B-141535, MAY 4, 1960

B-141535, MAY 4, 1960

TO CRUTCHER TRANSFER LINE:

WE HAVE YOUR LETTER OF APRIL 12, 1960, IN WHICH YOU, IN EFFECT, REQUEST RECONSIDERATION OF OUR DECISION OF MARCH 30, 1960, B-141535, SUSTAINING THE DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES OF $34.69, ALLEGED TO BE DUE ON A MIXED SHIPMENT CONSISTING, IN PART,OF TWO RADIAL CYLINDER INTERNAL COMBUSTION ENGINES TRANSPORTED FROM FORT WORTH, TEXAS, TO FORT KNOX, KENTUCKY, UNDER GOVERNMENT BILL OF LADING NO. WY-9007970 DATED JULY 2, 1958.

YOUR CLAIM FOR ADDITIONAL CHARGES IS BASED UPON THE USE OF AN UNRELEASED COLUMN-100 COMMODITY RATING PROVIDED IN ITEM NO. 61243 OF SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 515-C, MF-I.C.C. NO. 960, FOR APPLICATION ON LTL SHIPMENTS OF RADIAL CYLINDER OR JET PROPULSION TYPE INTERNAL COMBUSTION ENGINES. IN YOUR REQUEST FOR REVIEW, DATED DECEMBER 16, 1959, YOU ARGUED THAT THIS COMMODITY RATING SUPERSEDED THE CLASS-85 LTL RATING PROVIDED IN ITEM NO. 61243 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4, MF-I.C.C. NO. 1, FOR APPLICATION ON INTERNAL COMBUSTION ENGINES, NOI, WHEN RELEASED TO A VALUE NOT EXCEEDING $2.50 PER POUND, WHICH WAS USED IN OUR DISALLOWANCE OF YOUR CLAIM. WE SUSTAINED THE DISALLOWANCE, HOWEVER, ON THE BASIS OF THE DECISION OF THE INTERSTATE COMMERCE COMMISSION IN UPJOHN CO. V. PENNSYLVANIA R. CO., 306 I.C.C. 325, IN WHICH THE COMMISSION HELD THAT THE RELEASED AND UNRELEASED CLASSIFICATION RATINGS SHOULD BE CONSIDERED, FROM A TRANSPORTATION STANDPOINT, AS SEPARATE AND DISTINCT ITEMS, AND THAT THE UNRELEASED COMMODITY RATE SUPERSEDED ONLY THE UNRELEASED CLASSIFICATION RATING. ALSO REFERRED TO AMERICAN HOME FOODS, INC. V. DELAWARE, LACKAWANNA AND WESTERN R. CO., 303 I.C.C. 655, AND DOW CHEMICAL CO. V. CHESAPEAKE AND OHIO RY. CO., 306 I.C.C. 403, WHICH ARE TO THE SAME EFFECT.

IN YOUR REQUEST FOR RECONSIDERATION YOU ALLEGE THAT THE CLASSIFICATION ITEMS AND THE COMMODITY ITEM INVOLVED IN THE UPJOHN CASE COVERED THE SAME COMMODITY; VIZ. DRUGS; WHEREAS IN THE PRESENT CASE CLASSIFICATION ITEMS NOS. 61243 AND 61247 CONCERN INTERNAL COMBUSTION ENGINES, NOI, AND THE EXCEPTION ITEM NO. 61243, IN SMCRC TARIFF NO. 515-C CONCERNS, SPECIFICALLY, RADIAL CYLINDER OR JET PROPULSION TYPE INTERNAL COMBUSTION ENGINES FOR USE IN AIRCRAFT AND, THEREFORE, THAT THE DECISION IN THE UPJOHN CASE IS NOT PERTINENT. HOWEVER, ON THE SECOND PAGE OF OUR DECISION OF MARCH 30, WE QUOTED AN EXCERPT FROM A LETTER WRITTEN BY W. B. HAMMER, ASSISTANT DIRECTOR, BUREAU OF TRAFFIC, INTERSTATE COMMERCE COMMISSION, TO THE M.R. AND R. TRUCKING COMPANY, CRESTVIEW, FLORIDA. AN AUTOSTATIC COPY OF THAT LETTER IS ENCLOSED, TOGETHER WITH A COPY OF THE LETTER FROM THE COMMISSION REPLYING TO OUR INQUIRY. IN THE LETTER TO THE M.R. AND R. TRUCKING COMPANY, MR. HAMMER CONSIDERED THE APPLICATION OF THE EXCEPTION (UNRELEASED) RATING PUBLISHED IN ITEM NO. 61243, SMCRC TARIFF 515-C, MF- I.C.C. NO. 960, UNDER CIRCUMSTANCES SIMILAR TO THOSE INVOLVED IN THE PRESENT CASE, AND EXPRESSED THE OPINION THAT THE DECISIONS IN THE AMERICAN HOME FOODS CASE, SUPRA, AND IN THE UPJOHN CASE, SUPRA, WERE CONTROLLING, STATING IN THE FINAL PARAGRAPH:

"AS AFORE STATED, IN THE AMERICAN HOME FOODS CASE AND IN THE UPJOHN CASE IT WAS HELD THAT WHILE FROM A COMMERCIAL STANDPOINT THERE WAS NO DIFFERENCE IN THE COMMODITIES WHETHER THEIR VALUE WAS RELEASED OR NOT RELEASED, IT WAS EQUALLY APPARENT THAT THERE WAS A DISTINCT DIFFERENCE FROM A TRANSPORTATION STANDPOINT BY REASON OF THE SHIPPER'S DECLARATION AS TO VALUE. WE THEREFORE ARE STILL OF THE VIEW THAT UNRELEASED ITEM 61243 IN SMCRC 515-C DOES NOT DISPLACE THE RELEASED PROVISIONS IN THE CLASSIFICATION AND WE DO NOT SEE THAT NOTE D THEREIN MAKES ANY MATERIAL CONTRIBUTION IN THIS INSTANCE.'

IN VIEW OF THIS OPINION OUR OFFICE WOULD NOT BE JUSTIFIED IN AUTHORIZING PAYMENT OF YOUR CLAIM. ACCORDINGLY, OUR DECISION OF MARCH 30, 1960, B- 141535, SUSTAINING THE DISALLOWANCE OF YOUR CLAIM, IS AFFIRMED.