B-159350, JAN. 23, 1967

B-159350, JAN. 23, 1967

TO LOUISVILLE AND NASHVILLE RAILROAD COMPANY:

WE AGAIN REFER TO YOUR LETTER OF JUNE 3, 1966, FILE 1-12097, IN WHICH YOU REQUEST REVIEW OF OUR SETTLEMENT CERTIFICATE DATED JUNE 9,1965 (OUR CLAIM NO. TK-790387). THE SETTLEMENT DISALLOWED YOUR CLAIM ON SUPPLEMENTAL BILL NO. 7262-55-A FOR $10,947.25, THE BALANCE OF FREIGHT CHARGES ALLEGEDLY DUE FOR TRANSPORTING 19 CARLOAD SHIPMENTS OF GOVERNMENT PROPERTY FROM NEWBURG, MISSOURI, TO NEW ORLEANS, LOUISIANA, FOR EXPORT, IN SEPTEMBER 1961. YOU ENCLOSED WITH YOUR LETTER A MEMORANDUM PREPARED BY YOUR GENERAL COUNSEL URGING REVERSAL OF THE SETTLEMENT.

THE ITEMS COMPRISING THE 19 CARLOADS OF GOVERNMENT PROPERTY ARE SEPARATELY DESCRIBED ON EACH OF 19 GOVERNMENT BILLS OF LADING. THEY INCLUDE ARTICLES DESCRIBED IN TERMS OF THE CONSOLIDATED FREIGHT CLASSIFICATION AS FREIGHT TRAILERS, FREIGHT AUTOMOBILES, TRACTORS, CRANES, AND AIR COMPRESSORS. INDIVIDUAL AGREED WEIGHTS ARE SHOWN FOR EACH DESCRIBED ARTICLE. SEVEN OF THE BILLS OF LADING SHOW THAT ARTICLES DESCRIBED AS MILITARY IMPEDIMENTA RANGING IN WEIGHT FROM 615 TO 8,401 POUNDS WERE LOADED IN OR ON THE ARTICLES DESCRIBED AS FREIGHT TRAILERS AND FREIGHT AUTOMOBILES. THE 19 CARLOADS WERE PART OF A GREATER NUMBER IN A UNIT MOVEMENT IN CONNECTION WITH TROOPS GOING OVERSEAS.

THE 19 GOVERNMENT BILLS OF LADING WERE INCLUDED ON YOUR BILL NO. 7262-55 ON WHICH YOU ORIGINALLY COLLECTED FREIGHT CHARGES BASED ON INDIVIDUAL RATES THOUGHT TO BE APPLICABLE TO THE SEPARATELY DESCRIBED ARTICLES (INCLUDING THE MILITARY IMPEDIMENTA) AT THEIR RESPECTIVE WEIGHTS. OUR LATER AUDIT OF THE PAID BILL WAS SIMILARLY PREMISED BUT WE FOUND APPLICABLE LOWER RATINGS AND RATES ON ARTICLES IN 17 OF THE 19 CARLOAD SHIPMENTS AND YOU WERE NOTIFIED OF OVERCHARGES TOTALING $6,040.08. REFUNDING PART OF THE OVERCHARGE, $3,255.36, YOU EXPLAINED THAT IT WAS YOUR VIEW THAT OF THE 17 CARLOAD SHIPMENTS, 7 CONTAINING FREIGHT TRAILERS AND FREIGHT AUTOMOBILES WITH THE MILITARY IMPEDIMENTA SHOULD BE RATED UNDER ITEM NO. 69050 OF CONSOLIDATED FREIGHT CLASSIFICATION 22 (CFC 22), WHICH PROVIDES A CARLOAD RATING OF THIRD CLASS, MINIMUM WEIGHT, 24,000 POUNDS, ON SHIPMENTS OF MILITARY IMPEDIMENTA. SINCE ON THE BILLS OF LADING THE ARTICLES WERE SEPARATELY DESCRIBED WITH INDIVIDUAL WEIGHTS, OUR TRANSPORTATION DIVISION ADVISED YOU THAT IT DISAGREED WITH YOUR VIEW AND AFTER NOTICE TO YOU AND IN THE ABSENCE OF FURTHER REFUND, IT COLLECTED THE BALANCE OF THE OVERCHARGES BY DEDUCTION.

