B-143952, JAN. 18, 1961

B-143952, JAN. 18, 1961

TO THE COUCH MOTOR LINES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 7, 1960, CONCERNING YOUR CLAIM NUMBER 81684, IN WHICH YOU REQUEST A REVIEW OF THE SETTLEMENT CERTIFICATE DISALLOWING YOUR CLAIM FOR ADDITIONAL CHARGES FOR THE TRANSPORTATION OF INTERNAL COMBUSTION ENGINES FROM HOLLOMAN AIR FORCE BASE, NEW MEXICO, TO BROOKLEY AIR FORCE BASE, ALABAMA, UNDER GOVERNMENT BILL OF LADING NO. AF-4923013, DATED SEPTEMBER 21, 1956.

FOR THE SERVICE INVOLVED YOU ORIGINALLY CLAIMED AND WERE PAID $203.40, COMPUTED AT THE RATE OF $4.52 PER 100 POUNDS ON THE ACTUAL WEIGHT OF 4,500 POUNDS. IN THE AUDIT OF THE PAYMENT VOUCHER BY OUR TRANSPORTATION DIVISION, THE APPLICABLE FREIGHT CHARGES WERE DETERMINED TO BE $191.25, COMPUTED ON THE CLASS-85 LESS-THAN-TRUCKLOAD RATE OF $4.25 PER 100 POUNDS ON THE ACTUAL WEIGHT, AS PROVIDED IN SOUTHERN MOTOR CARRIER'S RATE CONFERENCE AGENT'S TARIFF NO. 505-A, MF-I.C.C. 843, AND ITEMS 61243 AND 61244 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-3. UPON YOUR FAILURE TO REFUND THE OVERCHARGE OF $12.15, THAT AMOUNT WAS DEDUCTED FROM AMOUNTS OTHERWISE DUE ON OTHER BILLS.

THE GOVERNMENT BILL OF LADING HERE INVOLVED, AF-4923013, BEARS THE LEGEND "RELEASED AT THE MAXIMUM VALUE APPLICABLE TO THE LOWEST RATES.' WE ARE OF THE VIEW THAT THIS LEGEND COMPLIES SUBSTANTIALLY WITH THE REQUIREMENTS OF ITEMS 61243, 61244, AND 61245 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-3, APPLICABLE ON THE INSTANT MOVEMENT UNDER ITEM 130 (A) OF SOUTHERN MOTOR CARRIER'S RATE CONFERENCE AGENT'S TARIFF NO. 505-A, TO WHICH YOU WERE A PARTY, AS SHOWN IN ITEM 110THEREOF AND SOUTHERN MOTOR CARRIER'S RATE CONFERENCE TARIFF NO. 140 K, MF-I.C.C. 833 (PARTICIPATING CARRIER TARIFF). HOWEVER, IN YOUR LETTER OF SEPTEMBER 7, 1960, YOU DISPUTE THE APPLICABILITY OF SUCH PROVISIONS AND URGE THAT THE CHARGES FOR THE SERVICES SHOULD BE BASED ON ,ITEM 1305," SOUTHERN MOTOR CARRIER'S RATE CONFERENCE TARIFF 515-A, WHICH SPECIFIES A CLASS-100 RATING ON INTERNAL COMBUSTION ENGINES OF THE TYPE HERE INVOLVED, AND FURTHER PROVIDES THAT THE RELEASED VALUATIONS IN THE NATIONAL MOTOR FREIGHT CLASSIFICATION DO NOT APPLY. PRESUMABLY, THE ITEM TO WHICH YOU INTENDED TO REFER IS 13050 OF THE CITED TARIFF, NOTE A OF WHICH READS AS OLLOWS:

"NOTE A--- THE RELEASED VALUATION PROVISIONS AS SHOWN IN NMFC WILL NOT APPLY ON ARTICLES NAMED IN THIS ITEM.'

