B-146557, FEB. 4, 1963

B-146557, FEB. 4, 1963

TO LOUIS LINTON DENT, ESQUIRE:

WE REFER TO YOUR LETTER OF JANUARY 9, 1962, AND OUR REPLY DATED JANUARY 24, 1962, WHEREIN WE INFORMED YOU THAT IT WOULD BE NECESSARY TO SEEK FURTHER INFORMATION FROM THE ADMINISTRATIVE AGENCY CONCERNING THE NATURE AND MANUFACTURING DETAILS OF AN ARTICLE TRANSPORTED FOR THE GOVERNMENT BY YOUR CLIENT, HINCHCLIFF MOTOR SERVICE, INC. YOUR LETTER REQUESTS A REVIEW OF THE SETTLEMENTS WHICH DISALLOWED YOUR CLIENT'S CLAIM FOR ADDITIONAL ALLOWANCES, PER BILLS 1 54065, 1 96307 AND 1 39073 (OUR CLAIMS TK-709114, TK-709115 AND TK-709959) AND FOR RECOVERY OF STATED OVERCHARGES FOUND IN THE ORIGINAL PAYMENT VOUCHERS WHICH HAVE BEEN COLLECTED BY DEDUCTION. WITH THIS LETTER YOU FURNISHED SUPPORTING AFFIDAVITS EXECUTED BY N. F. BEHME, JR., CHAIRMAN OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION BOARD, AND RICHARD H. HINCHCLIFF, VICE-PRESIDENT OF THE CLAIMANT. THE TOTAL AMOUNT DISALLOWED IN THE SETTLEMENT OF THESE THREE BILLS IS $30,188.10, WHICH INCLUDES $9,678.42 PREVIOUSLY RECOVERED BY DEDUCTION FOR OVERCHARGES ON THE ORIGINAL PAYMENT VOUCHERS.

THE PRESENT CONTROVERSY CENTERS UPON THE PROPER FREIGHT CLASSIFICATION TO BE USED IN ASSESSING FREIGHT CHARGES FOR THE TRANSPORTATION OF THE COMMODITY MANUFACTURED BY THE LONGREN--- CALIFORNIA DIVISION, AERONCA MANUFACTURING COMPANY, TORRANCE, CALIFORNIA, AND SHIPPED THEREFROM TO THE DAYTON AIR FORCE DEPOT, DAYTON, OHIO, ON BILLS OF LADING AF-6936209 AND AF -6936212, ON WHICH THE COMMODITY WAS DESCRIBED AS "EQUIPMENT SHELLS FOR AIRCRAFT.' SIMILAR ARTICLES, BUT DESCRIBED AS ,20 BXS CASE COUNTER MEASURES CHAFF DISPENSING AN TYPE APPLICABLE TO AM/ALE-2," WERE TRANSPORTED ON BILL OF LADING AF-8909633 IN AUGUST 1958, FROM CANNON AIR FORCE BASE, NEW MEXICO, TO GENTILE AIR FORCE STATION, DAYTON, OHIO.

THE CLAIMANT CONTENDS THAT THESE ARTICLES, OF WHICH THE SHELL WAS MADE FROM SHEET ALUMINUM .040 INCHES THICK, ARE PROPERLY CLASSIFIABLE AS "TANKS, ALUMINUM, SU THINNER THAN 18 GAUGE.' MR. BEHMA'S SUPPORTING AFFIDAVIT STATES THAT HE EXAMINED THE MANUFACTURER'S "BILL OF MATERIALS" AND THE AIR FORCE BLUEPRINTS, FROM WHICH HE DETERMINED THAT THE COMMODITY SHOULD BE SO CLASSIFIED. MR. HINCHCLIFF'S AFFIDAVIT RELIES UPON THIS DETERMINATION AS TO THE PROPER CLASSIFICATION, RELATES THE HISTORY OF THE CONTROVERSY, AND EXPLAINS THE RATES AND TARIFF AUTHORITIES USED IN ARRIVING AT THE TOTAL CHARGES UPON WHICH THE CLAIM FOR $30,188.10 DEPENDS.

