B-142472, JAN. 17, 1961

B-142472, JAN. 17, 1961

TO THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 29, 1960, FILE G 616945 -B, REQUESTING REVIEW OF THE DISALLOWANCE OF YOUR CLAIM, PER SUPPLEMENTAL BILL NO. G 616945-B, FOR $1,183.22.

YOUR BILL IS FOR ADDITIONAL CHARGES ALLEGED TO BE DUE ON A CARLOAD SHIPMENT OF 912 WOODEN BOXES OF GOVERNMENT PROPERTY, WEIGHING 74,037 POUNDS, DESCRIBED ON THE BILL OF LADING AS "CELLULOSE DERIVATIVE PLASTICS, OTHER THAN PYROXYLIN, ROD OR SHEET.' THIS SHIPMENT MOVED FROM THE NATIONAL PLASTIC PRODUCTS COMPANY, ODENTON, MARYLAND, TO THE SUNFLOWER ORDNANCE WORKS, DE SOTO, KANSAS, UNDER GOVERNMENT BILL OF LADING N- 32253250, DATED DECEMBER 17, 1952, BY AUTHORITY OF DEPARTMENT OF THE NAVY CONTRACT NORD-12,422, EXECUTED ON FEBRUARY 15, 1952, WITH THE NATIONAL PLASTIC PRODUCTS COMPANY.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID FREIGHT CHARGES OF $1,103.21, COMPUTED ON THE BASIS OF A CLASS-37 1/2 RATING NAMED IN ITEM 9684 OF UNIFORM FREIGHT CLASSIFICATION NO. 1, UNDER THE GENERIC HEADING "CELLULOSE DERIVATIVE PLASTICS," FOR:

"OTHER THAN PYROXYLIN:

RODS, SHEETS OR TUBES, IN BARRELS OR BOXES * * *"

THE BILL OF LADING SHOWS THAT THE SHIPMENT WEIGHED 63,093 POUNDS, INCLUDING DUNNAGE.

AFTER PAYMENT OF THE ORIGINAL CHARGES, YOU PRESENTED SUPPLEMENTAL BILL NO. 616945A FOR $200.90 TO THE ADMINISTRATIVE OFFICE FOR PAYMENT. THE ADDITIONAL AMOUNT CLAIMED ON THIS BILL RESULTED FROM A CHANGE IN THE WEIGHT OF THE SHIPMENT FROM 63,093 POUNDS TO 74,037 POUNDS, AND THE ADDITIONAL CHARGES WERE COMPUTED ON THE BASIS OF THE SAME CLASS-37 1/2 RATING ORIGINALLY BILLED. THE ADMINISTRATIVE OFFICE TRANSMITTED YOUR SUPPLEMENTAL BILL TO OUR OFFICE FOR SETTLEMENT AND THE $200.90 YOU CLAIMED THEREON WAS ALLOWED IN FULL.

YOUR PRESENT SUPPLEMENTAL BILL FOR $1,833.22 IS BASED UPON YOUR CONTENTION THAT THE SHIPMENT WAS INCORRECTLY CLASSIFIED AS "RODS, SHEETS OR TUBES," SINCE THE COMMODITY MOVED WAS ACTUALLY CELLULOSE TAPE. YOU COMPUTE WHAT YOU CONSIDER TO BE THE APPLICABLE CHARGES ON THE BASIS OF A CLASS-70 RATING NAMED IN ITEM 9673 OF UNIFORM FREIGHT CLASSIFICATION NO. 1 --- ALSO UNDER THE GENERIC HEADING "CELLULOSE DERIVATIVE PLASTICS"--- FOR:

"OTHER THAN PYROXYLIN:

ARTICLES, NOIBN, IN BARRELS OR BOXES.'