IT APPEARS TO BE YOUR VIEW THAT THE QUOTED PROVISION PRECLUDES APPLICATION OF THE RELEASED VALUATION RATINGS IN THE CITED CLASSIFICATION. THE INTERSTATE COMMERCE COMMISSION, IN THE CASE OF UPJOHN COMPANY V. PENNSYLVANIA RAILROAD COMPANY, 306 I.C.C. 325, INVOLVING A SOMEWHAT SIMILAR SITUATION, HAS RULED TO THE CONTRARY. IN THAT CASE THE CARRIER CONTENDED THAT THE RELEASED VALUE NOTATION ON THE BILL OF LADING WAS MEANINGLESS, AND THAT RELEASED VALUE CLASSIFICATION RATES HAVE LIMITED APPLICABILITY AND MAY NOT BE USED ON ANY ARTICLE ON WHICH THERE IS IN EFFECT A COMMODITY RATE. HOWEVER, THE COMMISSION FOUND THAT, FROM A TRANSPORTATION STANDPOINT, THE RELEASED AND THE UNRELEASED VALUE CLASSIFICATION RATINGS SHOULD BE CONSIDERED AS TWO SEPARATE AND DISTINCT ITEMS, AND THAT THE COMMODITY RATE, NOT SUBJECT TO A RELEASED VALUE PROVISION, SUPERSEDED ONLY THAT CLASSIFICATION RATING WHICH ALSO WAS NOT SUBJECT TO A RELEASED VALUE PROVISION. SEE, ALSO, AMERICAN HOME FOODS, INC. V. DELAWARE, LACKAWANNA AND WESTERN R.CO., 303 I.C.C. 655, AND DOW CHEMICAL CO. V. CHESAPEAKE AND OHIO RY.CO., 306 I.C.C. 403.

FURTHERMORE, AS TO THE SPECIFIC LEGAL EFFECT OF THE LANGUAGE OF NOTE A, THE ASSISTANT DIRECTOR, BUREAU OF TRAFFIC, INTERSTATE COMMERCE COMMISSION, HAS HAD OCCASION TO CONSIDER THE IDENTICAL PROVISION APPEARING AS NOTE D, ITEM 61243, IN SOUTHERN MOTOR CARRIER'S RATE CONFERENCE AGENT'S TARIFF 515 -C, WHICH, AS YOU KNOW, WAS PRECEDED BY TARIFF 515-A, CONSIDERED BY YOU TO BE APPLICABLE HERE; AND HE HAS CONCLUDED THAT THE LANGUAGE INVOLVED HAS NO MATERIAL EFFECT ON THE PRINCIPLE ENUNCIATED IN THE AMERICAN HOME FOODS AND UPJOHN CASES. IN A LETTER ADDRESSED TO THE M.R. AND R. TRUCKING COMPANY OF CRESTVIEW, FLORIDA, UNDER FILE NUMBER 500-536392, THE ASSISTANT DIRECTOR STATED AS FOLLOWS:

"AS AFORE STATED, IN THE AMERICAN HOME FOODS CASE AND IN THE UPJOHN CASE IT WAS HELD THAT WHILE FROM A COMMERCIAL STANDPOINT THERE WAS NO DIFFERENCE IN THE COMMODITIES WHETHER THEIR VALUE WAS RELEASED OR NOT RELEASED, IT WAS EQUALLY APPARENT THAT THERE WAS A DISTINCT DIFFERENCE FROM A TRANSPORTATION STANDPOINT BY REASON OF THE SHIPPER'S DECLARATION AS TO VALUE.

WE THEREFORE ARE STILL OF THE VIEW THAT UNRELEASED ITEM 61243 IN SMCRC 515-C DOES NOT DISPLACE THE RELEASED PROVISIONS IN THE CLASSIFICATION AND WE DO NOT SEE THAT NOTE D THEREIN MAKES ANY MATERIAL CONTRIBUTION IN THIS INSTANCE.'

IN VIEW OF THE FOREGOING, WE WOULD NOT BE WARRANTED IN ALLOWING PAYMENT ON THE BASIS OF ITEM 61243, TARIFF NO. 515-A. THE SETTLEMENT ACTION TAKEN IN THE INSTANT MATTER WAS CONSISTENT WITH ..END :