B-148582, JUL. 8, 1963

B-148582, JUL. 8, 1963

TO NAVAJO FREIGHT LINES, INC.:

WE REFER TO YOUR LETTER OF DECEMBER 18, 1962, REQUESTING REVIEW OF OUR DECISION B-148582, DECEMBER 3, 1962, SUSTAINING THE SETTLEMENT IN CLAIM TK -711796 OF FEBRUARY 12, 1962, WHICH DISALLOWED YOUR CLAIM, BILL 28-A-10-22 -A, FOR $260.33. WE HAVE CONSIDERED THE MATTERS DISCUSSED IN YOUR LETTER IN RELATION TO OUR DECISION OF DECEMBER 3 AND FIND NO BASIS FOR ITS CHANGE OR MODIFICATION.

YOUR LETTER REITERATES THE FACTS AND ARGUMENTS ADVANCED IN YOUR ORIGINAL REQUEST FOR OUR REVIEW OF THE SETTLEMENT IN CLAIM TK-711796. ALL OF THESE WERE THOROUGHLY CONSIDERED PRIOR TO THE ISSUANCE OF THAT DECISION. YOU ALSO IMPLY THAT OUR REFERENCE TO CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, 303 I.C.C. 576, WAS A RELIANCE ON THAT DECISION OF THE INTERSTATE COMMERCE COMMISSION AS CONTROLLING HERE AND AS COMPELLING THE CONCLUSION WE REACHED. YOU CITE THE DECISION IN CAMPBELL "66" EXPRESS, INC. V. UNITED STATES, 302 F.2D 270 (1962), AND THE JUDGMENT ENTERED IN NAVAJO FREIGHT LINES, INC. V. UNITED STATES, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO, CIVIL ACTION NO. 6753, WHICH YOU VIEW AS OVERRULING THE CURTIS LIGHTING CASE. NEITHER OF THESE CASES, WHICH INVOLVE TARIFF RULES CONCERNING CHARGES FOR EXCLUSIVE USE OF VEHICLES, IS IN POINT HERE.

OUR DECISION WAS NOT BASED UPON THE CURTIS LIGHTING CASE, WHICH WE MENTIONED ONLY BY WAY OF COMPARISON. IT WAS, INSTEAD, GROUNDED UPON THE FACTS OF THE SHIPMENTS CONCERNED AND UPON THE PROVISIONS OF THE GOVERNING CLASSIFICATION AND TARIFF. THE APPLICABLE TARIFF, INTERSTATE FREIGHT CARRIERS' CONFERENCE, INC., LOCAL AND JOINT FREIGHT TARIFF NO. 1-C, MF- I.C.C. NO. A-5, IS GOVERNED BY NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 11, MF-I.C.C. NO. 1, WHICH PROVIDES IN ITEM 73230 A LESS-THAN-TRUCKLOAD RATING OF CLASS 3 AND A VOLUME RATING OF CLASS 4, SUBJECT TO A VOLUME MINIMUM WEIGHT OF 20,000 POUNDS, FOR APPLICATION ON BOMB FIN ASSEMBLIES. RULE 13, SECTION 3 (A), PROVIDES THAT VOLUME OR TRUCKLOAD RATINGS OR RATES APPLY ONLY WHEN A VOLUME OR TRUCKLOAD OF FREIGHT IS SHIPPED. THE THREE SHIPMENTS ON WHICH YOU CLAIM THE ADDITIONAL CHARGES WHICH WERE DISALLOWED IN CLAIM TK-711796 WERE LOTS OF 15,680 POUNDS, 16,912 POUNDS, AND 15,344 POUNDS, EACH TRANSPORTED IN A SEALED VEHICLE FILLED TO CAPACITY.

AT THE TIME THE SHIPMENTS MOVED, TARIFF NO. 1-C CONTAINED NO "CAPACITY LOAD" RULE--- NO PROVISION THAT LESS-THAN-TRUCKLOAD SHIPMENTS OCCUPYING THE ENTIRE SPACE OF THE VEHICLES IN WHICH LOADED WOULD BE SUBJECT TO TRUCKLOAD OR VOLUME RATES AND MINIMUM WEIGHTS. THE TARIFF ALSO WAS SILENT ON THE MATTER OF TENDERING SHIPMENTS AS LESS-THAN TRUCKLOAD OR TRUCKLOAD. IN THE LIGHT OF CLASSIFICATION RULE 13, PROVIDING THAT VOLUME OR TRUCKLOAD RATINGS AND RATES APPLY ONLY WHEN A VOLUME OR TRUCKLOAD OF FREIGHT IS SHIPPED, AND OF THE GENERAL RULE THAT CHARGES BASED UPON A GREATER MINIMUM WEIGHT APPLY ONLY IF LOWER THAN CHARGES COMPUTED AT THE ACTUAL WEIGHT (COMPARE THE RULE IN ITEM 380 OF TARIFF NO. 1-C), THE SCALE 3 CLASS 3 RATE OF $1.76 PER HUNDRED POUNDS, SUBJECT TO A MINIMUM WEIGHT OF 10,000 POUNDS, PROVIDED IN TARIFF NO. 1-C FOR APPLICATION IN CONNECTION WITH LESS-THAN- TRUCKLOAD OR ANY QUANTITY RATINGS IS THE RATE PROPERLY APPLICABLE TO THESE SHIPMENTS.

IN VIEW OF THE ABOVE TARIFF PROVISIONS, THE SPECIAL CIRCUMSTANCES YOU ALLEGE--- SHIPPER-LOADING TO TRAILER CAPACITY AND IMMEDIATE DISPATCH DIRECT TO DESTINATION UNDER SEAL--- ARE IMMATERIAL IN THE DETERMINATION OF THE ALLOWABLE CHARGES. OUR DECISION OF DECEMBER 3, 1962, WAS CORRECT AND IT IS AFFIRMED.