B-140425, NOV. 6, 1959

B-140425: Nov 6, 1959

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 4 AND OCTOBER 7. YOU REQUEST REFUND OF $114.43 WHICH YOU STATE WAS IMPROPERLY DEDUCTED FROM AMOUNTS OTHERWISE DUE YOU IN AN ADJUSTMENT OF THE FREIGHT CHARGES ORIGINALLY PAID FOR TRANSPORTATION SERVICES COVERED BY BILL OF LADING WY 718455. IT IS YOUR CONTENTION. THAT THE VEHICLE INTO WHICH THE PROPERTY WAS LOADED WAS SEALED BY THE CONSIGNER. THAT UNDER THE RULE OF THE GUS BLASS CASE SUCH FACT JUSTIFIES THE CONCLUSION THAT THE SHIPMENT WAS TENDERED AND RECEIVED AS A VOLUME OR TRUCKLOAD SHIPMENT. THAT THE APPLICABLE CHARGES THEREON ARE THE MINIMUM CHARGES FOR A VOLUME OR TRUCKLOAD SHIPMENT. THAT THE PROPERTY COVERED THEREBY WAS ONLY PART OF A SINGLE SHIPMENT TENDERED TO YOUR COMPANY AT ONE TIME.

B-140425, NOV. 6, 1959

TO EASTERN FREIGHT WAYS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 4 AND OCTOBER 7, 1959, CONCERNING EASTERN CLAIM 0-1409, OUR CLAIM NO. TK-604785. YOU REQUEST REFUND OF $114.43 WHICH YOU STATE WAS IMPROPERLY DEDUCTED FROM AMOUNTS OTHERWISE DUE YOU IN AN ADJUSTMENT OF THE FREIGHT CHARGES ORIGINALLY PAID FOR TRANSPORTATION SERVICES COVERED BY BILL OF LADING WY 718455. IN SUPPORT OF YOUR CLAIM YOU CITE INTERSTATE COMMERCE COMMISSION REPORTS, GUS BLASS CO. V. POWELL BROS. TRUCK LINE, 53 M.C.C. 603, AND HORSMAN DOLLS, INC. V. RISS AND CO., INC., 66 M.C.C. 697, REVERSED IN PART, 305 I.C.C. 669. IT IS YOUR CONTENTION, IN EFFECT, THAT THE PROPERTY COVERED BY BILL OF LADING WY-718455 CONSTITUTED A SINGLE SHIPMENT, THAT THE VEHICLE INTO WHICH THE PROPERTY WAS LOADED WAS SEALED BY THE CONSIGNER, THAT UNDER THE RULE OF THE GUS BLASS CASE SUCH FACT JUSTIFIES THE CONCLUSION THAT THE SHIPMENT WAS TENDERED AND RECEIVED AS A VOLUME OR TRUCKLOAD SHIPMENT, AND THAT THE APPLICABLE CHARGES THEREON ARE THE MINIMUM CHARGES FOR A VOLUME OR TRUCKLOAD SHIPMENT.

BILL OF LADING WY-718455 SHOWS, HOWEVER, ON ITS FACE, BY NOTATION AND REFERENCE TO ANOTHER BILL OF LADING, THAT THE PROPERTY COVERED THEREBY WAS ONLY PART OF A SINGLE SHIPMENT TENDERED TO YOUR COMPANY AT ONE TIME. THE FIRST AND MAJOR PART OF THE SHIPMENT WAS LOADED INTO ANOTHER VEHICLE, FILLING THAT VEHICLE TO CAPACITY, AND BILL OF LADING WY-718392 WAS ISSUED TO COVER THAT PART OF THE SHIPMENT. THAT BILL OF LADING ALSO BEARS A NOTATION SHOWING THAT THE PROPERTY DESCRIBED THEREIN WAS ONLY PART OF A SINGLE SHIPMENT.

THE BILLING INDICATES, THEREFORE, THAT A SINGLE SHIPMENT WAS CONTEMPLATED BY THE CONSIGNOR EVEN THOUGH SEPARATE BILLS OF LADING WERE ISSUED TO COVER THE PROPERTY LOADED INTO THE SEPARATE VEHICLES. YOUR ACCEPTANCE OF THE PROPERTY FOR TRANSPORTATION IN THESE CIRCUMSTANCES, WITH FULL KNOWLEDGE OF THE BILL OF LADING NOTATIONS, WOULD NOT SEEM TO JUSTIFY A CONCLUSION THAT YOU RECEIVED THIS PROPERTY WITH THE UNDERSTANDING THAT IT WAS TWO SEPARATE SHIPMENTS. THE ARMY, WHICH MADE THE SHIPMENT, REPORTS THAT THE PROPERTY WAS TENDERED TO YOUR COMPANY AT ONE TIME WITH THE UNDERSTANDING THAT IT CONSTITUTED A SINGLE SHIPMENT. IN THESE CIRCUMSTANCES, WE CONCLUDE THAT THE PROPERTY COVERED BY THE TWO BILLS OF LADING WAS TENDERED AND RECEIVED AS A SINGLE TRUCKLOAD OR VOLUME SHIPMENT.

