B-128021, NOV. 29, 1956

B-128021, NOV. 29, 1956

TO THE ILLINOIS CENTRAL RAILROAD:

REFERENCE IS MADE TO YOUR LETTER OF MAY 18, 1956, FILE G-WQ-5918-A WAG-R, REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE IN CLAIM NO. TK 493439, DISALLOWING YOUR SUPPLEMENTAL BILL NO. WQ-5918-A FOR $368.20, REPRESENTING ADDITIONAL CHARGES CLAIMED TO BE DUE FOR THE TRANSPORTATION OF ONE TANK CAR OF NITROGEN FERTILIZER SOLUTION FROM MILITARY, KANSAS, TO DOYLINE, LOUISIANA, UNDER GOVERNMENT BILL OF LADING NO. SQ-14293957, DURING NOVEMBER 1943.

FOR THIS SERVICE YOU CLAIMED AND WERE PAID $697.69, COMPUTED ON THE BASIS OF A FIFTH-CLASS RATE OF 70 CENTS PER 100 POUNDS. PURSUANT TO INFORMATION RECEIVED FROM THE ARMY, THE BILL OF LADING DESCRIPTION "AMMONIUM NITRATE" WAS CORRECTED TO READ "NITROGEN FERTILIZER SOLUTION.' THIS CORRECTION RESULTED IN AN OVERCHARGE OF $368.20 THROUGH THE APPLICATION OF A CLASS 19 RATING PROVIDED IN ITEM 8780 OF SOUTHWESTERN LINES' EXCEPTIONS TARIFF NO. 173-P, I.C.C. NO. 3526. OUR TRANSPORTATION DIVISION DEDUCTED THIS AMOUNT FROM A SUBSEQUENT BILL.

IN YOUR REQUEST FOR REVIEW OF THAT ACTION YOU RESTATE YOUR ORIGINAL CHARGE BASED ON A FIFTH-CLASS RATE. IN SUPPORT OF YOUR POSITION YOU HAVE FORWARDED LETTERS ADDRESSED TO YOU BY THE WESTERN WEIGHING AND INSPECTION BUREAU IN WHICH IT IS CONTENDED THAT THE DESCRIPTION "NITROGEN FERTILIZER SOLUTION" IMPLIES THAT THE ARTICLE WAS TO BE USED ON SOIL AND THAT CONSIDERATION SHOULD BE GIVEN TO THE USE TO WHICH THE SOLUTION WAS PUT AND FOR WHICH IT WAS SPECIFICALLY LABELED, INTENDED, AND SOLD FOR THE PURPOSE OF DETERMINING ITS IDENTITY.

IT IS A WELL-ESTABLISHED RULE THAT 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, AND IF SUCH ARTICLES WERE SUBJECT TO EITHER OF TWO CLASSIFICATIONS THE AMBIGUITY SHOULD BE RESOLVED IN FAVOR OF THE SHIPPER, AND THE LOWER RATE APPLIED. UNITED STATES V. STRICKLAND TRANSPORTATION CO., 204 F.2D 325, CERTIORARI DENIED, 346 U.S. 556.

ITEM 8780 OF TARIFF NO. 173-P PROVIDES A CLASS 19 RATING ON:

"NITROGEN FERTILIZER SOLUTION (A SOLUTION OF AMMONIUM NITRATE IN AMMONIA LIQUOR, TOTAL AMMONIA CONTENT NOT TO EXCEED 50 PER CENT BY WEIGHT, SHIPPERS SO TO CERTIFY ON BILLS OF LADING), IN TANK CARS, SUBJECT TO RULE 35.'

THE ADMINISTRATIVE OFFICE REPORTS THAT THE AMMONIA LIQUOR CONTENT OF THE COMMODITY SHIPPED IS APPROXIMATELY 40.6 PERCENT BY WEIGHT AND THAT THERE WOULD BE VERY LITTLE DIFFERENCE BETWEEN THE AMMONIUM NITRATE USED IN EXPLOSIVES AND THE TYPE USED IN FERTILIZER, WITH THE EXCEPTION THAT THE AMMONIA LIQUOR CONTENT IN SOME INSTANCES MAY BE HIGHER IN THE PRODUCT USED IN EXPLOSIVES. THEREFORE, IT APPEARS THAT THE CHEMICAL COMPOSITION OF THE COMMODITY SHIPPED MEETS THE TARIFF SPECIFICATIONS AS TO ITS ESSENTIAL CHARACTER AND NATURE SINCE THE TOTAL AMMONIA CONTENT--- 40.6 PERCENT--- DID NOT EXCEED 50 PERCENT. SEE APACHE POWDER CO. V. ATCHISON, T. AND S. FE RY. CO., 293 I.C.C. 169, WHERE THE CLASSIFICATION OF NITROGEN FERTILIZER SOLUTION AS A LIQUID FERTILIZER WAS NOT QUESTIONED ALTHOUGH THE SOLUTION WAS USED IN THE MANUFACTURE OF HIGH EXPLOSIVES. ACCORDINGLY, IT APPEARS THAT THE COMMODITY WAS PROPERLY RATEABLE AS NITROGEN FERTILIZER SOLUTION.

ITEM 8780 OF THE TARIFF SPECIFIES THAT THE SHIPPER IS TO CERTIFY ON THE BILL OF LADING THAT THE TOTAL AMMONIA CONTENT DOES NOT EXCEED 50 PERCENT. HOWEVER, THE FACT THAT THE BILL OF LADING HERE CONCERNED WAS NOT SO CERTIFIED DOES NOT APPEAR TO BE MATERIAL NOW, SINCE THE WORDING ON THE BILL OF LADING DOES NOT CREATE A CONDITION PRECEDENT TO THE USE OF THE RATE AND THE COMMODITY IS WITHIN THE PURVIEW OF THE TARIFF DESCRIPTION. SEE UNITED WELDING CO. V. BALTIMORE AND O.R. CO., 196 I.C.C. 79 AND AMERICAN PIPE AND CONSTRUCTION CO. V. ALTON AND S.R., 289 I.C.C. 797.

IN VIEW OF THE FOREGOING COMMENTS THE SETTLEMENT, WHICH DISALLOWED YOUR CLAIM ON SUPPLEMENTAL BILL NO. WQ-5918-A, APPEARS TO BE PROPER, AND IT IS, THEREFORE, SUSTAINED.