B-144365, JUL. 10, 1962

B-144365, JUL. 10, 1962

TO DENVER CHICAGO TRUCKING CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 5 AND APRIL 20, 1962, REQUESTING REVIEW OF THE ADJUSTMENTS MADE IN THE FREIGHT CHARGES ON SEVERAL OF YOUR BILLS, AND TO YOUR LETTER OF JUNE 18, 1962, YOUR FILE 94C9, ET AL., INVITING ATTENTION TO THE DECISION IN THE CASE OF CAMPBELL "66" EXPRESS, INC. V. UNITED STATES, 15 FEDERAL CARRIERS CASES, 81,448.

IN CONNECTION WITH THE SEVERAL SHIPMENTS LISTED ON THE FIRST PAGE OF YOUR LETTER OF FEBRUARY 5, 1962, YOU CONTEND THAT "EXCLUSIVE USE OF VEHICLE" OR "SPECIAL MILITARY SERVICE" WAS REQUESTED AND FURNISHED. ALSO, YOU STATE THAT YOU DO NOT UNDERSTAND WHY ADJUSTMENTS WERE MADE IN THE PAID CHARGES ON THESE SHIPMENTS, IN VIEW OF OUR LETTERS OF APRIL 12 AND DECEMBER 11, 1961, B-144365, AUTHORIZING PAYMENT OF THE EXCLUSIVE-USE CHARGE ON YOUR BILL 9186-A, OUR TK-686716, EVEN THOUGH THE BILL OF LADING INDICATED THAT THE VEHICLE WAS LOADED TO FULL VISIBLE CAPACITY. YOU FURTHER STATE THAT YOU SEE NO NEED FOR CONTINUED CONTROVERSY IN REGARD TO THE APPLICABILITY OF THE RULES PERTAINING TO THIS SERVICE, AND INQUIRE IF INSTRUCTIONS HAVE BEEN ISSUED TO THE VARIOUS GOVERNMENTAL AGENCIES INDICATING WHEN TO REQUEST THIS SERVICE AND UNDER WHAT CONDITIONS THEY ARE ALLOWED THIS AUTHORITY.

WHILE WE UNDERSTAND THAT TRAFFIC MANAGEMENT REGULATIONS HAVE BEEN ISSUED FOR THE GUIDANCE OF THE SHIPPING PERSONNEL OF THE VARIOUS GOVERNMENTAL AGENCIES, THE ISSUANCE OF SUCH REGULATIONS IS NOT THE FUNCTION OF OUR OFFICE. UNDER THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66, AND THE BUDGET AND ACCOUNTING ACT OF 1921, 31 U.S.C. 71, OUR OFFICE IS CHARGED WITH THE RESPONSIBILITY OF SETTLING AND ADJUSTING THE AMOUNTS PAID FOR THE TRANSPORTATION SERVICES. IN SO DOING, IT IS OUR DUTY TO GIVE EFFECT TO ALL BINDING DECISIONS AND FINDINGS OF THE REGULATORY BODIES AS WELL AS THOSE OF THE COURTS WHICH AFFECT THE FREIGHT CHARGES.

IN THE CASE OF CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES,303 I.C.C 576, THE INTERSTATE COMMERCE COMMISSION STATED THAT EXCLUSIVE-USE CHARGES WERE DESIGNED TO ACCORD TRUCKLOAD SERVICES TO LESS-THAN TRUCKLOAD SHIPMENTS, AND FOUND THAT SUCH CHARGES WERE INAPPLICABLE TO SHIPMENTS WHICH OCCUPIED THE FULL CAPACITY OF A VEHICLE. IT IS OUR VIEW THAT THE COMMISSION BASED ITS DECISION ON THE NONAPPLICABILITY OF THE EXCLUSIVE-USE CHARGES RATHER THAN ON THE REASONABLENESS OF SUCH CHARGES (ON TRUCKS LOADED TO CAPACITY). IN T.I.M.E. AND DAVIDSON V. UNITED STATES, 359 U.S. 464, THE SUPREME COURT HELD THAT A SHIPPER COULD NOT CHALLENGE IN POST- SHIPMENT LITIGATION THE REASONABLENESS OF MOTOR CARRIERS' PAST CHARGES. IN DECIDING THE CURTIS LIGHTING CASE, THE COMMISSION BASED ITS FINDING ON INAPPLICABILITY OF THE EXCLUSIVE USE CHARGES ON FULLY LOADED VEHICLES, RATHER THAN ON THE UNREASONABLENESS OF SUCH CHARGES.

