B-163559, JUN. 10, 1968

TO VALLEY MOTOR LINES:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 9, 1968, FILE VML 15853-1 0-0883, REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE DATED DECEMBER 18, 1967, WHICH DISALLOWED YOUR CLAIM ON SUPPLEMENTAL BILL NO. 15853-1, OUR TK-861666, FOR $437.80, AS ADDITIONAL FREIGHT CHARGES ALLEGEDLY DUE ON THE SHIPMENT OF AN ARTICLE DESCRIBED AS "FREIGHT TRAILERS NOI," WEIGHING 6,830 POUNDS, WHICH MOVED FROM FAIRCHILD AIR FORCE BASE, WASHINGTON, TO CASTLE AIR FORCE BASE, CALIFORNIA, UNDER GOVERNMENT BILL OF LADING B-2687482, DATED JULY 27, 1965.

FOR THIS SERVICE YOU BILLED AND WERE PAID $875.61 BASED ON THE CLASS 200 LESS-THAN-TRUCKLOAD RATING PROVIDED BY ITEM 189140, SUB 3, NATIONAL MOTOR FREIGHT CLASSIFICATION A-8, MF-I.C.C. NO. 7, FOR FREIGHT TRAILERS, NOI, EXCEEDING 44 INCHES IN HEIGHT. IN OUR AUDIT IT WAS DETERMINED THAT THE ARTICLE SHIPPED WAS A TRAILER, RAIL TYPE, H2 33-A, FSN: 1730-724-9610, AND THAT IT SHOULD BE CLASSIFIED AND RATED AS MACHINERY OR MACHINES, NOI, ITEM 133300 OF THE GOVERNING CLASSIFICATION, WHICH PROVIDES A CLASS 100 LESS- THAN-TRUCKLOAD RATING. WE COMPUTED THE ALLOWABLE CHARGES TO BE $437.80 BASED ON THE CLASS 100 RATE OF $6.41 PER 100 POUNDS AND STATED THE OVERCHARGE (FORM 1003) FOR $437.80.

YOU TOOK EXCEPTION TO OUR AUDIT ACTION WHICH WAS SUSTAINED IN A LETTER DATED APRIL 27, 1967, AND SUBSEQUENTLY THE OVERCHARGE WAS ADMINISTRATIVELY DEDUCTED. THEREAFTER YOU SUBMITTED YOUR SUPPLEMENTAL BILL CLAIMING REFUND OF $437.80 SUPPORTED BY AN OPINION OF THE NATIONAL CLASSIFICATION BOARD THAT THE PROVISIONS OF ITEM 189140, NAMING FREIGHT TRAILERS, NOI, APPLY TO THE RAIL TYPE POSITIONING TRAILER. BY OUR SETTLEMENT DATED DECEMBER 18, 1967, YOU WERE ADVISED THAT THE ARTICLE IS USED FOR HANDLING AND PHYSICALLY POSITIONING MISSILES, INTRA-FACILITY TRANSPORTATION OF MISSILES AND/OR AIRCRAFT COMPONENTS AND IS NOT DESIGNED OR INTENDED AS A TRAILER TO HAUL COMMODITIES.

YOUR LETTER OF FEBRUARY 9, 1968, REQUESTING REVIEW OF THE ACTION TAKEN BY OUR TRANSPORTATION DIVISION, RELIES ON THE OPINION OF THE NATIONAL CLASSIFICATION BOARD THAT THE ARTICLE IS CLASSIFIED AS A "TRAILER.' YOU ALSO URGE THAT SHIPMENTS CANNOT BE RATED ON THEIR USE ALONE.

WHILE THE USE TO WHICH THE ARTICLE IS TO BE PUT ORDINARILY IS NOT DETERMINATIVE OF ITS TRANSPORTATION CLASSIFICATION (CHEMI PRODUCTS CO. V SPRINGMEIER SHIPPING CO., INC., 266 I.C.C. 263, 265 (1946), IN THE ABSENCE OF MORE CONCLUSIVE PROOF, THE INTENDED USE AND THE USE COMMONLY MADE OF THE ARTICLE BECOMES OF PREDOMINANT WEIGHT IN THE DETERMINATION OF WHAT RATES ARE APPLICABLE ACCORDING TO THE DESCRIPTIVE TERMS OF THE GOVERNING TARIFF. LINEN THREAD CO., INC. V POPE AND TALBOT, INC., 256 I.C.C. 79, 81 (1943).

