B-132520, OCT. 4, 1957

B-132520, OCT. 4, 1957

TO WATKINS AND REA:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 19, 1957, REQUESTING THAT WE WITHDRAW OUR NOTICE OF OVERPAYMENT STATED AGAINST NOVICK TRANSFER CO., INC., IN CONNECTION WITH FIVE SHIPMENTS OF KNIT WOOLEN UNDERSHIRTS--- DESCRIBED IN THE INVOLVED GOVERNMENT BILLS OF LADING AS KNIT GOODS, NOI (WOOLEN UNDERSHIRTS/--- WHICH MOVED FROM MANCHESTER, NEW HAMPSHIRE, TO NEW CUMBERLAND, PENNSYLVANIA, DURING 1953.

FOR THESE SERVICES YOU CLAIMED AND WERE PAID $1,841.87 ON THE BASIS OF A CLASS RATE OF $1.78 A 100 POUNDS. NOVICK TRANSFER COMPANY ARRIVED AT THIS RATE BY CLASSIFYING THE KNIT WOOLEN UNDERSHIRTS AS CLOTHING, NOI (ITEM NO. 27880 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-1), WHICH IS SUBJECT TO A TRUCKLOAD RATING OF CLASS 85. IN OUR AUDIT WE RATED THE UNDERSHIRTS AS KNIT GOODS, NOI (ITEM NO. 55830 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-1), WHICH IS SUBJECT TO A VOLUME RATING OF CLASS 70. OUR NOTICE OF OVERPAYMENT (FORM 1003) SHOWS THAT THE TOTAL APPLICABLE CHARGES FOR THE FIVE SHIPMENTS CONCERNED ARE $1,513.66, COMPUTED AT A CLASS 70 RATE OF $1.46 A 100 POUNDS, WHICH RESULTS IN AN OVERPAYMENT OF $328.21.

THE QUESTION INVOLVED HERE IS WHETHER KNIT WOOLEN UNDERSHIRTS ARE TO BE CLASSIFIED AS CLOTHING, NOI, OR AS KNIT GOODS, NOI. THE INTERSTATE COMMERCE COMMISSION, IN DRY GOODS, PIECE GOODS, DEPENDENT ON VALUE, 53 M.C.C. 157, 160, STATED THAT "THE TERM CLOTHING INCLUDES A WIDE VARIETY OF GARMENTS, WEARING APPAREL, AND FURNISHINGS.' IN WESTBOUND LAKE-AND-RAIL KNIT GOODS COMMODITY RATES, 32 I.C.C. 54, 55 THE COMMISSION STATED THAT "KNIT GOODS INCLUDE ANY GARMENT MADE ON A KNITTING MACHINE, BUT FOR ALL PRACTICAL PURPOSES OF THIS INVESTIGATION KNIT GOODS MAY BE CONSIDERED AS INCLUDING ONLY UNDERWEAR.' AT PAGE 631 IN NATIONAL KNITTED OUTER WEAR ASSOCIATION V. AKRON C. AND Y.RY. CO., 156 I.C.C. 629, THE COMMISSION MADE THE FOLLOWING OBSERVATION:

"* * * GENERALLY SPEAKING, DRY GOODS AND CLOTHING ARE OF SUBSTANTIALLY GREATER WEIGHT DENSITY THAN KNIT GOODS, BUT THERE ARE NUMEROUS INDIVIDUAL ARTICLES WHICH MAY BE DESCRIBED WITH REASONABLE ACCURACY EITHER AS CLOTHING, DRY GOODS, OR KNIT GOODS. SWEATERS, FOR EXAMPLE, ARE DOUBTLESS ARTICLES OF CLOTHING, ALTHOUGH THIS RECORD SHOWS THEY ARE SHIPPED AS KNIT GOODS NOT OTHERWISE INDEXED BY NAME. * * *"

THUS, IT CAN BE SEEN THAT CLOTHING AND KNIT GOODS ARE GENERIC TERMS OF BROAD SCOPE CAPABLE OF MUTUALLY EMBRACING A LARGE NUMBER OF COMMODITIES. THE COMMISSION, ON OCCASION, WHEN CONFRONTED WITH A CLASSIFICATION PROBLEM INVOLVING COMMODITIES WHICH COULD FALL UNDER EITHER OF THESE DESCRIPTIONS, HAS CLASSIFIED THE COMMODITY UNDER THE DESCRIPTION YIELDING A LOWER EXCEPTION OR COMMODITY RATING IN PREFERENCE TO THE DESCRIPTION PRODUCING A HIGHER CLASS RATING. SEE BUTLER BROTHERS V. BALTIMORE AND O.R. CO., 231 I.C.C. 618, AND SKYLAND TEXTILE CO. V. TENN-CAROLINA TRANSIT, INC., 61 N.C.C. 658.

A BROAD GENERIC DESCRIPTION, BASED ON THE METHOD OF MANUFACTURE AND RESTRICTED TO ARTICLES NOT OTHERWISE INDEXED BY NAME IN THE CLASSIFICATION, MAY NOT BE APPLIED IN THE FACT OF A MORE SPECIFIC DESCRIPTION IN THE CLASSIFICATION IF THE ARTICLES ARE EMBRACED WITHIN THE TERMS OF THE MORE SPECIFIC ITEM. FEDERAL ELECTRIC PRODUCTS CO. V. SALTER'S EXPRESS CO., INC., 52 M.C.C. 473, 475. HOWEVER, WHERE THERE ARE OVERLAPPING CLASSIFICATION DESCRIPTIONS AND CONFLICTING RATINGS, THE SHIPPER IS ENTITLED TO THE CLASSIFICATION WHICH PRODUCES THE LOWER RATE. BREYER ICE CREAM CO. V. PENNSYLVANIA R. CO., 195 I.C.C. 757, 759, AND UNITED STATES V. STRICKLAND TRANSPORTATION CO., 200 F.2D 234, 235. THE CONCLUSION IS SUPPORTABLE THAT NEITHER DESCRIPTION--- CLOTHING, NOI, OR KNIT GOODS, NOI--- IS MORE SPECIFIC THAN THE OTHER AND THAT BOTH DESCRIBE KNIT WOOLEN UNDERSHIRTS WITH REASONABLE ACCURACY. THEREFORE, OUR NOTICE OF OVERPAYMENT, WHICH IS BASED UPON THE CLASSIFICATION PRODUCING THE LOWER RATE, APPEARS TO BE CORRECT. ACCORDINGLY, REFUND OF THE AMOUNT OVERPAID SHOULD BE MADE PROMPTLY IN ORDER TO OBVIATE COLLECTION BY OTHER MEANS.