B-142112, B-145506, JAN. 17, 1964

B-142112,B-145506: Jan 17, 1964

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THE FACTS OF THIS CASE HAVE BEEN FULLY SET FORTH IN OUR DECISIONS OF MARCH 28. THAT WHEN A VEHICLE IS LOADED TO CAPACITY TRUCKLOAD CHARGES RATHER THAN EXCLUSIVE-USE CHARGES ARE APPLICABLE. THESE DECISIONS AND PROPOSED REPORT WERE ADVERSE TO THE POSITION OF THE GOVERNMENT. YOUR PRESENT LETTER IS SUBSTANTIALLY SIMILAR TO YOUR LETTER OF MAY 29. OUR OFFICE HAS CONSISTENTLY REFUSED TO ALLOW EXCLUSIVENESS CHARGES IN EXCESS OF TRUCKLOAD CHARGES WHERE THE RECORDS SHOW THAT THE VEHICLE OR VEHICLES WERE LOADED TO FULL CAPACITY IS VIEW OF THE DECISION OF THE INTERSTATE COMMERCE COMMISSION IN CURTIS LIGHTING. INDICATED ITS BELIEF THAT THE CURTIS LIGHTING DECISION WAS PREDICATED ON UNREASONABLENESS AND THE COURT ALLOWED TARIFF RATES FOR EXCLUSIVE USE WHEN SUCH SERVICE WAS REQUESTED AND THE PROVISIONS OF THE TARIFF WERE SUBSTANTIALLY COMPLIED WITH EVEN THOUGH THE SHIPMENT FULLY LOADED THE VEHICLE.

B-142112, B-145506, JAN. 17, 1964

TO EAST TEXAS MOTOR FREIGHT LINES, INC.:

BY YOUR LETTER OF MAY 29, 1963, YOU REQUESTED FURTHER CONSIDERATION OF OUR DECISIONS SUSTAINING THE DISALLOWANCE OF YOUR CLAIM TO 58-2978BY BILL NO. 11213-A, FOR ADDITIONAL CHARGES OF $938.60 ALLEGED TO BE DUE FOR EXCLUSIVE USE IN CONNECTION WITH THE TRANSPORTATION OF THE SHIPMENT OF ENGINES, INTERNAL COMBUSTION, JET TYPE, AND PARTS, FROM VAN NUYS, CALIFORNIA, TO DAINGERFIELD, TEXAS, UNDER GOVERNMENT BILL OF LADING NO. AF -6712955, DATED JULY 3, 1957. THE FACTS OF THIS CASE HAVE BEEN FULLY SET FORTH IN OUR DECISIONS OF MARCH 28, 1962, B-145506, IN WHICH WE SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR THE REASON THAT IN CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, 303 I.C.C. 576, THE INTERSTATE COMMERCE COMMISSION HELD IN EFFECT, THAT WHEN A VEHICLE IS LOADED TO CAPACITY TRUCKLOAD CHARGES RATHER THAN EXCLUSIVE-USE CHARGES ARE APPLICABLE.

IN YOUR PRESENT REQUEST FOR FURTHER CONSIDERATION YOU REFER TO THE DECISIONS OF THE UNITED STATES COURT OF CLAIMS IN CAMPBELL "66" EXPRESS, INC. V. UNITED STATES, 302 F.2D 270, AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, LUBBOCK DIVISION, IN THE CASE OF T.I.M.E. FREIGHT, INC. V. UNITED STATES, CIVIL ACTION NO. 2626. YOU ALSO REFER TO THE RECOMMENDED REPORT AND ORDER DATED JANUARY 15, 1963, OF A HEARING EXAMINER OF THE INTERSTATE COMMERCE COMMISSION IN APPLICABILITY OF RATES AND CHARGES - M.R. AND R. TRUCKING COMPANY, I.C.C. DOCKET NO. 34147. THESE DECISIONS AND PROPOSED REPORT WERE ADVERSE TO THE POSITION OF THE GOVERNMENT.

