B-133908, DEC. 26, 1957

B-133908: Dec 26, 1957

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JR.: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 24. THE BILL OF LADING SHOWS THAT THE SHIPMENT WAS TENDERED AS A LESS-THAN- TRUCKLOAD SHIPMENT AND THAT IT WAS HANDLED IN SINGLE-LINE SERVICE BY CAROLINA FREIGHT CARRIERS CORPORATION. WHICH IS SHOWN IN THE BILL OF LADING AS BOTH THE INITIAL AND THE DELIVERING CARRIER. FREIGHT CHARGES WERE CLAIMED AND COLLECTED ON THE BASIS OF A MINIMUM CHARGE. EACH AND EVERY VEHICLE LOADED TO CAPACITY WILL BE SUBJECT TO A MINIMUM CHARGE BASED ON A MINIMUM WEIGHT PROVIDED IN THE NATIONAL MOTOR FREIGHT CLASSIFICATION (SOUTH). SHIPMENTS CONSISTING OF ARTICLES OF UNUSUAL SHAPE OR DIMENSIONS AND ARTICLES REQUIRING SEGREGATION OR SEPARATION FROM OTHER FREIGHT ARE EXCLUDED FROM THE APPLICATION OF THE RULE AND MADE SUBJECT TO THE PROVISIONS OF ITEM 5040 OF THE CITED TARIFF.

B-133908, DEC. 26, 1957

TO MR. FELIX E. MENDEL, JR.:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 24, 1957, YOUR CLAIM 056- 88, AND PRO. 78921, REQUESTING REVIEW OF THE AUDIT ACTION TAKEN BY THIS OFFICE IN CONNECTION WITH THE SETTLEMENT OF YOUR BILL FOR FREIGHT CHARGES ON A SHIPMENT OF 14 BOXES OF AIRPLANE PROPELLERS OR BLADES, KNOCKED DOWN, WEIGHING 10,080 POUNDS, TRANSPORTED FROM YUKON, FLORIDA, TO BRIDGEPORT, CONNECTICUT, UNDER GOVERNMENT BILL OF LADING N-16298571, IN AUGUST 1953. THE BILL OF LADING SHOWS THAT THE SHIPMENT WAS TENDERED AS A LESS-THAN- TRUCKLOAD SHIPMENT AND THAT IT WAS HANDLED IN SINGLE-LINE SERVICE BY CAROLINA FREIGHT CARRIERS CORPORATION, WHICH IS SHOWN IN THE BILL OF LADING AS BOTH THE INITIAL AND THE DELIVERING CARRIER.

FREIGHT CHARGES WERE CLAIMED AND COLLECTED ON THE BASIS OF A MINIMUM CHARGE, COMPUTED FOR TWO CAPACITY-LOAD VEHICLES, IN ACCORDANCE WITH THE PROVISIONS OF ITEM 190, SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 504, MF-I.C.C. NO. 614. THE CITED ITEM PROVIDES THAT ON A STRAIGHT SHIPMENT OF AN ARTICLE SUBJECT TO LESS-THAN-TRUCKLOAD, TRUCKLOAD, OR VOLUME CLASS RATES, EACH AND EVERY VEHICLE LOADED TO CAPACITY WILL BE SUBJECT TO A MINIMUM CHARGE BASED ON A MINIMUM WEIGHT PROVIDED IN THE NATIONAL MOTOR FREIGHT CLASSIFICATION (SOUTH), BUT NOT IN EXCESS OF 22,000 POUNDS, AT THE STRAIGHT TRUCKLOAD OR VOLUME RATE PROVIDED FOR THE ARTICLE. BY APPROPRIATE REFERENCE, SHIPMENTS CONSISTING OF ARTICLES OF UNUSUAL SHAPE OR DIMENSIONS AND ARTICLES REQUIRING SEGREGATION OR SEPARATION FROM OTHER FREIGHT ARE EXCLUDED FROM THE APPLICATION OF THE RULE AND MADE SUBJECT TO THE PROVISIONS OF ITEM 5040 OF THE CITED TARIFF. THIS ITEM PROVIDES FOR EACH VEHICLE USED A MINIMUM CHARGE OF 15,000 POUNDS AT THE CLASS 100 RATE, NOT TO EXCEED THE CHARGE ON TRUCKLOAD BASIS. IT IS YOUR PRESENT CONTENTION THAT THE SHIPMENT SHOULD HAVE BEEN CHARGED FOR ON THE LATTER BASIS AND THAT THE SHIPMENT WAS ACTUALLY UNDERCHARGED.

