B-139614, SEP. 2, 1959
Highlights
TO THE CALIFORNIA WAREHOUSE COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 5. THE SHIPMENTS WERE DESCRIBED ON THE BILLS OF LADING AS "TANKS ALUM. ON EACH OF THESE SHIPMENTS YOU CLAIMED AND WERE PAID ON THE BASIS THAT THESE ITEMS WERE RATEABLE AS AIRPLANE PARTS NOIBN. YOU CONTEND THAT THESE ALUMINUM TANKS WERE MANUFACTURED SPECIFICALLY AS PART OF AN AIRPLANE AND COULD NOT BE USED FOR ANY OTHER PURPOSE. IN THE AUDIT OF THE PAYMENT VOUCHERS IN THIS OFFICE IT WAS DETERMINED THAT THE PROPER CLASSIFICATION OF THESE SHIPMENTS SHOULD BE "TANKS. THE MILITARY TRAFFIC MANAGEMENT AGENCY HAS ADVISED US THAT THESE TANKS WERE IN FACT COMPLETELY KNOCKED DOWN. WHILE IT IS TRUE THAT THE INTENDED USE COMMONLY MADE OF AN ARTICLE BECOMES.
B-139614, SEP. 2, 1959
TO THE CALIFORNIA WAREHOUSE COMPANY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 5, 1959, REQUESTING REVIEW OF OUR ACTION, UNDER CLAIM NO. TK-172139, ARISING OUT OF SHIPMENTS MOVING ON GOVERNMENT BILLS OF LADING BETWEEN ALHAMBRA AND LONG BEACH, CALIFORNIA, DURING 1953.
THE SHIPMENTS WERE DESCRIBED ON THE BILLS OF LADING AS "TANKS ALUM. KNOCKED DOWN - NESTED .064 GUAGE.' ON EACH OF THESE SHIPMENTS YOU CLAIMED AND WERE PAID ON THE BASIS THAT THESE ITEMS WERE RATEABLE AS AIRPLANE PARTS NOIBN. YOU CONTEND THAT THESE ALUMINUM TANKS WERE MANUFACTURED SPECIFICALLY AS PART OF AN AIRPLANE AND COULD NOT BE USED FOR ANY OTHER PURPOSE. IN THE AUDIT OF THE PAYMENT VOUCHERS IN THIS OFFICE IT WAS DETERMINED THAT THE PROPER CLASSIFICATION OF THESE SHIPMENTS SHOULD BE "TANKS, ALUMINUM, KD, LOOSE OR IN PACKAGES.' THE MILITARY TRAFFIC MANAGEMENT AGENCY HAS ADVISED US THAT THESE TANKS WERE IN FACT COMPLETELY KNOCKED DOWN. WHILE IT IS TRUE THAT THE INTENDED USE COMMONLY MADE OF AN ARTICLE BECOMES, IN THE ABSENCE OF MORE CONCLUSIVE EVIDENCE, DETERMINATIVE OF THE PROPER CLASSIFICATION, THE INTERSTATE COMMERCE COMMISSION HAS HELD THAT THE NATURE OF THE COMMODITY AND NOT THE USE TO WHICH IT IS PUT DETERMINES THE APPLICABLE RATE. SEE UNION SMELTING AND REFINING CO. V. PENNSYLVANIA R.CO., 152 I.C.C. 434.
IN THIS CASE THE ALUMINUM TANKS AS SHIPPED WERE KNOCKED DOWN, AND AS SUCH COULD NOT BE USED AS ,WING DROP TANKS" UNTIL THEY WERE AN ASSEMBLED PRODUCT. ALTHOUGH THE TANKS MAY HAVE BEEN INTENDED AS AIRPLANE PARTS, THEIR ACTUAL CHARACTER WHILE IN TRANSIT AND NOT THEIR INTENDED USE IS CONTROLLING AS TO THE PROPER DESCRIPTION TO BE ACCORDED THEM. HUSTON V. FREIGHT WAYS, INC., 52 M.C.C. 263. MOREOVER, THE DESCRIPTION "ALUMINUM TANKS, KNOCKED DOWN" IS MORE SPECIFIC IN THIS CASE THAN "AIRPLANE PARTS, NOIBN," AND IT IS A FUNDAMENTAL RULE OF CLASSIFICATION THAT THE SPECIFIC TAKES PRECEDENCE OVER THE GENERAL DESCRIPTION. SONKEN-GALAMBA CORPORATION V. CHICAGO AND ALTON R.CO., ET AL., 194 I.C.C. 239; LAKESIDE FISH AND OYSTER CO. V. LOUISVILLE AND NASHVILLE R., 210 I.C.C. 245. IN THIS CONNECTION, ITEM 41602 OF WESTERN CLASSIFICATION NO. 75 (CONSOLIDATED FREIGHT CLASSIFICATION NO. 20) NAMES A RATING ON "TANKS (ITEM 41560) ALUMINUM, KD, LOOSE OR IN PACKAGES.' HENCE, SINCE THIS DESCRIPTION IS EXACTLY THE DESCRIPTION OF THE ARTICLE SHIPPED, THERE IS NO NECESSITY FOR CONSIDERATION OF THE USE, OR NATURE, OF THE ARTICLE TO DETERMINE THE APPLICABLE RATING FOR THE REASONS STATED, OUR CERTIFICATE OF INDEBTEDNESS APPEARS TO HAVE BEEN PROPERLY STATED.
WE ARE IN RECEIPT OF A LETTER FROM OREGON NEVADA CALIFORNIA FAST FREIGHT, INC., CONCERNING THIS OVERPAYMENT, STATING THAT THEY ACTED AS UNDERLYING CARRIER IN CONNECTION WITH THE SUBJECT MOVEMENTS. HOWEVER, THEIR INTEREST IN THIS CLAIM IS NOT SUBSTANTIATED BY THE BILLS OF LADING OR PAYMENT RECORD, SINCE CALIFORNIA WAREHOUSE COMPANY BILLED THE GOVERNMENT FOR THE FREIGHT CHARGES IN ACCORDANCE WITH THE PROVISIONS OF THE GOVERNMENT BILL OF LADING CONTRACTS.
SINCE YOUR COMPANY HAS FAILED TO MAKE VOLUNTARY REFUNDS OF THE PRINCIPAL AMOUNT DUE, THE MATTER OF YOUR INDEBTEDNESS HAS BEEN REFERRED TO THE DEPARTMENT OF JUSTICE FOR COLLECTION ACTION. COPIES OF THIS LETTER ARE BEING FORWARDED TO THE UNITED STATES ATTORNEY, LOS ANGELES, CALIFORNIA, AND OREGON NEVADA CALIFORNIA FAST FREIGHT, INC. ..END :