B-169711, DEC. 17, 1970

B-169711, DEC. 17, 1970

TRANSPORTATION CHARGES - EXPLOSIVES DENIAL OF CLAIM FOR $164.81 IN CONNECTION WITH TRANSPORTATION OF 200 POUNDS OF CLASS A EXPLOSIVES AND 4,378 POUNDS OF INERT MATERIALS (MACHINERY). WHERE THE FREIGHT CHARGES FOR A MIXED-TRUCK LOAD SHIPMENT OF EXPLOSIVES AND NON-EXPLOSIVES WERE COMPUTED AT THE CLASS A EXPLOSIVES RATE APPLIED TO TOTAL SHIPMENT, DEDUCTION OF THE $164.81 OVERCHARGE WAS JUSTIFIED AND, EVEN THOUGH THE DEDUCTION WAS BASED ON THE CLASS C RATE OSTENSIBLY APPLICABLE TO "BLASTING AGENTS, MATERIALS & SUPPLIES (NON EXPLOSIVE)" SUCH RATE IS AN ADEQUATE MEASURE, ON A QUANTUM MERUIT BASIS, OF CHARGES FOR THE MACHINERY SHIPPED.

TO C. I. WHITTEN TRANSFER CO.:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 11, 1970, AND EARLIER LETTER, FILE O/C 8-388, ASKING FOR REVIEW OF SETTLEMENT TK-896839, WHICH DENIED YOUR CLAIM FOR $164.81 IN CONNECTION WITH FREIGHT TRANSPORTATION UNDER GOVERNMENT BILL OF LADING D-3672231.

THE SHIPMENT IN QUESTION CONSISTED OF 200 POUNDS OF EXPLOSIVE ARTICLES AND 4,378 POUNDS OF INERT MATERIAL DESCRIBED IN THE BILL OF LADING AS "MACHINERY, NOIBN." THE FACE OF THE BILL OF LADING, IN THE SPACE PROVIDED FOR THE SHOWING OF TARIFF OR SPECIAL RATE AUTHORITIES, INDICATES THAT THE SHIPMENT WAS TENDERED SUBJECT TO THE PROVISIONS OF C. I. WHITTEN TRANSFER CO. TENDER 103-B. HOWEVER, THAT TENDER APPLIES ONLY ON SHIPMENTS OF "AMMUNITION AND/OR EXPLOSIVES AND/OR FIREWORKS" AND THUS WOULD BE INAPPLICABLE TO A MIXED SHIPMENT OF EXPLOSIVES AND MACHINERY.

CHARGES WERE BILLED AND PAID ON THE BASIS OF THE TENDER RATE (200 PERCENT OF 1ST CLASS) APPLIED TO A MINIMUM WEIGHT OF 7,500 POUNDS. IN THE AUDIT HERE, THE APPLICABLE CHARGES WERE DETERMINED TO BE THOSE PROVIDED IN C. I. WHITTEN TRANSFER CO. TARIFF MF-I.C.C. NO. 56 FOR A MIXED-TRUCKLOAD SHIPMENT, APPLYING THE CLASS A EXPLOSIVES RATE TO THE 200 POUNDS OF EXPLOSIVES, AND THE RATE APPLICABLE TO "BLASTING AGENTS, MATERIALS AND SUPPLIES (NON-EXPLOSIVE)" TO THE 4,378 POUNDS OF INERT MATERIALS AND THE 17,422-POUND DEFICIT IN THE MINIMUM WEIGHT. THE RESULTING OVERCHARGE OF $164.81 WAS RECOVERED BY DEDUCTION UPON YOUR FAILURE TO REFUND.

IN YOUR REQUEST FOR REVIEW, YOU SAY THAT THE INERT MATERIAL IN THIS SHIPMENT - MACHINERY - CANNOT BE CONSIDERED AS "BLASTING SUPPLIES" AND THAT THE SHIPMENT THEREFORE IS PROPERLY RATED AS BILLED. IT IS APPARENT, HOWEVER, THAT IF THIS INERT MATERIAL CANNOT BE SAID TO COME WITHIN THE COMMODITY DESCRIPTION "BLASTING AGENTS, MATERIALS AND SUPPLIES (NON- EXPLOSIVES)," IT IS EVEN MORE OBVIOUS THAT IT CANNOT BE SAID TO COME WITHIN THE EXPLOSIVES DESCRIPTION GOVERNING THE RATE AT WHICH YOU INITIALLY BILLED.

IN THESE CIRCUMSTANCES, NO AGREED CHARGE, BY TARIFF OR QUOTATION, WOULD BE APPLICABLE FOR THE TRANSPORTATION OF THIS MIXED-TRUCKLOAD SHIPMENT AND THUS THE CARRIER WOULD BE ENTITLED TO CHARGES BASED ON QUANTUM MERUIT PRINCIPLES. SINCE THE TARIFF RATES FOR BLASTING SUPPLIES APPLY TO INERT, NON-EXPLOSIVE ARTICLES, THERE WOULD SEEM TO BE NO VALID REASON WHY SUCH RATES SHOULD NOT BE USED IN COMPUTING THE MEASURE OF THE QUANTUM MERUIT CHARGES DUE FOR THIS MIXED-TRUCKLOAD SHIPMENT.

THE SETTLEMENT HERE WAS CONSISTENT WITH THIS BASIS OF CHARGES. ACCORDINGLY, IT IS SUSTAINED AND YOUR CLAIM FOR REFUND IS DENIED.