B-144317, DEC. 1, 1961

B-144317, DEC. 1, 1961

TO WESTERN TRUCK LINES, LTD.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 15, 1961, WITH ENCLOSURE, ACKNOWLEDGED JUNE 26, 1961, REQUESTING FURTHER CONSIDERATION OF THAT PORTION OF OUR DECISION, B-144317, DATED FEBRUARY 20, 1961, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM NO. G-01735 FOR $229.50 AS FREIGHT CHARGES ON THREE SHIPMENTS OF MILITARY TARGETS MOVING FROM LOS ANGELES, CALIFORNIA, TO YUMA, ARIZONA, UNDER GOVERNMENT BILLS OF LADING NOS. AF-6703114, AF-6703115, AND AF-6703116, DURING MARCH 1957, IN ADDITION TO THE NET AMOUNT PREVIOUSLY PAID YOU.

IN THE AUDIT OF THE ORIGINAL PAYMENT VOUCHER IT WAS DETERMINED THAT AN OVERCHARGE OF $229.50 WAS MADE IN YOUR ORIGINAL BILLING FOR THE SERVICES RENDERED PURSUANT TO THE ABOVE TRANSPORTATION REQUESTS. UPON YOUR FAILURE TO REFUND SUCH OVERCHARGE, IT WAS RECOVERED BY DEDUCTION PURSUANT TO SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66 AND YOUR RECLAIM OF SUCH AMOUNT WAS DISALLOWED. THE DISALLOWANCE WAS SUSTAINED ON THE BASIS OF THE RECORD AVAILABLE HERE BY OUR DECISION OF FEBRUARY 20, 1961, IN WHICH THE FACTS OF RECORD AND CIRCUMSTANCES GIVING RISE TO YOUR CLAIM AND THE BASIS FOR OUR ACTION WERE FULLY SET FORTH.

IN VIEW OF THE VARIANCE BETWEEN THE FACTS REPORTED BY THE ADMINISTRATIVE OFFICE REGARDING THESE SHIPMENTS AND THE REPRESENTATIONS CONTAINED IN YOUR LETTER OF JUNE 15, 1961, A FURTHER REPORT WAS REQUESTED FROM HEADQUARTERS, WESTERN TRAFFIC REGION, MILITARY TRAFFIC MANAGEMENT AGENCY, OAKLAND, CALIFORNIA. IN RESPONSE TO SUCH REQUEST, OUR TRANSPORTATION DIVISION RECEIVED A SUPPLEMENTAL REPORT STATING THAT UPON REEXAMINATION OF ITS RECORDS IT WAS FOUND THAT THE VEHICLES CARRYING SHIPMENTS COVERED BY GOVERNMENT BILLS OF LADING NOS. AF-6703115 AND AF-6703116 WERE EACH LOADED TO CAPACITY WITH 51 CARTONS MEASURING 27 INCHES BY 27 INCHES BY 104 INCHES, BUT THAT THE VEHICLE CARRYING THE SHIPMENT COVERED BY BILL OF LADING NO. AF 6703114 WAS NOT LOADED TO CAPACITY. IN THE CIRCUMSTANCES, THE PRINCIPLE IN THE CASE OF CURTIS LIGHTING, INC. V. MID-STATES FREIGHT, INC., 303 I.C.C. 576, WOULD NOT BE APPLICABLE TO THE LETTER SHIPMENT. THUS, AND SINCE THE RECORD NOW ESTABLISHES THAT BILL OF LADING NO. AF 6703114 WAS ANNOTATED IN SUBSTANTIAL COMPLIANCE WITH THE TARIFF REQUIREMENTS, THAT EXCLUSIVE USE OF THE VEHICLE WAS ORDERED AND ACTUALLY FURNISHED, AND THAT THE VEHICLE WAS NOT LOADED TO THE EXTENT THAT NO MORE OF LIKE COMMODITY COULD HAVE BEEN LOADED THEREON, IT NOW APPEARS THAT CHARGES FOR EXCLUSIVE USE FOR THAT PARTICULAR SHIPMENT ARE PROPER. ACCORDINGLY WE ARE INSTRUCTING OUR TRANSPORTATION DIVISION, IF OTHERWISE CORRECT, TO ALLOW THAT PORTION OF YOUR CLAIM PERTAINING TO THIS SHIPMENT ON THE BASIS OF EXCLUSIVE USE OF VEHICLE CHARGES. A COPY OF THE SETTLEMENT ON SUCH BASIS WILL BE FURNISHED TO YOU IN DUE COURSE.

REGARDING THE SHIPMENTS MOVING UNDER BILLS OF LADING NOS. AF 6703115 AND AF-6703116, YOU ARE ADVISED THAT SINCE THE SUPPLEMENTAL ADMINISTRATIVE REPORT CONFIRMS THE PREVIOUS REPORT THAT THE TWO VEHICLES INVOLVED WERE LOADED TO THE EXTENT THAT ANOTHER LIKE ITEM COULD NOT HAVE BEEN LOADED THEREON, WE FIND NO PROPER BASIS FOR THE ALLOWANCE TO YOU OF EXCLUSIVE USE CHARGES FOR THESE TWO SHIPMENTS. AS EXPLAINED IN OUR DECISION OF FEBRUARY 20, 1961, THE CHARGES FOR EXCLUSIVE USE ARE NOT DEEMED APPLICABLE ON A SHIPMENT WHICH COMPLETELY FILLS THE VEHICLE UTILIZED BECAUSE THE INTERSTATE COMMERCE COMMISSION IN THE CURTIS LIGHTING CASE HELD THAT EXCLUSIVE-USE SERVICE CHARGES ARE APPLICABLE AND INTENDED TO APPLY ONLY TO LESS-THAN-TRUCKLOAD SHIPMENTS AND THAT WHERE THE TRUCK IS FULLY LOADED THE APPLICABLE CHARGES ARE THE TRUCKLOAD CHARGES. SUCH CHARGES HAVE BEEN PAID TO YOU. ACCORDINGLY, AS TO THESE TWO SHIPMENTS, THE CONCLUSION REACHED IN THE DECISION OF FEBRUARY 20, 1961, MUST BE ADHERED TO. ..END :