B-145737, NOV. 29, 1961

B-145737, NOV. 29, 1961

TO INTERSTATE DISPATCH, INC.:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 26, 1961, ACKNOWLEDGED MAY 4, REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE DATED APRIL 17, 1961, WHICH DISALLOWED YOUR CLAIM NO. 29106 FOR $102.08 ADDITIONAL FREIGHT CHARGES IN CONNECTION WITH BILL OF LADING AF-8943792, DATED SEPTEMBER 29, 1959, AND REQUESTING ALLOWANCE OF $77.58 IN THE MATTER. THE AMOUNT DISALLOWED IS ALLEGED TO BE DUE FOR THE TRANSPORTATION OF TWO CANS OF INTERNAL COMBUSTION ENGINES, NOI, JET PROPULSION TYPE, WEIGHING 8,800 POUNDS FROM TUCSON, ARIZONA, TO EVENDALE, OHIO.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID $681.12 COMPUTED ON THE BASIS OF THE FIRST-CLASS RATE OF $7.74 PER 100 POUNDS ON THE ACTUAL WEIGHT OF 8,800 POUNDS. IN OUR AUDIT OF THE PAYMENT VOUCHER, IT WAS DETERMINED THAT THE APPLICABLE FREIGHT CHARGES SHOULD BE $579.04 COMPUTED ON THE BASIS OF THE CLASS-85 LESS-THAN-TRUCKLOAD RATE OF $6.58 PER 100 POUNDS NAMED IN ITEM 61244 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A- 4, MF-I.C.C. NO. 1. UPON YOUR REFUSAL TO REFUND THE RESULTING OVERCHARGE OF $102.08, THAT AMOUNT WAS COLLECTED BY DEDUCTION FROM AMOUNTS OTHERWISE DUE YOU.

YOU RECLAIMED THE AMOUNT OF $102.08 BASED UPON THE CLASS-100 EXCEPTION RATING NAMED IN ITEM 330 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU, INC., TARIFF NO. 21-B, MF-I.C.C. NO. 117, FOR LESS-THAN TRUCKLOAD SHIPMENTS OF INTERNAL COMBUSTION ENGINES, NOI, RADIAL CYLINDER TYPE OR JET PROPULSION TYPE. YOUR CLAIM WAS DISALLOWED SUBSTANTIALLY FOR THE REASON THAT THE EXCEPTION RATING ON WHICH YOU RELY IS NOT DEPENDENT ON RELEASED VALUATION BUT IS AN UNRELEASED RATING, AND THIS UNRELEASED EXCEPTION RATING DOES NOT REMOVE FROM THE CLASSIFICATION THOSE RATINGS WHICH ARE DEPENDENT ON RELEASED VALUATION.

YOU TAKE THE POSITION THAT THE EXCEPTION RATING IS THE ONLY RATING PUBLISHED TO APPLY ON THIS TYPE SHIPMENT BY VIRTUE OF THE PROVISIONS OF NOTE 2 THEREIN WHICH, IT IS ALLEGED, HAS THE EFFECT OF ELIMINATING THE CLASSIFICATION RATING APPLIED IN OUR AUDIT.

NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4 NAMES THREE RATINGS ON INTERNAL COMBUSTION ENGINES. TWO OF THE RATINGS ARE NAMED IN ITEM NO. 61244 USED IN OUR AUDIT AND ARE BASED ON RELEASED VALUATIONS. THE OTHER IS PROVIDED IN ITEM NO. 61247 AND IS BASED ON UNRELEASED VALUATIONS. UNDER SIMILAR CIRCUMSTANCES THE INTERSTATE COMMERCE COMMISSION HELD THAT RELEASED AND UNRELEASED CLASSIFICATION RATINGS SHOULD BE CONSIDERED FROM A TRANSPORTATION STANDPOINT AS SEPARATE AND DISTINCT ITEMS AND, THEREFORE, THAT WHERE, AS HERE, THE CLASSIFICATION PROVIDES RATINGS ON THE BASIS OF BOTH RELEASED AND UNRELEASED VALUATIONS, AN EXCEPTION TO THE CLASSIFICATION OR COMMODITY RATE, WHICH IS NOT SUBJECT TO RELEASED VALUATIONS SUPERSEDES ONLY THE CLASSIFICATION RATING WHICH ALSO IS NOT SUBJECT TO A RELEASED VALUATION. SEE DOW CHEMICAL CO. V. CHESAPEAKE AND O.RY., 306 I.C.C. 403; UPJOHN CO. V. PENNSYLVANIA R.CO., 306 I.C.C. 325; AND HOME FOODS, INC. V. DELAWARE L. AND W. RY., 303 I.C.C. 655.

