B-140603, OCT. 23, 1959

B-140603, OCT. 23, 1959

TO THE PENNSYLVANIA RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 10, 1958, FILE 149 102- 8/156012, REQUESTING REVIEW OF SETTLEMENT DATED JULY 17, 1958, WHICH DISALLOWED YOUR CLAIM FOR $31.92 ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE ON A SHIPMENT TRANSPORTED FROM PORTSMOUTH, NEW HAMPSHIRE, TO NEW CUMBERLAND, PENNSYLVANIA, UNDER GOVERNMENT BILL OF LADING WV-3584627 IN OCTOBER 1944 CONSISTING OF 276 CASES CONTAINING ARTICLES DESCRIBED ON THE BILL OF LADING AS "SUN GLASSES WITH OTHER THAN VISION CORRECTIVE LENSES"-- - EYESHIELDS, M1 WEIGHING 19,596 POUNDS.

YOU ORIGINALLY CLAIMED AND WERE PAID TRANSPORTATION CHARGES OF $197.92 COMPUTED ON THE BASIS OF A SECOND-CLASS RATE OF $1.01 PER 100 POUNDS, SUBJECT TO A 12,000 POUND CARLOAD MINIMUM, AS PUBLISHED IN ITEM 15035, CONSOLIDATED FREIGHT CLASSIFICATION NO. 16, AGENT R.C. FYFE'S I.C.C. NO. 29. UNDER THE GENERIC HEADING "DRAWING INSTRUMENTS, OPTICAL GOODS OR SCIENTIFIC INSTRUMENTS," ITEM 15035 NAMES THIS SECOND CLASS RATING FOR "GOGGLES OR SUNGLASSES, WITH OTHER THAN VISION CORRECTIVE LENSES, IN BOXES.'

THE DEPARTMENT OF THE ARMY LATER SUBMITTED A SUPPLEMENTAL WAR DEPARTMENT BILL OF LADING INFORMATION, FORM TC 790, STATING THAT THE MATERIAL SHOULD HAVE BEEN DESCRIBED ON THE BILL OF LADING AS "276 CASES CELLULOSE DERIVATIVE PLASTIC O/T PYROXYLIN, ARTICLES, NOIBN.' IN THE AUDIT OF THIS PAYMENT, USING THE INFORMATION FURNISHED BY THE ADMINISTRATIVE OFFICE, WE DETERMINED THAT THE APPLICABLE FREIGHT CHARGES WERE $166 COMPUTED ON THE BASIS OF A THIRD-CLASS CARLOAD RATE OF $0.83 PER 100 POUNDS, SUBJECT TO A 20,000 POUND MINIMUM, AS AUTHORIZED IN ITEM 9677, CONSOLIDATED FREIGHT CLASSIFICATION NO. 16. UNDER THE GENERIC HEADING "CELLULOSE DERIVATIVE PLASTICS," ITEM 9677 NAMES THIS THIRD-CLASS RATING FOR "OTHER THAN PYROXYLIN: ARTICLES, NOIBN, IN BARRELS OR ES," AND WE ISSUED A NOTICE OF OVERPAYMENT IN THE AMOUNT OF $31.92 COMPUTED ON THAT BASIS WHICH HAS BEEN DEDUCTED FROM AMOUNTS OTHERWISE DUE YOU.

SUBSEQUENTLY YOU RECLAIMED THE AMOUNT DEDUCTED ON YOUR SUPPLEMENTAL BILLS 8/156012A AND 8/156012B AND SUCH CLAIM WAS DISALLOWED BY THE SETTLEMENT OF JULY 17, 1958, ON THE BASIS THAT OUR AUDIT ACTION WAS PROPER BECAUSE THE THIRD-CLASS CARLOAD RATE, SUBJECT TO A 20,000 POUND MINIMUM, AUTHORIZED IN ITEM 32020, CONSOLIDATED FREIGHT CLASSIFICATION NO. 16 FOR "MASKS, NOIBN: FLAT, FOLDED FLAT OR NESTED, IN BOXES" WAS APPROPRIATE. IN REQUESTING REVIEW OF THE MATTER YOU REITERATE YOUR CONTENTION THAT THIS ARTICLE SHOULD BE PROPERLY CLASSIFIED AS GOGGLES WITH OTHER THAN VISION CORRECTIVE LENSES AS SHOWN ON THE BILL OF LADING AND IN SUPPORT OF YOUR POSITION YOU QUOTE FROM A LETTER YOU SAY YOU RECEIVED FROM THE OFFICIAL CLASSIFICATION COMMITTEE TO THE EFFECT THAT THESE ARTICLES SHOULD NOT BE RATED AS MASKS BECAUSE THEY "DO NOT COVER THE FACE OR DISGUISE THE FEATURES, BUT ARE DESIGNED INSTEAD TO PROTECT THE EYES AGAINST DUST, HARMFUL LIQUIDS, ETC., AS ARE ALL OTHER TYPES OF GOGGLES.'

