B-160369, MAY 11, 1967

B-160369, MAY 11, 1967

TO ILLINOIS CENTRAL RAILROAD:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 31, 1966, FILE G-AR 75373-A- BG, REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE OF OCTOBER 24, 1966, WHICH DISALLOWED YOUR CLAIM (OUR CLAIM TK-818987) FOR $190.40 ADDITIONAL TRANSPORTATION CHARGES ON YOUR BILL NO. AR-75373-A. THE FREIGHT CHARGES CLAIMED ARE FOR THE TRANSPORTATION OF A SHIPMENT WEIGHING 16,000 POUNDS DESCRIBED AS "1 TRLR VAN ELECTRICAL INSTRUMENTS, NOIBN, MTD IN FREIGHT TRAILERS, NOIBN, EXC 44" IN HEIGHT * USA NR. 7D4250 (AN/MSM-61) 5895 K51 7882 FSN ELECTRONIC SHOP VAN" MOVING FROM TOBYHANNA, PENNSYLVANIA, TO DOYLINE, LOUISIANA, UNDER GOVERNMENT BILL OF LADING AT-448036, DATED SEPTEMBER 5, 1963.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID $1,030.18 COMPUTED ON THE BASIS OF A CLASS 70 RATING OF $4.20 PER 100 POUNDS AND A 24,000- POUND MINIMUM WEIGHT PROVIDED BY ITEM 35480 OF UNIFORM CLASSIFICATION NO. 6, I.C.C. A-6, FOR "ELECTRICAL APPLIANCES OR INSTRUMENTS, NOIBN," THE HIGHEST RATED ARTICLE IN THE SHIPMENT, AS PROVIDED IN COMBINATION ARTICLE RULE 18 OF THE CLASSIFICATION FOR A TOTAL CHARGE OF $1,008 PLUS A TRANSIT CHARGE OF $22.18.

IN OUR INITIAL AUDIT OF THE CHARGES, WE DETERMINED THAT THE TRANSIT PRIVILEGE WAS NOT APPLICABLE AND ISSUED OUR NOTICE OF OVERCHARGE (FORM 1003) DATED NOVEMBER 19, 1964, FOR THE TRANSMIT CHARGE, $22.18. YOU VOLUNTARILY REFUNDED THIS AMOUNT.

IN A SUBSEQUENT AUDIT FOR THE CHARGES, WE DETERMINED THAT THE PROPER CHARGE SHOULD BE BASED UPON A CLASS 85 RATING OF $5.11 PER 100 POUNDS (12,000-POUND MINIMUM), AS PROVIDED IN ITEM 73930 OF UFC 6 DESCRIBED UNDER THE GENERIC HEADING "OUTFITS" AS "RADIO, RADIO REPAIR, OR PUBLIC ADDRESS OR TELEVISION, MOUNTED ON FREIGHT AUTOMOBILES OR TRAILER-VEHICLES WITH OR WITHOUT POWER GENERATING UNITS," FOR A TOTAL CHARGE OF $817.60, RESULTING IN AN OVERCHARGE OF $190.40. UNDER NOTE 16, ITEM 73931, MADE APPLICABLE BY REFERENCE TO 73930, THAT ITEM INCLUDES "EQUIPMENT OF REPLACEMENT PARTS OR TOOLS SECURELY PACKED WITHIN * * * TRAILER-VEHICLES, AND SHIPPED AS AN INTEGRAL OF THE TFIT.' WHEN YOU FAILED TO MAKE A VOLUNTARY REFUND OF THE ADDITIONAL OVERCHARGE OF $190.40, THE OVERCHARGE WAS COLLECTED BY DEDUCTION FROM AMOUNTS OTHERWISE DUE YOUR COMPANY. YOU ISSUED SUPPLEMENTAL BILL NO. AR-75373-A TO RECLAIM THE AMOUNT OF $190.40 DEDUCTED AND WE DISALLOWED THE CLAIM BY SETTLEMENT CERTIFICATE DATED OCTOBER 24, 1966.

YOU CONTEND THAT THE SHIPMENT WAS NOT A RADIO, RADIO REPAIR OR PUBLIC ADDRESS OR TELEVISION OUTFIT, THAT THE ANALOGY RULE 17 OF UFC 6 IS INAPPLICABLE AND THE COMBINATION ARTICLE RULE 18 OF UFC 6 IS APPLICABLE AND THAT THUS YOUR CLAIM IS FOR ALLOWANCE.

