B-148238, JUL. 31, 1962

B-148238, JUL. 31, 1962

TO THE UNION PACIFIC RAILROAD COMPANY:

IN YOUR LETTER OF FEBRUARY 14, 1962, FILE GTW 284202, YOU REQUEST REVIEW OF OUR PARTIAL DISALLOWANCE IN THE AMOUNT OF $874.62 OF YOUR CLAIM, PER BILL NO. W-284202-A, IN THE AMOUNT OF $1,318.38 ALLEGED TO BE DUE AS ADDITIONAL FREIGHT CHARGES FOR THE TRANSPORTATION FROM MIDDLETOWN, PENNSYLVANIA, TO ONTARIO, CALIFORNIA, OF 13 ITEMS WEIGHING 25,800 POUNDS DESCRIBED ON GOVERNMENT BILL OF LADING NO. AF-8013889, DATED JUNE 11, 1958, AS "STANDS, NOIBN, O/T FURNITURE, KD, O/T T.'

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES IN THE AMOUNT OF $1,612.50 COMPUTED ON THE BASIS OF A RATE OF $6.25 PER 100 POUNDS IN ACCORDANCE WITH TRANSCONTINENTAL FREIGHT BUREAU TARIFF NO. 1015, I.C.C.NO. 1579. THEREAFTER YOU FILED YOUR SUPPLEMENTAL BILL FOR THE ADDITIONAL AMOUNT ON THE BASIS OF THE CLASS 100 RATE OF $11.36 PER 100 POUNDS AS PUBLISHED IN TCFT TARIFF NO. 1015 SUBJECT TO A MINIMUM WEIGHT OF 10,000 POUNDS, RATING THE ARTICLE AS A SCIENTIFIC INSTRUMENT IN ACCORDANCE WITH ITEM 33190 OF THE UNIFORM CLASSIFICATION NO. 4.

IN RESPONSE TO AN INQUIRY FROM OUR OFFICE THE ADMINISTRATIVE OFFICE ADVISED THAT THE SUBJECT SHIPMENT CONSISTED OF A STAND, TEST, FUEL ACCESSORY, FSN-4920-589-8426. IN RELIANCE ON THIS INFORMATION WE COMPUTED THE CHARGES ON THE BASIS OF A CLASS 70 RATE OF $7.97 PER 100 POUNDS AT A CARLOAD MINIMUM WEIGHT OF 24,000 POUNDS APPLICABLE TO ELECTRICAL INSTRUMENTS, NOIBN, IN ACCORDANCE WITH ITEM NO. 34580 OF UFC NO. 4. THIS ACTION RESULTED IN PARTIAL PAYMENT OF YOUR BILL TO THE EXTENT OF $443.76.

IN YOUR REQUEST FOR REVIEW YOU STATE THAT ON INVESTIGATION OF DAMAGE WHICH OCCURRED IN TRANSIT IT WAS FOUND THAT THE:

"ENTIRE SHIPMENT WAS INTEGRAL PARTS OF AN ELECTRONIC JET FUEL PARTS TESTER.' CLAIM WAS THEREFORE SETTLED ON BASIS OF THE VALUE OF A HIGHLY COMPLICATED ELECTRONIC DEVICE.

FOR THIS REASON YOU CLAIM ADDITIONAL CHARGES ON THE BASIS OF SCIENTIFIC INSTRUMENTS.

