B-150651, JAN. 31, 1964

B-150651, JAN. 31, 1964

TO GILLETTE MOTOR TRANSPORT, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 9 AND OCTOBER 16, 1963, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE OF OCTOBER 10, 1962, WHICH DISALLOWED YOUR CLAIM BY SUPPLEMENTAL BILL NO. 91-022603-A DATED JULY 20, 1962, FOR $1,216 FOR EXCLUSIVE USE OF VEHICLE CHARGES. THE ADDITIONAL FREIGHT CHARGES ALLEGEDLY DUE ARE FOR A SHIPMENT OF 16 PALLETS OF "ROCKET OR MISSILE PROPELLING UNITS (ROCKET MOTORS)," WEIGHING 48,570 POUNDS, TRANSPORTED ON TWO VEHICLES FROM THE MARINE CORPS AUXILIARY AIR STATION, YUMA, ARIZONA, TO THE NAVAL AMMUNITION DEPOT, MCALESTER, OKLAHOMA, UNDER GOVERNMENT BILL OF LADING A-1369364 DATED JULY 27, 1960.

THE ADMINISTRATIVE OFFICE REPORTS THAT THE LADING OF THIS SHIPMENT WAS EQUALLY DIVIDED BETWEEN THE TWO VEHICLES WHICH WERE FULLY LOADED. ALSO, AS INDICATED IN OUR LETTER OF OCTOBER 28, 1963, B-150651, BASED ON THE DECISION OF THE INTERSTATE COMMERCE COMMISSION IN THE CURTIS LIGHTING CASE, 303 I.C.C. 576, HOLDING THAT EXCLUSIVE USE CHARGES ARE NOT APPLICABLE TO FULLY LOADED VEHICLES--- THE APPLICABLE CHARGES AS TO SUCH VEHICLES BEING THE TRUCKLOAD CHARGES--- OUR OFFICE HAS CONSISTENTLY REFUSED TO ALLOW EXCLUSIVE USE CHARGES IN EXCESS OF TRUCKLOAD CHARGES WHERE THE RECORDS SHOW THE VEHICLES WERE FULLY LOADED. 41 COMP. GEN. 266.

THE COURT OF CLAIMS IN CAMPBELL "66" EXPRESS, INC. V. UNITED STATES, 302, F.2D 270, INDICATED IT BELIEVED THE CURTIS LIGHTING DECISION WAS PREDICATED ON UNREASONABLENESS AND ALLOWED TARIFF RATES FOR EXCLUSIVE USE WHEN SUCH SERVICE WAS REQUESTED AND THE PROVISIONS OF THE TARIFF SUBSTANTIALLY COMPLIED WITH EVEN THOUGH THE SHIPMENT FULLY LOADED THE VEHICLE. CERTAIN COURT CASES WERE SETTLED BY THE DEPARTMENT OF JUSTICE ON THE BASIS OF THE CAMPBELL "66" CASE AND A SIMILAR DECISION OF A HEARING EXAMINER OF THE INTERSTATE COMMERCE COMMISSION IN THE APPLICABILITY OF RATES AND CHARGES, M.R. AND R. TRUCKING CO., I.C.C. DOCKET NO. 34147, WHICH FOLLOWED THE CAMPBELL "66" DECISION. THE M.R. AND R. DECISION, HOWEVER, WAS LATER SET ASIDE AND VACATED AND THE CARRIER'S APPEAL FOR RECONSIDERATION OF SUCH ACTION HAS NOW BEEN DISMISSED BY THE INTERSTATE COMMERCE COMMISSION. MOREOVER, THE DEPARTMENT OF JUSTICE HAS AUTHORIZED FURTHER LITIGATION OF THE EXCLUSIVE-USE CAPACITY LOAD ISSUE IN ANOTHER CASE PENDING IN THE DISTRICT COURT OF IDAHO, EASTERN DIVISION. (GARRETT FREIGHT LINES V. UNITED STATES, CIVIL ACTION NO. 2297).

ACCORDINGLY, SINCE THE TARIFF RATES FOR EXCLUSIVE USE ARE NOT FOR APPLICATION UNDER THE HOLDING OF THE CURTIS LIGHTING CASE BECAUSE THE TWO VEHICLES WERE LOADED TO CAPACITY, WE FIND THAT OUR SETTLEMENT OF OCTOBER 10, 1962, DISALLOWING YOUR CLAIM WAS PROPER AND THAT SETTLEMENT IS SUSTAINED. HOWEVER, SHOULD THE FINAL CONCLUSION OF THE LITIGATION OF THE EXCLUSIVE USE--- CAPACITY LOAD ISSUE BE ADVERSE TO THE UNITED STATES, WE WILL, UPON REQUEST, GIVE THIS MATTER FURTHER CONSIDERATION.