IN THE GUS BLASS CASE, A LESS-THAN-TRUCKLOAD QUANTITY OF PROPERTY HAD BEEN TENDERED FOR SHIPMENT AND THE VEHICLE INTO WHICH THE PROPERTY WAS LOADED HAD BEEN SEALED BY THE CONSIGNOR WITH INSTRUCTIONS THAT THE SEAL SHOULD NOT BE BROKEN OR REMOVED UNTIL THE VEHICLE ARRIVED AT ITS DESTINATION. THE INTERSTATE COMMERCE COMMISSION FOUND THAT THESE CIRCUMSTANCES JUSTIFIED A CONCLUSION THAT THE SHIPMENT WAS TENDERED AND RECEIVED AS A TRUCKLOAD OR VOLUME SHIPMENT AND THAT THE APPLICABLE CHARGES WERE THOSE COMPUTED AT THE TRUCKLOADOR VOLUME RATES AND MINIMUM WEIGHT. IT IS OBVIOUS THAT THE SHIPMENT COVERED BY BILLS OF LADING WY 718392 AND WY-718455 DOES NOT COME WITHIN THE RULE OF THE GUS BLASS CASE FOR THE QUANTITY OF PROPERTY TENDERED EXCEEDED THE TRUCKLOAD OR VOLUME MINIMUM WEIGHT AND THE SEALING OF THE VEHICLE CONTAINING THE OVERFLOW PORTION OF THE SHIPMENT DID NOT OPERATE TO CHANGE THE CHARACTER OF THE SHIPMENT.

MIDDLE ATLANTIC CONFERENCE EXCEPTIONS AND RULES TARIFF NO. 10-I, MF I.C.C. NO. A-310, IN RULE 62-1, THE SO-CALLED "OVERFLOW" RULE, PROVIDES THAT WHEN TWO VEHICLES ARE REQUIRED TO TRANSPORT A SHIPMENT, THE FIRST VEHICLE MUST BE LOADED TO CAPACITY AND THE QUANTITY OF FREIGHT SO LOADED WILL BE CHARGED FOR AT ACTUAL WEIGHT BUT NOT LESS THAN THE ESTABLISHED TRUCKLOAD MINIMUM WEIGHT. IF THE EXCESS OVER THE QUANTITY LOADED INTO THE FIRST VEHICLE IS INSUFFICIENT TO FULLY LOAD THE SECOND VEHICLE, IT WILL BE CHARGED FOR ON THE BASIS OF ACTUAL WEIGHT AT THE TRUCKLOAD RATE. THE RULE DOES NOT PERMIT THE SHIPPER TO SEAL THE VEHICLES AND THERE IS NOTHING IN THE RULE, OR ELSEWHERE IN THE PERTINENT TARIFF, TO INDICATE THAT IF THE SHIPPER DOES SEAL THE VEHICLES THE SEAL RECORD WILL BE PROTECTED BY THE CARRIER OR THAT THE CHARGES WILL BE ANY DIFFERENT IN SUCH CIRCUMSTANCES.

WE CONCLUDE, THEREFORE, THAT THE APPLICABLE CHARGES ON THE SUBJECT SHIPMENT ARE THOSE COMPUTED HERE UNDER THE CITED TARIFF RULE, THAT THE TARIFF DOES NOT PROVIDE ANY DIFFERENCE CHARGE WHEN THE VEHICLES ARE SEALED BY THE SHIPPER, AND THAT THE INSTANT CASE IS NOT AFFECTED BY THE RULING IN THE GUS BLASS CASE BECAUSE THE CIRCUMSTANCES ARE DIFFERENT. OUR ACTION IS NOT INCONSISTENT WITH THE HORSMAN DOLLS CASE, AS REVERSED, INASMUCH AS WE GIVE PROPER EFFECT TO THE OVERFLOW RULE APPLICABLE IN THIS INSTANCE. ACCORDINGLY, THE SETTLEMENT HERE, TO THE EXTENT IT WAS BASED ON THE OVERFLOW RULE, IS SUSTAINED. YOUR CLAIM, BY LETTER OF NOVEMBER 10, 1955, FOR RECOVERY OF THE SURCHARGES DEDUCTED IN THE SETTLEMENT, WHICH WAS HELD IN ABEYANCE PENDING THE OUTCOME OF THE DAVIDSON AND T.I.M.E. CASES, 359 U.S. 464, IS APPROVED, AND WE HAVE AUTHORIZED THE ISSUANCE OF A REVISED SETTLEMENT WHICH SHOULD REACH YOU IN DUE COURSE.