B-140931, FEBRUARY 5, 1960, 39 COMP. GEN. 559

B-140931, FEBRUARY 5, 1960, 39 COMP. GEN. 559

TRANSPORTATION - RATES - EXCEPTIONS TARIFF - MIXED TRUCK-LOAD SHIPMENTS ALTHOUGH AN EXCEPTION RATING ON AN ARTICLE IN A FREIGHT TARIFF USUALLY REMOVES THE RATING ON SUCH ARTICLE FROM THE CLASSIFICATION TARIFF, A QUALIFICATION OF A RATING IN AN EXCEPTIONS TARIFF AND AN UNQUALIFIED RATING ON THE SAME ARTICLE IN THE CLASSIFICATION TARIFF ARE SEPARATE AND DISTINCT ITEMS FROM A TRANSPORTATION STANDPOINT, SO THAT A QUALIFIED EXCEPTIONS RATING DOES NOT REMOVE THE RATING ON SUCH ARTICLE FROM AN UNQUALIFIED CLASSIFICATION. AN ANY-QUANTITY RATING ON RADIO TRANSMITTING AND RECEIVING SETS, COMBINED, IN AN EXCEPTIONS TARIFF, WHICH PROVIDES THAT SUCH ANY QUANTITY RATING IS NOT APPLICABLE ON STRAIGHT TRUCKLOAD SHIPMENTS, DOES NOT REMOVE THE THIRD-CLASS RATING PROVIDED ON STRAIGHT TRUCKLOAD SHIPMENTS FOR THIS ITEM IN THE CLASSIFICATION TARIFF; THEREFORE, THE RULE IN THE CLASSIFICATION TARIFF THAT THE RATING ON A MIXED TRUCKLOAD SHIPMENT, WHICH INCLUDES RADIO TRANSMITTING AND RECEIVING SETS, COMBINED, SHOULD BE THE RATING PROVIDED AT THE STRAIGHT TRUCKLOAD RATE FOR THE ITEM, IS FOR APPLICATION.

TO EASTERN FREIGHT WAYS, INC., FEBRUARY 5, 1960:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF OCTOBER 1, 1959, RELATIVE TO THE ACTION OF OUR TRANSPORTATION DIVISION IN COLLECTING BY SETOFF AN ASSERTED OVERPAYMENT OF $252.99 MADE IN MAKING PAYMENT FOR THE TRANSPORTATION OF A MIXED TRUCKLOAD SHIPMENT, WEIGHING 20,609 POUNDS, FROM ROME, NEW YORK, TO PORT NEWARK, NEW JERSEY, FOR EXPORT, ON BILL OF LADING NO. AF-1552579, IN OCTOBER 1953. INCLUDED IN THIS MIXED TRUCKLOAD SHIPMENT WERE 23 BOXES AND 2 REELS OF " RADIO TRANSMITTING AND RECEIVING SETS COMBINED," WEIGHING 7,043 POUNDS. YOUR LETTER RELATES TO THE PROPER RATE TO BE USED IN COMPUTING THE CHARGES ON THIS PORTION OF THE MIXED TRUCKLOAD SHIPMENT. YOU URGE THAT THESE RADIO TRANSMITTING AND RECEIVING SETS COMBINED SHOULD BE RATED UNDER THE PROVISIONS OF ITEM 2250A IN SUPPLEMENT NO. 5 TO MIDDLE ATLANTIC CONFERENCE, AGENT, EXCEPTIONS AND RULES FREIGHT TARIFF NO. 10-J, MF I.C.C. NO. A-500.

RULE 2 OF FREIGHT TARIFF NO. 10-J PROVIDES THE RULE FOR RATING MIXED TRUCKLOAD SHIPMENTS. THIS RULE IS IN PERTINENT PARTS AS FOLLOWS:

SECTION A:

EXCEPT AS OTHERWISE PROVIDED, WHEN A NUMBER OF DIFFERENT ARTICLES, FOR WHICH RATINGS OR RATES ARE PROVIDED WHEN IN STRAIGHT TRUCKLOAD OR VOLUME SHIPMENTS, ARE SHIPPED AT ONE TIME BY ONE CONSIGNOR TO ONE CONSIGNEE AND DESTINATION IN TRUCKLOAD OR A VOLUME SHIPMENT, THEY WILL BE CHARGED AT THE ACTUAL OR AUTHORIZED ESTIMATED WEIGHT AND AT THE STRAIGHT TRUCKLOAD OR VOLUME CLASS OR COMMODITY RATE (NOT MIXED TRUCKLOAD OR VOLUME RATE) APPLICABLE TO EACH ARTICLE * * * ( ITALICS SUPPLIED.)

SECTION E:

THIS RULE WILL NOT APPLY ON:

(A) ARTICLES ON WHICH TRUCKLOAD OR VOLUME RATINGS OR RATES ARE

NOT APPLICABLE.