THE TARIFF DOES NOT DEFINE AN ARTICLE OF UNUSUAL SHAPE OR DIMENSIONS AND, IN THE ABSENCE OF SOME STANDARD THEREIN, IT IS NOT POSSIBLE DEFINITELY TO DETERMINE THE LINE OF DEMARCATION BETWEEN SUCH ARTICLES AND OTHER ARTICLES. CF. MIDWESTERN MOTOR CARRIER RATES, 27 M.C.C. 297, 312. IT IS CLEAR, HOWEVER, THAT NO SINGLE ARTICLE IN THE PRESENT SHIPMENT WAS OF SUCH SHAPE OR DIMENSIONS AS TO REQUIRE THE USE OF AN ENTIRE VEHICLE, AND IT IS DUE SOLELY TO THE NUMBER OF ARTICLES TENDERED THAT THE ENTIRE SHIPMENT COULD NOT HAVE BEEN LOADED IN AN ORDINARY UNIT OF EQUIPMENT. IT IS APPARENT, THEREFORE, THAT ALTHOUGH THE OVERALL DIMENSIONS OF THE SHIPMENT WERE SUCH THAT AT LEAST ONE CAPACITY LOADED VEHICLE WOULD HAVE BEEN REQUIRED, THE USE OF SUCH EQUIPMENT WOULD BE NECESSITATED BY THE TOTAL MEASUREMENTS OF THE ARTICLES COMPRISING THE SHIPMENT RATHER THAN BY ANY UNUSUAL SHAPE OR DIMENSION OF ANY INDIVIDUAL ARTICLE. IN THESE CIRCUMSTANCES, IT IS CONCLUDED THAT THE PROVISIONS OF ITEM 5040 WERE INAPPLICABLE TO THIS SHIPMENT.

WITH REGARD TO THE MINIMUM CHARGE AS PROVIDED IN ITEM 190 FOR CAPACITY LOADS, WHICH WAS THE BASIS FOR THE FREIGHT CHARGES ORIGINALLY CLAIMED FOR THE SHIPMENT, IT HAS BEEN OBSERVED THAT ON AT LEAST TWO OCCASIONS, THE INTERSTATE COMMERCE COMMISSION HAS DECLARED THAT SIMILAR TARIFF PROVISIONS SHOULD BE CANCELED, AND HAS FOUND THAT THE CHARGES COLLECTED ON THE SHIPMENTS THERE UNDER CONSIDERATION WERE UNLAWFUL TO THE EXTENT SUCH CHARGES EXCEEDED THOSE COMPUTED AT THE APPLICABLE LESS THAN-TRUCKLOAD RATES. ROYAL MANUFACTURING CO., INC. V. HUBER AND HUBER MOTOR EXPRESS, INC., 66 M.C.C. 237, AND HORSMAN DOLLS, INC. V. RISSAND CO., INC., 66 M.C.C. 697. SUBSEQUENT TO THESE DECISIONS, IN SUPPLEMENT NO. 84 TO TARIFF NO. 504, ITEM 190 WAS REVISED TO ELIMINATE THE OBJECTIONS RAISED BY THE COMMISSION TO THIS KIND OF TARIFF PROVISION, AND THE MINIMUM CHARGE THEREAFTER APPLIED ONLY ON TRUCKLOAD OR VOLUME SHIPMENTS; AND IN NO CASE COULD THE CHARGES FOR A PARTICULAR SHIPMENT EXCEED THE CHARGE COMPUTED AT THE ACTUAL WEIGHT AND THE LESS THAN-TRUCKLOAD RATE. FOLLOWING THE PRINCIPLE OF THESE CASES, THE MINIMUM CHARGE PROVIDED IN ITEM 190 WAS UNLAWFUL ON THE LESS-THAN TRUCKLOAD SHIPMENT HERE CONCERNED TO THE EXTENT IT EXCEEDED THAT BASED ON ACTUAL WEIGHT AND THE LESS-THAN-TRUCKLOAD RATE.

