B-123502, APR. 24, 1956

B-123502, APR. 24, 1956

TO THE VIRGINIAN RAILWAY COMPANY:

REFERENCE IS MADE TO YOUR LETTERS WRITTEN UNDER FILE: 6055 1T, REQUESTING A REVIEW OF THE AUDIT ACTION TAKEN BY OUR TRANSPORTATION DIVISION ON THE PAYMENT VOUCHER COVERING YOUR BILL NO. 30908, APRIL 1952. YOU CLAIMED $1,951.48 ON THIS BILL, COMPUTED AT A RATE OF $6.08 PER 100 POUNDS, AND YOU WERE PAID THAT SUM FOR A SHIPMENT DESCRIBED ON THE BILL OF LADING AS: "2 PC FREIGHT AUTOMOBILE AND AIR COMPRESSORS, NOIBN, COMBINED (COMPRESSOR, AIR)," WEIGHING 26,900 POUNDS, PLUS 3,380 POUNDS OF "TOOLS, ELECTRIC, OR PNEUMATIC, NOIBN (COMPRESSOR SET)," MOVING FROM OGDEN, UTAH, TO NORFOLK, VIRGINIA, DURING MARCH 1952.

THE AUDIT ACTION OF WHICH YOU COMPLAIN CONSISTS OF A REQUEST FOR REFUND OF $590.58, BASED ON ALLOWABLE CHARGES OF $1,360.90, COMPUTED AT A COMMODITY RATE OF $4.24 PER 100 POUNDS, PLUS THE EX PARTE NO. 175 INCREASE OF 6 PERCENT, APPLICABLE ON: "COMPRESSORS (AIR) MOUNTED ON TRUCKS OR WHEELS, WITH OR WITHOUT AIR TANKS, HOSE OR NOZZLES," PER ITEMS 136 AND 5400 OF TRANS-CONTINENTAL FREIGHT BUREAU EAST-BOUND TARIFF NO. 2-R. ITEM 5400 ALSO APPLIES ON TOOLS, ELECTRIC OR PNEUMATIC, WHEN IN MIXED CARLOADS WITH OTHER ARTICLES NAMED IN ITEM 5400, INCLUDING AIR COMPRESSORS. IT IS YOUR CONTENTION THAT THE COMMODITY RATE ON "COMPRESSORS (AIR) MOUNTED ON TRUCKS" ETC., DOES NOT APPLY ON COMPRESSORS MOUNTED ON MOTOR VEHICLES, STATING IN THIS CONNECTION THAT THE COMMODITY RATE APPLIES ONLY ON COMPRESSORS MOUNTED ON WHEELS, OR ON HAND TRUCKS, TRAILER TRUCKS, OR ANY OTHER TYPE OF TRUCK OTHER THAN SELF-PROPELLED.

THE QUESTION PRESENTED IS ONE OF THE PROPER CONSTRUCTION OF THE WORD "TRUCKS," AS USED IN THE COMMODITY ITEM, AND WHETHER IT IS PROPER TO CONSTRUE THE WORD IN THE NARROW SENSE THAT IT DOES NOT INCLUDE A SELF- PROPELLED VEHICLE, OR IF THE WORD SHOULD BE GIVEN ITS MORE COMMONLY ACCEPTED MEANING, AS BEING "/D) ANY STRONG HEAVY CART OR WAGON, HORSE- DRAWN OR SELF-PROPELLED, FOR HEAVY HAULING.' WEBSTER'S NEW INTERNATIONAL DICTIONARY, 1951 EDITION. IN OTHER WORDS, "TRUCKS" CAN BE EITHER SELF- PROPELLED OR OTHER THAN SELF-PROPELLED, AND SINCE THE WORD "TRUCKS" IS UNRESTRICTED AS TO TYPE OF PROPULSION, NO REASON APPEARS WHY THE ITEM SHOULD BE HELD TO BE RESTRICTED TO NONSELF PROPELLED VEHICLES ONLY. THIS CONNECTION, SEE BISHOP V. STATE, 88 S.E. 2D 746, IN WHICH THE COURT HELD THAT A "TRUCK" COMES WITHIN THE GENERALLY AND LEGALLY ACCEPTED DEFINITION OF AN AUTOMOBILE.

THE BILL OF LADING DESCRIBES THE ARTICLE AS A FREIGHT AUTOMOBILE AND AIR COMPRESSOR COMBINED, BUT IT SEEMS PROBABLY THAT THE VEHICLE WOULD BE MORE CORRECTLY DESCRIBED AS AN AUTOMOBILE CHASSIS AND AIR COMPRESSOR COMBINED. GENERALLY, THE CHASSIS AND COMPRESSOR ARE SPECIFICALLY DESIGNED TO FORM A COMPLETE UNIT, AND THE VEHICLE WITHOUT THE COMPRESSOR COULD NOT BE USED WITHOUT THE ADDITION OF A BODY OF SOME SORT AND POSSIBLY STRUCTURAL CHANGES IN THE DESIGN OF THE CHASSIS. IN INSTANCES INVOLVING THE QUESTION OF THE PROPER RATING TO APPLY ON SHIPMENTS OF DIFFERENT KINDS OF MACHINERY MOUNTED ON AN AUTOMOBILE CHASSIS, THE INTERSTATE COMMERCE COMMISSION HAS REFERRED TO THE VEHICLE AS A "TRUCK," OR "TRUCK CHASSIS.' HARRISON CONSTRUCTION COMPANY V. CINCINNATI, NEW ORLEANS AND TEXAS PACIFIC RY. CO., 266 I.C.C. 313, AT PAGE 316 AND 317. IN OAKLAND TRUCK SALES CO. V. BALTIMORE AND OHIO R.R. CO., ET AL., 270 I.C.C. 548, AT PAGE 549, THE COMMISSION SAID. ,TRUCKS ARE RATED UNDER THE CLASSIFICATION DESCRIPTION OF FREIGHT AUTOMOBILES * * *.'

IT IS WELL ESTABLISHED THAT WORDS IN A TARIFF MUST BE CONSTRUED ACCORDING TO THEIR TERMS, WHICH MUST BE READ IN THE SENSE IN WHICH THEY ARE GENERALLY UNDERSTOOD AND ACCEPTED COMMERCIALLY. BRUNSWICK BALKE COLLENDER CO. V. BALTIMORE AND OHIO R.R. CO., 201 I.C.C. 506, 512; LIQUID CARBONIC CORP. V. CHICAGO, BURLINGTON AND QUINCY R.R. CO., 211 I.C.C. 365, 366; BURGER BREWING CO. V. PENNSYLVANIA R.R., 255 I.C.C. 515, 517. IT SEEMS, IN THE LIGHT OF THE EXPRESSIONS IN THE HARRISON CONSTRUCTION COMPANY AND OAKLAND TRUCK SALES CASES, CITED ABOVE, AND IN VIEW OF THE FACT THAT FREIGHT AUTOMOBILES ARE REFERRED TO COMMERCIALLY AS "TRUCKS," THAT THE COMMODITY DESCRIPTION ,COMPRESSORS (AIR) MOUNTED ON TRUCKS" ETC., ADEQUATELY AND COMPLETELY DESCRIBES THE ARTICLES INCLUDED IN THESE SHIPMENTS. FOR THE REASONS STATED, THE AUDIT ACTION ON YOUR BILL IS AFFIRMED.