B-127497, SEP. 12, 1956
Highlights
THE COMMODITY SHIPPED IS DESCRIBED IN THE COVERING BILLS OF LADING AS "BOXES. USED" AND THE COMPUTATION OF ALLOWABLE CHARGES IN THE AUDIT HERE WAS BASED ON THE RATING AND RATE APPLICABLE TO NESTED. IT APPEARS TO BE YOUR CONTENTION THAT THE COMMODITY SHOULD HAVE BEEN FURTHER DESCRIBED IN THE BILLS OF LADING BY ADDITION OF THE ABBREVIATION "TNT. THAT CONSEQUENTLY THE BOXES ARE PROPERLY CLASSIFIED UNDER ITEM 5800 OF THE GOVERNING FREIGHT CLASSIFICATION AS "BOXES. THE BILL OF LADING DESCRIPTIONS ARE CONTROLLING AS TO THE NATURE OF THE COMMODITY SHIPPED AND NO EVIDENCE APPEARS IN THE RECORD NOW BEFORE US TO WARRANT VARIATION OF THE TERMS OF THE BILLS OF LADING. EVEN IF IT BE ASSUMED THAT THESE BOXES WERE USED FOR SHIPPING TRINITROTOLUOL.
B-127497, SEP. 12, 1956
TO AUDITOR OF RECEIPTS, NASHVILLE, CHATTANOOGA AND ST. LOUIS RAILWAY:
CONSIDERATION HAS BEEN GIVEN YOUR REQUEST OF FEBRUARY 2, 1956, FILE R-G/B 29507, FOR REVIEW OF OUR SETTLEMENT, CLAIM NO. TK-548980, SEPTEMBER 19, 1955, WHICH DISALLOWED YOUR CLAIM FOR $379.68, ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE FOR THE SERVICES COVERED BY THE BILLS OF LADING SET FORTH IN YOUR BILL NO. 29507.
THE COMMODITY SHIPPED IS DESCRIBED IN THE COVERING BILLS OF LADING AS "BOXES, WDN. NESTED, NOIBN, OLD, USED" AND THE COMPUTATION OF ALLOWABLE CHARGES IN THE AUDIT HERE WAS BASED ON THE RATING AND RATE APPLICABLE TO NESTED, OLD, WOODEN BOXES, NOT OTHERWISE INDEXED BY NAME IN THE GOVERNING FREIGHT CLASSIFICATION. IT APPEARS TO BE YOUR CONTENTION THAT THE COMMODITY SHOULD HAVE BEEN FURTHER DESCRIBED IN THE BILLS OF LADING BY ADDITION OF THE ABBREVIATION "TNT," APPARENTLY MEANING TRINITROTOLUOL, AND THAT CONSEQUENTLY THE BOXES ARE PROPERLY CLASSIFIED UNDER ITEM 5800 OF THE GOVERNING FREIGHT CLASSIFICATION AS "BOXES, AMMUNITION OR SMOKELESS POWDER SHIPPING, NOIBN.'
IN THE ABSENCE OF AFFIRMATIVE EVIDENCE TO THE CONTRARY, THE BILL OF LADING DESCRIPTIONS ARE CONTROLLING AS TO THE NATURE OF THE COMMODITY SHIPPED AND NO EVIDENCE APPEARS IN THE RECORD NOW BEFORE US TO WARRANT VARIATION OF THE TERMS OF THE BILLS OF LADING. HOWEVER, EVEN IF IT BE ASSUMED THAT THESE BOXES WERE USED FOR SHIPPING TRINITROTOLUOL, THE RATING FOR AMMUNITION AND SMOKELESS POWDER SHIPPING BOXES WOULD BE INAPPLICABLE AS TRINITROTOLUOL IS NEITHER AMMUNITION NOR SMOKELESS POWDER. SINCE TRINITROTOLUOL SHIPPING BOXES ARE NOT INDEXED BY NAME IN THE CLASSIFICATION, SUCH BOXES, IF WOODEN, WOULD BE ENCOMPASSED BY THE GENERIC DESCRIPTION FOR WOODEN BOXES NOT OTHERWISE INDEXED BY NAME. FURTHERMORE, THE AMMUNITION AND SMOKELESS POWDER SHIPPING BOX RATING COULD NOT BE APPLIED BY ANALOGY. ANALOGOUS RATINGS MAY NOT BE APPLIED WHEN AN ARTICLE IS CLEARLY EMBRACED IN AN NOIBN DESCRIPTION. BADGER RADIO CO. V. CHICAGO AND N.W. RY. CO., 140 I.C.C. 295; VALLEY ELECTRICAL SUPPLY CO. V. ATCHISON, T. AND S. F. RY., 147 I.C.C. 253; CELOTEX CO. V. ATLANTIC COAST LINE R. CO., 159 I.C.C. 727, 729; LANDERS, FRARY AND CLARK V. MOSHASSUCK TRANSP. CO., 53 I.C.C. 234.
THE SETTLEMENTS, WHICH WERE CONSISTENT WITH THE FOREGOING, ARE NOT SHOWN TO HAVE BEEN IN ERROR OTHERWISE AND, ACCORDINGLY, ARE SUSTAINED.