B-160344, JUL. 18, 1967

B-160344, JUL. 18, 1967

TRANSPORTATION - FREIGHT CHARGES - CLASSIFICATION - AIRCRAFT NOSE DECISION TO MOTOR CARRIER THAT SHIPMENT OF AIRCRAFT NOSE WAS PROPERLY CLASSIFIED AS "NOSES, NOI, PLASTIC" SINCE, ALTHOUGH AIRCRAFT NOSE WAS EQUIPPED TO HAVE UTILITY FOR RADAR, CHARACTER AND USE WAS NOT CHANGED, IT WAS AN ESSENTIAL PART OF AIRCRAFT STRUCTURE WITHOUT WHICH AIRCRAFT WOULD NOT BE USED IN FLIGHT. THE SUITABILITY FOR RADA DID NOT CHANGE CHARACTER OF PLASTIC NOSE.

TO PAUL E. ADAMS, OVERCHARGE CLAIM AGENT, GEORGIA HIGHWAY EXPRESS, INC.:

FURTHER REFERENCE IS MADE TO YOUR REQUESTS FOR REVIEW OF SEVERAL SETTLEMENT CERTIFICATES DISALLOWING YOUR CLAIMS TOTALING $862.41 FOR ADDITIONAL CHARGES IN CONNECTION WITH THE TRANSPORTATION OF GOVERNMENT PROPERTY FROM AKRON, OHIO, TO THE WARNER ROBINS AIR FORCE BASE, GEORGIA, IN 1962 AND 1963. YOUR FILE REFERENCES ARE 6621 AND 6857.

OUR SETTLEMENT CERTIFICATE OF OCTOBER 17, 1966, IN CLAIM NO. TK 829457, WHICH IS REPRESENTATIVE OF OTHER SETTLEMENTS, CONCERNS A SHIPMENT MOVING UNDER GOVERNMENT BILL OF LADING B-5378637. THE BILL OF LADING COVERS A SHIPMENT OF ARTICLES ORIGINALLY DESCRIBED AS "ANTENNA ENCLOSURES, RADAR HOUSINGS OR SECTIONS THEREOF NOIBN O/T METAL", WITH OR WITHOUT MOUNTINGS FOR REINFORCING DEVICES, WHICH ORIGINATED AT AKRON ON DECEMBER 19, 1962. THE BILL OF LADING ALSO MAKES REFERENCE TO NATIONAL MOTOR FREIGHT CLASSIFICATION (NMFC) ITEM NO. 14440. IN FEBRUARY 1964, THE TRAFFIC MANAGER AT WARNER ROBINS, R. A. FRIEDLANDER, ISSUED A BILL OF LADING CORRECTION NOTICE (DD FORM 1352) CHANGING THE ORIGINAL DESCRIPTION TO "NOSES NOI, PLASTIC OTHER THAN MECHANICALLY OPERATED REVOLVING OR TRAVERSING", MAKING REFERENCE TO NMFC ITEM NO. 12400.

FOR THIS TRANSPORTATION YOUR COMPANY CLAIMED ON BILL NO. 141 AND WAS PAID IN MARCH 1963, $275.17, BASED ON A LESS TRUCKLOAD CLASS 400 RATING AND RATE OF $18.53 PER 100 POUNDS APPLIED TO 1,485 POUNDS. THE CLASS 400 RATING IS NAMED IN NMFC ITEM NO. 14440. IN OUR AUDIT OF THE PAID CHARGES WE COMPUTED THE ALLOWABLE CHARGES AS $139.29 BASED ON A LESS TRUCKLOAD CLASS 200 RATING AND RATE OF $9.38 PER 100 POUNDS, PRODUCING AN OVERCHARGE OF $135.88. THE CLASS 200 RATING IS NAMED IN NMFC ITEM NO. 12400 ON PLASTIC OR GLASS (OR GLASS AND METAL COMBINED) TURRETS, BLISTERS, DOMES OR NOSES, NOI, AND THE AUDIT ACTION IS CONSISTENT WITH THE CORRECTION NOTICE ISSUED BY WARNER ROBINS. AFTER YOU REFUSED TO REFUND THE OVERCHARGE OF $135.88, IT WAS DEDUCTED IN DECEMBER 1965. YOUR RECLAIM FOR THAT AMOUNT WAS DISALLOWED IN OUR SETTLEMENT OF OCTOBER 17, 1966.

