B-133668, JUL. 11, 1958

B-133668, JUL. 11, 1958

TO EASTERN FREIGHT WAYS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 29, 1957, REQUESTING REVIEW OF OUR SETTLEMENT OF AUGUST 14, 1957, WHICH DISALLOWED YOUR CLAIM NO. 0-2326 FOR $1,379.27 ADDITIONAL TRANSPORTATION CHARGES ALLEGED TO BE DUE ON SHIPMENTS MOVING ON GOVERNMENT BILLS OF LADING WY-2406832, WY- 2406849 AND WY-875991 IN 1953.

BILL OF LADING WY-875991 COVERED THE TRANSPORTATION FROM BROOKLYN, NEW YORK, TO SOUTH SCHENECTADY, NEW YORK, OF 35 BALES OF "CLOTHING,COTTON, NOIBN (JACKET, SHELL, FIELD, M-1951)" WEIGHING 4,130 POUNDS. THE SOLE ISSUE INVOLVES THE PROPER CLASSIFICATION OF THE ARTICLES SHIPPED. YOU CONTEND THAT THE ARTICLES INVOLVED IN THE SHIPMENT WERE NOT OVERALL WORK JACKETS BUT, RATHER, WERE WATER REPELLENT JACKETS AND, THEREFORE, SHOULD NOT BE CLASSIFIED AS STAPLE WORK CLOTHING, AS IN OUR AUDIT. NO EVIDENCE WAS FURNISHED BY YOU IN SUPPORT OF SUCH CONTENTION. IN RESPONSE TO A REQUEST FOR ADVICE AS TO WHETHER SHIPMENTS DESCRIBED ON GOVERNMENT BILLS OF LADING SUCH AS HERE INVOLVED COULD BE CONSIDERED STAPLE WORK CLOTHING, WE WERE INFORMED BY THE ARMY, THAT ALL SHIPMENTS SO DESCRIBED "CAN BE CONSIDERED STAPLE WORK CLOTHING, OVERALL JACKET, REGARDLESS OF THE CONTRACT NUMBERS OF MANUFACTURERS.' THE QUESTION OF THE ESSENTIAL CHARACTER OF THE PROPERTY SHIPPED IS ONE OF FACT PECULIARLY WITHIN THE KNOWLEDGE OF THE ADMINISTRATIVE OFFICE CONCERNED, WHOSE DETERMINATION IS CONTROLLING IN THE ABSENCE, AS HERE, OF COMPETENT EVIDENCE TO REFUTE THE CORRECTNESS OF THAT DETERMINATION. UPON DISPUTED QUESTIONS OF FACT BETWEEN A CLAIMANT AND THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT THE UNBROKEN RULE OF THE ACCOUNTING OFFICERS IS TO ACCEPT THE STATEMENT OF FACTS FURNISHED BY ADMINISTRATIVE OFFICERS. SINCE THE CLASSIFICATION BASIS APPLIED IN OUR SETTLEMENT IN THIS INSTANCE WAS CONSISTENT WITH THE PRINCIPLE, IT IS SUSTAINED.

BILLS OF LADING WY-2406832 AND WY-2406849 COVERED THE TRANSPORTATION FROM PHILADELPHIA, PENNSYLVANIA, TO SOUTH SCHENECTADY, NEW YORK, OF TWO SHIPMENTS OF "RANGE FINDERS" WEIGHING 22,968 AND 21,506 POUNDS, RESPECTIVELY. FOR THIS TRANSPORTATION YOU ORIGINALLY CLAIMED AND WERE PAID THE SUM OF $1,792.30, COMPUTED ON THE BASIS OF A RATE OF $4.03 PER100 POUNDS. THE RATING ON RANGE FINDERS IS 2 1/2 TIMES FIRST CLASS IN LESS- TRUCK-LOAD LOTS AND FIRST CLASS (CLASS 100) IN VOLUME LOTS OF 12,000 POUNDS OR MORE, AS NAMED IN ITEM NO. 32770 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-1, MF-I.C.C. NO. 3. RULE 3 OF MIDDLE ATLANTIC CONFERENCE EXCEPTIONS TARIFF NO. 10-J, MF-I.C.C. NO. A-500, PROVIDED IN SECTION (B) THAT ARTICLES RATED HIGHER THAN CLASS 1 OR 100, LTL, IN THE CLASSIFICATIONS, ACCOMPANIED ONLY BY VOLUME RATINGS, WOULD BE SUBJECT, IN THE ABSENCE OF EXCEPTIONS RATINGS IN SECTION 1 OF TARIFF NO. 10-J, TO LTL RATINGS IN ANY QUANTITY AND THE VOLUME RATINGS WOULD BE INAPPLICABLE. SINCE SECTION 1 OF TARIFF NO. 10-J CONTAINED NO EXCEPTIONS RATING ON THE ARTICLE TRANSPORTED, YOU BILLED AND COLLECTED CHARGES AT THE LTL RATE, THUS GIVING EFFECT TO THE PROVISIONS OF RULE 3 (B).

IN OUR AUDIT, IT WAS DETERMINED THAT THE CHARGES SHOULD HAVE BEEN COMPUTED IN ACCORDANCE WITH YOUR TENDER NO. 5, WITHOUT GIVING EFFECT TO RULE 3 (B) OF TARIFF NO. 10-J, AND YOU WERE ASKED TO REFUND AN OVERPAYMENT OF $1,360.90, COMPUTED BY THE USE OF THE FIRST CLASS VOLUME RATING NAMED IN ITEM NO. 32770 OF CLASSIFICATION NO. A-1 AND A RATE OF 97 CENTS PER 100 POUNDS, OR 69 PERCENT OF THE FIRST CLASS RATE AUTHORIZED IN MIDDLE ATLANTIC STATES MOTOR CARRIER CONFERENCE FREIGHT TARIFF NO. 1-N, MF-I.C.C. NO. A-406 AND MIDDLE ATLANTIC CONFERENCE MASTER TARIFF NO. 12-A, MF-I.C.C. NO. A-472. UPON YOUR FAILURE TO MAKE THE REQUESTED REFUND, WE RECOVERED THE OVERPAYMENT BY DEDUCTION FROM AN UNPAID BILL. YOUR REQUEST FOR REVIEW, REFLECTS THE CONTENTION THAT THE PROVISIONS OF TENDER NO. 5 ARE MADE INAPPLICABLE BY REASON OF THE ABOVE-MENTIONED RULE 3 (B).

OUR VIEWS WITH REGARD TO THE APPLICABILITY OF YOUR TENDER NO. 5 TO SHIPMENTS OF THIS NATURE ARE SET FORTH IN OUR DECISION B-133947 TO YOU DATED MAY 14, 1958, IN WHICH WE CONCLUDED THAT IN VIEW OF THE PROVISIONS OF TENDER NO. 5, RULE 3 (B) PROPERLY COULD NOT BE GIVEN EFFECT SO AS TO DEFEAT ENTITLEMENT TO THE CHARGE BASIS AUTHORIZED IN THE TENDER. A COPY OF THAT DECISION IS ENCLOSED FOR YOUR READY REFERENCE. OUR SETTLEMENT IN CONNECTION WITH THE PRESENT SHIPMENTS IS CONSISTENT WITH THE CONCLUSION REACHED IN OUR PRIOR DECISION, AND SINCE NOTHING NEW HAS BEEN PRESENTED TO JUSTIFY REVERSING THAT DECISION, THE SUBJECT SETTLEMENT IS SUSTAINED.