVIEW OF THE SETTLEMENT (CLAIM TK-297761) OF JUNE 11, 1951, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL TRANSPORTATION CHARGES OF $588.12, ALLEGEDLY DUE IN CONNECTION WITH BILL OF LADING WV-1041269, DATED JUNE 27, 1947.

THE RECORD SHOWS THAT THE WAR ASSETS ADMINISTRATION SHIPPED ON THIS BILL OF LADING 37,700 POUNDS OF "INSTRUMENTS, SCIENTIFIC, NOIBN" IN CAR ACL 51593 FROM BELLCRAFT, GEORGIA, TO THE COMMUNICATION MEASUREMENTS LABORATORY, WAA, 717 SOUTH WOLFE STREET, NEW YORK, NEW YORK, RECONSIGNED AT DESTINATION TO CARR INDUSTRIES, 1269 ATLANTIC AVENUE, BROOKLYN, NEW YORK. ON AUGUST 30, 1948, YOU SUBMITTED YOUR BILL FOR CHARGES OF $1,059.26. THE WAR ASSETS ADMINISTRATION RETURNED THE BILL FOR RESTATING IN THE REDUCED AMOUNT OF $471.14, BASED UPON A CORRECTION NOTICE SHOWING THAT THE SHIPMENT WAS PROPERLY DESCRIBED AS "INVERTERS (ELECTRIC MOTORS AND GENERATORS) JACKS, AND CABLE BRASS.' YOU REVISED YOUR BILL IN ACCORDANCE WITH THE CORRECTION NOTICE AND RESUBMITTED IT TO THE WAR ASSETS ADMINISTRATION. A YEAR AFTER PAYMENT HAD BEEN MADE AND ACCEPTED, YOU SUBMITTED YOUR SUPPLEMENTAL BILL 861/46260/A FOR $588.12, THE DIFFERENCE BETWEEN YOUR ORIGINAL CLAIM AND THE AMOUNT PAID. THAT BILL WAS REFERRED HERE FOR SETTLEMENT BY THE ADMINISTRATIVE OFFICE, AND THE DISALLOWANCE COMPLAINED OF FOLLOWED.

IN YOUR REQUEST FOR REVIEW, YOU CONTEND THAT THE ARTICLES SHIPPED ARE CLASSIFIABLE ONLY AS ,SCIENTIFIC INSTRUMENTS, NOIBN," SINCE THEY WERE SO DESCRIBED ON THE BILL OF LADING, AND A TRACER LETTER FROM THE SHIPPER DATED OCTOBER 28, 1949, REFERRED TO THE PROPERTY AS "ELECTRONICS, BILLED AS SCIENTIFIC INSTRUMENTS, NOIBN," VALUED AT $145,530.46. ALSO, YOU APPARENTLY BELIEVE THAT THE WAR ASSETS ADMINISTRATION CORRECTION NOTICE WAS BASED UPON A RECEIVING REPORT OF CARR INDUSTRIES SHOWING THAT THE PROPERTY THERE ACCOUNTED FOR WAS "ORDERED AUGUST 5, 1947," OVER A MONTH AFTER THIS SHIPMENT LEFT THE POINT OF ORIGIN.

THE RECORD SUBMITTED WITH YOUR SUPPLEMENTAL BILL SHOWS THAT THIS SHIPMENT WAS ORIGINALLY BILLED TO NEW YORK CITY IN ERROR, SINCE THE ORIGINAL CONSIGNEE WAS ACTUALLY LOCATED IN BALTIMORE. THE ADMINISTRATIVE CERTIFICATION ON THE BILL FOR DEMURRAGE AT JERSEY CITY PIERS--- SUBMITTED WITH YOUR ORIGINAL BILL AND PAID--- EXPLAINED THAT THE SHIPMENT WAS NECESSARILY HELD UNTIL A CONTRACT COULD BE NEGOTIATED WITH A NEW INDUSTRY AGENT. WHILE CARR INDUSTRIES SIGNED THE CONSIGNEE'S CERTIFICATE OF DELIVERY SHOWING RECEIPT OF THE SHIPMENT ON JULY 8, 1947, THESE DEMURRAGE CHARGES ARE SHOWN TO HAVE ACCRUED FROM JULY 9 THROUGH JULY 16. THIS SITUATION, WITH THE DELIVERY RECEIPT SHOWING THE SHIPMENT "ORDERED" AUGUST 5, SUGGESTS A CERTAIN IRREGULARITY IN PREPARATION OF THE VARIOUS DOCUMENTS, STEMMING FROM THE ORIGINAL MISTAKE IN DESTINATION AND THE CONSEQUENT URGENCY IN NEGOTIATING A CONTRACT FOR DISPOSAL OF THE PROPERTY.

THE PURPOSE OF THE TRACER LETTER YOU RELY ON WAS TO ASCERTAIN THE ULTIMATE DELIVERY OF THE SHIPMENT; ITS INCIDENTAL MENTION OF THE PROPERTY FOR AID IN IDENTIFICATION OF THE SHIPMENT CANNOT BE TAKEN AS CONCLUSIVE DESCRIPTION FOR CLASSIFICATION PURPOSES.

WHILE IT IS QUITE TRUE THAT THE ORIGINAL BILL OF LADING DESCRIPTION WAS "SCIENTIFIC INSTRUMENTS, NOIBN," IT IS FUNDAMENTAL TRANSPORTATION LAW THAT ARTICLES SHIPPED ARE TO BE CLASSIFIED ACCORDING TO THEIR NATURE AND ESSENTIAL CHARACTER AT THE TIME OF SHIPMENT. THE AIR MATERIEL COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, HAS INFORMED US THAT THE PROPERTY TENDERED BY THE TRANSPORTATION OFFICER AT THE MARIETTA ARMY AIRCRAFT PLANT FOR SHIPMENT ON BILL OF LADING WV-1041269 ACTUALLY CONSISTED OF INVERTERS, RATABLE AS "GENERATORS OR MOTORS," ELECTRIC TELEPHONE JACKS, RATABLE AS "ELECTRIC WIRING RECEPTACLES, NOIBN," AND COAXIAL COPPER CABLE, RATABLE AS ,CABLE, ELECTRIC, COPPER, NOIBN.'

THE QUESTION OF THE NATURE AND ESSENTIAL CHARACTER OF THE PROPERTY SHIPPED IS ONE OF FACT PECULIARLY WITHIN THE KNOWLEDGE OF THE CONCERNED ADMINISTRATIVE OFFICE, WHOSE OPINION IS CONTROLLING WHERE, AS HERE, THERE IS AN ABSENCE OF COMPETENT EVIDENCE TO REFUTE THE CORRECTNESS OF THE ADMINISTRATIVE DETERMINATION. 14 COMP. GEN. 927; 16 ID. 325. SINCE THE DISALLOWANCE COMPLAINED OF WAS CONSISTENT WITH THIS PRINCIPLE, IT MUST BE, AND IS, SUSTAINED.