B-152822, APR. 2, 1964

B-152822, APR. 2, 1964

TO SOUTHERN PACIFIC COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 30, 1963, FILE YM 85-D 110094 -M, REQUESTING REVIEW OF OUR SETTLEMENT WHICH DISALLOWED YOUR CLAIM, PER SUPPLEMENTAL BILL D-110094-M, FOR $158 ADDITIONAL TRANSPORTATION CHARGES IN CONNECTION WITH A SHIPMENT OF SIX FREIGHT TRAILERS, WEIGHING 8,800 POUNDS, WHICH MOVED FROM EXETER, PENNSYLVANIA,TO FORT BLISS, TEXAS, ON GOVERNMENT BILL OF LADING B 6204556, DATED JUNE 25, 1962. THE TRAILERS ARE DESCRIBED ON THE BILL OF LADING AS ,FREIGHT TRAILERS, NOI, S.U., EXCEEDING 44 INCHES HIGH. (TRAILERS, CARGO, 3/4 TON, 2 WHEEL, M101A1, W/E).'

YOU CLAIMED AND WERE PAID $796 FOR THIS SERVICE, COMPUTED ON THE BASIS OF THE CLASS 50 RATING SHOWN IN ITEM 92900 OF UNIFORM FREIGHT CLASSIFICATION NO. 6 FOR

"FARM OR FREIGHT CARTS, TRUCKS, TRAILERS OR WAGONS, NOIBN, WITH OR WITHOUT BODIES OR SPRINGS, WHEELS ON OR OFF, SHAFTS OR POLES DETACHED, HORSE-DRAWN, OR TRAILER"

UNDER THE GENERIC HEADING OF "VEHICLES, OTHER THAN MOTOR.' IN THE AUDIT OF THIS PAYMENT, OUR TRANSPORTATION DIVISION FOUND THAT THE PROPER CHARGES WERE THOSE COMPUTED ON THE BASIS OF A CLASS 40 RATING PUBLISHED IN ITEM 690 OF SOUTHWESTERN LINES FREIGHT TARIFF SW/E-2005-D FOR APPLICATION ON THE ARTICLES NAMED IN ITEM 327 THEREOF UNDER THE HEADING OR SUBJECT "AGRICULTURAL IMPLEMENTS AND OTHER ARTICLES," WHICH CONTAINS THE DESCRIPTION "FARM CARTS, TRUCKS, TRAILERS OR WAGONS, HORSE DRAWN OR TRAILER, WITH OR WITHOUT BODIES OR PARTS OF ANY OF THESE ARTICLES.' THE CLASS 40 RATING FOR ARTICLES DESCRIBED IN ITEM 327 OF SW/E-2005-D IS FOUND IN ITEM 690 OF THAT TARIFF AND IS AN EXCEPTION RATING WHICH, AS EXPLAINED IN ITEM 600, TAKES PRECEDENCE OVER THE RATINGS PROVIDED FOR THE SAME ARTICLE IN THE UNIFORM FREIGHT CLASSIFICATION. THIS AUDIT BASIS SHOWED AN OVERCHARGE OF $158 WHICH HAS BEEN ADJUSTED BY AN APPROPRIATE DEDUCTION FROM AN AMOUNT OTHERWISE DUE YOU. BY YOUR SUPPLEMENTAL BILL D-110094-M YOU RECLAIMED THE AMOUNT DEDUCTED AND THAT CLAIM WAS DISALLOWED BY OUR SETTLEMENT DATED OCTOBER 15, 1963.

IN REQUESTING REVIEW OF THE ACTION TAKEN, YOU CONTEND THAT THE ARTICLES SHIPPED SHOULD BE RATED UNDER ITEM 92900 OF UNIFORM FREIGHT CLASSIFICATION NO. 6 AND THAT THE RATING USED IN OUR AUDIT APPLIES ONLY TO FARM TRAILERS THAT MAY BE CONSIDERED AGRICULTURAL IMPLEMENTS.