WE HAVE RECEIVED FROM THE ADMINISTRATIVE OFFICE THE CONTRACT COVERING THE PROCUREMENT OF THE COMMODITY SHIPPED, TOGETHER WITH THE CORRESPONDING SPECIFICATIONS AND DRAWING. THESE PAPERS SHOW THAT THE INVOLVED ARTICLE WAS ETHYL CELLULOSE TAPE WHICH WAS USED AS THE PERIPHERAL INHIBITING WRAP FOR MARK 31 ROCKET PROPELLANT GRAIN. THE TAPE WAS 2 INCHES WIDE, .0075 INCHES THICK, AND HAD A MINIMUM LENGTH OF 1,500 FEET. IT WAS TIGHTLY ROLLED ON CARDBOARD CORES WITH AN INSIDE DIAMETER OF 3 INCHES AND A WALL THICKNESS OF 1/4 INCH MINIMUM. THE OUTSIDE DIAMETER OF EACH ROLL DID NOT EXCEED 15 INCHES MAXIMUM. THE TAPE WAS MANUFACTURED FROM DOW Q686.4 FORMULATION OR EQUIVALENT AND WAS TRANSPARENT IN COLOR. WE HAVE ALSO BEEN ADVISED BY THE ADMINISTRATIVE OFFICE THAT THE TAPE WAS NOT NITRATED AND THAT THE DIAMETER OF THE ROLLS EXCEEDED 8 1/2 INCHES.

THIS INFORMATION CONFIRMS YOUR CONTENTION THAT THE ARTICLE WAS MISDESCRIBED ON THE BILL OF LADING AND THEREBY RATED INCORRECTLY IN THE COMPUTATION OF CHARGES. HOWEVER, WE DO NOT AGREE THAT THE CLASSIFICATION DESCRIPTION FOR WHICH YOU NOW CONTEND--- "ARTICLES, NOIBN, IN BARRELS OR OXES"--- IS CONTROLLING.

IN DECIDING QUESTIONS OF THE PROPER APPLICATION OF TARIFF CLASSIFICATIONS TO SHIPMENTS, THE LONG-STANDING RULE IS THAT THE RATING SPECIFIED IN THE CLASSIFICATION ITEM WHICH MOST SPECIFICALLY AND ACCURATELY DESCRIBES THE ARTICLE MUST BE APPLIED, AND WHERE THERE IS NO CLEAR CHOICE, THE LOWEST RATING IS APPLICABLE, SINCE THE RESULTING AMBIGUITY IS RESOLVED IN FAVOR OF THE SHIPPER. UNITED STATES V. GULF REFINING CO., 268 U.S. 542. ITEM 9692, SUPPLEMENT NO. 2, UNIFORM FREIGHT CLASSIFICATION NO. 1--- EFFECTIVE MAY 30, 1952, AND THEREFORE APPLICABLE AT DATE OF SHIPMENT, DECEMBER 17, 1952--- UNDER THE HEADING "CELLULOSE DERIVATIVE PLASTICS," NAMES A CLASS- 35 RATING FOR:

"CELLULOSE FILM, NOT PRINTED (TRANSPARENT SHEETS OF NOT NITRATED CELLULOSE FILM SUCH AS COMMONLY USED FOR WRAPPING PURPOSES), IN ROLLS EXCEEDING 8 1/2 INCHES IN DIAMETER * * * CL, IN PACKAGES.'

WE FEEL THAT THIS ITEM DESCRIBES THE ARTICLES SHIPPED WITH BOTH SPECIFICITY AND ACCURACY AND IS, THEREFORE, APPLICABLE. SUCH A CLASSIFICATION WOULD BE CONSISTENT WITH THE INTERSTATE COMMERCE COMMISSION'S RULING IN HENRY MODELL AND CO., INC. V. PENNSYLVANIA R. COMMISSION'S RULING IN HENRY MODELL AND CO., INC. V. PENNSYLVANIA R.CO., 278 I.C.C. 630, THAT "SCOTCH" BRAND TAPE, IN ROLLS--- SIMILAR TO THE TAPE HERE INVOLVED BUT WITH ADHESIVE ADDED--- IS PROPERLY EMBRACED WITHIN THE DESCRIPTION "CELLULOSE FILM PRODUCTS, NOIBN.'

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED. WE ARE INSTRUCTING OUR TRANSPORTATION DIVISION TO RECOMPUTE THE CHARGES ON THE BASIS OF THE CLASS-35 RATING NAMED IN ITEM 9692 AND TO ADVISE YOU OF ANY RESULTING OVERCHARGES.