FROM OUR INVESTIGATION, WHICH INCLUDED EXAMINATION OF THE CONTRACT, THE BLUEPRINTS AND PHOTOGRAPHS OF THE COMMODITY, WE LEARNED THAT THE ARTICLE MANUFACTURED UNDER CONTRACT AF-33/600/31468 WITH THE WEBCOR CORPORATION, CHICAGO, ILLINOIS, WAS THE AN/ALE-2 CHAFF DISPENSER: AN ELONGATED ELLIPSOID ALUMINUM CONTAINER WITH A LONG TAIL CONE FOR EXTERNAL SUSPENSION FROM AIRCRAFT, EQUIPPED WITH INTERIOR FITTINGS, INCLUDING AN ELECTRICAL DISPENSING MECHANISM FOR CARRYING AND DISPENSING CHAFF TO JAM RADAR AND DISTORT COMMUNICATION SYSTEMS. MANUFACTURE OF THE CASE AND THE INTERIOR FITTINGS OTHER THAN THE DISPENSING MECHANISM WAS SUBCONTRACTED TO THE LONGREN DIVISION OF THE AERONCA MANUFACTURING COMPANY AND IT WAS SUCH A CASE--- WITHOUT THE DISPENSING MECHANISM--- WHICH WAS TRANSPORTED ON THE INVOLVED BILLS OF LADING. AS SHIPPED, THE ARTICLES CONSISTED OF THE ALUMINUM CASE WITH THE HOPPER ASSEMBLY (THE HOPPER IS THE STORAGE BOX FOR CARRYING THE CHAFF) BUILT IN AS AN INTEGRAL PART OF THE STRUCTURE AT ITS BLUNT END. INCLUDED ALSO WAS APPROXIMATELY 8 POUNDS OF ELECTRICAL EQUIPMENT FOR CONNECTING THE SEVERAL COMPONENTS OF THE COMPLETE ARTICLE AND FOR RECEIVING THE OUTSIDE SOURCE OF ELECTRIC POWER. THIS EQUIPMENT CONSISTED OF AN ELECTRICAL RELAY, TWO TRANSFORMERS AND THE CONNECTION FITTINGS. AS SHIPPED ON THESE BILLS OF LADING, THE TAIL CONE END OF THE STRUCTURE WAS EMPTY EXCEPT FOR THE FITTINGS NECESSARY TO RECEIVE AND ATTACH THE ELECTRICAL DISPENSING MECHANISM WHEN INSTALLED.

IN THE ABSENCE OF A SPECIFIC LISTING OF THIS ARTICLE IN THE EFFECTIVE NATIONAL MOTOR FREIGHT CLASSIFICATION (NO. A-3, MF-I.C.C. NO. 8 AND NO. A- 4, MF-I.C.C. NO. 1) AND IN VIEW OF THE ELECTRICAL INSTRUMENTATION CONTAINED IN THE HOPPER, IT HAS BEEN CONSIDERED IN CONNECTION WITH OTHER SHIPMENTS OF THIS ARTICLE TO SAN ANTONIO, TEXAS, THAT IT MAY BE PROPERLY RATABLE AS A COMBINATION ARTICLE UNDER RULE 15 OF THE CLASSIFICATION, WHICH PROVIDES FOR PAYMENT OF CHARGES AT THE RATING AND MINIMUM WEIGHT FOR THE HIGHEST CLASSIFIED ARTICLE IN THE COMBINATION. THE ELECTRICAL FITTINGS WOULD THEREFORE BE CLASSIFIED UNDER ITEM 34370 AS "ELECTRICAL APPLIANCES OR INSTRUMENTS, NOI," LESS THAN-TRUCKLOAD RATING CLASS 100, VOLUME RATING CLASS 70, VOLUME MINIMUM WEIGHT 24,000 POUNDS. THE REAL QUESTION, OF COURSE, IS THE PROPER CLASSIFICATION OF THE ALUMINUM CASE AND HOPPER. THIS ARTICLE IN FACT IS NOT A TANK--- A "TANK" IS ORDINARILY A RECEPTACLE FOR LIQUIDS. AMERICAN TANK CO. V. REVERT OIL CO., 108 KAN. 690, 196 P. 1111, 1112; A. G. REEVES CONSTRUCTION CO. V. LOUISVILLE AND NASHVILLE R.CO., 186 I.C.C. 730 (1932). SEE ALSO WEBSTER'S NEW INTERNATIONAL DICTIONARY, UNABRIDGED, SECOND EDITION, WHICH DEFINES A TANK AS "A LARGE BASIN, CISTERN, OR OTHER ARTIFICIAL RECEPTACLE FOR LIQUIDS.' THE ONLY AUTHORITY FOR CLASSIFYING THE CASE AND HOPPER AS THE CLAIMANT CONTENDS UNDER ITEM 88620 OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION AS "TANKS, ALUMINUM, SU 18 GAUGE OR THINNER" WOULD BE THE RULE OF ANALOGY--- THAT WHERE NO RATING IS PROVIDED FOR AN ARTICLE, ITS RATING SHOULD BE THAT PROVIDED FOR THE ARTICLE WHICH IS MOST CLOSELY ANALOGOUS. THE RULE OF ANALOGY MAY NOT BE APPLIED HERE, HOWEVER, BECAUSE RULE 14 OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION, ENTITLED "CLASSIFICATION BY ANALOGY," PERMITS APPLICATION OF THE RULE ONLY WHERE NO RATING IS PROVIDED FOR AN ARTICLE,"EITHER BY ITS SPECIFIC NAME OR EMBRACED IN A NOI ITEM.' SINCE ITEM 3290 PROVIDES RATINGS FOR "ALUMINUM ARTICLES, NOI" (NOT OTHERWISE INDEXED), THE CASE AND HOPPER, NOT SPECIFICALLY INDEXED IN THE CLASSIFICATION, SHOULD THEREFORE BE "EMBRACED IN AN NOI ITEM" AND THE RATING THERE PROVIDED IS REQUIRED TO BE USED RATHER THAN THAT PROVIDED FOR AN ANALOGOUS ARTICLE.