YOU HAVE PRESENTED NO EVIDENCE AND NONE IS AVAILABLE HERE TO SHOW THAT THE TRAILER, RAIL TYPE, H2-33-A, COULD BE USED FOR CARRYING FREIGHT OR THAT THE POSITIONING MACHINERY COULD BE USED IF REMOVED FROM THE TRAILER. IN ANY CASE, IF REMOVED, THE MACHINERY WOULD HAVE TO BE ATTACHED OR BOLTED TO SOME OTHER MOBILE TYPE OF FOUNDATION OR SURFACE TO MAKE IT OPERABLE AND EVEN THEN IT COULD NOT SERVE THE PURPOSE FOR WHICH IT WAS DESIGNED AND BUILT. THUS, THE MACHINERY COULD NOT BE USED BY ITSELF WITHOUT SOME TYPE OF MODIFICATION. THE MAXIMUM TOWING SPEED FOR THIS ARTICLE IS 5 MILES PER HOUR AND IT IS CAPABLE OF SELF-MOVEMENT AT INCHING SPEEDS, SIDEWISE AS WELL AS FORE AND AFT. ALTHOUGH ITS NAME INCLUDES THE WORD "TRAILER," IT IS OBVIOUSLY NOT A FREIGHT TRAILER.

IN LAWRENCE CONSTRUCTION COMPANY V L. AND N. R.R. CO., 115 I.C.C. 439 (1926), THE INTERSTATE COMMERCE COMMISSION, AFTER OBSERVING THAT FOR OBVIOUS REASONS MOST MACHINES ARE GENERALLY REFERRED TO BY THEIR INDIVIDUAL NAMES, STATED THAT THIS DID NOT MAKE THEM ANY LESS MACHINES. THEY THEN FOUND THAT A SELF-PROPELLING ROAD ROLLER, WHICH WAS NOT SPECIFICALLY RATED BY NAME, WAS A MACHINE AND PROPERLY RATABLE UNDER MACHINES OR MACHINERY. THE COMMISSION ALSO HAS STATED THAT THE EQUIPPING OF A RACK BODY WITH CASTERS (WHICH WERE AFFIXED TO A RECTANGULAR BASE) DID NOT MAKE IT A TRUCK WITH A RACK BODY ATTACHED. IT WAS STILL A RACK WITH OR WITHOUT WHEELS. KIRK AND BLUM MFG. CO. V CINCINNATI, N. O. AND T. P. RY. CO., 278 I.C.C. 576 (1950).

THE FACT THAT THE ARTICLE INVOLVED HERE MAY HAVE A SECONDARY USE IS NOT MATERIAL. IT IS THE PREDOMINATE USE OF THE ARTICLE WHICH DETERMINES THE CHARACTER OF A SHIPMENT AND NOT A SECONDARY USE TO WHICH IT MAY SOMETIMES BE PUT. SONKEN-GALAMBA CORP. V UNION PAC. R. CO., 145 F.2D 808, 812 (1944); UNION PACIFIC R. CO. V UNITED STATES, 91 F.SUPP. 762 (1950); LOUISVILLE AND N. R. CO. V UNITED STATES, 192 F.SUPP. 557, 561 (1958); MARINE ENGINEERING AND SUPPLY CO. V ATCHISON, T. AND S. F. RY., 299 I.C.C. 537, 539 (1956).

ASSUMING, FOR THE PURPOSE OF ARGUMENT, THAT THE TRAILER, RAIL TYPE, H2-33 -A, WERE PROPERLY CLASSIFIED UNDER ITEM 189140, SUB 3, OF CLASSIFICATION A -8 AS A FREIGHT TRAILER, NOI, EXCEEDING 44 INCHES IN HEIGHT, AN OVERCHARGE WOULD STILL EXIST.

SECTION 1 OF RULE 140 OF CLASSIFICATION A-8 PROVIDES THAT THE CHARGE FOR A SHIPMENT MOVING UNDER LESS-THAN-TRUCKLOAD RATES OR CLASSES (RATINGS), SHALL NOT EXCEED THE CHARGE APPLICABLE TO THE SAME SHIPMENT UNDER THE VOLUME OR TRUCKLOAD RATES OR CLASSES (RATINGS), AT THE VOLUME OR TRUCKLOAD MINIMUM WEIGHTS SPECIFIED. THE TRUCKLOAD RATING ON FREIGHT TRAILERS IS CLASS 45, MINIMUM WEIGHT FACTOR 20.2, WHICH UNDER ITEM 1030 OF PACIFIC INLAND TARIFF BUREAU TARIFF NO. 9-C, MF-I.C.C. 97, BECOMES 20,000 POUNDS. APPLICATION OF THE CLASS 45 RATE OF $2.81 PER 100 POUNDS TO THE MINIMUM WEIGHT WOULD PRODUCE FREIGHT CHARGES OF $562 OR $313.61 LESS THAN THE CHARGE YOU ORIGINALLY BILLED AND COLLECTED ON THIS SHIPMENT.

SINCE THE SETTLEMENT DISALLOWING YOUR CLAIM APPEARS TO GIVE PROPER EFFECT TO THE DESCRIPTIVE DETAILS CONCERNING THE TRAILER, RAIL TYPE, AND IS CONSISTENT WITH INTERSTATE COMMERCE COMMISSION AND OTHER PRECEDENTS, IT IS SUSTAINED.