B-140511, OCT. 15, 1959
Highlights
INC.: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 11. OR 1 1/2 TIMES FIRST CLASS WHICH IS THE CLASSIFICATION RATING FOR LESS-THAN-TRUCKLOAD SHIPMENTS OF BLACK POWDER. IN THE SUBSEQUENT AUDIT OF THIS PAYMENT WE DETERMINED THAT YOU WERE ENTITLED TO CHARGES COMPUTED AT A RATE OF $1.73 PER 100 POUNDS BASED ON THE CLASS 100 EXCEPTION RATING AUTHORIZED IN ITEM 930 OF SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 5-M. YOU NOW CONTEND THAT THIS SHIPMENT WAS TENDERED. THE BILL DOES NOT INDICATE THAT THE SHIPMENT WAS TENDERED AS A TRUCKLOAD SHIPMENT. OR THAT EXCLUSIVE USE OF THE VEHICLE WAS REQUESTED BY THE SHIPPER OR ACTUALLY GIVEN. THERE IS NOTHING IN THE RECORD ESTABLISHING THAT THE SEAL WAS APPLIED BY THE SHIPPER AT ORIGIN OR THAT INSTRUCTIONS WERE ISSUED THAT THE SEAL WAS NOT TO BE BROKEN.
B-140511, OCT. 15, 1959
TO MALONE FREIGHT LINES, INC.:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 11, 1959, REQUESTING REVIEW OF THE AUDIT ACTION TAKEN ON YOUR CLAIM NO. 056-16 COVERING TRANSPORTATION CHARGES ON SHIPMENTS MOVING UNDER GOVERNMENT BILLS OF LADING NOS. WT- 5545150 AND WT-8933833.
THE SHIPMENT MOVING UNDER BILL OF LADING NO. WT-5545150 CONSISTED OF 297 DRUMS OF BLACK POWDER WEIGHING 8,316 POUNDS. YOU BILLED ORIGINALLY AND COLLECTED CHARGES COMPUTED AT A RATE OF $2.60 PER 100 POUNDS ON ACTUAL WEIGHT, OR 1 1/2 TIMES FIRST CLASS WHICH IS THE CLASSIFICATION RATING FOR LESS-THAN-TRUCKLOAD SHIPMENTS OF BLACK POWDER. IN THE SUBSEQUENT AUDIT OF THIS PAYMENT WE DETERMINED THAT YOU WERE ENTITLED TO CHARGES COMPUTED AT A RATE OF $1.73 PER 100 POUNDS BASED ON THE CLASS 100 EXCEPTION RATING AUTHORIZED IN ITEM 930 OF SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 5-M, MF-I.C.C. NO. 315, AND WE ISSUED A NOTICE OF OVERPAYMENT IN THE AMOUNT OF $72.35 COMPUTED ON THAT BASIS.
YOU NOW CONTEND THAT THIS SHIPMENT WAS TENDERED, TRANSPORTED AND RATED AS A TRUCKLOAD SHIPMENT AND IN SUPPORT OF YOUR POSITION YOU POINT OUT THAT THE TRAILER INVOLVED CARRIED EXPLOSIVE PLACARDS APPLIED BY THE SHIPPING INSTALLATION AND ALLEGE THAT IT MOVED UNDER KEYSTONE SEAL NO. 911. THE BILL OF LADING CONTAINS THE NOTATION "EXPLOSIVE PLACARDS APPLIED.' HOWEVER, THE BILL DOES NOT INDICATE THAT THE SHIPMENT WAS TENDERED AS A TRUCKLOAD SHIPMENT, OR THAT EXCLUSIVE USE OF THE VEHICLE WAS REQUESTED BY THE SHIPPER OR ACTUALLY GIVEN. ALSO, THERE IS NOTHING IN THE RECORD ESTABLISHING THAT THE SEAL WAS APPLIED BY THE SHIPPER AT ORIGIN OR THAT INSTRUCTIONS WERE ISSUED THAT THE SEAL WAS NOT TO BE BROKEN. THE MERE SEALING OF A VEHICLE IS NOT A CLEAR INDICATION THAT EXCLUSIVE USE OF THE VEHICLE WAS REQUIRED OR REQUESTED. TO ESTABLISH ENTITLEMENT TO TRUCKLOAD CHARGES YOU MUST SHOW THAT THE SHIPMENT ACTUALLY MOVED UNDER SEAL APPLIED BY THE SHIPPER AND THAT AN ORDER WAS ISSUED THAT SUCH SEAL WAS NOT TO BE BROKEN UNTIL THE SHIPMENT REACHED DESTINATION OR THAT EXCLUSIVE USE OF THE VEHICLE WAS DULY REQUESTED AND AUTHORIZED. SEE GUS BLASS CO. V. POWELL BROS. TRUCK LINE, 53 M.C.C. 603, 605-606. ALSO, THE RULE GOVERNING RAIL CARRIERS THAT, IN THE ABSENCE OF SPECIFIC INSTRUCTIONS FROM THE SHIPPER TO TREAT THE SHIPMENT AS A CARLOAD, THE CARRIER IS OBLIGED TO CHARGE THE LESS -THAN-CARLOAD BASIS (SMITH AND SONS CARPET COMPANY V. DIRECTOR GENERAL, 132 I.C.C. 593, 595 (SEEMS TO APPLY EQUALLY TO MOTOR CARRIERS RESPECTING THE TRUCKLOAD BASIS. SUN INSURANCE OFFICE LIMITED OF LONDON V. BE-MAC TRANSPORT CORP., INC., 132 F.2D 535.