IT IS CLEAR, THEN, THAT THE CHAFF DISPENSER CASE ASSEMBLY, AS SHIPPED ON THESE BILLS OF LADING, MAY BE CONSIDERED FOR CLASSIFICATION PURPOSES TO BE A COMBINATION ARTICLE CONSISTING OF THE ALUMINUM CASE AND HOPPER EQUIPPED WITH CERTAIN ELECTRICAL FITTINGS. THE ALUMINUM CASE AND HOPPER WERE PROPERLY CLASSIFIED AS "ALUMINUM ARTICLES NOI," UNDER ITEM 3290 OF THE CLASSIFICATION AND THE ELECTRICAL FITTINGS AS "ELECTRICAL APPLIANCES OR INSTRUMENTS, NOI," UNDER ITEM 34370. EACH OF THESE ITEMS PROVIDES A LESS- THAN-TRUCKLOAD RATING OF CLASS 100; IN ACCORDANCE WITH ITEM 680 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU, INC., AGENT, TRANSCONTINENTAL TERRITORIAL DIRECTORY NO. 20-A, MF-I.C.C. NO. 79, LESS-THAN-TRUCKLOAD RATINGS AND RATES APPLY TO THE ACTUAL WEIGHT OF THESE SHIPMENTS. FOR THE SHIPMENT OF 7,600 POUNDS FROM CANNON AIR FORCE BASE, NEW MEXICO, TO DAYTON, OHIO, ON BILL OF LADING AF-8909633, THE APPLICABLE CLASS 100 RATE IS $5.43 PER HUNDRED POUNDS, PUBLISHED IN MIDDLEWEST MOTOR FREIGHT BUREAU AGENT, TARIFF NO. 45-B, MF-I.C.C. 296. ON BILLS OF LADING AF-6936209 AND AF-6936212, COVERING SHIPMENTS WEIGHING 75,942 POUNDS AND 74,466 POUNDS, FROM TORRANCE TO DAYTON, THE LESS-THAN-TRUCKLOAD COMMODITY RATE APPLICABLE TO BOTH ALUMINUM ARTICLES, NOI, AND ELECTRICAL INSTRUMENTS,NOI, IS $8.19 PER HUNDRED POUNDS, PUBLISHED IN ROCKY MOUNTAIN MOTOR TARIFF BUREAU, INC., AGENT, EASTBOUND TRANSCONTINENTAL DESCRIPTIVE COMMODITY TARIFF NO. 24, MF I.C.C. NO. 80, ITEMS 2050 AND 2645, AND EASTBOUND TRANSCONTINENTAL COMMODITY TARIFF NO. 26, MF-I.C.C. NO. 61.

SINCE THE SETTLEMENTS ON YOUR CLIENT'S BILLS REFLECT APPLICABLE CHARGES COMPUTED AT THE ABOVE RATES, THEY ARE THEREFORE CORRECT AND ARE SUSTAINED.