YOU THEN PRESENTED YOUR CLAIM FOR $10,947.25 WHICH IS BASED ON THE THEORY THAT THE MILITARY IMPEDIMENTA RATING APPLIES NOT JUST ON 7 BUT ON THE 19 CARLOAD SHIPMENTS. THE CLAIM IS SUPPORTED IN PART BY THIS QUOTATION FROM A LETTER DATED JANUARY 24, 1963, FROM THE CHAIRMAN, SOUTHERN FREIGHT ASSOCIATION, TO THE CHAIRMAN OF EASTERN, CENTRAL AND WESTERN RAILROADS:

"* * * ANY FREIGHT WHETHER IT BE TANKS, OTHER VEHICLES, AMMUNITION OR WHAT NOT WHEN SHIPPED IN MIXED TRAINS WITH MILITARY PERSONNEL SHOULD PAY THE MILITARY IMPEDIMENTA RATE * * *; " AND BY A COPY OF A LETTER DATED JULY 8, 1964, FROM THE WESTERN WEIGHING AND INSPECTION BUREAU, NEW ORLEANS, LOUISIANA, WHICH READS, IN PART AS FOLLOWS:

"THE QUESTION REGARDING APPLICABLE CLASSIFICATION RATING WAS HANDLED WITH MR. J. L. LAMBERT, TRAFFIC MANAGER OF THE NEW ORLEANS ARMY TERMINALS, WHO ADVISED AFTER REVIEWING THE ATTACHED WAYBILLS THAT THE MOVEMENTS WERE DEFINITELY "MILITARY IMPEDIMENTS.' MR. LAMBERT ALSO POINTED OUT THAT THE NUMBER MF-1881-D SHOWN IN THE MARKS COLUMN DEFINITELY EARMARKS THE EQUIPMENT AS "MILITARY IMPEDIMENTS," WHICH IS BEING HANDLED IN CONNECTION WITH THE MOVEMENT OF TROOPS IN THE UNIT ASSIGNED TO NO. MF-1881-D. HE ALSO POINTED OUT THAT SOME OF THE MATERIAL IN THE MOVEMENT IS ALSO DESIGNATED AS TO AND E INDICATING THAT IT HAD BEEN SPECIFICALLY ISSUED TO THE UNIT UNDER THE TABLE OF ORGANIZATIONAL EQUIPMENT AND OF COURSE GOES WHERE THE UNIT GOES.'

THE CLAIM WAS DISALLOWED IN THE SETTLEMENT OF JUNE 9, 1965, BECAUSE ON THE 19 BILLS OF LADING THE INDIVIDUAL DESCRIPTIONS AND WEIGHTS ARE SHOWN FOR EACH COMMODITY. YOUR REQUEST FOR REVIEW FOLLOWED.

