B-130115, AUG. 8, 1958

B-130115, AUG. 8, 1958

TO CAROLINA FREIGHT CARRIERS CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR REQUEST, CLAIM NO. 056-135, PRO. NO. 33751, FOR REVIEW OF OUR AUDIT ACTION, BY WHICH AN OVERPAYMENT OF $178 WAS STATED ON YOUR UNNUMBERED BILL OF JUNE 19, 1953, PAID ON VOUCHER NO. 5339, IN THE JULY 1953 ACCOUNTS OF J. L. WHIPPLE. THE PARTICULAR ITEM ON THE BILL WHICH IS IN DISPUTE CONCERNS A SHIPMENT FROM ACCESSORY OVERHAUL INDUSTRIES, INC., RICHMOND HILL, LONG ISLAND, NEW YORK, TO WARNER ROBINS AIR FORCE BASE, WARNER ROBINS, GEORGIA, DESCRIBED ON GOVERNMENT BILL OF LADING NO. AF-1371920, DATED MAY 20, 1953, AS "AIRCRAFT PARTS.'

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID FREIGHT CHARGES IN THE AMOUNT OF $368. ON AUDIT OF THE PAYMENT VOUCHER IN OUR OFFICE AN OVERPAYMENT OF $83.50 WAS COMPUTED ON THE BASIS OF A CLASS 150 RATING PROVIDED IN ITEM 2700, NATIONAL MOTOR FREIGHT CLASSIFICATION A-1, MF- I.C.C. NO. 3. BY LETTER OF MARCH 8, 1956, THE OVERPAYMENT WAS PROTESTED FOR THE REASON, IN PART, THAT SINCE THE BILL OF LADING SHOWS PART OF THE SHIPMENT TO HAVE BEEN PACKED IN CANS, WHICH WERE NOT PROVIDED BY RULE 5, SECTION 6 OF CLASSIFICATION A-1 SHOULD BE APPLIED. ON FURTHER INVESTIGATION BY OUR OFFICE IT WAS DISCOVERED THAT THE DESCRIPTION ON THE BILL OF LADING WAS INACCURATE, AND THAT THE SHIPMENT ACTUALLY CONSISTED OF VALVES, VALVE PARTS, AND POWER PUMPS, AS SHOWN ON THE AIR FORCE MATERIEL INSPECTION AND RECEIVING REPORT, FORM 250, A COPY OF WHICH WAS SENT TO YOU WITH OUR LETTER OF NOVEMBER 21, 1956. THE REPORT IS IDENTIFIED WITH CONTRACT NUMBER AF 09/603) 15882 SHOWN IN THE LOWER PART OF THE COVERING BILL OF LADING.

ON THE BASIS OF THE NEW INFORMATION OUR AMENDED OVERPAYMENT FORM 1003 WAS ISSUED ON AUGUST 21, 1956, INCREASING THE OVERPAYMENT TO $178, IN ACCORDANCE WITH THE LOWER RATINGS PROVIDED IN ITEMS 28570 AND 64690, CLASSIFICATION A-1, FOR VALVES AND POWER PUMPS, RESPECTIVELY. IN PROTEST TO THE AMENDED OVERPAYMENT, YOU AGAIN STATED THAT THE 20 PERCENT PENALTY CHARGES SHOULD HAVE BEEN APPLIED, AND YOU ALSO REFERRED TO THE LAST SENTENCE OF SECTION 7 ON THE REVERSE OF THE COMMERCIAL BILL OF LADING, WHICH PROVIDES THAT:

"* * * IF UPON INSPECTION IT IS ASCERTAINED THAT THE ARTICLES SHIPPED ARE NOT THOSE DESCRIBED IN THIS BILL OF LADING, THE FREIGHT CHARGES MUST BE PAID UPON THE ARTICLES ACTUALLY SHIPPED.' YOUR REFERENCE TO THIS PROVISION IS NOT UNDERSTOOD, SINCE THE AMENDED OVERPAYMENT IS BASED, AS REQUIRED BY SECTION 7, ON THE RATES PROVIDED FOR THE ARTICLES ACTUALLY SHIPPED, RATHER THAN ON THE BILL OF LADING DESCRIPTION.

RULE 5, SECTION 6, PARAGRAPH C OF THE CLASSIFICATION PROVIDES FOR THE ASSESSMENT OF A 20 PERCENT PENALTY CHARGE ON LESS-THAN-TRUCKLOAD SHIPMENTS WHEN THE ARTICLES SHIPPED HAVE NOT BEEN PACKED OR PREPARED FOR SHIPMENT IN THE MANNER REQUIRED BY THE APPLICABLE ITEM. WE ARE INFORMED THAT THE PUMP ASSEMBLY (STOCK NO. 4839-TF 13400) SHIPPED IN THIS INSTANCE IS A FUEL BOOSTER TYPE PUMP ASSEMBLY PACKED IN A 3.6 GALLON CAPACITY CAN, AND CLASSIFICATION ITEM 64690,WHICH APPLIES TO THE PUMP ASSEMBLY, PROVIDES FOR THE SHIPMENT OF PUMPS LOOSE OR IN PACKAGES. THE TERM PACKAGES" AS REFERRED TO IN SECTION 12 OF RULE 5 OF THE CLASSIFICATION APPEARS TO COMPREHEND CANS. CONSEQUENTLY, IT DOES NOT APPEAR THAT THE PENALTY PROVISION OF SECTION 6 HAS ANY APPLICATION IN THIS INSTANCE. WE ARE NOT CONCERNED WITH ARTICLES CLASSIFIABLE AS AIRPLANE PARTS, ON WHICH YOU ASSUME THE PENALTY CHARGE SHOULD BE APPLIED. THE ARTICLES AS TO WHICH DISPUTE ARISES ARE REPORTED TO BE CLASSIFIABLE AS PUMP ASSEMBLIES. PRESUMABLY, THERE IS NO QUESTION THAT IF THE ARTICLES ARE CORRECTLY IDENTIFIED AS PUMP ASSEMBLIES THE PENALTY CHARGE IS NOT ASSESSABLE. ARE OBLIGED TO RELY ON THE ADMINISTRATIVE REPORT, WHICH SPECIFIES THE TRUE NATURE OF THE ARTICLES SHIPPED ON THE BILL OF LADING, AND WE FIND NO VALID REASON TO QUESTION THAT REPORT.

ACCORDINGLY, IT APPEARS THAT OUR AUDIT ACTION IS CORRECT, AND THE OVERPAYMENT OF $178 SHOULD BE REFUNDED TO AVOID COLLECTION BY OTHER MEANS.