B-148907, JAN. 11, 1965

B-148907, JAN. 11, 1965

TO TRANSCON LINES:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 10, 1963, FILE C-1 B.32, REQUESTING REVIEW OF OUR SETTLEMENT ACTION WHICH DISALLOWED YOUR SUPPLEMENTAL BILL NO. 7-C3 (4-152) IN THE AMOUNT OF $555, AMENDED BY YOUR LETTER TO $494.80. THE AMOUNT CLAIMED REPRESENTS ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF TWO JET PROPULSION TYPE ENGINES, MOUNTED ON ,HAMMON" TRAILERS, WEIGHING 6,000 POUNDS, FROM TINKER AIR FORCE BASE, OKLAHOMA, TO TRAVIS AIR FORCE BASE, CALIFORNIA, UNDER BILL OF LADING NO. AF-518137, DATED OCTOBER 23, 1959. THE BILL OF LADING DOES NOT INDICATE THAT ANY PARTICULAR SIZE VEHICLE WAS EITHER ORDERED OR FURNISHED; HOWEVER, IT CONTAINS THE FOLLOWING NOTATION:

"SEALS--- TINKER NO. 6824 (APPLIED BY SHIPPER AT LOADING POINT) SEALS NOT TO BE BROKEN EXCEPT FOR CONVENIENCE OF THE CARRIER. NOTIFY THE T.O. TINKER AFB, WHEN AND WHERE THE SEALS ARE BROKEN IF NECESSARY * * * "DELIVERY ON A 7 DAY WEEK BASIS IS REQUIRED.'"

FOR THE SERVICES INVOLVED, YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES IN THE AMOUNT OF $815.80 COMPUTED, ACCORDING TO THE INFORMATION SHOWN BY YOU ON THE FACE OF THE BILL OF LADING, AS FOLLOWS:

TABLE.

"6,000 AS 20,000 395 RM 21-B I 92780 NMFCA 4 $790.00

ARB BYD OAK 43 RM 27-D I 1060 25.80

$815.80"

IN OUR AUDIT OF THE PAYMENT VOUCHER, IT WAS DETERMINED THAT THE CHARGES SHOULD HAVE BEEN $321, COMPUTED ON THE BASIS OF THE LESS-THAN TRUCKLOAD COMMODITY RATE OF $4.92 PER 100 POUNDS, PROVIDED IN ITEM 4292 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU'S WESTBOUND TRANSCONTINENTAL COMMODITY TARIFF NO. 25-A, PLUS $25.80 ARBITRARY BEYOND SAN FRANCISCO AS CLAIMED, RESULTING IN AN OVERCHARGE OF $494.80 WHICH WAS ADJUSTED BY AN APPROPRIATE DEDUCTION FROM AN AMOUNT OTHERWISE DUE YOU, PURSUANT TO 49 U.S.C. 66. BY YOUR SUPPLEMENTAL BILL NO. 7-C3 (4-152), YOU CLAIMED $555 ADDITIONAL FREIGHT CHARGES ON THIS SHIPMENT AND THAT CLAIM WAS DISALLOWED BY OUR SETTLEMENT DATED NOVEMBER 6, 1962.

IN REQUESTING REVIEW OF THE ACTION TAKEN, YOU REDUCE YOUR CLAIM TO $494.80, THE AMOUNT OF THE DEDUCTION, AND CONTEND THAT THE CHARGES ARE PROPERLY FOR COMPUTATION UNDER THE PROVISIONS OF RULE 15 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4, AS A COMBINATION ARTICLE.

REGARDING YOUR REFERENCE TO THE NATIONAL CLASSIFICATION BOARD'S RULING THAT "TYPE A-3 AIR CONDITIONER UNITS, PERMANENTLY MOUNTED ON FOUR WHEEL TRAILERS, WILL BE CONSIDERED AS AN INTEGRAL PART OF THE AIR CONDITIONER FRAMEWORK," THERE SEEMS NO COMPARABLE RELATIONSHIP BETWEEN AIR CONDITIONER UNITS WHICH ARE PERMANENTLY MOUNTED ON FOUR-WHEEL TRAILERS FOR THE GENERAL PURPOSE OF AIR CONDITIONING OF AIRCRAFT FUSELAGES DURING MAINTENANCE OF PREFLIGHT PERIODS, FOR SHELTERS, PORTABLE HANGERS, ETC., AND JET ENGINES TEMPORARILY MOUNTED ON HAMMOND TRAILERS FOR CONVENIENCE IN HANDLING.