IT IS WELL ESTABLISHED THAT THE PRESUMPTION OF THE CORRECTNESS OF THE BILL OF LADING DESCRIPTION IS NOT CONCLUSIVE, BELL COMPANY V. ANN ARBOR RAILROAD CO., 174 I.C.C. 300, 301, AND THAT THE IMPORTANT FACT IS WHAT ACTUALLY MOVED, NOT WHAT WAS BILLED, PENN FACING MILLS CO. V. ANN ARBOR RAILROAD CO., 182 I.C.C. 614, 615; FREIGHT TRANSPORTATION ENGINEERS, INC. V. SOUTHERN TIES TRUCKING CO., 48 M.C.C. 372, 373; FEDDERS-QUIGAN CORP. V. LONG TRANSP. CO., 64 M.C.C. 581, 586; NEW YORK CENTRAL R. CO. V. GOLDBERG, 250 U.S. 85. THUS, THE SOLE QUESTION AT ISSUE INVOLVES THE PROPER CLASSIFICATION OF THE ARTICLE SHIPPED.

THE RECORD SHOWS THAT M1 EYESHIELDS ARE ISSUED FOR EYE PROTECTION AGAINST CHEMICAL SPRAY OR THE ELEMENTS. IT CONSISTS OF A THIN PIECE OF TRANSPARENT PLASTIC TO FIT OVER THE EYES WHICH IS STAPLED TO A FELT STRIP AND A PIECE OF SYNTHETIC CLOTH ALONG THE TOP EDGE. IT WAS GENERALLY SHAPED BY SNAP FASTENERS TO PROVIDE FACIAL CONTRACT WHEN WORN, AND WAS HELD IN PLACE BY A HEADBAND OF COTTON AND ELASTIC WEBBING. THE ADMINISTRATIVE OFFICE PLACES THE VALUE OF THE SHIELDS AT NINE CENTS, AN EXTREMELY LOW-VALUED COMMODITY, AND REPORTS THAT THEY WERE PACKED, FOLDED FLAT WITH FOUR MASKS TO A PAPER ENVELOPE, IN WOODEN CASES CONTAINING 100 TO 400 ENVELOPES. THE DENSITY OF THE COMPLETELY PACKED ARTICLE FOR SHIPPING IS REPORTED TO AVERAGE 20 POUNDS PER CUBIC FOOT AND ITS SUSCEPTIBILITY TO DAMAGE IS NEGLIGIBLE.

IN WEBSTER'S NEW INTERNATIONAL DICTIONARY, 2D ED., 1941, MASKS ARE DEFINED AS "A PROTECTIVE COVERING, ESPECIALLY FOR THE FACE" OR A "COVERING OVER SOMETHING TO PREVENT SOILING OR OTHER DAMAGE.' THE SAME DICTIONARY DEFINES GOGGLES AS "A KIND OF SPECTACLES WITH SHORT, PROJECTING EYE TUBES, IN THE FRONT END OF WHICH ARE FIXED PLAIN GLASSES FOR PROTECTING THE EYES FROM COLD, DUST, ETC.' THUS, IT SEEMS CLEAR THAT A MASK NEED NOT NECESSARILY COVER THE FACE OR THE FULL FACE. THE EYESHIELDS, WHEN SHIPPED WERE FOLDED FLAT OR NESTED IN BOXES. THUS, THE EYESHIELDS HAD THE TRANSPORTATION CHARACTERISTICS OF A MASK AS SET FORTH IN THE ABOVE- MENTIONED ITEM 32020. ITEM 32020 APPEARS MORE SPECIFICALLY TO COVER THE EYESHIELDS AND TO BE APPLICABLE FOR THAT REASON ALONE. U.S. INDUSTRIAL ALCOHOL V. DIRECTOR GENERAL, 68 I.C.C. 389, 392. HOWEVER, IF THE DESCRIPTION IN ITEM 15035 IS EQUALLY APPROPRIATE, THE SHIPPER IS ENTITLED TO HAVE APPLIED THE DESCRIPTION SPECIFYING THE LOWER RATE. UNITED STATES V. GULF REFINING CO., 268 U.S. 542.

ACCORDINGLY, AND AS OUR SETTLEMENT OF JULY 17, 1958, WAS CONSISTENT WITH THE FOREGOING, IT IS SUSTAINED.