B-148516, AUG. 6, 1962

B-148516, AUG. 6, 1962

TO GARRETT FREIGHT LINES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 21, 1962, YOUR FILE CARRIER'S FREIGHT BILL 6111-B, ACKNOWLEDGED APRIL 2, 1962, IN WHICH YOU REQUEST REVIEW OF THE SETTLEMENT CERTIFICATE OF NOVEMBER 16, 1961, WHICH DISALLOWED $173.59 OF YOUR CLAIM FOR $192.37 ADDITIONAL CHARGES ALLEGEDLY DUE FOR THE TRANSPORTATION OF ITEMS DESCRIBED ON THE BILL OF LADING AS "CRUCIBILES (SIC) IN BOXES ITEM 47480 NMFC-A-4," WEIGHING 4,920 POUNDS, FORM SPEER CARBON CORPORATION, ST. MARYS, PENNSYLVANIA, CONSIGNED TO THE THIOKOL CHEMICAL CORPORATION, BRIGHAM CITY, UTAH, UNDER GOVERNMENT BILL OF LADING AF-128789 DATED JUNE 19, 1959, AND WHICH SHIPMENT WAS DIVERTED EN ROUTE TO SALT LAKE CITY, UTAH.

FOR SERVICES PERFORMED, YOU ORIGINALLY BILLED AND WERE PAID $332.10, COMPUTED AT RATE OF $6.75 PER 100 POUNDS. SUBSEQUENTLY, ON OCTOBER 20, 1959, YOUR SUPPLEMENTAL BILL NO. 6111-A WAS SUBMITTED FOR $80.40 ADDITIONAL CHARGES BASED ON A COMBINATION RATE OF $5.23 PER 100 POUNDS FROM ST. MARYS, PENNSYLVANIA, TO DENVER, COLORADO, POINT OF DIVERSION, AND $3.14 PER 100 POUNDS TO DESTINATION, SALT LAKE CITY, UTAH, PLUS 69 CENTS FOR DIVERSION CHARGE. OUR SETTLEMENT OF AUGUST 12, 1960, ALLOWED $27.75 ADDITIONAL CHARGES ON A COMBINATION OF RATES OVER THE ROUTE OF MOVEMENT COMPUTED ON THE BASIS OF A CLASS 65 RATING RATHER THAN CLASS 85 URGED BY THE CARRIER. THE BASIS FOR THE CLASS 65 RATING WAS A REPORT FROM THE DEPARTMENT OF THE ARMY THAT THE COMMODITY SHIPPED WAS PROPERLY CLASSIFIED AS A GRAPHITE NOZZLE DESCRIBED IN ITEM 47310 OF THE UNIFORM FREIGHT CLASSIFICATION (ITEM 47520 OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4). ANOTHER SUPPLEMENTAL BILL NO. 6111-B DATED APRIL 19, 1961, WAS SUBMITTED FOR $192.37 ADDITIONAL CHARGES ALLEGING THAT THE COMMODITY SHOULD HAVE BEEN RATED AT CLASS 100 AS "ORDNANCE STORES, NOI" UNDER ITEM 73560 OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION. BY OUR SETTLEMENT OF NOVEMBER 16, 1961, ADDITIONAL CHARGES OF $18.78 OF THE $192.37 CLAIMED WERE ALLOWED ON THE BASIS OF A COMBINATION OF CLASS 70 RATES APPLICABLE TO "GRAPHITE" UNDER ITEM 47430 OF THAT CLASSIFICATION.

YOU AGAIN CONTEND, BY IMPLICATION, THAT THE CHARGES SHOULD BE ASSESSED ON THE CLASS 100 RATING APPLICABLE TO "ORDNANCE STORES, NOI.'

WEBSTER'S NEW INTERNATIONAL DICTIONARY, SECOND EDITION, 1959, DEFINES NOZZLE AND ORDNANCE STORES AS FOLLOWS:

(1) "NOZZLE" IS "A PROJECTING PART; A SMALL BEAK OR NOSE.'

(2) "ORDNANCE STORES" INCLUDES "ALL ARTILLERY WITH MOUNTS, CARRIAGES, EQUIPMENTS, AND AMMUNITION; SMALL ARMS; HORSE EQUIPMENTS AND HARNESS, EXCEPT FOR THE QUARTERMASTERS DEPARTMENT; TOOLS, MACHINERY, AND MATERIAL FOR MAKING OR REPAIRING ANYTHING INCLUDED IN THE TERM, ETC.'

FROM AN ANALYSIS AND EXAMINATION, NOT ONLY OF THE DEFINITIONS SET FORTH ABOVE BUT ALSO OF THE ADMINISTRATIVE REPORTS OF APRIL 7, 1960, AND SEPTEMBER 22, 1961, AND THE PHOTOGRAPHS (A COPY OF EACH REPORT AND PHOTOGRAPH ENCLOSED), THE ARTICLES SHIPPED APPEAR REASONABLY TO CONSTITUTE NOZZLES. THEY WERE MADE OF GRAPHITE. WE, THUS, CONCLUDE THAT THE ARTICLE SHIPPED IS SPECIFICALLY COVERED IN CLASSIFICATION ITEM 47520 UNDER GRAPHITE ARTICLES "NOZZLES OR STOPPER HEADS.' WHERE A COMMODITY IS SPECIFICALLY NAMED IN THE CLASSIFICATION, THE RATE SPECIFIED THEREFORE IS, OF COURSE, APPLICABLE AND THERE IS NO OCCASION TO CONSIDER N.O.I. ITEMS. MOREOVER, THE COURTS HAVE HELD THAT WHERE A SHIPMENT CAN BE INCLUDED IN MORE THAN ONE TARIFF DESIGNATION IT IS PROPER TO SELECT THE ITEM MORE SPECIFICALLY DESCRIPTIONS ARE EQUALLY APPROPRIATE THE SHIPPER IS ENTITLED TO THE LOWER RATE. SEE WEST COAST PRODUCTS CORP. V. SOUTHERN PACIFIC CO., 226 F.2D 830; AND UNITED STATES V. GULF REFINING CO., 268 U.S. 542.

ACCORDINGLY, WE NOW FIND THAT THE PROPER CHARGES FOR THIS SHIPMENT SHOULD BE COMPUTED ON A CLASS 65 RATE OF $4 PER 100 POUNDS TO DENVER AND $3.30 PER 100 POUNDS BEYOND DENVER PLUS A DIVERSION CHARGE OF 69 CENTS. ON THE BASIS OF OUR COMPUTATIONS YOU HAVE BEEN PAID $378.63 FOR THIS SHIPMENT ALTHOUGH THE PROPER CHARGES ARE $359.85. THEREFORE, THE DISALLOWANCE OF YOUR CLAIM FOR $173.59 ADDITIONAL CHARGES IS SUSTAINED AND THE OVERCHARGES OF $18.78 PAID UNDER SUPPLEMENTAL BILL 6111-B SHOULD BE REMITTED PROMPTLY, OTHERWISE THIS ..END :