B-180130, OCT 2, 1974

B-180130, OCT 2, 1974

(1) ALTHOUGH THE GOVERNING FREIGHT CLASSIFICATION SHOWS ALTERNATING RATINGS FOR ITEM 52800, ITEM (RULE) NUMBER 765 OF THAT CLASSIFICATION STATES THAT ESTABLISHMENT OF AN EXCEPTION REMOVES THE ITEM FROM THE GOVERNING CLASSIFICATION. THEREFORE, THE DISALLOWANCE OF CARRIER'S CLAIM, BASED ON ALTERNATIVE RATINGS, IS SUSTAINED AS THE EXCEPTION RATING, WHICH DOES NOT CONTAIN ALTERNATIVE RATINGS, CONTROLS. (2) THE DISALLOWANCE OF CARRIER'S CLAIM IS SUSTAINED BECAUSE THE CONTENTION THAT CODE RT SHOWN ON THE BILL OF LADING AND FOUND ON PAGE B7-1 OF APPENDIX B7 OF DOD 4500.32-R REFERS TO TRAILER MOUNTED ITEMS SUCH AS THOSE THAT ROLL ON AND OFF OF SHIPS IS INCORRECT. THE CODE RT REFERS TO THE TYPE OF PACKAGING USED, NOT THE MODE OF TRANSPORTATION. (3) THE DISALLOWANCE OF CARRIER'S CLAIM TO RECOVER DEDUCTION FOR OVERCHARGE MADE BY ARMY FINANCE CENTER IS REVERSED. ALTHOUGH A CERTIFICATE IN LIEU OF LOST U.S. GBL LISTS CARRIER AS THE ORIGIN CARRIER, OTHER EVIDENCE TO PROVE OR DISPROVE CARRIER'S CONTENTION THAT IT DID NOT HANDLE THE SHIPMENT, SUCH AS THE DESTINATION CARRIER'S WAYBILL, IS NO LONGER AVAILABLE.

WELLS CARGO, INC.:

WELLS CARGO, INC. REQUESTS A DECISION BY THIS OFFICE ON THE DISALLOWANCE OF THREE CLAIMS BY OUR TRANSPORTATION AND CLAIMS DIVISION (TCD).

THE FIRST CLAIM (TK-905857) IS FOR $562.17 AND COVERS A SHIPMENT WHICH MOVED FROM HERLONG, CALIFORNIA, TO SAN LEANDRO, CALIFORNIA, UNDER GOVERNMENT BILL OF LADING (GBL) NO. D-1213579, DATED NOVEMBER 7, 1968. THE SHIPMENT CONSISTED OF 418 CONTAINERS OF THREE SIZES; THEY WERE DESCRIBED IN PART ON THE GBL AS SHIPPING AND STORAGE CONTAINER" AND HAD A TOTAL WEIGHT OF 38,892 POUNDS.

FOR THIS SHIPMENT WELLS CARGO COLLECTED TRANSPORTATION CHARGES OF $313.99 DERIVED FROM ITEM 472.1 OF PACIFIC COAST TARIFF BUREAU EXCEPTION SHEET NO. 1, MF-I.C.C. 5.

WELLS CARGO'S CLAIM FOR ADDITIONAL FREIGHT CHARGES OF $562.17 IS BASED ON ITEM 52800 OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION (NMFC) WHICH CONTAINS ALTERNATING TRUCKLOAD CLASSES AND MINIMUM WEIGHTS.

WELLS CARGO BASES ITS CLAIM ON ITEM 165 OF PACIFIC COAST TARIFF BUREAU QUOTATION NO. 2 WHICH, WHEN THIS SHIPMENT WAS TRANSPORTED, READ:

"(B) WHEN ANY ARTICLE IN THE GC (GOVERNING CLASSIFICATION) OR ES (CURRENT EXCEPTION SHEET) IS SUBJECT TO ALTERNATING CLASSES AND MINIMUM WEIGHT FACTORS THEY SHALL HAVE NO APPLICATION IN CONNECTION WITH THE RATES IN SECTION 2 OF THIS QUOTATION, ONLY LTL RATINGS SHALL BE APPLICABLE TO SUCH ARTICLES."

WELLS CARGO CONTENDS THAT SINCE ITEM 52800 OF THE NMFC SHOWS ALTERNATING TRUCKLOAD CLASSES AND MINIMUM WEIGHTS, ITEM 165 APPLIES AND THAT THE ADDITIONAL FREIGHT CHARGES ARE DUE.

EXCEPTIONS TO THE GOVERNING CLASSIFICATION REMOVE OR DISPLACE RATINGS ON ARTICLES IN THE GOVERNING CLASSIFICATION. THIS IS AN ESTABLISHED PRINCIPLE IN TRANSPORTATION LAW. SEE NORWICH WIRE WORKS, INC. V. BOSTON & MAINE RR., 229 I.C.C. 395 (1938); RED TOP BREWING CO. V. HANSON MOTOR EXPRESS, INC., 62 M.C.C. 93 (1953). FURTHERMORE, ITEM (RULE) 765 OF NMFC A-10 STATES:

"THE ESTABLISHMENT OF:

(1) A VOLUME OR TRUCKLOAD EXCEPTIONS CLASS REMOVES:

(A) THE APPLICATION OF A CLASSIFICATION VOLUME OR TRUCKLOAD CLASS. ..."