ALTHOUGH, AS STATED IN YOUR LETTER, THE COURT OF CLAIMS, IN THE CAMPBELL "66 EXPRESS CASE (CT.CL. 296-59), DECIDED THIS ISSUE ADVERSELY TO THE GOVERNMENT, THE DECISION HAS NOT BECOME FINAL AND CONSIDERATION IS BEING GIVEN TO FURTHER PROCEEDINGS THEREIN. ALSO, THIS ISSUE IS PENDING IN T.I.M.E., INC. V. UNITED STATES, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, LUBBOCK DIVISION, CIVIL ACTION 2626 ET AL., AND IN SEVERAL OTHER CASES BEFORE OTHER UNITED STATES DISTRICT COURTS. WE WOULD NOT BE JUSTIFIED IN MAKING A CHANGE IN OUR POSITION UNLESS REQUIRED BY A FINAL DETERMINATION OF THIS QUESTION BY THE COURTS.

IN OUR LETTER OF DECEMBER 11, 1961, B-144365, WE STATED THAT WE HAD AUTHORIZED PAYMENT OF ADDITIONAL CHARGES CLAIMED BY YOUR COMPANY, BASED ON THE EXCLUSIVE USE OF A VEHICLE USED IN PERFORMING SERVICE UNDER BILL OF LADING AF-7362863 (TK-686716), YOUR BILL 9186A. ALTHOUGH THE BILL OF LADING COVERING THAT SHIPMENT WAS ANNOTATED "TRUCK LOADED TO FULL VISIBLE CAPACITY," IT WAS DETERMINED FROM OTHER EVIDENCE THAT THE SHIPMENT DID NOT COMPRISE A CAPACITY LOAD AND, UNDER THE DECISION IN THE CURTIS LIGHTING CASE, YOUR COMPANY WAS ENTITLED TO PAYMENT BASED ON THE EXCLUSIVE USE OF A VEHICLE IN PERFORMING THE TRANSPORTATION SERVICE.

ALTHOUGH THE MAJORITY OF THE SHIPMENTS REFERRED TO IN YOUR LETTER OF FEBRUARY 5, 1962, INVOLVE TRANSPORTATION UPON WHICH YOU CLAIM CHARGES BASED ON THE "EXCLUSIVE USE OF A VEHICLE" OR "SPECIAL MILITARY SERVICE," WE FIND THAT SETTLEMENTS HAVE BEEN ISSUED ON ONLY SIX OF THE SHIPMENTS. UNDER OUR EXISTING PROCEDURES, PROTESTS TO NOTICES OF OVERCHARGE AND CLAIMS FOR ADDITIONAL CHARGES WILL NOT BE REVIEWED BY THE COMPTROLLER GENERAL (TITLE 4 OF THE CODE OF FEDERAL REGULATIONS, SUBCHAPTER D, PART 55). HOWEVER, SINCE IN THIS INSTANCE ALL BUT ONE OF THE SHIPMENTS INVOLVE QUESTIONS AS TO THE APPLICABILITY OF EXCLUSIVE USE OR SPECIAL MILITARY SERVICE, AND SETTLEMENTS HAVE BEEN ISSUED ON SIX THEREOF, WE HAVE GIVEN CONSIDERATION TO ALL OF THE SHIPMENTS REFERRED TO IN YOUR LETTER.

EXAMINATION OF THE SHIPMENTS UPON WHICH SETTLEMENTS HAVE BEEN ISSUED SHOWS THAT THE DISALLOWANCE OF YOUR CLAIM ON BILLS OF LADING AF 6120428 AND AF-612044 (TK-686642), D/C CLAIM 09469, WAS PREVIOUSLY CONSIDERED AND THE DISALLOWANCE SUSTAINED BY OUR LETTER OF APRIL 12, 1961. SINCE YOU HAVE NOT FURNISHED ANY EVIDENCE TO ESTABLISH THAT THE SHIPMENTS WERE IN FACT ACCORDED THE EXCLUSIVE USE OF THE VEHICLES, THERE IS NO JUSTIFICATION FOR THE ALLOWANCE OF YOUR CLAIM.

OUR RECORDS SHOW THAT D/C CLAIM 0138E8 FOR ADDITIONAL CHARGES OF $245.20 ON THE SHIPMENT UNDER BILL OF LADING WY-5383169 (TK-686709) WAS CERTIFIED FOR PAYMENT ON FEBRUARY 23, 1962, AND THAT A CHECK WAS ISSUED TO YOUR COMPANY ON MARCH 13, 1962. BOTH OF THESE DATES ARE SUBSEQUENT TO THE DATE OF YOUR ORIGINAL LETTER AND WE BELIEVE THAT THE CHECK HAS NOW BEEN RECEIVED.

ON THE SHIPMENTS UNDER BILL OF LADING N-30119333 (TK-686637), D/C CLAIM 0420E8, AND BILL OF LADING AF-4860425 (TK-686734), D/C CLAIM 0232G8, OUR PAYMENT RECORDS SHOW THAT THE VEHICLES WERE LOADED TO CAPACITY AND, THEREFORE, THE CHARGES FOR EXCLUSIVE USE DO NOT HAVE APPLICATION.