IN VIEW OF YOUR CONTENTION A FURTHER INQUIRY WAS DIRECTED TO THE ADMINISTRATIVE OFFICE IN AN EFFORT TO OBTAIN ADDITIONAL INFORMATION CONCERNING THE CORRECT DESCRIPTION AND PROPER CLASSIFICATION OF THE ARTICLES SHIPPED. IN REPLY THE ADMINISTRATIVE OFFICE ADVISED THAT THE STAND, TEST, FUEL ACCESSORY, FSN-4920-589-8426, IS PROPERLY RATEABLE AS AN ELECTRICAL INSTRUMENT, NOIBN, AND CONSISTS OF A MOTOR 400 CYCLE POWER SUPPLY, FLOW METERS, GAGES, CABINETS, AND OTHER ELECTRICAL EQUIPMENT WHICH IS USED TO TEST THE PERFORMANCE AND OPERATING CHARACTERISTICS OF VARIOUS FUEL ACCESSORIES RELATED TO THE JET ENGINE, MODEL J-79. IT FURTHER REPORTED THAT INSOFAR AS THE SCIENTIFIC INSTRUMENTS, NOIBN, DESCRIPTION IS CONCERNED, IT CONSIDERED THIS DESCRIPTION APPLICABLE ONLY TO THOSE ARTICLES USED IN RESEARCH IN THE FIELD OF MEDICINE, CHEMISTRY, BIOLOGY, ASTRONOMY, ETC. IN ADDITION A SECOND INDORSEMENT FROM HEADQUARTERS, MILITARY TRAFFIC MANAGEMENT AGENCY, U.S. ARMY, WASHINGTON 25 D.C., ADDRESSED TO THE COMMANDER, MIDDLETOWN AIR MATERIEL AREA, OLMSTED AIR FORCE BASE, MIDDLETOWN, PENNSYLVANIA, ADVISED THAT INSTALLATION AS FOLLOWS:

"IT IS THE OPINION OF THIS HEADQUARTERS THAT STAND, TEST, FUEL ACCESSORY, JET ENGINE, FNS-4920-589-8426, IS PROPERLY RATEABLE AS ELECTRICAL INSTRUMENTS, NOIBN, UFC ITEM 34580; NMFC ITEM 34370.'

RESOLUTION OF THE QUESTION CONCERNING THE PROPER DESCRIPTION OF THE ITEM FOR PURPOSES OF CLASSIFICATION IS DEPENDENT LARGELY UPON MATTERS OF FACT AS TO THE CONSTRUCTION, OPERATION AND USE OF THE EQUIPMENT--- MATTERS PECULIARLY WITHIN THE KNOWLEDGE OF THE DEPARTMENT OF THE ARMY- - AND ACCORDINGLY THIS OFFICE WOULD NOT BE JUSTIFIED IN CONCLUDING WITHOUT A POSITIVE AND DEFINITE SHOWING OF ERROR IN THE ADMINISTRATIVE CONCLUSION THAT A HIGHER RATING SHOULD BE APPLIED CONTRARY TO THE ADMINISTRATIVE DETERMINATION BASED UPON ITS INTIMATE KNOWLEDGE OF THE FACTS INVOLVED. SEE BUCH EXPRESS, INC. V. UNITED STATES, 132 CT.CL. 772. THE PRESENT RECORD ON THE CONTRARY TENDS TO SUBSTANTIATE THE ADMINISTRATIVE DETERMINATION.

THE COVERING GOVERNMENT BILL OF LADING INDICATES THAT THE ITEM WAS CONSIGNED TO THE GENERAL ELECTRIC COMPANY, ONTARIO INTERNATIONAL AIRPORT, FOR USE ON A LOAN BASIS IN THE AIRCRAFT APPARATUS SERVICE SHOP. APPARENTLY, THEREFORE, IT WAS TO BE USED BY MECHANICS IN SERVICING JET FUEL LINES AND OTHER FUEL ACCESSORIES AND NOT FOR THE USE OF SCIENTISTS IN SCIENTIFIC RESEARCH.

IN BUCH EXPRESS, INC. V. UNITED STATES, SUPRA, SHIPMENTS OF RADAR EQUIPMENT WERE HELD TO BE PROPERLY RATED AS ELECTRICAL APPLIANCES RATHER THAN AS SCIENTIFIC INSTRUMENTS FOR THE REASON, IN PART, THAT THE OPERATORS DID NOT NEED SCIENTIFIC TRAINING AND THE ITEMS WERE NOT PARTICULARLY DELICATE BUT WERE DESIGNED FOR ARMY FIELD USE. CONCERNING THE SCIENTIFIC INSTRUMENTS COMMODITY DESCRIPTION IN THE CLASSIFICATION, THE COURT OF CLAIMS STATED THAT THE OTHER ITEMS LISTED UNDER THE SAME GENERIC HEADING" * * * SHOWS THAT THOSE TERMS AS THEY ARE USED CLEARLY INDICATE DELICATE AND PRECISE * * * INSTRUMENTS.' THE EVIDENCE IN THE PRESENT RECORD TENDS TO INDICATE THAT THE ..END :