IN SUPPORT OF ITS DETERMINATION THAT ITEM 12400, RATHER THAN ITEM 14440, WAS APPLICABLE TO THE ARTICLES IN QUESTION, WARNER ROBINS AIR FORCE BASE FURNISHED A STATEMENT DATED OCTOBER 13, 1964, PREPARED BY H. R. HAMMONDS, CHIEF, TRAFFIC MANAGEMENT BRANCH, TRANSPORTATION SUPPORT DIVISION. THE STATEMENT EXPLAINS THAT THE DESCRIPTION IN NMFC ITEM NO. 12400 IS CORRECT AND PROPERLY DESCRIPTIVE OF THE ARTICLES IN DISPUTE BECAUSE (1) THE ITEM IS AIR FORCE STOCK LISTED AS AN AIRFRAME PART, NOT AS A PART OF THE RADAR; (2) THE DOME OR NOSE INVOLVED MUST BE INSTALLED ON THE AIRCRAFT WHETHER OR NOT RADAR IS INSTALLED; (3) THE PRIMARY USE OF THE ITEM IS AS A NOSE FOR THE C-130 AIRCRAFT AND ITS SECONDARY USE IS AS A RADOME, AND (4) THE LOCATION OF THE RADAR ANTENNAE IN THE NOSE OF THE PLANE DOES NOT AFFECT THE PRIMARY USE OF THAT NOSE, IT BEING NOTED THAT THE VERTICAL STABILIZER HAS AN ANTENNA MOUNTED INSIDE WITH PLASTIC PANELS ON EACH SIDE BUT THIS DOES NOT CHANGE THE PRIMARY USE OR FREIGHT CLASSIFICATION OF THE STABLIZER. MR. HAMMONDS FURTHER MAINTAINS THAT NMFC ITEM NO. 14440 COVERS ONLY ANTENNA ENCLOSURES FOUND ON GROUND INSTALLATIONS SUCH AS "OMNI RANGE STATIONS, AIRPORT SURVEILLANCE RADAR, AIRCRAFT TRACKING AND EARLY WARNING RADAR, ETC;,

WE VIEW THE WARNER ROBINS STATEMENT OF OCTOBER 13, 1964, AS FURNISHING SUBSTANTIAL AND PERSUASIVE REASONS FOR APPLYING THE CLASS 200 RATING NAMED IN NMFC ITEM NO. 12400 TO THE ARTICLES IN QUESTION. WE FIND NOTHING IN OUR RECORD WHICH SERIOUSLY CONTRADICTS THE CONCLUSION REACHED BY THE AIR FORCE AS TO THE APPLICABLE RATE BASIS. EVEN IF IT IS CONCEDED THAT THE DESCRIPTION ORIGINALLY PLACED ON THE GOVERNMENT BILLS OF LADING INTRODUCES SOME DOUBT AS TO THE PROPRIETY OF THE DESCRIPTION LATER SUBSTITUTED BY THE AIR FORCE, WE ARE OBLIGED TO RESOLVE SUCH DOUBT IN FAVOR OF THE GOVERNMENT, IN THE ABSENCE, AS HERE, OF ANY COMPETENT EVIDENCE THAT NMFC ITEM NO. 14440 IS PREFERABLE TO ITEM NO. 12400.

IT MAY BE NOTED THAT WHILE THE AIRCRAFT NOSE IN THIS INSTANCE WAS EQUIPPED SO AS TO HAVE UTILITY FOR RADAR PURPOSES, ITS BASIC CHARACTER AND USE WAS NOT CHANGED; IT WAS AN ESSENTIAL PART OF THE AIRCRAFT STRUCTURE WITHOUT WHICH THE AIRCRAFT WOULD NOT BE USED IN FLIGHT. SUITABILITY FOR RADAR USE, WITH ADDITIONAL CONNECTIONS AND ARRANGEMENTS, DID NOT CHANGE THE BASIC CHARACTER OF THE PLASTIC NOSE. SEE SCHENLEY DISTILLERS CORP. V. GREENWICH AND JOHNSONVILLE RY. CO. ET AL; 245 I.C.C. 151, 152 (1941).

ACCORDINGLY, SINCE THE SETTLEMENT CERTIFICATES DISALLOWING YOUR CLAIMS GAVE PROPER EFFECT TO THE DETERMINATION MADE BY THE AIR FORCE AS TO THE APPLICABLE CHARGE BASIS AND SINCE THEY WERE OTHERWISE CONSISTENT WITH PERTINENT PRINCIPLES OF TARIFF APPLICATION, THEY ARE SUSTAINED.