B-139613, JUL. 10, 1959

B-139613, JUL. 10, 1959

TO THE PIEDMONT AND NORTHERN RAILWAY COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 10, 1959, FILE RD-639, AND PRIOR CORRESPONDENCE, REGARDING REVIEW OF THE SETTLEMENTS (PER TK 666122, TK- 665902 AND TK-665921) WHICH DISALLOWED YOUR CLAIMS ON BILLS NOS. 130, 132 AND 134 FOR THE AMOUNTS OF $264.03, $93.88 AND $281.64. THESE AMOUNTS ARE IN ADDITION TO THOSE PREVIOUSLY CLAIMED BY AND PAID TO YOU FOR THE TRANSPORTATION FROM SANTA CLARA AND SANTA MONICA, CALIFORNIA, TO CHARLOTTE, NORTH CAROLINA, OF CERTAIN CONTAINERS TO BE USED IN CONNECTION WITH THE SHIPMENT OF MISSILES, XM-326 AND M-326.

THE SHIPMENTS WERE TRANSPORTED IN MARCH AND MAY 1957. THE CHARGES ORIGINALLY CLAIMED AND PAID TO YOU FOR THIS TRANSPORTATION WAS COMPUTED ON THE BASIS OF A COMMODITY RATE OF $4.16 PER 100 POUNDS WHICH APPLIED ON "CONTAINERS, SHEET IRON OR STEEL, SET UP * * * BARRELS, DRUMS OR KEGS, N.O.I.B.N., SHIPPING * * * IN STRAIGHT OR MIXED CARLOADS," AND WAS PUBLISHED IN ITEM 4233-A OF TRANS-CONTINENTAL FREIGHT BUREAU FREIGHT TARIFF NO. 2-7, I.C.C. 1574. THE ABBREVIATION O.I.B.N.' IS DEFINED IN ITEM 9600 OF THE TARIFF AS MEANING "THAT THE DESCRIPTION OF WHICH IT IS A PART APPLIES ON ARTICLES INCLUDED IN THE SAME "N.O.I.B.N.' DESCRIPTION IN THE WESTERN CLASSIFICATION.'

IN YOUR REQUEST FOR REVIEW YOU URGE THAT THOSE CONTAINERS SHOULD BE RATED UNDER THE RULE (17) OF ANALOGY, APPLYING THE RATING IN EITHER ITEMS 13785 AND 13790 OR IN ITEMS 41569 AND 41705 OF THE UNIFORM FREIGHT CLASSIFICATION NO. 3. THESE ITEMS ARE, IN PERTINENT PART, AS FOLLOWS:

TABLE

ITEM ARTICLE RATING

13785 "CONTAINERS, SHEET IRON OR STEEL, S.U. * * *" 13790 "BARRELS, DRUMS OR KEGS, NOIBN, SHIPPING * * *" 40

41560 "TANKS:

41705 "IRON OR STEEL, NOIBN, PLATE OR SHEET, SU:

1/4 INCH OR THINNER, BUT NOT THINNER THAN 16 GAUGE

NOT NESTED, LOOSE OR IN PACKAGES 40"

THUS, THE ONLY QUESTION FOR DETERMINATION IS WHETHER THESE CONTAINERS WERE, IN FACT, DRUMS N.O.I.B.N., SHIPPING; OR WHETHER THEY WERE ONLY ANALOGOUS TO AN ARTICLE LISTED IN ITEMS 13785 AND 13790 WHICH COVER CONTAINERS, SHEET IRON OR STEEL, SET UP--- "BARRELS, DRUMS OR KEGS, NOIBN, SHIPPING; " OR TO AN ARTICLE LISTED IN ITEM 41705 WHICH COVERS TANKS,"IRON OR STEEL, NOIBN, PLATE OR SHEET, S.U;,--- "1/4 INCH OR THINNER, BUT NOT THINNER THAN 16 GUAGE"--- "NOT NESTED, LOOSE OR IN PACKAGES.' WE HAVE BEEN UNABLE TO FIND A REPORT OF ANY CASE IN WHICH THE INTERSTATE COMMERCE COMMISSION HAS DEFINED THE GENERIC TERM "DRUM.' IN MERRIAM-WEBSTER'S NEW INTERNATIONAL DICTIONARY--- SECOND EDITION, THE WORDS CONTAINER, DRUM AND TANK ARE DEFINED IN PERTINENT PART, AS FOLLOWS:

CONTAINER

"A RECEPTACLE, AS A BOX, CARTON, OR CRATE, USED IN COMMERCE, FOR THE PACKING AND SHIPMENT OF ARTICLES; " ALSO, AS "A LARGE WEATHERPROOF BOX OR TANK, USUALLY OF METAL, DESIGNED FOR THE SHIPMENT OF FREIGHT IN BULK BY MOTOR TRUCK OR RAILROAD FREIGHT CAR.'

DRUM

"A METAL BARREL FOR LIQUID, AS OIL; " ALSO, AN "A CYLINDRICAL BOX, TUB, CASE, OR THE LIKE, AS FOR PACKING OR STORING FIGS, COD, SPIRITS, SHOT, FOR HOLDING A COILED SPRING, ETC.'

TANK

"A LARGE BASIN, CISTERN, OR OTHER ARTIFICIAL RECEPTACLE FOR LIQUIDS, AS A SWIMMING TANK; A GASOLINE TANK.'

IN THE CASE OF UNITED STATES V. ONE ELECTRONIC POINTMAKER, 149 F.SUPP. 427-429, A DRUM IS DESCRIBED AS "A CYLINDRICAL BOX, TUBE, CASE OR THE LIKE.' NOWHERE HAVE BEEN ABLE TO FIND A RULE DEFINING THE DIMENSIONS OF A DRUM, OR ITS STANDARD GALLONAGE CAPACITY, EXCEPT AS TO GASOLINE AND OIL DRUMS OF 50-55 GALLONS. THESE CONTAINERS FOR MISSILES, NOT BEING A "RECEPTACLE FOR LIQUID," APPARENTLY CANNOT DESCRIBED AS A TANK. THE DEFINITION OF A DRUM AS A CYLINDRICAL BOX * * * OR THE LIKE FOR PACKING OR STORING OR FOR HOLDING A COILED SPRING, ETC., INDICATES THAT DRUMS MAY BE OF MANY SIZES, INCLUDING THOSE CONTAINERS UNDER CONSIDERATION HERE. THERE IS NOTHING OF RECORD HERE WHICH WOULD INDICATE THAT THE COMMODITY DESCRIPTION ON CONTAINERS, SHEET IRON OR STEEL, S.U.--- "BARRELS, DRUMS OR KEGS, NOIBN, SHIPPING," IS NOT APPLICABLE ON THESE IRON OR STEEL SHIPPING CONTAINERS. THE MILITARY TRAFFIC MANAGEMENT AGENCY, U.S. ARMY, HAS ADVISED THIS OFFICE, INFORMALLY, THAT THESE SHIPMENTS OF SHIPPING CONTAINERS, MISSILE, M-326, ARE PROPERLY FOR RATING AS CONTAINERS, SHEET IRON OR STEEL, SU., DRUMS, NOIBN, SHIPPING.

ACCORDINGLY, UPON THE PRESENT RECORD, THE DISALLOWANCE OF YOUR CLAIMS IS SUSTAINED.