B-133948, AUG. 6, 1958

B-133948: Aug 6, 1958

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INC.: WE HAVE THOROUGHLY CONSIDERED YOUR LETTER OF SEPTEMBER 26. WERE TO BE TRANSPORTED TO THE SENECA ORDNANCE DEPOT AT KENDAIA (ROMULUS). A PORTION OF THIS TRAFFIC WAS GIVEN TO EASTERN FREIGHTWAYS. THE GOODS WERE TENDERED IN THREE LOTS. A SECOND VEHICLE WAS THEREFORE FURNISHED TO TRANSPORT THE OVERFLOW. ALTHOUGH TWO SEPARATE BILLS OF LADING WERE ISSUED TO COVER EACH OF THE THREE LOTS OF FREIGHT. FOR WHICH THE ISSUANCE OF MORE THAN ONE BILL OF LADING IS IMMATERIAL. EACH LOT OF FREIGHT TENDERED WAS ONE VOLUME SHIPMENT. FOR WHICH TWO VEHICLES WERE NECESSARY. IS APPLICABLE. 1953) THAT IT WAS IN EFFECT BY TARIFF WAS PUT IN ISSUE IN UNITED STATES V. NOTICE OF THE REVISIONS WILL BE GIVEN YOU BY THE TRANSPORTATION DIVISION IN DUE COURSE.

B-133948, AUG. 6, 1958

TO EASTERN FREIGHTWAYS, INC.:

WE HAVE THOROUGHLY CONSIDERED YOUR LETTER OF SEPTEMBER 26, 1957, FILE 0- 1381, REQUESTING REVIEW OF THE SETTLEMENT MADE ON YOUR BILL 52 542 WITH RESPECT TO BILLS OF LADING WY 774834 AND WY 774835.

OUR INVESTIGATION REVEALED THAT IN LATE 1952 A QUANTITY OF GOODS DESCRIBED AS "PROJECTILE PARTS, NOI, IRON OR STEEL, FURTHER FINISHED THAN ROUGH MACHINED," BEING MANUFACTURED IN LODI, NEW JERSEY, WERE TO BE TRANSPORTED TO THE SENECA ORDNANCE DEPOT AT KENDAIA (ROMULUS), NEW YORK. A PORTION OF THIS TRAFFIC WAS GIVEN TO EASTERN FREIGHTWAYS, INC. THE GOODS WERE TENDERED IN THREE LOTS, THE FIRST ON OCTOBER 31, THE SECOND ON NOVEMBER 3, AND THE THIRD ON NOVEMBER 5, 1952, AS SUFFICIENT QUANTITIES CAME FROM THE MANUFACTURER'S PRODUCTION LINE. THE QUANTITY TENDERED IN EACH OF THE THREE LOTS EXCEEDED THE CAPACITY OF ONE VEHICLE; A SECOND VEHICLE WAS THEREFORE FURNISHED TO TRANSPORT THE OVERFLOW. ALTHOUGH TWO SEPARATE BILLS OF LADING WERE ISSUED TO COVER EACH OF THE THREE LOTS OF FREIGHT, BILLS OF LADING WY 774830 THROUGH WY 774835, THIS CIRCUMSTANCE DOES NOT MILITATE AGAINST CONSIDERATION OF EACH OF THE THREE LOTS AS ONE VOLUME SHIPMENT. COMPARE THE HOLDING OF THE FIFTH CIRCUIT COURT OF APPEALS IN WILLINGHAM V. SELIGMAN, 179 F.2D 257, THAT THE VOLUME RATING DEPENDS UPON THE TENDER AT ONE TIME OF AT LEAST THE SPECIFIED VOLUME MINIMUM WEIGHT, FOR WHICH THE ISSUANCE OF MORE THAN ONE BILL OF LADING IS IMMATERIAL. ACCORDINGLY, EACH LOT OF FREIGHT TENDERED WAS ONE VOLUME SHIPMENT, FOR WHICH TWO VEHICLES WERE NECESSARY, THE SECOND TO TRANSPORT THE OVERFLOW, THE RULE 62 OF MIDDLE ATLANTIC CONFERENCE TARIFF NO. 10-I, MF-I.C.C. NO. A-410, IS APPLICABLE.

THE REASONABLENESS OF THE NEW YORK STATE SURCHARGE DURING THE PERIOD (MAY 8, 1952, THROUGH OCTOBER 15, 1953) THAT IT WAS IN EFFECT BY TARIFF WAS PUT IN ISSUE IN UNITED STATES V. DAVIDSON TRANSFER AND STORAGE COMPANY, INC., IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, NO. 14123. IN ITS OPINION, HANDED DOWN APRIL 24, 1958, THE COURT OF APPEALS HELD THAT THIS QUESTION SHOULD BE REFERRED TO THE INTERSTATE COMMERCE COMMISSION FOR ITS DETERMINATION; ON JUNE 11, 1958, DAVIDSON TRANSFER AND STORAGE COMPANY, INC., PETITIONED THE UNITED STATES SUPREME COURT FOR A WRIT OF CERTIORARI TO REVIEW THE COURT OF APPEALS DECISION. IN THE CIRCUMSTANCES, THIS OFFICE CANNOT ALLOW CHARGES BASED UPON THE NEW YORK STATE SURCHARGE UNTIL FINAL DETERMINATION OF ITS REASONABLENESS HAS BEEN MADE.

OUR TRANSPORTATION DIVISION HAS BEEN INSTRUCTED TO REVISE BOTH THE SETTLEMENT MADE ON YOUR BILL 52-542 AND THAT MADE ON YOUR BILL 52-535, WHICH COVERED THE REMAINING BILLS OF LADING INVOLVED IN THIS MOVEMENT, IN ACCORDANCE WITH THE FOREGOING. NOTICE OF THE REVISIONS WILL BE GIVEN YOU BY THE TRANSPORTATION DIVISION IN DUE COURSE.