RULE 17 PROVIDES:

"WHEN ARTICLES NOT SPECIFICALLY PROVIDED FOR, NOR EMBRACED IN THE CLASSIFICATION AS ARTICLES ,NOIBN," ARE OFFERED FOR TRANSPORTATION, CARRIERS WILL APPLY THE CLASSIFICATION PROVIDED FOR ARTICLES WHICH, IN THEIR JUDGMENT, ARE ANALOGOUS; * * *.'

RULE 18 PROVIDES:

"WHEN NOT SPECIFICALLY CLASSIFIED, ARTICLES WHICH HAVE BEEN COMBINED OR ATTACHED TO EACH OTHER WILL BE CHARGED AT THE RATING FOR THE HIGHEST CLASSED ARTICLE OF THE COMBINATION, * * *.'

THE ADMINISTRATIVE OFFICE ADVISES:

"THIS ELECTRONICS SHOP VAN AN/NSM-61 CONSISTS OF A FSN 2330-672-7469 TRAILER VAN MODIFIED AT TOBYHANNA ARMY DEPOT AS A GENERAL PURPOSE REPAIR VAN FOR USE WITH ANY TYPE ELECTRONIC EQUIPMENT I.E., TELETYPE, TELEPHONE, TELEGRAPH, CRYPTOGRAPHIC, RADAR, RADIO, COMPUTER, ETC. THE ULTIMATE REQUISITIONER AT DESTINATION DETERMINES USE OF VAN FOR HIS PURPOSES AND THEN INSTALLS THE TYPE REPAIR EQUIPMENT NECESSARY TO DO THE REPAIR DESIRED.

"WHEN THE ELECTRONIC SHOP VAN AN/NSM-61 IS SHIPPED FROM TOBYHANNA ITS INTERIOR CONTAINS ELECTRICAL EQUIPMENT SUCH AS BASIC ELECTRICAL OUTLETS, AN AIR CONDITIONER, AIR COMPRESSOR, INTER-COM, AND OTHER "HOUSEKEEPING" EQUIPMENT FOR GENERAL PURPOSE USE.'

IT THUS APPEARS THAT THE SHIPMENT WAS A SPECIALLY MODIFIED VAN EQUIPPED FOR USE AS A RADIO REPAIR SHOP. THE FACT THAT IT COULD ALSO BE USED FOR REPAIR OF OTHER TYPES OF ELECTRONIC EQUIPMENT IN OUR VIEW IS IRRELEVANT AND EVEN IF RELEVANT, THE SHIPMENT WOULD BE SUBJECT TO RULE 17 AND RATABLE BY ANALOGY AS A RADIO REPAIR OUTFIT UNDER THE HOLDING OF THE INTERSTATE COMMERCE COMMISSION IN DE LEE V. SOUTHERN PACIFIC CO., 280 I.C.C. 295, 296 (1951). ALSO, SEE MESKER BROS. IRON CO. V. CHICAGO, M.ST.P.ANDP.R.CO., 194 I.C.C. 451 (1933).

RULE 18 OF THE CLASSIFICATION DOES NOT APPLY TO ARTICLES THAT HAVE THE CHARACTERISTICS OF AN ENTITY. AMERICAN FLANGE AND MFG. CO. V. ATCHISON, T.ANDS.F.RY.CO., 178 I.C.C. 739 (1931); WEAVER PANTS CORP. V. ALABAMA G.S.R.CO., 223 I.C.C. 566 (1937); OAKLAND TRUCK SALES CO. V. BALTIMORE AND OHIO R.CO., 270 I.C.C. 548 (1948); STEWART AND STEVENSON SERVICES, INC. V. BALTIMORE AND OHIO CO., 276 I.C.C. 156, 157 (1949). NOR BY THE VERY TERMS DOES RULE 18 APPLY TO ARTICLES SPECIFICALLY CLASSIFIED.

THE VAN SHIPPED APPEARS TO BE AN ENTITY, SPECIFICALLY CLASSIFIED IN ITEM 73930 OR RATABLE UNDER THE ANALOGY RULE UNDER THAT ITEM. ANY ELECTRICAL EQUIPMENT, IN COMMON WITH THE CABINETS AND OTHER ITEMS INCLUDED IN THE TRAILER, BECAME A PART OF THE OUTFIT OR ENTITY WHICH PROPERLY DOES NOT APPEAR TO BE RATABLE AS AN ELECTRICAL APPLIANCE OR INSTRUMENT, NOIBN. ACCORDINGLY, THE SETTLEMENT OF OCTOBER 24, 1966,DISALLOWING YOUR CLAIM IS SUSTAINED.