THE PAYMENT RECORD COVERING THE SHIPMENT UNDER BILL OF LADING WY 6731062 (TK-686719), D/C CLAIM 099J8, SHOWS THAT OF THE $902.22 WITHHELD FROM YOUR ACCOUNTS, $521.20 WAS CERTIFIED FOR PAYMENT TO YOUR COMPANY ON APRIL 20, 1961, AND A CHECK ISSUED ON MAY 8, 1961. YOUR COMPANY THUS HAS BEEN PAID A TOTAL OF $1,820.77, COMPRISED OF TRUCKLOAD CHARGES OF $697.57 AS ORIGINALLY BILLED AND PAID FOR THE FULLY LOADED VEHICLE, AND EXCLUSIVE-USE CHARGES OF $1,123.20 FOR THE OTHER VEHICLE WHICH CONTAINED THE LESS-THAN- TRUCKLOAD QUANTITY. WE COMPUTED THE EXCLUSIVE-USE CHARGE BY THE USE OF THE RATE OF $6.24 PER HUNDRED POUNDS APPLICABLE ON A MINIMUM WEIGHT OF 18,000 POUNDS, IN ACCORDANCE WITH ITEMS 101980 AND 101650 OF ROCKY MOUNTAIN MOTOR TARIFF 3-C, MF-I.C.C. 78.

APPARENTLY, THE REFERENCE IN YOUR LETTER OF FEBRUARY 5, 1962, TO PARAGRAPH 7 OF ITEM 940 OF ROCKY MOUNTAIN MOTOR TARIFF 20-C, MF-I.C.C. 101, WAS IN CONNECTION WITH THE SHIPMENT UNDER BILL OF LADING N 32779894, D/C CLAIM 0240B0. HOWEVER, NOTE 1 OF ITEM 940 (EFFECTIVE ON THE DATE OF THE FREIGHT MOVEMENT) SPECIFICALLY EXCLUDES THE APPLICATION OF THIS ITEM ON TRAFFIC MOVING FOR THE MILITARY SERVICES AND PROVIDES FOR THE APPLICATION OF ITEM 935 COVERING SPECIAL MILITARY SERVICE. SINCE LOWER CHARGES RESULT FROM THE APPLICATION OF ITEM 190 OF ROCKY MOUNTAIN MOTOR TAFIFF BUREAU U.S. GOVERNMENT QUOTATION 51, I.C.C. 4, COVERING THE SAME TYPE SERVICE, SUCH LOWER CHARGES SEEM PROPER FOR APPLICATION.

IN CONNECTION WITH THE ADJUSTMENT MADE IN THE FREIGHT CHARGES ON THE SHIPMENT UNDER BILL OF LADING AF-417134 ( D/C CLAIM (0) 303H1) WE NOTE THAT YOU WERE FURNISHED A COPY OF THE LETTER WHEREIN THE ADMINISTRATIVE SHIPPING OFFICE ADVISED THAT THE VEHICLES WERE LOADED TO CAPACITY. ACCORDINGLY, IT IS OUR VIEW THAT THE EXCLUSIVE-USE CHARGES ARE INAPPLICABLE TO THIS SHIPMENT. REGARDING YOUR REFERENCE TO BILL OF LADING A-1631922, WE ARE ENCLOSING A COPY OF THE LETTER RECEIVED FROM THE ORRVILLE METAL SPECIALTY COMPANY, DATED JUNE 5, 1962, WHEREIN IT IS STATED THAT THEIR RECORDS SHOW THAT THIS SHIPMENT CONSISTED OF THREE CRATES OF SIX HOODS AND ONE CRATE OF SEVEN HOODS, NESTED ONE WITHIN ANOTHER SO THAT EACH UPPER ARTICLE DID NOT PROJECT FROM THE NEXT LOWER MORE THAN ONE-THIRD OF ITS HEIGHT. THIS STATEMENT CORROBORATES THE CORRECTED DESCRIPTION FURNISHED BY THE ADMINISTRATIVE OFFICE AND WOULD, IN ITSELF, SEEM SUFFICIENT EVIDENCE UNDER THE DECISION IN JANICE, INC. V. ACME FAST FREIGHT, INC., 302 I.C.C. 596.

THE REMAINING SHIPMENTS REFERRED TO IN YOUR LETTER ALL SEEM TO INVOLVE SHIPMENTS WHICH OCCUPIED THE FULL CAPACITY OF THE VEHICLES, AND IT IS OUR VIEW THAT UNDER THE CURTIS LIGHTING CASE THE EXCLUSIVE USE CHARGES ARE NOT APPLICABLE AND NO FURTHER ACTION WILL BE TAKEN WITH RESPECT THERETO. SHOULD THE FINAL DECISION OF THE COURTS BE ADVERSE TO THE GOVERNMENT'S POSITION, HOWEVER, WE WILL, AT YOUR REQUEST, GIVE FURTHER CONSIDERATION TO CLAIMS BY YOUR COMPANY PROVIDING, OF COURSE, THAT THE STATUTE OF LIMITATIONS DOES NOT PRECLUDE SUCH ACTION.