B-156226, MAY 25, 1965

B-156226, MAY 25, 1965

TO UNION PACIFIC RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17, 1965, FILE GW 295758, ACKNOWLEDGED MARCH 3, REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE OF JULY 14, 1964, WHICH DISALLOWED YOUR CLAIM FOR $854 ADDITIONAL TRANSPORTATION CHARGES UNDER SUPPLEMENTAL BILL W-295758-A. THIS AMOUNT WAS COLLECTED BY DEDUCTION AS AUTHORIZED BY 49 U.S.C. 66 FROM AMOUNTS OTHERWISE PAYABLE BECAUSE OF OVERCHARGES MADE BY YOUR COMPANY IN BILLING FOR FREIGHT CHARGES ON SEVEN SHIPMENTS OF FREIGHT TRAILERS, SIX OF WHICH WEIGHED 8,800 POUNDS EACH AND THE OTHER WEIGHED 5,920 POUNDS. ALL SHIPMENTS MOVED FROM EXETER, PENNSYLVANIA, TO FORT RILEY, KANSAS. THE TRAILERS ARE DESCRIBED ON THE GOVERNMENT BILLS OF LADING AS

"FREIGHT TRAILERS, NOIBN S.U. EXCEEDING

(TRAILER, CARGO, 3/4 TON, 2 WHEEL M101A1

W/E) "

THE MODEL M101 TRAILER IS A TWO WHEELED 3/4 TON TRAILER DRAWN BY A DRAWBAR. IT IS 96 INCHES LONG BY 66 INCHES WIDE HAVING A CARGO SPACE OF 175 CUBIC FEET, AND CAPABLE OF CARRYING A PAYLOAD OF 1,500 POUNDS OFF HIGHWAY OR 2,250 POUNDS ON THE HIGHWAY AND IS PICTURED ON PAGE 22 58 OF DEPARTMENT OF THE ARMY TECHNICAL MANUAL TM9-500 DATED SEPTEMBER 1962.

FOR THE SERVICES PERFORMED YOU CLAIMED AND WERE PAID $3,962 FOR THESE SEVEN SHIPMENTS, $566 FOR EACH SHIPMENT. THE CHARGES CLAIMED WERE COMPUTED ON THE BASIS OF THE CLASS 50 RATING OF $2.83 PER 100 POUNDS ON A MINIMUM WEIGHT OF 20,000 POUNDS, PROVIDED IN ITEM 92900 OF UNIFORM FREIGHT CLASSIFICATION NO. 6, I.C.C. NO. A-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, HORSEDRAWN OR TRAILER"

UNDER THE GENERIC HEADING OF "VEHICLES, OTHER THAN MOTOR.' IN OUR AUDIT IT WAS DETERMINED THAT THE PROPER CHARGES WERE THOSE COMPUTED ON THE BASIS OF THE COMMODITY RATE OF $2.22 PER 100 POUNDS, MINIMUM WEIGHT 20,000 POUNDS FOR "FARM CARTS, TRUCK, TRAILERS OR WAGONS, HORSE DRAWN OR TRAILER," AS PROVIDED IN RATE COLUMN IN ACCORDANCE WITH ITEMS 3205 AND 375 OF TRUNK LINE-CENTRAL TERRITORY RAILROADS TARIFF NO. E/W 2010 F, I.C.C. NO. C-301 UNDER THE HEADING "AGRICULTURAL IMPLEMENTS AND OTHER ARTICLES NAMED * * * IN STRAIGHT OR MIXED CARLOADS.' THIS AUDIT BASIS SHOWED AN OVERCHARGE OF $854 WHICH WAS ADJUSTED BY AN APPROPRIATE DEDUCTION FROM AN AMOUNT OTHERWISE DUE YOU.

IN YOUR REQUEST FOR REVIEW YOU CONTEND THAT THE TRAILERS SHIPPED SHOULD BE RATED CLASS 50, MINIMUM 20,000 POUNDS, RULE 34, UNDER ITEM 92900 OF THE UNIFORM FREIGHT CLASSIFICATION NO. 6, SINCE

"ITEM 375 OF E/W 2010 F DOES NOT COVER FREIGHT TRAILERS AS ALL THE ITEMS LISTED UNDER THE HEADING "AGRICULTURAL IMPLEMENTS AND OTHER ARTICLES" ARE NOT AGRICULTURAL IMPLEMENTS BUT ARTICLES GENERALLY USED IN AGRICULTURE WHICH WOULD EXCLUDE CARGO TRAILERS WHICH ARE HERE INVOLVED.'

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 ASOCLADOS 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. 433, 444, REVERSED ON OTHER GROUND, 216 Y.C.C. 533. INDENTATION FROM THE LEFT MARGIN OF ANY PART OF THE DESCRIPTION TERMS OF A COMMODITY OR 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 375 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 COME 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. ON THE BASIS OF PRINCIPLES EXPRESSED, IT WOULD SEEM 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 375.

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