B-158526, SEP. 14, 1966

B-158526, SEP. 14, 1966

TO SOUTHERN PACIFIC COMPANY:

IN YOUR LETTER OF FEBRUARY 7, 1966, FILE YM-85-D-PE 48898-M, YOU, IN EFFECT, REQUEST REVIEW OF OUR SETTLEMENT CERTIFICATE OF JANUARY 14, 1966 (OUR CLAIM NO. TK-800771). THE SETTLEMENT DISALLOWED YOUR CLAIM FOR ADDITIONAL CHARGES OF $1,881.51 ALLEGED TO BE DUE FOR TRANSPORTING DURING OCTOBER 1963 TWO CARLOAD SHIPMENTS OF GENERATORS AND ENGINES COMBINED, MOUNTED ON TRAILER VEHICLES, FROM MCGUIRE AIR FORCE BASE, FORT DIX, NEW JERSEY, TO AMERICAN ELECTRONICS, INC., EL MONTE (OR SOUTH EL MONTE), CALIFORNIA, UNDER GOVERNMENT BILLS OF LADING NOS. B 9547122 AND B- 9547166.

FOR THE SERVICES PERFORMED YOU ORIGINALLY ASSESSED AND WERE PAID FREIGHT CHARGES APPARENTLY BASED ON THE CLASS 45 RATING AND 30,000 POUND MINIMUM WEIGHT PROVIDED FOR GENERATORS AND ENGINES COMBINED, LOOSE, NOIBN, IN UNIFORM FREIGHT CLASSIFICATION NO. 6 (UFC 6), ITEM 34760, AND ON THE CLASS 45 RATE OF $5.12 PER 100 POUNDS PUBLISHED IN THE CLASS TARIFF, TRANS- CONTINENTAL FREIGHT BUREAU FREIGHT TARIFF NO. 1015-A, I.C.C. NO. 1688.

ON AUDIT OF THE PAYMENT VOUCHER IN OUR OFFICER, THE APPLICABLE CHARGES WERE RECOMPUTED AT THE COMMODITY RATE OF $3.94 PER 100 POUNDS, MINIMUM WEIGHT, 30,000 POUNDS, PROVIDED ON GENERATORS AND ENGINES COMBINED, NOIBN, IN TRANS-CONTINENTAL FREIGHT BUREAU FREIGHT TARIFF NO. 1-L, I.C.C. NO. 1683, SUPPLEMENT 19, ITEM 9165-C, PART 4. IT WAS THUS DETERMINED THAT YOU HAD OVERCHARGED $736.32 ON BILL OF LADING NO. B-9547122 AND $1,145.19 ON BILL OF LADING NO. B-9547166. THE TOTAL OVERCHARGE OF $1,881.51 WAS RECOVERED BY ADMINISTRATIVE DEDUCTION ON YOUR FAILURE TO MAKE A REFUND AND YOUR CLAIM FOR THAT AMOUNT WAS DISALLOWED IN THE SETTLEMENT UNDER REVIEW.

IN YOUR REQUEST FOR REVIEW YOU STATE THAT ITEM 9165 OF TARIFF NO. 1 L DOES NOT SPECIFICALLY INCLUDE COMBINED GENERATORS AND ENGINES WHEN THEY ARE MOUNTED ON TRAILER VEHICLES AND THAT COMMODITY RATES ARE SPECIFIC AND NOT ANALOGOUS IN APPLICATION.

CONCERNING THE ITEMS IN QUESTION, THE ADMINISTRATIVE OFFICE REPORTS: "* * * THE GENERATORS AND ENGINES COULD NOT BE SEPARATED OR ADAPTED TO SEPARATE USE, AND WOULD BE RENDERED USELESS IN THEIR INDIVIDUAL CAPACITY, WITHOUT STRUCTURAL AND MECHANICAL CHANGES.' UNDER SIMILAR CIRCUMSTANCES THE INTERSTATE COMMERCE COMMISSION HAS HELD THAT SUCH AN ITEM CONSTITUTED A SINGLE SELF-PROPELLED ENTITY. AUGUST PLANTZ, INC. V. LONG ISLAND R.CO., 281 I.C.C. 172; OAKLAND TRUCK SALES CO. V. BALTIMORE AND O.R.R.CO., 270 I.C.C. 548; HARRISON CONSTRUCTION CO. V. CINCINNATI, O.AND T.P.RY.CO., 266 I.C.C. 313, 316-318.

ITEM 9165 OF TARIFF NO. 1-L, UNDER THE SUBHEADING "ELECTRICAL EQUIPMENT OR PARTS, VIZ:" LISTS, AMONG OTHER ARTICLES,"GENERATORS AND ENGINES COMBINED, OR PARTS THEREOF, NOIBN.' THE TERM "NOIBN" IS DEFINED ON PAGE 1626 OF THAT TARIFF AS FOLLOWS:

"WHEN USED IN CONNECTION WITH AN ARTICLE IN AN ITEM OF THIS TARIFF CARRYING CARLOAD COMMODITY RATES, MEANS THAT THE DESCRIPTION OF WHICH IT IS A PART APPLIES ON ARTICLES INCLUDED IN THE SAME ,NOIBN" DESCRIPTION IN THE UNIFORM CLASSIFICATION, PROVIDED SUCH ARTICLES ARE NOT OTHERWISE SPECIFIED IN ANY OTHER ITEM OF THIS TARIFF CARRYING CARLOAD COMMODITY RATES BETWEEN THE SAME POINTS ON SUCH ARTICLES IRRESPECTIVE OF PACKAGE REQUIREMENT.'

THE SAME "NOIBN" DESCRIPTION IN THE UNIFORM CLASSIFICATION IS CONTAINED IN ITEM 34760 OF UFC NO. 6, THE ITEM WHICH YOU URGE IS APPLICABLE TO THE SHIPMENTS. AND WHEN THESE SHIPMENTS MOVED, THE ARTICLES SHIPPED WERE NOT OTHERWISE SPECIFIED EITHER IN UFC NO. 6 OR IN TARIFF NO. 1-L. SEE SALAWITCH AUTO PARTS CO. V. BALTIMORE AND O.R.CO., 284 I.C.C. 703, 705 (1952). FURTHERMORE, ITEM 9165 IS NOT LIMITED SO AS TO BE INAPPLICABLE TO GENERATORS AND ENGINES COMBINED, WHEN MOUNTED ON A TRAILER VEHICLE. CF. CLASSIFICATION, RATING OF DE ICER--- SEABOARD A.L.R., 326 I.C.C. 389 (1966). CONSEQUENTLY,AND BY THE TERMS OF TARIFF NO. 1-L, ITEM 9165 IS NOT BEING APPLIED ANALOGOUSLY AND, AS APPLIED IN OUR AUDIT, APPEARS TO BE APPLICABLE TO THE SHIPMENTS IN QUESTION.