B-125790, FEB. 1, 1957

B-125790, FEB. 1, 1957

TO R. E. TATE, ASSISTANT TRAFFIC MANAGER, MALONE FREIGHT LINES, INC.:

WE HAVE CONSIDERED YOUR LETTERS RELATING TO "MALONE CLAIMS NOS. 055 16, 055-84, 055-83, AND 055-82," WHICH RAISE THE QUESTION OF THE PROPER CLASSIFICATION TO BE ACCORDED SHIPMENTS OF "DISC RETAINERS" TRANSPORTED FROM BIRMINGHAM, ALABAMA, TO HUNTSVILLE ARSENAL, ALABAMA, DURING 1944. THE CHARGES WERE BILLED ORIGINALLY AND PAID AT EITHER THE THIRD OR THE FOURTH CLASS RATE, AS FOR ,HARDWARE, NOIBN.' OUR TRANSPORTATION DIVISION, IN ITS AUDIT, DETERMINED THAT, IN ACCORDANCE WITH WAR DEPARTMENT SUPPLY BULLETIN 55-6, DECEMBER 1944, AND REISSUE OF JUNE 1945, THE SHIPMENTS SHOULD HAVE BEEN BILLED AT THE LOWER RATINGS PROVIDED FOR "BOMB BODY PARTS, NOIBN," AND "SHEET METAL WARE, NOIBN.' THE MALONE FREIGHT LINES WAS ASKED TO REFUND THE RESULTING OVERPAYMENTS AND UPON ITS FAILURE TO DO SO, DEDUCTIONS WERE MADE FROM THE CARRIER'S UNPAID BILLS.

YOUR OBJECTIONS TO THE AUDIT ARE TAKEN ON THESE GROUNDS: (1) THE COMMODITY SHIPPED WAS PROPERLY DESCRIBED AS "HARDWARE, NOIBN" AND THE DESCRIPTION CANNOT BE CHANGED AFTER COMPLETION OF THE TRANSPORTATION; AND (2) SINCE THE SHIPMENTS MOVED IN 1944, THE GOVERNMENT IS PRECLUDED FROM COLLECTING OVERPAYMENTS AFTER THE EXPIRATION OF THE TWO-YEAR LIMITATION AGAINST SUIT PRESCRIBED IN THE INTERSTATE COMMERCE ACT, OR AT LEAST AFTER THE EXPIRATION OF THE TEN-YEAR LIMITATION PROVIDED IN THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061. ON THIS POINT, THE PRINCIPLE THAT STATUTES OF LIMITATION DO NOT OPERATE AGAINST THE UNITED STATES IN THE ABSENCE OF AN EXPRESS CONGRESSIONAL PROVISION FOR APPLICATION IS SO WELL SETTLED AS TO NEED NO FURTHER CLARIFICATION. HOWEVER, IT MAY BE POINTED OUT THAT THE TWO-YEAR LIMITATION IN THE INTERSTATE COMMERCE ACT, TO WHICH YOU REFER, APPLIES ONLY TO THE INSTITUTION OF LEGAL PROCEEDINGS AGAINST CARRIERS, NOT TO THE PRESENTATION OF CLAIMS. THE TEN-YEAR LIMITATION PERIOD PRESCRIBED IN THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, LIMITS ONLY THE TIME FOR PRESENTATION OF CLAIMS AGAINST THE UNITED STATES TO THE GENERAL ACCOUNTING OFFICE.

THE BILL OF LADING DESCRIPTION OF THESE SHIPMENTS AS "HARDWARE, NOIBN," INCLUDED A PARENTHETICAL AMPLIFICATION EXPLAINING THAT THIS HARDWARE WAS IN FACT "DISC RETAINERS.' IT IS FUNDAMENTAL TRANSPORTATION LAW THAT ARTICLES SHIPPED ARE TO BE CLASSIFIED ACCORDING TO THEIR NATURE AND ESSENTIAL CHARACTER AT THE TIME OF SHIPMENT. SEE HARRIS BROTHERS COMPANY V. DIRECTOR GENERAL, 60 I.C.C. 428. AS A PREREQUISITE TO A THOROUGH CONSIDERATION OF YOUR LETTERS, WE SECURED FROM THE AGENCY RESPONSIBLE FOR THESE SHIPMENTS THE SPECIFICATIONS TO WHICH THE DISC RETAINERS WERE MANUFACTURED. THEY WERE MANUFACTURED BY THE WALLACE NEON DISPLAY COMPANY, UNDER CONTRACT NO. W 41-040-CWS-131, IN ONE PIECE, BY A STAMPING, PRESSING, AND TRIMMING PROCESS, FROM COLD ROLLED SHEET OR STRIP STEEL, NO. 18 MANUFACTURED STANDARD GAUGE .0478 INCHES. THE DISCS, WHICH WERE PAINTED WITH ONE COAT OF BLUE-GRAY LACQUER ENAMEL, WERE FLANGED. THE DIAMETER OF EACH DISC WAS 11 3/16 INCHES TO THE FLANGE, WHICH WAS ONE-HALF INCH WIDE. EACH DISC HAD A CENTER HOLE 23/32 OF AN INCH IN DIAMETER AND SIX 2-INCH HOLES EQUALLY SPACED ON A 5 1/2-INCH DIAMETER.