SINCE THERE ARE NO ALTERNATIVE TRUCKLOAD CLASSES AND MINIMUM WEIGHTS IN THE EXCEPTION SHEET, THE $313.99 ORIGINALLY PAID TO THE CARRIER WAS CORRECT, AND TCD'S DISALLOWANCE OF WELLS CARGO'S CLAIM FOR ADDITIONAL FREIGHT CHARGES OF $562.17 WAS CORRECT AND IS SUSTAINED.

THE SECOND CLAIM (TK-907806) IS FOR $264 AND COVERS A SHIPMENT DESCRIBED IN PART ON CBL NO. E-9490805, DATED DECEMBER 3, 1968, AS "1 RT MACHINES NOI SU LOOSE ELECTRIC MOTOR DRIVEN NMFC: 133300"; IT MOVED FROM NELLIS AIR FORCE BASE, NEVADA, TO TRAVIS AIR FORCE BASE, CALIFORNIA.

THE CARRIER'S CLAIM IS BASED ON THE CONTENTION THAT THE ABBREVIATION "RT" USED IN THE "PACKAGES" SPACE ON THE GBL INDICATES THAT THE MACHINERY WAS MOUNTED ON A TOWABLE TRAILER.

TYPE PACK CODES ARE DEFINED ON PAGE B7-1 OF APPENDIX B7 TO DEPARTMENT OF DEFENSE REGULATION 4500.32-R. IT IS TRUE THAT "RT" IS DEFINED IN THAT REGULATION AS "ROLL ON/ROLL OFF TRAILER," BUT THIS TERM DEALS WITH THE TYPE OF PACKAGING USED. IT DOES NOT DESCRIBE THE TYPE OF CONTAINER USED NOR THE MANNER OF SHIPMENT. THE REGULATION IN DESCRIBING THE ALPHAMERIC CODES USED THEREIN STATES AT PAGE B7-1:

"THIS CODE IS USED TO IDENTIFY THE TYPE OF PACK USED FOR THE SHIPMENT UNIT AND FOR THE CONSOLIDATION CONTAINER ON SHIPMENT UNITS IN CONSOLIDATION."

THE TYPE OF SHIPMENT ON WHICH THE CARRIER'S CLAIM IS BASED IS FOR ITEMS OR CONTAINERS MOUNTED ON TOWABLE TRAILERS FOR MOVEMENT ON AND OFF OF SHIPS. THIS TYPE OF SHIPMENT IS KNOWN BY THE TERM "RO-RO." THE SHIPMENT IN CONTENTION HERE WAS NOT MOUNTED. IT IS IDENTIFIED ON THE BILL OF LADING AS BEING "LOOSE." FURTHERMORE, THE SHIPMENT MOVED TO TRAVIS AIR FORCE BASE FOR TRANSPORT OVERSEAS BY AIR. TCD'S DISALLOWANCE OF WELLS CARGO'S CLAIM FOR $214 WAS CORRECT AND IS SUSTAINED.

THE THIRD CLAIM (TK-916973) IS FOR $40.49 AND ARISES FROM A SHIPMENT CONSISTING OF THREE BOXES OF HOUSEHOLD GOODS WEIGHING 4,174 POUNDS WHICH MOVED FROM HERLONG, CALIFORNIA, TO PENSACOLA, FLORIDA, UNDER GBL NO. E- 7068586 ISSUED NOVEMBER 21, 1967. TRANSPORTATION CHARGES OF $465.82 WERE PAID TO M.R. & R. TRUCKING COMPANY OF CRESTVIEW, FLORIDA. A CERTIFICATE IN LIEU OF LOST U.S. GOVERNMENT BILL OF LADING NAMED WELLS CARGO AS THE ORIGINATING CARRIER. ON AUDIT BY TCD LOWER CHARGES BASED ON A MISROUTE BY WELLS CARGO WERE FOUND APPLICABLE. TCD ISSUED TO WELLS CARGO A NOTICE OF OVERCHARGE FOR $40.49; IN THE ABSENCE OF REFUND THE ARMY FINANCE CENTER DEDUCTED THE OVERCHARGE FROM MONIES OTHERWISE DUE WELLS CARGO.

THE CARRIER CONTENDS THAT IT HAS NO RECORD OF HAVING HANDLED THIS SHIPMENT AND THAT THE DEDUCTION WAS IN ERROR. AS A COPY OF THE DESTINATION CARRIER'S WAYBILL (PRO NUMBER) 837792, WHICH PROBABLY WOULD SHOW THE NAMES OF ORIGIN AND INTERMEDIATE CARRIERS AND THE POINTS OF INTERCHANGE, IS NO LONGER AVAILABLE, IT IS NOT POSSIBLE TO PROVE OR DISPROVE THE CARRIER'S CONTENTION THAT IT DID NOT HANDLE THE SHIPMENT. ALTHOUGH THE CERTIFICATE IN LIEU OF A LOST U.S. GOVERNMENT BILL OF LADING NAMES WELLS CARGO AS THE ORIGINATING CARRIER, THERE IS NO OTHER EVIDENCE TO INDICATE THE IDENTITY OF THE ORIGIN CARRIER. UNDER THESE CIRCUMSTANCES, WE HAVE TODAY INSTRUCTED TCD TO ALLOW THE CARRIER'S CLAIM FOR $40.49 IF OTHERWISE CORRECT.