B-140437, DEC. 16, 1959

B-140437, DEC. 16, 1959

TO EASTERN FREIGHT WAYS, INC.:

WE HAVE THOROUGHLY CONSIDERED THE POINTS RAISED IN YOUR LETTER OF AUGUST 4, 1959, FILE 0-4580, PROTESTING THE DEDUCTION OF AN OVERPAYMENT OF $51.14 MADE ON YOUR BILL 57-3117 IN CONNECTION WITH BILL OF LADING WY 6749216.

BILL OF LADING WY 6749216, DATED JULY 3, 1957, COVERED A SHIPMENT OF 393 BOXES OF AUTO PARTS WEIGHING 55,453 POUNDS, FROM ROMULUS, NEW YORK, TO BROOKLYN, NEW YORK, FOR EXPORT. THE RECORD IS SILENT AS TO WHO PERFORMED THE LOADING, CARRIER OR SHIPPER; HOWEVER, 250 BOXES, WEIGHING 40,220 POUNDS WERE LOADED IN TRAILER NJ-TU 870 AND 143 BOXES WEIGHING 15,233 POUNDS, IN TRAILER NJ TY 7729, WHICH THE SHIPPER THEN SEALED. YOU BILLED AND COLLECTED CHARGES OF $510.17, USING A PUBLISHED TARIFF RATE OF 92 CENTS PER 100 POUNDS. IN THE AUDIT HERE, THE PROPER CHARGES WERE DETERMINED TO BE $299.45, DERIVED THROUGH APPLICATION OF A 54-CENT RATE AT THE ACTUAL WEIGHT OF 55,453 POUNDS, AS PROVIDED IN EASTERN FREIGHT WAYS, INC. TENDER NO. M 55, AND YOU WERE ASKED TO REFUND THE OVERPAYMENT, $210.72. YOU AGREED TO THE APPLICATION OF THE 54-CENT RATE ON THE FIRST TRAILER LOAD BUT URGED THAT THE SECOND TRAILER LOAD, 15,233 POUNDS, SHOULD BE CHARGED FOR AT A MINIMUM WEIGHT OF 23,000 POUNDS AND A RATE OF 58 CENTS PER 100 POUNDS, ALSO PROVIDED IN TENDER NO. M 55, UNDER THE AUTHORITY OF RULE 62, MIDDLE ATLANTIC CONFERENCE EXCEPTIONS TARIFF NO. 10-L, MF I.C.C. NO. A-800, TO WHICH TENDER NO. M 55 IS SUBJECT. YOU REFUNDED $159.88; THE BALANCE, $51.14, WAS COLLECTED BY DEDUCTION, AND YOUR PROTEST FOLLOWED.

RULE 62, ENTITLED "SHIPMENTS EXCEEDING CAPACITY OF VEHICLE," PROVIDES IN PARAGRAPH 1 (A) THAT WHEN TWO VEHICLES ARE REQUIRED TO CONTAIN A SINGLE SHIPMENT, THE FIRST MUST BE LOADED TO FULL CAPACITY AND WILL BE CHARGED FOR AT ACTUAL WEIGHT BUT NOT LESS THAN THE MINIMUM WEIGHT. PARAGRAPH 1 (B) PROVIDES THAT IF THE EXCESS LOADS THE SECOND VEHICLE TO FULL CAPACITY, IT WILL BE SIMILARLY CHARGED FOR, BUT PARAGRAPH 1 (C) PROVIDES THAT IF IT DOES NOT, IT WILL BE CHARGED FOR ON THE BASIS OF THE ACTUAL WEIGHT AT THE TRUCKLOAD RATE. PARAGRAPH 4, IN SUBSTANCE, DEFINES "FULL CAPACITY" AS MEANING THE VEHICLE SHOULD BE LOADED AS FULLY AS PERMITTED BY THE CHARACTER OF THE FREIGHT "AND OTHER CONDITIONS," CONSISTENT WITH SAFETY AND LEGAL LOAD LIMITS. OUR AUDIT ACTION WAS PREDICATED ON RULE 62, PARAGRAPH 1 (C), AND THE CHARGE FOR THE SECOND TRAILER WAS COMPUTED AT ACTUAL WEIGHT AND TRUCKLOAD RATE. IT IS YOUR POSITION THAT PARAGRAPH 1 (B) IS PROPERLY APPLICABLE WITHOUT REGARD TO THE AMOUNT OF FREIGHT IN THE TRAILER BECAUSE THE SHIPPER SEALED THE VEHICLE, AND THAT THE CHARGE SHOULD BE BASED ON THE TRUCKLOAD MINIMUM WEIGHT AND THE TRUCKLOAD RATE.