APART FROM THOSE CONSIDERATIONS, HOWEVER, THE RECORD AVAILABLE HERE DOES NOT ESTABLISH THAT THIS SHIPMENT WAS ACCORDED ANY SERVICE DIFFERENT FROM THAT ORDINARILY GIVEN LESS-THAN-TRUCKLOAD SHIPMENTS. THE ADMINISTRATIVE OFFICE AT YUKON, FLORIDA, REPORTS THAT THIS SHIPMENT WAS INITIALLY LOADED INTO TWO VEHICLES. THE DIMENSIONS OF THE VEHICLES WERE NOT SPECIFIED AND IT IS NOT KNOWN WHETHER THEY WERE LOADED TO CAPACITY. THE RECORD FURTHER SHOWS THAT THE SHIPMENT MOVED INTO YOUR CHERRYVILLE TERMINAL IN THREE VEHICLES UNDER ASTRAY BILLING. THE DIMENSIONS OF THE VEHICLES ARE NOT STATED. ONE VEHICLE IS SAID TO HAVE CONTAINED SIX BOXES BUT WHETHER OR NOT IT WAS LOADED TO CAPACITY IS NOT STATED. THE SECOND VEHICLE ALSO CONTAINED SIX BOXES BUT IS SAID NOT TO HAVE BEEN LOADED TO CAPACITY AND TO HAVE CONTAINED A SMALL AMOUNT OF OTHER FREIGHT. THE THIRD VEHICLE CONTAINED TWO BOXES, WAS NOT LOADED TO CAPACITY, AND CONTAINED OTHER FREIGHT. THE LAST TWO LOADS ARE SAID TO HAVE BEEN COMBINED INTO ONE TRAILER-LOAD AT THE CHERRYVILLE TERMINAL. HANDLING OF THIS KIND IS NOT AUTHORIZED BY ITEM 190 EXCEPT IN THE CASE OF INTERCHANGE BETWEEN CARRIERS PERFORMING JOINT SERVICE. THUS, THE INFORMATION OF RECORD INDICATES THAT THIS SHIPMENT WAS HANDLED AT THE CARRIER'S CONVENIENCE AND ELECTION, IN SUCH EQUIPMENT AS WAS AVAILABLE, AND WITHOUT REFERENCE TO THE INITIAL LOADING OR EQUIPMENT UTILIZED.

IT HAS LONG BEEN RECOGNIZED, AS PROVIDED IN THE GOVERNING CLASSIFICATION, THAT LESS-THAN-TRUCKLOAD RATINGS ORDINARILY APPLY ON SHIPMENTS IN QUANTITIES LESS THAN THE MINIMUM WEIGHT SPECIFIED FOR VOLUME SHIPMENTS. THE WEIGHT OF THE INSTANT SHIPMENT WAS WELL BELOW THAT SPECIFIED FOR A VOLUME SHIPMENT, 24,000 POUNDS, PER ITEM 2890 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-1. IN ORDER TO APPLY THE MINIMUM CHARGE PROVIDED IN ITEM 190 OF TARIFF NO. 504, EVEN IF IT WERE ASSUMED TO BE LAWFUL, THE CARRIER MUST PROVE THAT THE SHIPMENT WAS GIVEN CAPACITY-LOAD SERVICE WITHIN THE MEANING OF THE TARIFF PROVISION. SEE CONTINENTAL MOTORS CORP. V. WENHAM TRANSPORTATION, INC., 67 M.C.C. 83.

THE INFORMATION AVAILABLE HERE INDICATES THAT THE SHIPMENT WAS HANDLED IN THE SAME MANNER THAT LESS-THAN-TRUCKLOAD SHIPMENTS ARE ORDINARILY HANDLED, AND THAT VARIOUS UNITS OF EQUIPMENT WERE USED BETWEEN ORIGIN AND DESTINATION AT THE CARRIER'S CONVENIENCE. IN THESE CIRCUMSTANCES, THE SHIPMENT WAS OVERCHARGED TO THE EXTENT THE CHARGES COLLECTED EXCEEDED THE APPLICABLE LESS-THAN-TRUCKLOAD CHARGES. THE AMOUNT OF $648.38 DETERMINED TO HAVE BEEN OVERPAID, SHOULD BE REFUNDED PROMPTLY, IN ORDER TO PRECLUDE COLLECTION BY DEDUCTION OR OTHER AVAILABLE MEANS.