BLACK POWDER IS CLASSED AS EXPLOSIVES "A" IN AGENT W. S. TOPPING'S MOTOR CARRIER TARIFF NO. 7, I.C.C. NO. 7, AND SECTION 823 THEREOF PROVIDES THAT EVERY MOTOR VEHICLE TRANSPORTING ANY QUANTITY OF CLASS A EXPLOSIVES SHALL BE PLACARDED. THUS, SINCE A VEHICLE MUST BE PLACARDED WHEN TRANSPORTING EITHER LESS-THAN-TRUCKLOAD OR TRUCKLOAD SHIPMENTS OF CLASS A EXPLOSIVES, THE FACT THAT THE VEHICLE HERE INVOLVED WAS PLACARDED, DOES NOT, IN ITSELF, AFFECT THE QUESTION OF WHETHER TRUCKLOAD CHARGES APPLY ON THE SHIPMENT. ACCORDINGLY, ON THE PRESENT RECORD OUR AUDIT ACTION APPEARS CORRECT AND THE OVERPAYMENT OF $72.35 ON THIS SHIPMENT SHOULD BE REFUNDED PROMPTLY TO AVOID RECOVERY BY OTHER MEANS.
THE SHIPMENT MOVING UNDER BILL OF LADING NO. WT-8933833 WAS DESCRIBED ON THE BILL OF LADING AS ,CANISTER, SMOKE, VIOLET, M2 FOR 105 MM CHEM. SHELL, M84," WEIGHING 33,416 POUNDS. THE SOLE QUESTION AT ISSUE INVOLVES THE PROPER CLASSIFICATION OF THE ARTICLE SHIPPED. YOU ALLEGE THAT SINCE THE COMMODITY IN QUESTION WAS NOT SPECIFICALLY NAMED IN THE GOVERNING CLASSIFICATION, RESORT TO THE ANALOGY RULE OF THE CLASSIFICATION IS NECESSARY AND YOU CONTEND THAT UNDER THIS RULE, THE PROPER CLASSIFICATION IS "PROJECTILES FOR CANNON.' IN OUR ORIGINAL AUDIT, THE ARTICLE IN QUESTION WAS RATED AS "FIREWORKS, NOI," BASED ON THE RECORD THEN BEFORE US AND A NOTICE OF OVERPAYMENT WAS ISSUED ACCORDINGLY. SUBSEQUENTLY, AFTER AN EXTENSIVE INVESTIGATION, WE ISSUED AN AMENDED NOTICE OF OVERPAYMENT PREDICATED ON THE RATE PROVIDED FOR "CHEMICALS, NOI," ON THE PREMISE THAT THE SMOKE CANISTER IS PROPERLY RATABLE AS A COMBINATION ARTICLE AND THE HIGHEST RATED COMPONENT CONTAINED THEREIN IS THE SMOKE-PRODUCING CHEMICAL. SUCH CLASSIFICATION IS NOW CONSIDERED HERE TO BE PROPER AND WE PERCEIVE NOTHING IN YOUR PROTEST WHICH WOULD WARRANT OUR MODIFYING SUCH CONCLUSION. HOWEVER, IT IS NOTED THAT THIS QUESTION IS NOW PENDING IN MALONE FREIGHT LINES, INC. V. UNITED STATES, COURT OF CLAIMS NO. 476 58, AND SHOULD A FINAL JUDICIAL DETERMINATION OF THIS ISSUE IN THE CITED COURT OF CLAIMS CASE BE ADVERSE TO OUR CONCLUSION AS TO THE PROPER CLASSIFICATION AND YOU FEEL THAT BASED THEREON ADDITIONAL AMOUNTS ARE DUE YOU OR THAT OUR AUDIT ACTION SHOULD BE REVERSED CONSIDERATION WILL BE GIVEN THERETO AT YOUR REQUEST AT THAT TIME. IN THE INTERIM WE PERCEIVE NO PROPER BASIS FOR MODIFYING OUR AUDIT ACTION OR PROCEDURES TO RECOVER BY DEDUCTION FROM SUBSEQUENT BILLS WHICH RIGHT WAS SPECIFICALLY RESERVED TO THE GOVERNMENT BY 49 U.S.C. 66 AMOUNTS DEEMED IMPROPERLY TO HAVE BEEN PAID.