B-142342, JUN. 7, 1960

B-142342, JUN. 7, 1960

TO STRICKLAND SYSTEM:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 16, 1960, WHEREIN YOU REQUESTED REVIEW OF OUR SETTLEMENT CERTIFICATE NO. TK 676916, DATED FEBRUARY 2, 1960, WHICH DISALLOWED YOUR CLAIM FOR $211.80, SUBMITTED UNDER YOUR SUPPLEMENTAL BILL NO. 6982-A. THE SERVICE IN QUESTION CONSISTED OF THE TRANSPORTATION OF 2,250 POUNDS OF MILITARY TARGETS, SET UP, FROM BATON ROUGE, LOUISIANA, TO MCGUIRE AIR FORCE BASE, NEW JERSEY, UNDER BILL OF LADING AF-5422294, IN MAY 1957. NOTATIONS ON THE BILL OF LADING INDICATE THAT EXCLUSIVE USE OF A VEHICLE WAS REQUESTED, THAT THE SHIPMENT FILLED THE VEHICLE INTO WHICH IT WAS LOADED TO FULL VISIBLE CAPACITY, AND THAT THE SHIPMENT MOVED UNDER A SEAL APPLIED AT ORIGIN BY THE CONSIGNOR.

MILITARY TARGETS, SET UP, ARE RATED IN THE GOVERNING NATIONAL MOTOR FREIGHT CLASSIFICATION AT CLASS 100 FOR LESS-THAN-TRUCKLOAD LOTS AND AT CLASS 45 FOR VOLUME SHIPMENTS OF 30,000 POUNDS OR MORE. AN EXCEPTION ITEM IN THE PERTINENT TARIFF REDUCES THIS MINIMUM WEIGHT TO 24,000 POUNDS. THE RATES INVOLVED APPARENTLY ARE NOT IN DISPUTE.

FOR THE SERVICE IN QUESTION, YOU BILLED AND WERE PAID THE SUM OF $759, COMPUTED AT THE CLASS 100 RATE OF 506 CENTS PER 100 POUNDS AND AT A MINIMUM WEIGHT OF 15,000 POUNDS, AS NAMED BY THE EXCLUSIVE-USE PROVISIONS OF ITEM 10020-A, SUPPLEMENT 88 TO SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 504, MF-I.C.C. NO. 614. IN THE AUDIT HERE, IT WAS DETERMINED THAT THE ALLOWABLE CHARGES WERE $547.20, THE CHARGE FOR A VOLUME SHIPMENT, BASED ON THE VOLUME RATE OF 228 CENTS PER 100 POUNDS AND A MINIMUM WEIGHT OF 24,000 POUNDS, AND THE RESULTANT OVERPAYMENT WAS DEDUCTED FROM SUMS OTHERWISE DUE YOUR COMPANY. THE LESS-THAN-TRUCKLOAD CHARGE FOR THIS LOT OF FREIGHT WOULD HAVE BEEN $113.85 (2,250 POUNDS AT 506 CENTS PER 100 POUNDS). YOUR RECLAIM OF THE AMOUNT DEDUCTED WAS DENIED BY OUR SETTLEMENT OF FEBRUARY 2 AND YOUR LETTER OF MARCH 16 REQUESTS REVIEW. YOU URGE, IN SUBSTANCE, THAT EXCLUSIVE-USE SERVICE WAS REQUESTED, THAT YOU PERFORMED THE REQUESTED SERVICE, AND THAT YOU ARE, ACCORDINGLY, ENTITLED TO THE EXCLUSIVE-USE CHARGES AT WHICH YOU INITIALLY BILLED.

ITEM 10020-A OF TARIFF NO. 504 PROVIDES THAT, WHEN UPON REQUEST OF SHIPPER OR CONSIGNEE, A VEHICLE IS USED EXCLUSIVELY FOR THE TRANSPORTATION OF A SHIPMENT, CHARGES THEREON SHALL BE COMPUTED AT THE LAWFULLY PUBLISHED RATE, SUBJECT TO A MINIMUM CHARGE COMPUTED AT THE CLASS 100 RATE FOR 15,000 POUNDS. IN CURTIS LIGHTING, INC. V. MID STATES FREIGHT LINES, INC., 303 I.C.C. 576, WHERE DIVISION 2 OF THE INTERSTATE COMMERCE COMMISSION CONSIDERED A SIMILAR RULE, IT WAS STATED THAT "ONCE A VEHICLE IS LOADED TO CAPACITY, A SHIPPER DERIVES NO BENEFIT FROM EXCLUSIVE USE, WHICH IS DESIGNED TO ACCORD TRUCKLOAD SERVICE TO LESS-THAN-TRUCKLOAD SHIPMENTS.' THE COMMISSION THERE DECLINED TO APPLY THE RULE TO A FULLY LOADED VEHICLE DESPITE THE FACT THAT THE BILL OF LADING BORE A NOTATION TO THE EFFECT THAT EXCLUSIVE USE OF A TRAILER HAD BEEN REQUESTED, AND FOUND THAT THE APPLICABLE CHARGES WERE THE TRUCKLOAD CHARGES COMPUTED UNDER AN OVERFLOW RULE IN THE TARIFF.

IT IS APPARENT, THEREFORE, THAT THE COMMISSION VIEWS THE EXCLUSIVE USE RULE AS COVERING ONLY THOSE SITUATIONS WHERE A SHIPPER TENDERS A QUANTITY OF FREIGHT OF LESS BULK THAN THE CAPACITY OF THE VEHICLE INTO WHICH IT IS LOADED. IN DEFERENCE TO THE SHIPPER'S REQUEST FOR EXCLUSIVE USE, THE CARRIER GIVES UP ITS RIGHT TO LOAD OTHER FREIGHT INTO THE VEHICLE, AND IN CONSIDERATION OF THE CARRIER'S RELINQUISHMENT OF THIS RIGHT, THE SHIPPER PAYS THE PREMIUM CHARGE REQUIRED BY THE RULE. NO SUCH CONSIDERATION IS PRESENT, HOWEVER, WHERE THE QUANTITY OF FREIGHT TENDERED BY THE SHIPPER IS SUCH THAT IT FILLS THE VEHICLE TO CAPACITY. THE USE OF THE ENTIRE CAPACITY OF THE VEHICLE IN SUCH AN INSTANCE IS DICTATED BY THE PHYSICAL DIMENSIONS OF THE SHIPMENT RATHER THAN BY THE SHIPPER'S REQUEST FOR EXCLUSIVE USE.

IN THESE CIRCUMSTANCES, THERE BEING NO CONSIDERATION TO THE SHIPPER FOR PAYMENT OF THE PREMIUM CHARGE, IT WOULD SEEM TO FOLLOW THAT THE EXCLUSIVE- USE RULE (ITEM 10020-A) IS NOT APPLICABLE TO THE SHIPMENT IN QUESTION. THE CIRCUMSTANCES DO SUGGEST, HOWEVER, TENDER OF THE PROPERTY FOR HANDLING IN TRUCKLOAD SERVICE, OF GUS BLASS CO. V. POWELL BROS. TRUCK LINE, 53 M.C.C. 603, AND, CONSEQUENTLY, TRUCKLOAD CHARGES, RATHER THAN LESS- TRUCKLOAD CHARGES, WOULD SEEM TO BE APPLICABLE FOR THE SERVICE. THE SETTLEMENT HERE WAS CONSISTENT WITH THIS VIEW AND IT IS, ACCORDINGLY, SUSTAINED.