B-138428, OCT. 12, 1959

B-138428: Oct 12, 1959

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TO SUNSET MOTOR LINES: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 30. IT IS APPARENTLY YOUR CONTENTION THAT THE PROPERTY IN QUESTION WAS NOT AVAILABLE TO THE CARRIER IN QUANTITIES OF 61. PRESUMABLY BECAUSE SEPARATE CROSS- REFERENCED BILLS OF LADING WERE ISSUED TO COVER EACH PICK-UP MADE BY THE ORIGINATING CARRIER. WE STATED THAT THE REPORT FROM THE MILITARY TRAFFIC MANAGEMENT AGENCY SHOWED THAT PROPERTY WAS MADE AVAILABLE IN THE QUANTITIES STATED ABOVE. WAS APPARENTLY DUE TO THE ORIGINATING CARRIER'S INABILITY TO FURNISH SUFFICIENT EQUIPMENT TO HAUL THE WEIGHT TENDERED AT ONE TIME. IN VIEW OF THIS EACH BILL OF LADING WAS CROSS-REFERENCED TO OTHERS IN ORDER TO OBTAIN THE VOLUME RATES.

B-138428, OCT. 12, 1959

TO SUNSET MOTOR LINES:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 30, 1959, WHICH IN EFFECT REQUESTED RECONSIDERATION OF OUR DECISION OF MAY 5, 1959, SUSTAINING THE DISALLOWANCE OF YOUR CLAIMS FOR ADDITIONAL FREIGHT CHARGES ALLEGEDLY DUE FOR THE TRANSPORTATION OF GOVERNMENT PROPERTY FROM CAMP HALE, PERDO, COLORADO, TO FAUNA, TEXAS.

WHILE YOU DO NOT STATE SPECIFICALLY YOUR OBJECTIONS TO OUR DECISION OF MAY 5, 1959, A COPY OF WHICH YOU ENCLOSED WITH YOUR LETTER OF JUNE 30, 1959, IT IS APPARENTLY YOUR CONTENTION THAT THE PROPERTY IN QUESTION WAS NOT AVAILABLE TO THE CARRIER IN QUANTITIES OF 61,282 POUNDS AT ONE TIME, AND 60,840 POUNDS AT ANOTHER TIME, PRESUMABLY BECAUSE SEPARATE CROSS- REFERENCED BILLS OF LADING WERE ISSUED TO COVER EACH PICK-UP MADE BY THE ORIGINATING CARRIER.

IN OUR DECISION OF MAY 5, 1959, WE STATED THAT THE REPORT FROM THE MILITARY TRAFFIC MANAGEMENT AGENCY SHOWED THAT PROPERTY WAS MADE AVAILABLE IN THE QUANTITIES STATED ABOVE, AND THE FACT THAT THE FREIGHT MOVED ON DIFFERENT DAYS, ON SEPARATE BILLS OF LADING, WAS APPARENTLY DUE TO THE ORIGINATING CARRIER'S INABILITY TO FURNISH SUFFICIENT EQUIPMENT TO HAUL THE WEIGHT TENDERED AT ONE TIME. IN VIEW OF THIS EACH BILL OF LADING WAS CROSS-REFERENCED TO OTHERS IN ORDER TO OBTAIN THE VOLUME RATES.