THUS, IN COMPUTING THE CHARGES ON A MIXED TRUCKLOAD SHIPMENT UNDER SECTION A OF RULE 2, THE ,STRAIGHT TRUCKLOAD RATE" APPLICABLE ON EACH INDIVIDUAL ARTICLE IN THE MIXED TRUCKLOAD MUST BE APPLIED TO THE WEIGHT OF THE PARTICULAR ARTICLE ON WHICH IT APPLIES. THEREFORE, SINCE ONE OF THE ARTICLES MAKING UP THE MIXED TRUCKLOAD SHIPMENT INVOLVED IN THIS CASE IS RADIO TRANSMITTING AND RECEIVING SETS, COMBINED, THE "STRAIGHT TRUCKLOAD RATE" WHICH WOULD BE APPLICABLE ON A "STRAIGHT TRUCKLOAD" OF THIS PARTICULAR ARTICLE MUST BE APPLIED TO THE WEIGHT OF THAT PARTICULAR ARTICLE IN COMPUTING THE CHARGES ON THE MIXED TRUCKLOAD SHIPMENT.

ITEM 2250A OF EXCEPTIONS AND RULES FREIGHT TARIFF NO. 10-J PROVIDES AN ANY-QUANTITY RATING ON " ELECTRICAL APPLIANCES OR EQUIPMENT, OR PARTS NAMED," FOLLOWED BY A LIST OF ARTICLES, INCLUDING " RADIO TRANSMITTING AND RECEIVING SETS COMBINED," ON WHICH ANY-QUANTITY RATING APPLIES " IN STRAIGHT OR MIXED SHIPMENTS, EXCEPT AS OTHERWISE PROVIDED.' A REFERENCE MARK PLACE IN FRONT OF THE LIS OF " RADIO TRANSMITTING AND RECEIVING SETS COMBINED" PROVIDES THAT THE ANY QUANTITY EXCEPTION RATING IN THE TIME ARE " NOT APPLICABLE ON STRAIGHT T.L. SHIPMENTS.' WHILE AN EXCEPTION RATING ON AN ARTICLE USUALLY REMOVES THE RATING ON THAT ARTICLE FROM THE CLASSIFICATION, THE QUALIFICATION OF THAT EXCEPTION RATING BY LIMITING IT SO AS NOT TO APPLY ON "STRAIGHT T.L. SHIPMENTS" EFFECTIVELY LEAVES THE CLASSIFICATION RATING TO APPLY ON "STRAIGHT T.L. SHIPMENTS.' THUS, SINCE THE ANY-QUANTITY RATING IS " NOT APPLICABLE ON STRAIGHT T.L. SHIPMENTS" OF RADIO TRANSMITTING AND RECEIVING SETS, COMBINED, THE THIRD-CLASS RATING PROVIDED IN THE NATIONAL MOTOR FREIGHT CLASSIFICATION ON STRAIGHT TRUCKLOAD SHIPMENTS OF THIS ARTICLE HAS NOT BEEN REMOVED FROM THE CLASSIFICATION BY THE EXCEPTION AND MUST BE APPLIED TO THAT ARTICLE IN THE MIXED TRUCKLOAD SHIPMENT HERE INVOLVED. A QUALIFIED RATING ON AN ARTICLE PUBLISHED IN THE CLASSIFICATION PROPER APPEAR TO BE SEPARATE AND DISTINCT ITEMS, FROM A TRANSPORTATION STANDPOINT. SEE, FOR INSTANCE, THE VIEWS EXPRESSED BY THE INTERSTATE COMMERCE COMMISSION AS TO RELEASED AND UNRELEASED RATINGS IN AMERICAN HOME FOODS, INC. V. DELAWARE, L. AND W. R. CO., 303 I.C.C. 655; UPJOHN COMPANY V. PENNSYLVANIA R.R. CO., 306 I.C.C. 325; AND DOW CHEMICAL CO. V. CHESAPEAKE AND OHIO RAILROAD CO., 306 I.C.C. 403.

THEREFORE, SINCE THE EXCEPTION IN RULE 2 OF THIS TARIFF, QUOTED ABOVE, PROVIDES THAT WHEN A SHIPMENT CONTAINS A NUMBER OF DIFFERENT ARTICLES FOR WHICH RATINGS OR RATES ARE PROVIDED " WHEN IN STRAIGHT TRUCKLOADS" THEY WILL BE CHARGED FOR AT THE STRAIGHT TRUCKLOAD CLASS OR COMMODITY RATE APPLICABLE TO EACH ARTICLE, THE STRAIGHT TRUCKLOAD RATE IS THE ONLY RATE PROPERLY APPLICABLE ON RADIO TRANSMITTING AND RECEIVING SETS, COMBINED, WHICH WERE INCLUDED IN THIS MIXED TRUCKLOAD SHIPMENT. APPARENTLY YOU TREAT SECTION E OF RULE 2 AS PROVIDING FOR THE NON-APPLICABILITY OF RULE 2 ON ARTICLES ON WHICH THE RATING IN ITEM 2250A IS NOT APPLICABLE ON TRUCKLOADS. THE APPLICATION OF RULE 2 IS NOT SO LIMITED. RULE 2 DOES APPLY BECAUSE THERE IS A RATING IN THE CLASSIFICATION PROPER THAT DOES APPLY ON STRAIGHT TRUCKLOADS OF THE COMMODITY HERE IN QUESTION.