MOREOVER, THE ASSISTANT DIRECTOR, BUREAU OF TRAFFIC, INTERSTATE COMMERCE COMMISSION, HAS CONSIDERED THE SIGNIFICANCE OF SIMILAR TARIFF PROVISIONS (ITEM 61243 SMCRC TARIFF NO. 515-C, JF-I.C.C. NO. 960) IN A LETTER DATED DECEMBER 16, 1959, UNDER FILE 500-536392, ADDRESSED TO THE M.R. AND R. TRUCKING COMPANY OF CRESTVIEW, FLORIDA, COPY ENCLOSED, IN WHICH IT WAS CONCLUDED, 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.'

NOTE 2 TO ITEM NO. 330 IN THE EXCEPTIONS TO THE CLASSIFICATION, WHICH IS SIMILAR TO NOTE D REFERRED TO IN THE ABOVE QUOTATION, PROVIDES THAT THE RELEASED VALUATION PROVISIONS SHOWN IN ITEMS NOS. 61244, 61245 AND 61246 WILL NOT APPLY IN CONNECTION WITH THE EXCEPTIONS RATINGS. WHILE THE LANGUAGE USED IN SUCH NOTE IS NOT ENTIRELY CLEAR AND ITS INTENT IS NOT COMPLETELY FREE FROM DOUBT, IT APPEARS TO MAKE THE EXCEPTIONS RATING FOR APPLICATION ONLY IN CONNECTION WITH SHIPMENTS OF UNRELEASED VALUATION ARTICLES AND CONSEQUENTLY ITEM NO. 330 DID NOT REMOVE FROM THE CLASSIFICATION THE RELEASED VALUATION RATINGS ON INTERNAL COMBUSTION ENGINES. AT LEAST THE WORDING OF NOTE 2 IS SO AMBIGUOUS IN THIS REGARD THAT ANY DOUBT IN THE MATTER IS REQUIRED TO BE RESOLVED AGAINST THE CARRIER AND IN FAVOR OF THE SHIPPER. SEE UNITED STATES V. STRICKLAND TRANSPORTATION CO., 204 F.2D 325, CERTIORARI DENIED 346 U.S. 856; PETALUMA AND SANTA ROSA R. V. COMMODITY CREDIT CORP., 83 F.SUPP. 639, AFFIRMED 190 F.2D 438; LOUISVILLE AND N.R. V. ST. REGIS PAPER CO., 102 F.SUPP. 713, AFFIRMED 201 F.2D 371; AND TIDE WATER ASSOCIATED OIL CO. V. ALTON AND S.R., 289 I.C.C. 42, 47.

IN THIS CONNECTION IT IS PERTINENT TO NOTE THAT IN APPARENT RECOGNITION OF THE FACT THAT NOTE 2 DID NOT HAVE THE EFFECT FOR WHICH YOU CONTEND, THE NOTE WAS AMENDED EFFECTIVE NOVEMBER 14, 1959, BY A 3RD REVISED PAGE 18 TO R.M.M.T.B. NO. 21-B, TO PROVIDE AS FOLLOWS:

"NOTE 2--- THE PROVISIONS OF THIS ITEM REMOVE ALL CLASS RATINGS INCLUDING THE RELEASED VALUATION PROVISIONS, SHOWN IN ITEMS 61244, 61245, 61246, 61247, 61248 AND 61249 SERIES OF THE CURRENT CLASSIFICATION. NEITHER THE RATINGS NOR THE RELEASED VALUATION PROVISIONS SHOWN IN ITEMS 61244, 61245, 61246, 61247, 61248 AND 61249 OF THE CURRENT CLASSIFICATION APPLY IN CONNECTION WITH RATES IN THIS TARIFF.'

IN VIEW OF WHAT HAS BEEN SAID IT APPEARS THAT ONLY ITEM 61247 OF THE CLASSIFICATION PROVIDING UNRELEASED VALUATION RATING WAS SUPERSEDED BY ITEM 330 OF R.M.M.T.B. NO. 21-B AT THE TIME THIS SHIPMENT MOVED, AND ITEM 61244, NAMING THE RELEASED VALUATION RATINGS, REMAINED IN FULL FORCE AND EFFECT.

CONDITION NO. 5 ON THE REVERSE OF THE GOVERNMENT BILL OF LADING PROVIDES THAT THE SHIPMENT COVERED THEREBY IS MADE AT THE RESTRICTED OR LIMITED VALUATION SPECIFIED IN THE TARIFF OR CLASSIFICATION AT OR UNDER WHICH THE LOWEST RATE IS AVAILABLE, UNLESS OTHERWISE INSTRUCTED ON THE FACE OF THE BILL OF LADING. NO SUCH INDICATION APPEARS ON THE FACE OF THE BILL OF LADING AND IT APPEARS, THEREFORE, THAT THIS SHIPMENT WAS MADE AT THE RELEASED VALUATION RATING PROVIDED IN ITEM 61244 OF THE CLASSIFICATION AND THAT THE CLASS-85 LTL RATING USED IN OUR AUDIT AND SUBSEQUENT DISALLOWANCE OF YOUR CLAIM WAS CORRECT.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED, AND WE FIND NO PROPER BASIS FOR THE ALLOWANCE TO YOU OF THE SUM OF $77.58.