A VOLUME MINIMUM AS EMPLOYED IN MOTOR FREIGHT CLASSIFICATION IS DISTINGUISHED FROM A TRUCKLOAD MINIMUM IN THAT THE VOLUME RATE APPLIES WHEN A SHIPPER TENDERS THE VOLUME MINIMUM WEIGHT OF A COMMODITY FOR TRANSPORTATION AT ONE TIME EVEN THOUGH IT MAY EXCEED THE CARRYING CAPACITY OF THE LARGEST VEHICLE AVAILABLE AND MUST BE TRANSPORTED IN TWO OR MORE VEHICLES. STOVES FROM ALABAMA AND TENNESSEE TO INTERSTATE POINTS, 4 M.C.C. 641, 643, (FOOTNOTE); GULF PORTS--- ALABAMA, GEORGIA, AND TENNESSEE --- COMMODITY RATES, 10 M.C.C. 106 (FOOTNOTE). THE VOLUME MINIMUM WEIGHT MUST BE TENDERED AT ONE TIME, AND BE AVAILABLE FOR TRANSPORTATION FROM THE SHIPPING POINT AT ONE TIME. PEANUT BUTTER FROM MONTGOMERY, ALABAMA, TO GEORGIA, 22 M.C.C. 375, 377. SINCE PROPERTY IN EXCESS OF THE VOLUME MINIMUM WEIGHT OF 20,000 POUNDS WAS TENDERED AT ONE TIME TO THE ORIGINATING CARRIER, WHICH HAD THE PROPER EQUIPMENT BEEN AVAILABLE, COULD HAVE BEEN PICKED UP AT THE TIME TENDERED, THE AGGREGATE WEIGHT OF PROPERTY SO TENDERED CLEARLY CONSTITUTES A VOLUME SHIPMENT.

THE INTERSTATE COMMERCE COMMISSION AND THE COURTS HAVE IN SEVERAL INSTANCES TREATED PROPERTY COVERED BY MORE THAN ONE BILL OF LADING AS A SINGLE SHIPMENT. IN A CASE IN WHICH A SHIPMENT WAS LOADED INTO TWO CARS IN LIEU OF A LARGER CAR THAT WAS ORDERED, AND A BILL OF LADING ISSUED FOR EACH CAR, THE BILL OF LADING COVERING THE LARGER LOAD MADE REFERENCE TO THE FURNISHING OF TWO CARS IN LIEU OF ONE CAR ORDERED, AND THE BILL OF LADING COVERING THE SMALLER LOAD SHOWED THAT IT WAS A PART SHIPMENT AND REFERRED TO THE OTHER FOR WEIGHT AND CHARGES. THERE THE COMMISSION HELD THAT THIS CROSS-REFERENCE WAS SUBSTANTIAL COMPLIANCE WITH THE REQUIREMENT THAT ONE BILL OF LADING BE ISSUED. STONE-FISHER COMPANY V. DIRECTOR GENERAL, 77 I.C.C. 369. THE CASE OF WILLINGHAM V. SELIGMAN, 179 F.2D 257, CITED IN OUR DECISION OF MAY 5, 1959, INVOLVED A SITUATION IN WHICH THE VOLUME MINIMUM WEIGHT ON PECANS WAS 40,000 POUNDS AND MORE THAN ONE TRUCK WAS REQUIRED FOR TRANSPORTING THAT QUANTITY. SEPARATE BILLS OF LADING WERE ISSUED FOR EACH TRUCK, BUT EACH BILL OF LADING REFERRED TO THE OTHERS, AS IN THIS CASE. THE FIRST BILL OF LADING WAS NOTED AS COVERING ONLY A "PART SHIPMENT" AND THAT THE BALANCE WOULD FOLLOW. THE BILLING REFERRED TO THE PRIOR LOT AND SHOWED THAT IT COMPLETED THE SHIPMENT. THE COURT FOUND THAT IN EACH INSTANCE THE VOLUME MINIMUM WEIGHT HAD BEEN TENDERED TO THE CARRIER AT ONE TIME; THAT THE VOLUME SHIPMENT REQUIRED THE USE OF MORE THAN ONE TRUCK; THAT ANY FAILURE TO TRANSPORT THE ENTIRE SHIPMENT IN ONE DAY WAS DUE TO THE LACK OF CARRIER EQUIPMENT; THAT FOR ALL INTENTS AND PURPOSES THE TARIFF PROVISIONS FOR THE VOLUME SHIPMENT HAD BEEN COMPLIED WITH, AND THAT THE VOLUME RATE WAS APPLICABLE.

SINCE YOU HAVE PRESENTED NO EVIDENCE WHICH WOULD TEND TO SHOW A SITUATION CONTRARY TO THAT HERE CONSIDERED, THERE IS NO REASON WHICH WOULD WARRANT ANY MODIFICATION OF OUR PREVIOUS DECISION, AND IT IS THEREFORE AFFIRMED.