WE HAVE BEEN ADVISED THAT THIS TYPE OF ENGINE IS NORMALLY SHIPPED ON THE TRAILER, AND NO OTHER PACKAGING IS USED. THIS DEVICE, KNOWN BY THE TRADE NAME OF "HAMMOND TRAILER," IS A WHEELED VEHICLE USED AS A MODE OF TRANSPORTATION FOR BOTH THE CARRIER'S AND THE SHIPPER'S CONVENIENCE. IS DESIGNED AND USED FOR ONE PURPOSE, I.E., AS A SHIPPING DEVICE FOR AIRPLANE ENGINES. IN THE CIRCUMSTANCES, THERE IS NO BASIS FOR CONSIDERING IT AS A COMBINATION ARTICLE, AND RULE 15 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4 WOULD HAVE NO APPLICATION.

WE HAVE ATTEMPTED TO DEVELOP THIS RECORD EXTENSIVELY, BUT WITH LARGELY NEGATIVE RESULTS BECAUSE THE RECORDS HAVE BEEN DESTROYED. ALSO, WE ARE ADVISED BY LETTER DATED JUNE 29, 1964, FROM THE SOUTHWESTERN TRAFFIC REGION, DEFENSE TRAFFIC MANAGEMENT SERVICE, DALLAS, TEXAS, THAT NO INFORMATION IS AVAILABLE REGARDING NEGOTIATIONS, AGREEMENTS OR ANY UNDERSTANDING BETWEEN THE GOVERNMENT AND THE CARRIERS AS TO THIS DEVICE.

THE INTERSTATE COMMERCE COMMISSION, IN CONSIDERING A SIMILAR SHIPMENT, RENDERED AN INFORMAL OPINION TO SOUTHERN-PLAZA EXPRESS, INC., DATED SEPTEMBER 23, 1960, FILE-668880 (COPY ENCLOSED FOR YOUR READY REFERENCE), TO THE EFFECT THAT THERE WAS NO RATING IN THE CLASSIFICATION TO COVER ENGINES SHIPPED IN THIS MANNER AND THAT IN SUCH CASES THE COMMISSION HAS FOUND THAT THE CARRIER MAY ONLY COLLECT A REASONABLE CHARGE.

BILL OF LADING AF-518137 SHOWS THAT THE WEIGHT OF EACH UNIT WAS 3,000 POUNDS AND THAT THE SHIPMENT CONSISTED OF TWO ENGINES (SERIAL NOS. 085951 AND 086210), 1/C JET PROPULSION TYPE, MOUNTED ON FREIGHT TRAILERS (SERIAL NOS. S-45 AND H-26) EXCEEDING 44 INCHES IN HEIGHT. A SECOND INDORSEMENT, DATED DECEMBER 15, 1961, FROM TINKER AIR FORCE BASE, OKLAHOMA, TO THE REGIONAL DIRECTOR, SOUTHWESTERN TRAFFIC REGION, MTMA, DALLAS, TEXAS, SHOWS THAT THE WEIGHT OF EACH TRAILER MOVING ON THE BILL OF LADING HERE INVOLVED WAS 500 POUNDS. IT WOULD FOLLOW THAT EACH ENGINE WEIGHED 2,500 POUNDS.

SINCE THE ENGINES WERE MOUNTED ON HAMMOND TRAILERS SOLELY FOR CONVENIENCE IN HANDLING WHILE IN TRANSIT, AND THE COMBINED ARTICLE SERVED NO USEFUL PURPOSE ITSELF UNTIL SEPARATED, AT WHICH TIME EACH COMPONENT WAS READY TO SERVE ITS OWN SEPARATE PURPOSE, IT SEEMS CERTAIN THAT THE ARTICLES, WHEN JOINED TOGETHER, DID NOT CONSTITUTE A COMBINATION ARTICLE WITHIN THE MEANING OF CLASSIFICATION RULE NO. 15. IN THIS EVENT, TREATING THE HAMMOND TRAILER AND THE ENGINE AS SEPARATE ARTICLES, EVEN THOUGH FASTENED TOGETHER WHILE IN THE COURSE OF TRANSPORTATION, SEEMS CONSISTENT WITH THE INFORMAL RULING OF THE INTERSTATE COMMERCE COMMISSION. WHILE NOT BINDING EITHER PARTY, SUCH INFORMAL RULING SEEMS HIGHLY PERSUASIVE.

IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT THIS SHIPMENT CONSISTED OF TWO SEPARATE ITEMS, VIZ: JET PROPULSION ENGINES, WEIGHING 5,000 POUNDS, AND TRAILERS, NO1, EXCEEDING 44 INCHES IN HEIGHT, WEIGHING 1,000 POUNDS. A SETTLEMENT WILL ISSUE BY OUR TRANSPORTATION DIVISION ON THAT BASIS, IF CORRECT IN OTHER RESPECTS, AND YOU WILL RECEIVE NOTICE OF SUCH SETTLEMENT IN DUE COURSE.