IN HIS MEMORANDUM YOUR GENERAL COUNSEL RELIES ON THE MATERIAL QUOTED ABOVE TO ESTABLISH THAT THE SHIPMENTS CONSISTED OF MILITARY IMPEDIMENTA. HE URGES THAT THE "PARTIAL FRAGMENTATION OF THESE SHIPMENTS INTO SOME OF THE COMPONENT PARTS OF MILITARY IMPEDIMENTA AND THE BILLING OF THESE PARTS BY SPECIFIC DESCRIPTIONS WHILE BILLING THE REMAINDER AS MILITARY IMPEDIMENTA ARE IN VIOLATION OF THE TARIFF AND ARE UNAUTHORIZED.' POINTS OUT THAT UNDER SECTION 2 OF RULE 2 OF CFC 22 "CARRIERS RESERVE THE RIGHT TO INSPECT SHIPMENTS WHEN NECESSARY TO DETERMINE LAWFUL ATINGS" AND "WHEN FOUND TO BE INCORRECTLY DESCRIBED FREIGHT CHARGES MUST BE COLLECTED ACCORDING TO PROPER DESCRIPTION.' HE ALSO RELIES ON THE WELL-SETTLED PRINCIPLE THAT THE DESCRIPTION WHICH A SHIPPER INSERTS IN A BILL OF LADING DOES NOT CONTROL THE RATE APPLICABLE TO THE SHIPMENT. FINALLY, HE EMPHASIZES THAT NOTE 1 (ITEM 69051 OF CFC 22) PROHIBITS THE SHIPPER FROM CULLING OUT PORTIONS OF MILITARY IMPEDIMENTA, CALLING THEM BY NAME, AND THEREBY APPLYING A LOWER RATE.

WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS ADVANCED IN YOUR GENERAL COUNSEL'S MEMORANDUM BUT HAVE CONCLUDED THAT THE SETTLEMENT MUST BE SUSTAINED.

WE BEGIN BY NOTING THAT SECTION 1 OF RULE 2 OF CFC 22 CAUTIONS IN PART THAT "DESCRIPTIONS OF ARTICLES IN SHIPPING ORDERS AND BILLS OF LADING SHOULD CONFORM TO CLASSIFICATION OR TARIFF DESCRIPTIONS" AND BY QUOTING ITEMS 69050 THROUGH 69053 OF CFC 22 WHICH ARE URGED AS BEING APPLICABLE TO THE 19 SHIPMENTS:

"69050 MILITARY IMPEDIMENTA (CAMP EQUIPAGE, SUBSISTENCE STORES, MEDICAL STORES, EMERGENCY AMMUNITION OR OTHER PROPERTY OF THE UNITED STATES ARMY (INCLUDING STATE MILITIA), AIR FORCE, NAVY, COAST GUARD, OR MARINE CORPS, GENERALLY KNOWN AS IMPEDIMENTA (BUT NOT INCLUDING LIVE STOCK NOR PERSONAL BAGGAGE), SEE NOTES 1 AND 2, ITEMS 69051 AND 69052:

LOADED BY FORWARDER IN CARS REGARDLESS OF CARRIER'S PACKING REQUIREMENTS AND WITHOUT SPECIFIC DESCRIPTIONS BUT DESCRIBED AS MILITARY IMPEDIMENTA; SHIPPED UNDER GOVERNMENT BILLS OF LADING, OR ON WHICH FREIGHT CHARGES ARE PAID BY STATE GOVERNMENTS, AND TRANSPORTED IN FREIGHT OR MIXED FREIGHT- PASSENGER TRAINS WITH TROOPS OR IN CONNECTION WITH TROOP MOVEMENTS, SEE NOTE 3, ITEMS 69053.

"69051 NOTE 1.--- SEPARATELY STATED RATINGS IN CLASSIFICATION FOR THE ARTICLES CONSTITUTING SHIPMENTS OF IMPEDIMENTA WILL NOT BE APPLIED.

NOTE 2.--- (NOT INVOLVED).

"69053 NOTE 3.--- RATINGS WILL ALSO APPLY ON MILITARY IMPEDIMENTA, IN CARLOADS, IN FREIGHT TRAIN SERVICE WHEN UNACCOMPANIED BY TROOPS.'

