B-142136, NOV. 4, 1960

B-142136: Nov 4, 1960

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WE ADVISED YOU THAT IT WOULD BE NECESSARY TO FURTHER DEVELOP THE RECORDS CONCERNING YOUR PROTEST OF OUR AUDIT ACTION ON NINE SHIPMENTS OF AIRPLANE GUN TURRETS AND PARTS WHICH WERE DELIVERED AT WICHITA. EACH BILL OF LADING ISSUED TO COVER THE SHIPMENTS WAS ENDORSED TO SHOW THAT EXCLUSIVE USE OF VEHICLE WAS REQUESTED AND ALL SHIPMENTS WERE SEALED AT ORIGIN BY THE SHIPPER. BILL OF LADING AF-9925348 WAS ISSUED ON DECEMBER 2. SINCE IT APPEARS THAT THE TRAILER INVOLVED WAS NOT LOADED TO FULL VISIBLE CAPACITY. THE CARRIER ORIGINALLY CLAIMED AND WAS PAID $908.60 ON EACH SHIPMENT BASED ON THE MINIMUM CHARGE FOR EXCLUSIVE USE OF VEHICLES COMPUTED AT THE CLASS 100 RATE OF $6.49 PER 100 POUNDS AND A MINIMUM WEIGHT OF 14.

B-142136, NOV. 4, 1960

TO JAMES F. MILLER, ATTORNEY AT LAW:

IN OUR LETTER OF MAY 31, 1960, WE ADVISED YOU THAT IT WOULD BE NECESSARY TO FURTHER DEVELOP THE RECORDS CONCERNING YOUR PROTEST OF OUR AUDIT ACTION ON NINE SHIPMENTS OF AIRPLANE GUN TURRETS AND PARTS WHICH WERE DELIVERED AT WICHITA, KANSAS, BY YOUR CLIENT, THE CASSELL TRANSFER AND STORAGE COMPANY. EACH BILL OF LADING ISSUED TO COVER THE SHIPMENTS WAS ENDORSED TO SHOW THAT EXCLUSIVE USE OF VEHICLE WAS REQUESTED AND ALL SHIPMENTS WERE SEALED AT ORIGIN BY THE SHIPPER. BILL OF LADING AF-9925348 WAS ISSUED ON DECEMBER 2, 1959, TO COVER A SHIPMENT OF 29 PIECES OF AIRPLANE GUN TURRETS AND PARTS WEIGHING 7,572 POUNDS, FROM GARDEN CITY, LONG ISLAND, NEW YORK, TO WICHITA, KANSAS. SINCE IT APPEARS THAT THE TRAILER INVOLVED WAS NOT LOADED TO FULL VISIBLE CAPACITY, WE NO LONGER QUESTION THE APPLICABILITY OF EXCLUSIVE USE CHARGES IN THAT INSTANCE.

OUR CLAIMS NOS. TK-674311, 675047 AND 675515 COVER THREE SHIPMENTS OF AIRPLANE GUN TURRETS AND PARTS MOVING UNDER GOVERNMENT BILL OF LADING NOS. AF-8180953, AF-8668914 AND AF-9683067 RESPECTIVELY. THE CARRIER ORIGINALLY CLAIMED AND WAS PAID $908.60 ON EACH SHIPMENT BASED ON THE MINIMUM CHARGE FOR EXCLUSIVE USE OF VEHICLES COMPUTED AT THE CLASS 100 RATE OF $6.49 PER 100 POUNDS AND A MINIMUM WEIGHT OF 14,000 POUNDS. LATER, CASSELL CLAIMED ADDITIONAL AMOUNTS COMPUTED AT THE CLASS 100 RATE AT THE ACTUAL WEIGHT OF 16,404 POUNDS IN TWO INSTANCES AND 16,419 POUNDS IN THE THIRD INSTANCE. IN THE AUDIT OF THESE BILLS WE DETERMINED THAT THE CORRECT CHARGES SHOULD BE COMPUTED AT THE CLASS 3 TRUCKLOAD RATE OF $4.55 PER 100 POUNDS AT THE ACTUAL WEIGHT OF 16,404 POUNDS, AND HAVE THUS FAR ISSUED A STATEMENT OF EXCESS CHARGES IN THE AMOUNT OF $162.22.

BILL OF LADING NOS. AF-9827769, AF-9827718 AND AF-9827759 EACH COVERED A SHIPMENT OF AIRPLANE GUN TURRETS AND PARTS MOVING FROM GARDEN CITY TO WICHITA, WEIGHING IN EXCESS OF 16,000 POUNDS EACH. THE CARRIER ORIGINALLY BILLED AND WAS PAID ON THE BASIS OF THE CLASS 100 RATE OF $6.49 PER 100 POUNDS AT THE ACTUAL WEIGHT. IN THE AUDIT OF THESE BILLS HERE, WE DETERMINED THAT THE CORRECT CHARGES SHOULD BE BASED ON THE APPLICABLE TRUCKLOAD RATE AND ACTUAL WEIGHT AND ISSUED STATEMENTS OF EXCESS CHARGES ON EACH SHIPMENT. THE TOTAL AMOUNT OVERCHARGED ON THESE THREE SHIPMENTS BY YOUR CLIENT IS $964.10.