THESE SPECIFICATIONS ARE SUFFICIENT TO BRING THE DISC RETAINERS WITHIN THE SCOPE OF THE EXCEPTIONS RATING PROVIDED IN ITEM 17550 OF ALABAMA MOTOR TARIFF BUREAU, AGENT, TARIFF NO. 3 (ALABAMA EXCEPTIONS) TO APPLY ON

"BLANKS, STAMPINGS OR UNFINISHED SHAPES, NOI, FROM PLATE, SHEET OR STRIP IRON OR STEEL, IN ONE PIECE, NOT ADVANCED IN THE STATE OF MANUFACTURE BEYOND THE STAMPING, ROLLING OR PRESSING PROCESS. ARTICLES MAY BE LEADED, PAINTED OR TARRED WITH ONE COAT ONLY TO PRESERVE FROM RUST.'

SEE, IN THIS CONNECTION, CHICAGO RAWHIDE MANUFACTURING COMPANY V. LONG TRANSPORTATION COMPANY, 48 M.C.C. 646, WHEREIN THE INTERSTATE COMMERCE COMMISSION HELD THAT A SIMILAR EXCEPTIONS RATING, WHICH CONTAINED NO RESTRICTION AGAINST APPLICATION TO ARTICLES REQUIRING NO FURTHER WORK BEFORE BECOMING FINISHED ARTICLES AND NO PROVISION FOR USE OF THE HARDWARE OR SHEET STEELWARE RATINGS ON SUCH FINISHED ARTICLES, SUPERSEDED THE CLASSIFICATION RATING AND WAS PROPERLY APPLICABLE TO "RING SEALS," ARTICLES SMALLER BUT SOMEWHAT LIKE IN DESIGN TO DISC RETAINERS AND SIMILARLY MANUFACTURED. THE RATES PROPERLY APPLICABLE TO THESE SHIPMENTS OF DISC RETAINERS ARE THOSE PROVIDED IN SECTION 2 OF ALABAMA MOTOR TARIFF BUREAU, AGENT, MOTOR TARIFF NO. 1-A, TO APPLY TO IRON AND STEEL ARTICLES, AS DESCRIBED IN ITEM 17550; THAT IS, A RATE OF 21 CENTS PER 100 POUNDS (20 CENTS PLUS A 6 PERCENT INCREASE), SUBJECT TO A VOLUME MINIMUM WEIGHT OF 36,000 POUNDS, AND A RATE OF 30 CENTS PER 100 POUNDS (28 CENTS PLUS A 6 PERCENT INCREASE), SUBJECT TO A VOLUME MINIMUM WEIGHT OF 17,000 POUNDS.

ON THE BASIS OF THE FOREGOING, THE PROPER CHARGES ARE AS FOLLOWS:

TABLE BILL OF LADING DATE WEIGHT RATE CORRECT CHARGES WT-4437681 5/27/44 19,170 POUNDS 30 CENTS $57.51 WT-1474575 7/29/44 37,800 DO. 21 CENTS 79.38 WT 1474576 7/30/44 39,480 DO. 21 CENTS 82.91 WT 1474573

7/25/44 40,404 DO. 21 CENTS 84.08

$303.88

YOU WERE PAID ORIGINALLY ON THESE BILLS OF LADING A TOTAL AMOUNT OF $722.94, OF WHICH $419.06 WAS OVERPAID. SINCE $186.85 HAS ALREADY BEEN COLLECTED BY DEDUCTION, THERE REMAINS DUE THE UNITED STATES THE SUM OF $232.21, WHICH SHOULD BE REFUNDED PROMPTLY.