AS NOTED IN YOUR GENERAL COUNSEL'S MEMORANDUM, THIS CLASSIFICATION DESCRIPTION RECOGNIZES THAT ,MILITARY IMPEDIMENTA IS BY ITS VERY NATURE A HODGEPODGE CONSISTING OF JUST ABOUT EVERY KIND OF EQUIPMENT THAT TROOPS USE AND NEED.' INDEED, IT IS BROAD ENOUGH TO ENCOMPASS ALL TYPES OF MILITARY GOVERNMENT PROPERTY MOVING ON GOVERNMENT BILLS OF LADING WITH OR WITHOUT TROOPS. HOWEVER, IT IS OUR VIEW THAT IT DOES NOT APPLY TO THESE 19 SHIPMENTS AND WE DO NOT BELIEVE THAT THE AXIOM "THE BILL OF LADING DESCRIPTION * * * IS NOT CONTROLLING," AMERICAN PIPE AND CONSTRUCTION CO. V. ALTON AND S.R., 284 I.C.C. 797 (1952), IS FOR APPLICATION IN SITUATIONS WHERE, AS HERE, THE TARIFF ITEM ITSELF MAKES THE BILL OF LADING DESCRIPTION CONTROLLING. SEE CRAIN LUMBER AND TIE CO. V. CHICAGO, BURLINGTON AND QUINCY RAILROAD CO., 289 I.C.C. 615, 617 (1953), WHERE THE INTERSTATE COMMERCE COMMISSION OBSERVED THAT WHERE TARIFF PROVISIONS REQUIRE THE MAKING OF A PARTICULAR NOTATION ON THE BILL OF LADING AS A CONDITION PRECEDENT TO THE USE OF A RATE, THE SHIPPER IS BOUND BY THOSE PROVISIONS. COMPARE WINTHROP LABORATORIES, DIV., STERLING DRUG V. DORN-S, 325 I.C.C. 654 (1954).

BY ITS VERY TERMS THE MILITARY IMPEDIMENTA RATING APPLIES TO SHIPMENTS OF GOVERNMENT MILITARY PROPERTY ONLY WHEN THE SHIPMENT IS "LOADED BY FORWARDER IN CARS REGARDLESS OF CARRIER'S PACKING REQUIREMENTS AND WITHOUT SPECIFIC DESCRIPTIONS BUT DESCRIBED (ON THE BILL OF LADING) AS MILITARY IMPEDIMENTA," AND BY COMPLYING WITH THESE AND THE OTHER REQUIREMENTS OF THE ITEMS, THE SHIPPER HAS THE OPTION OF SECURING THE THIRD CLASS RATING FOR A CARLOAD SHIPMENT OF MILITARY IMPEDIMENTA; BUT IF THE SHIPPER CHOOSES TO GIVE SPECIFIC DESCRIPTIONS OF THE VARIOUS ARTICLES IN THE SHIPMENT, THE SHIPPER MAY BE HELD RESPONSIBLE FOR ARTICLES THUS DESCRIBED AND FOR PAYMENT FOR THEIR TRANSPORTATION IN ACCORDANCE WITH THOSE DESCRIPTIONS. SEE 8 COMP. GEN. 148 (1928), CONCERNING THE SIMILAR CLASSIFICATION DESCRIPTION IN CONSOLIDATED FREIGHT CLASSIFICATION NO. 4.

FURTHERMORE, IT SEEMS CLEAR THAT NOTE 1 (ITEM 69051 OF CFC 22) MEANS THAT IF ALL OR PART OF THE ARTICLES SHIPPED ARE DESCRIBED ON THE BILLS OF LADING AS MILITARY IMPEDIMENTA, NEITHER THE SHIPPER NOR THE CARRIER CAN LATER CHALLENGE THAT DESCRIPTION. 8 COMP. GEN. 148, 151. CONVERSELY, IF THE SHIPPER EXERCISES HIS OPTION TO SPECIFICALLY DESCRIBE AND GIVE THE WEIGHTS OF VARIOUS ARTICLES ON THE BILLS OF LADING, IT IS OUR VIEW THAT THE FREIGHT CHARGES SHOULD BE PAYABLE IN ACCORDANCE WITH THOSE DESCRIPTIONS.

THE SETTLEMENT OF JUNE 9, 1965, WHICH DISALLOWED YOUR CLAIM FOR $10,947.25 IS NOT OTHERWISE CONTENDED TO BE IN ERROR AND THEREFORE IS SUSTAINED.