BILL OF LADING NOS. AF-9931053 AND AF-9927375 ALSO COVER SHIPMENTS OF AIRPLANE GUN TURRETS AND PARTS MOVING FROM GARDEN CITY TO WICHITA. THESE SHIPMENTS THE CARRIER ORIGINALLY BILLED AND WAS PAID ON THE BASIS OF THE CLASS 100 RATE OF $6.49 PER 100 POUNDS AT THE ACTUAL WEIGHT. IN THE AUDIT HERE, IT HAS BEEN DETERMINED THAT THE CORRECT CHARGES SHOULD BE BASED ON THE CLASS 3 TRUCKLOAD RATE OF $4.55 PER 100 POUNDS AND THE MINIMUM WEIGHT OF 16,000 POUNDS. STATEMENTS OF EXCESS CHARGES TOTALING $609.83 ON THESE TWO SHIPMENTS WILL BE ISSUED IN THE NEAR FUTURE.

SEVEN OF THE EIGHT SHIPMENTS ON WHICH WE HAVE FOUND OVERCHARGES WEIGHED IN EXCESS OF 16,000 POUNDS. BILL OF LADING NO. AF-9931053 COVERED A SHIPMENT WEIGHING 15,734 POUNDS. THE SHIPPER, AMERICAN BOSCH ARMA CORPORATION, AND THE ADMINISTRATIVE OFFICE HAVE ADVISED US THAT THESE EIGHT SHIPMENTS CONSISTED OF TWO COMPLETE FIRE CONTROL SYSTEMS EACH AND THAT THE TRAILERS WERE SO LOADED THAT IT WAS IMPOSSIBLE TO LOAD ANY ADDITIONAL FREIGHT OF THE SAME KIND IN EACH TRAILER. IT MAY HAVE BEEN POSSIBLE TO LOAD SOME SMALL PARCELS OF OTHER FREIGHT PROVIDING THEY WERE NOT OF A DELICATE OR FRAGILE NATURE. FOR EXAMPLE, ON BILL OF LADING NO. AF-9827759, DATED APRIL 16, 1959, THERE WAS LOADED IN ADDITION TO 16,254 POUNDS OF GUN TURRETS AND PARTS, 40 POUNDS OF PRINTED MATTER.

ITEM NO. 1840 OF THE APPLICABLE TARIFFS, EASTERN CENTRAL MOTOR CARRIERS ASSOCIATION TARIFF NOS. 21D AND 21E DEFINES THE TERM "LOADED TO CAPACITY" OR "CAPACITY LOAD" AS:

"THE TERMS "LOADED TO CAPACITY" OR "CAPACITY LOAD" REFER TO THE EXTENT TO WHICH A STANDARD TRUCK IS LOADED WITH FREIGHT, EACH TERM MEANING THAT QUANTITY OF FREIGHT WHICH, WHEN LOADED IN OR ON A STANDARD TRUCK WEIGHS NOT LESS THAN THE DESIGNATED MINIMUM WEIGHT APPLICABLE TO A SHIPMENT OF SUCH FREIGHT; OR, THAT QUANTITY OF FREIGHT WHICH, IN THE MANNER LOADED SO FILLS A STANDARD TRUCK THAT NO MORE OF THE SHIPMENT IN THE SHIPPING FORM TENDERED CAN BE LOADED IN OR ON THE RUCK; OR, THAT QUANTITY OF FREIGHT WHICH BECAUSE OF UNUSUAL SHAPE OR DIMENSIONS OR BECAUSE OF NECESSITY FOR SEGREGATION OR SEPARATION FROM OTHER FREIGHT REQUIRES THE ENTIRE CAPACITY OF A STANDARD TRUCK.'

THIS TARIFF ITEM AFFORDS THREE ALTERNATIVE BASES FOR DETERMINING CAPACITY LOADS. IN THE INSTANT CASE SEVEN OF THE SHIPMENTS ARE OVER 16,000 POUNDS WHICH IS IN EXCESS OF THE DESIGNATED MINIMUM WEIGHT APPLICABLE ON AIRPLANE GUN TURRETS. THE ADMINISTRATIVE OFFICE AND THE SHIPPER HAVE BOTH REPORTED THAT NO MORE OF THE SHIPMENT IN THE SHIPPING FORM TENDERED COULD BE LOADED ON THESE TRAILERS. THEREFORE, THE APPLICABLE CHARGES ON EACH SHIPMENT PROPERLY SHOULD BE COMPUTED AT THE CLASS 3 TRUCKLOAD RATE AND TRUCKLOAD MINIMUM WEIGHT OF 16,000 POUNDS, OR ACTUAL WEIGHT IF IN EXCESS OF THE MINIMUM WEIGHT. OUR AUDIT ACTION GIVES EFFECT TO THE DECISION OF THE INTERSTATE COMMERCE COMMISSION IN CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576, WHEREIN IT WAS HELD THAT EXCLUSIVE USE TARIFF CHARGES ARE NOT APPLICABLE WHERE A VEHICLE IS LOADED TO FULL CAPACITY, SINCE A SHIPPER DERIVES NO SPECIAL BENEFIT OTHER THAN ORDINARY TRUCKLOAD SERVICE ON THIS TYPE OF MOVEMENT. THE COMMISSION STATED THAT EXCLUSIVE USE SERVICE IS DESIGNED TO ACCORD TRUCKLOAD SERVICE TO LESS THAN -TRUCKLOAD SHIPMENTS.

IN THESE CIRCUMSTANCES, OUR AUDIT ACTION IS CORRECT AND THE AMOUNTS WHICH HAVE OR WILL BE REPORTED TO YOUR CLIENT AS HAVING BEEN OVERPAID SHOULD BE PROMPTLY REFUNDED IN ORDER TO AVOID COLLECTION BY OTHER MEANS.