A COMMODITY CANNOT LAWFULLY BE CLASSIFIED ACCORDING TO THE DIFFERENT USES TO WHICH IT MAY BE PUT. KELITE PRODUCTS, INC. V. SOUTHERN PACIFIC CO., 277 I.C.C. 344, 345, EASTERN CLAY PRODUCTS, INC. V. NEW YORK CENTRAL R.CO., 243 I.C.C. 1. NOR SHOULD ONE RATE BE APPLIED TO THE SHIPMENT OF AN ARTICLE TO BE USED FOR ONE PURPOSE AND ANOTHER RATE APPLIED TO THE SHIPMENT OF THE SAME ARTICLE WHEN IT IS TO BE USED FOR ANOTHER PURPOSE. CRANCER V. LOWDEN, 121 F.2D 645, AFFIRMED 315 U.S. 631, REHEARING DENIED 316 U.S. 708.

IT HAS BEEN SAID ALSO THAT A TARIFF DESCRIPTION MAY NOT BE CONDEMNED MERELY BECAUSE IT IS INDICATIVE OF THE USE TO WHICH DESCRIBED ARTICLES ARE MOST FREQUENTLY PUT, AND IT DOES NOT PRECLUDE THE USE OF THE ARTICLES FOR OTHER PURPOSES THAN THOSE INDICATED IN THE DESCRIPTION WHERE IT CLEARLY APPEARS THAT THEY MAY BE USED IN THE DESCRIBED MANNER. INGENIEROS CIVILES ASOCIADOS V. ATCHISON, T. AND S.F.RY.CO., 303 I.C.C. 626, 627-628.

WHEN A TARIFF ITEM CONSISTS OF A MAIN HEADING OR CAPTION FOLLOWED BY SEVERAL SUBORDINATE DIVISIONS OF EQUAL RANK AND INDEPENDENT OF EACH OTHER, EACH SUBORDINATE DIVISION MUST BE READ WITH THE MAIN HEADING ONLY, EXCLUSIVE OF OTHER SUBORDINATE DIVISIONS OF EQUAL RANK. CELLULOID CORP. V. LEHIGH VALLEY R. CO., 213 I.C.C. 443, 444, REVERSED ON OTHER GROUND, 216 I.C.C. 533. INDENTATION FROM THE LEFT MARGIN OF ANY PART OF THE DESCRIPTION TERMS OF A GROUP OF COMMODITIES INDICATES THAT THE INDENTED MATTER IS SUBORDINATE TO AND MODIFIES OR AMPLIFIES THE PRECEDING HEADING OR HEADINGS, AND IT IS TO BE READ IN CONNECTION WITH ITS CONTEXT AND PARTICULARLY WITH THE PRECEDING HEADING OR HEADINGS. WILLARD STORAGE BATTERY CO. V. ASSOCIATED TRANSPORT, INC., 48 M.C.C. 284, 287.

IT IS OUR VIEW THAT THE WORDS "OTHER ARTICLES" IN ITEM 327 HAVE THE EFFECT OF NULLIFYING ANY RESTRICTIVE MEANING THAT MIGHT BE IMPLIED FROM THE FIRST TWO WORDS "AGRICULTURAL IMPLEMENTS" IN THE GENERAL SUBJECT HEADING OF THAT ITEM. IN THIS CONNECTION, THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT HELD IN UNITED STATES V. MISSOURI KANSAS-TEXAS R.CO., 194 F.2D 777, THAT INTERNAL COMBUSTION ENGINES TO BE USED IN AIRCRAFT, BULLDOZERS, TANKS, BOATS, ETC., WERE PROPERLY RATABLE UNDER THE ITEM CAPTIONED "AGRICULTURAL IMPLEMENTS AND OTHER ARTICLES" BECAUSE THE ENGINES CAME UNDER THE BROAD CAPTION OF "OTHER ARTICLES.' UNDER THE QUOTED HEADING THERE WERE LISTED, AMONG OTHER THINGS,"ENGINES, STEAM OR INTERNAL COMBUSTION, N.O.I.B.N.' SEE ALSO CHICAGO, B. AND Q. R.CO. V. UNITED STATES, 221 F.2D 811, FOR A SIMILAR HOLDING BY THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. IT SEEMS TO FOLLOW THAT THE TRAILERS SHOWN IN THE COMMODITY LIST--- IF NOT DESCRIBED AS POSSESSING CHARACTERISTICS GIVING THEM VALUE FOR FARM USE ONLY--- WOULD BE SUCH AS COULD BE USED FOR ANY PURPOSE AND WOULD COME UNDER THE BROAD CAPTION OF "OTHER ARTICLES" IN ITEM 327.

ACCORDINGLY, THE ACTION TAKEN IN DISALLOWING YOUR CLAIM APPEARS PROPER AND IS SUSTAINED.