FUNDAMENTALLY, YOUR ARGUMENT RAISES NOT THE QUESTION OF THE CONSTRUCTION OR REASONABLENESS OF RULE 62, BUT SIMPLY ONE OF THE EFFECT THAT SHOULD BE ACCORDED THE AFFIXING OF SEALS BY THE SHIPPER. IN THIS POSTURE OF THE CASE, NEITHER OF THE INTERSTATE COMMERCE COMMISSION DECISIONS TO WHICH YOU REFERRED IS IN POINT. HORSMAN DOLLS, INC. V. RISS AND COMPANY, 66 M.C.C. 697, REVERSED ON RECONSIDERATION, 305 I.C.C. 669, CONCERNED THE REASONABLENESS OF A MINIMUM CHARGE RULE IN CIRCUMSTANCES WHERE THE CARRIER FURNISHED ITS LARGEST TRAILERS AND THE SHIPPERS LOADED THE GOODS THEREIN. GUS BLASS COMPANY V. POWELL BROTHERS TRUCK LINE, 53 M.C.C. 603, RAISED THE QUESTION OF APPLICABILITY OF A TARIFF EXCLUSIVE USE RULE WHERE THE REQUIREMENT OF THE RULE FOR AN INDORSEMENT OF THE EXCLUSIVE USE ON THE BILL OF LADING HAD NOT BEEN OBSERVED. ALTHOUGH RULING THAT THE REQUIREMENT OF A WRITTEN INDORSEMENT ON THE BILL OF LADING COULD NOT BE WAIVED, THE COMMISSION FOUND THAT THE CONSIGNOR, AFTER LOADING A LESS-THAN -TRUCKLOAD QUANTITY OF FREIGHT, HAD SEALED THE VEHICLE AND INSTRUCTED THAT THE SEALS WERE TO BE REMOVED OR BROKEN ONLY BY THE CONSIGNEE AT DESTINATION, AND THAT IN THOSE CIRCUMSTANCES, THE SHIPMENT HAD BEEN TENDERED AND RECEIVED AS A TRUCKLOAD OR VOLUME SHIPMENT.

THE SHIPMENT COVERED BY BILL OF LADING WY 6749216 DOES NOT COME WITHIN THE RULE OF THE GUS BLASS CASE, SINCE THE QUANTITY TENDERED EXCEEDED THE TRUCKLOAD OR VOLUME MINIMUM WEIGHT; THERE IS NOTHING INDICATING THAT SIMILAR INSTRUCTIONS WERE GIVEN HERE REGARDING THE SEALS AFFIXED TO THESE TRAILERS OR THAT THE CARRIER WAS IN ANY WAY RESTRAINED FROM BREAKING THE SEALS ON THE SECOND TRAILER IN ORDER TO LOAD ADDITIONAL FREIGHT THEREIN, AND THE SEALING OF THE SECOND TRAILER DID NOT OPERATE TO CHANGE THE CHARACTER OF THE SHIPMENT. NEITHER IN TARIFF NO. 10-L (IN RULE 62 OR ELSEWHERE) NOR IN TENDER NO. M55 IS THERE ANY PROVISION CONCERNING THE INVIOLABILITY OF SEALS OR THE EFFECT, IF ANY, TO BE GIVEN THEIR USE. MOREOVER, THE MATTER OF SEALS DOES NOT SEEM TO BE THE BASIS FOR DETERMINATION OF CHARGES UNDER THE PROVISIONS OF RULE 62, PARAGRAPH 1 (C).

IT IS CLEAR THAT THE ENTIRE LOAD OF FREIGHT, 55,453 POUNDS, WAS TENDERED AS ONE VOLUME SHIPMENT (CF. WILLINGHAM V. SELIGMAN, 179 F.2D 257); THAT 40,220 POUNDS COMPLETELY FILLED ONE TRAILER AND THE OVERFLOW, 15,233 POUNDS, WAS LOADED IN THE SECOND TRAILER, AND THAT NO PARTICULAR SIGNIFICANCE WAS ATTACHED TO THE SEALING OF THE VEHICLES BY THE SHIPPER. SIGNIFICANCE WAS ATTACHED TO THE SEALING OF THE VEHICLES BY THE SHIPPER. ACCORDINGLY, RULE 62, PARAGRAPH 1 (C) OF EXCEPTIONS TARIFF NO. 10-L, WAS PROPERLY APPLICABLE IN COMPUTING THE CHARGES UNDER TENDER NO. M 55, THE DEDUCTION COMPLAINED OF WAS PROPER AND IT IS SUSTAINED.