B-127928, AUG. 9, 1956

B-127928, AUG. 9, 1956

TO THE UNION PACIFIC RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MAY 10, 1956, FILE GW-132814, REQUESTING A REVIEW OF THE SETTLEMENT ACTION ON YOUR BILL T.W. 132814 WHICH DISALLOWED $404.53 OF THE CHARGES PAID IN CONNECTION WITH A SHIPMENT FROM CONNELL, KANSAS, TO SEATTLE, WASHINGTON, DURING JUNE 1944. THE AMOUNT DISALLOWED WAS A PART OF THE CHARGES PAID ON THE PORTION OF THE SHIPMENT DESCRIBED IN THE GOVERNMENT BILL OF LADING AS "48 WOODEN BOXES" OF "ALUMINUM ARTICLES, NOIBN.'

THE RECORD SHOWS THAT THIS DESCRIPTION WAS CHANGED ON THE WAYBILL BY YOUR AGENT AT DESTINATION TO AIRPLANE PARTS. YOU COMPUTED THE FREIGHT CHARGES ON THIS BASIS AND ON THE ENTIRE SHIPMENT YOU WERE PAID $688.65 FOR THE SERVICES PERFORMED. THE SETTLEMENT ACTION COMPLAINED OF WAS THE COMPUTATION OF THE CHARGES ON THE 48 BOXES WHICH YOU ALLEGE CONTAINED AIRPLANE PARTS ON THE BASIS OF THE LOWER RATES APPLICABLE ON ALUMINUM ARTICLES, CONSISTENT WITH THE BILL OF LADING DESCRIPTION, AND THE RECOVERY OF THE RESULTING OVERPAYMENT BY DEDUCTION FROM CHARGES OTHERWISE DUE ON A SUBSEQUENT BILL. IT IS YOUR CONTENTION THAT THE AGENT WOULD NOT HAVE CORRECTED THE DESCRIPTION SHOWN ON THE BILL OF LADING UNLESS HE HAD INSPECTED THE CONTENTS OF THE CAR AT DESTINATION AND FOUND THESE ARTICLES TO BE AIRPLANE PARTS. HOWEVER, WHEN THE DESCRIPTION OF AN ARTICLE IS CHANGED BY THE CARRIER, THE BURDEN IS UPON IT TO JUSTIFY THE CHANGE. KNIGHT IRON AND METAL CO. V. GULF, M AND N.R. CO., 101 I.C.C. 623; GEDNEY AND SONS, INC. V. C. AND O. RY. CO., 169 I.C.C. 423.

THE SHIPPING MEMORANDUMS OF THE CONSIGNOR, THE BOEING AIRPLANE COMPANY, NAME THE ARTICLES CONTAINED IN THE 48 BOXES AS FOLLOWS:

CHART

TEE ANGLE REINF. WING ANGLE DOOR FRAME

CHANNEL BEAM SUPT. SUPPORT

GUSSET RIB FLANGE FRAME BODY

PAN SIDE BRASKET DOUBLE ANGLE

COLLAR CRADLE PAIRING WING

STIFFENER REINF. BULKHEAD RING (UPPER)

PLATE FRAME FORMER QUADRANT CONT.

SIDE DUCT FRAME WINDOW BLK.ASSY.NAC.

DOUBLER DUCT BLK. BODY RING SPLICE

WEB RETAINER PAN WING COVER

IT MAY BE SEEN FROM THESE DESCRIPTIONS THAT MOST OF THE ARTICLES IN AND OF THEMSELVES, WOULD NOT BE CONSIDERED AIRPLANE PARTS, SINCE ARTICLES SHIPPED ARE TO BE CLASSIFIED ACCORDING TO THEIR NATURE AND ESSENTIAL CHARACTER AT THE TIME OF SHIPMENT, DISREGARDING THE FUTURE USE TO WHICH THEY MIGHT BE PUT. UNITED STATES V. STRICKLAND TRANSPORTATION CO., 204 F.2D 325, CERTIORARI DENIED 346 U.S. 856. ALTHOUGH SOME OF THE CONTENTS OF THE SHIPMENT, SUCH AS FAIRINGS, BULK ASSEMBLY NACELLES, AND WINGS MIGHT ORDINARILY BE CLASSIFIED AS AIRPLANE PARTS, THE PARTICULAR ARTICLES IN THE PRESENT SHIPMENT DO NOT APPEAR TO BE THE COMMODITY GENERALLY CONTEMPLATED WITHIN THAT GIVEN NAME SINCE THEY SEEM TO BE OF SUCH SMALL SIZE. FOR EXAMPLE, 67 "WINGS" ARE CONTAINED IN A BOX WEIGHING 584 POUNDS, ALONG WITH 77 CHANNELS, 62 SUPPORTS, 144 RIBS AND 79 WEBS. IT MUST BE CONCLUDED, THEREFORE, THAT THE ENTIRE CONTENTS OF THE 48 BOXES CONSISTED OF SMALL ALUMINUM ARTICLES THAT ARE USED IN THE ASSEMBLING OF AIRPLANE PARTS, BUT ARE NOT IDENTIFIABLE AS AIRPLANE PARTS THEMSELVES. IN RESPONSE TO AN INQUIRY, THE SHIPPER, BOEING AIRCRAFT COMPANY, ADVISED OUR TRANSPORTATION DIVISION ON JULY 11, 1956, THAT IT WAS THEIR VIEW THAT THE ARTICLES CONTAINED IN THE 48 BOXES WERE PROPERLY DESCRIBED ON THE BILL OF LADING AS ALUMINUM ARTICLES, NOIBN.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE DISALLOWANCE OF YOUR SUPPLEMENTAL CLAIM IS SUSTAINED.