YOUR PRESENT LETTER IS SUBSTANTIALLY SIMILAR TO YOUR LETTER OF MAY 29, 1963, YOUR FILE TD 60-8892. AS STATED IN OUR REPLY OF DECEMBER 24, 1963, B-142112, OUR OFFICE HAS CONSISTENTLY REFUSED TO ALLOW EXCLUSIVENESS CHARGES IN EXCESS OF TRUCKLOAD CHARGES WHERE THE RECORDS SHOW THAT THE VEHICLE OR VEHICLES WERE LOADED TO FULL CAPACITY IS VIEW OF THE DECISION OF THE INTERSTATE COMMERCE COMMISSION IN CURTIS LIGHTING, INC. V. UNITED STATES, 303 I.C.C. 576. IN THIS CONNECTION SEE 41 COMP. GEN. 266. THE COURT OF CLAIMS IN CAMPBELL "66" EXPRESS, INC. V. UNITED STATES, 302 F.2D 270, INDICATED ITS BELIEF THAT THE CURTIS LIGHTING DECISION WAS PREDICATED ON UNREASONABLENESS AND THE COURT ALLOWED TARIFF RATES FOR EXCLUSIVE USE WHEN SUCH SERVICE WAS REQUESTED AND THE PROVISIONS OF THE TARIFF WERE SUBSTANTIALLY COMPLIED WITH EVEN THOUGH THE SHIPMENT FULLY LOADED THE VEHICLE. CERTAIN COURT CASES WERE SETTLED BY THE DEPARTMENT OF JUSTICE ON THE BASIS OF THE CAMPBELL "66" CASE AND THE OPINION OF THE HEARING EXAMINER OF THE INTERSTATE COMMERCE COMMISSION IN THE APPLICABILITY OF RATES AND CHARGES, M.R. AND TRUCKING COMPANY, I.C.C. DOCKET NO. 34147, WHICH FOLLOWED THE CAMPBELL "66" EXPRESS DECISION. HOWEVER, THE M.R. AND R. DECISION WAS LATER SET ASIDE AND VACATED AND THE CARRIER'S APPEAL FOR RECONSIDERATION OF SUCH ACTION HAS NOW BEEN DISMISSED BY THE INTERSTATE COMMERCE COMMISSION. ALSO, THE DEPARTMENT OF JUSTICE HAS AUTHORIZED FURTHER LITIGATION OF THE EXCLUSIVE USE-CAPACITY LOAD ISSUE IN ANOTHER CASE PENDING THE DISTRICT COURT OF IDAHO, EASTERN DIVISION (CARRETT FREIGHT LINES V. UNITED STATES, CIVIL ACTION NO. 2297).

ACCORDINGLY, AND SINCE THE ISSUE IS STILL BEING LITIGATED, WE WOULD NOT BE WARRANTED IN REVERSING THE CONCLUSION IN OUR DECISION OF MARCH 28, 1962, B-145506 AND OTHER DECISIONS UNDER THE SAME B-NUMBER WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR $938.60 ON YOUR BILL NO. 11213-A. HOWEVER, IF UPON FINAL CONCLUSION OF LITIGATION ON THE ISSUE, THE DECISION IS ADVERSE TO THE UNITED STATES, WE WILL UPON YOUR REQUEST GIVE THE MATTER FURTHER CONSIDERATION.

WHAT IS SAID IN THE PREVIOUS PARAGRAPH IS ALSO APPLICABLE TO YOUR CLAIM TD 60-8892, BILL NO. 14098-A FOR $70.63, OUR B-142112, AND UNLESS AND UNTIL THE LITIGATION ON THE ISSUE IS FINALLY CONCLUDED ADVERSELY TO THE UNITED STATES AND YOU REQUEST FURTHER CONSIDERATION, OUR DECISIONS UNDER B -142112 SUSTAINING THE DISALLOWANCE OF YOUR BILL NO. 14098-A ARE AFFIRMED.