B-143458, MAR. 30, 1961

B-143458: Mar 30, 1961

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YOU WERE FOUND TO BE INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $155.30. WHEN THE PAID VOUCHER WAS REACHED FOR AUDIT HERE. IT WAS DETERMINED THAT THE PROPER CHARGES SHOULD HAVE BEEN $150.60. WHICH PROVIDES: "WHEN THE CHARGE ON A SHIPMENT IS MADE LOWER BY BILLING IT AS A LESS-THAN -TRUCKLOAD SHIPMENT. SUCH LOWER CHARGE WILL APPLY.'. THE CERTIFICATE OF INDEBTEDNESS WAS ISSUED. IT IS YOUR POSITION THAT SINCE THIS SHIPMENT WAS SAID TO OCCUPY THE ENTIRE VEHICLE IT SHOULD BE PAID FOR AT THE TRUCKLOAD RATE AND MINIMUM WEIGHT. ALTHOUGH YOU HAVE CITED NO TARIFF AUTHORITY THAT WOULD PERMIT YOU TO LAWFULLY COLLECT TRUCKLOAD MINIMUM FREIGHT CHARGES ON A LESS THAN- TRUCKLOAD QUANTITY OF FREIGHT.

B-143458, MAR. 30, 1961

TO PENNSYLVANIA TRANSFER COMPANY:

BY CERTIFICATE OF INDEBTEDNESS DATED JUNE 20, 1960, ISSUED IN CONNECTION WITH OUR CLAIM NO. TK-172387, YOU WERE FOUND TO BE INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $155.30, WHICH THE GOVERNMENT HAD BEEN OVERCHARGED IN ITS PAYMENT OF YOUR BILL NC 23166, CLAIMING FREIGHT CHARGES FOR TRANSPORTATION OF EIGHT LOOSE AUTOMOBILE TOWING POLES, WEIGHING 5,744 POUNDS, FROM NEW CASTLE, PENNSYLVANIA, TO MCGUIRE AIR BASE, NEW JERSEY, ON BILL OF LADING NO. AF-7611030 DATED MARCH 7, 1958. THE BILL OF LADING CONTAINS THE HAND-PRINTED NOTATION "35 FT. TRAILER LOADED TO FULL VISIBLE CAPACITY AW.' AND YOU ASSESSED CHARGES OF $305.90, APPARENTLY AT THE TRUCKLOAD RATE AND TRUCKLOAD MINIMUM WEIGHT.

WHEN THE PAID VOUCHER WAS REACHED FOR AUDIT HERE, IT WAS DETERMINED THAT THE PROPER CHARGES SHOULD HAVE BEEN $150.60, COMPUTED AT THE LESS THAN- TRUCKLOAD RATE OF $2.51 PER 100 POUNDS, MINIMUM 6,000 POUNDS, PROVIDED IN MIDDLE ATLANTIC CONFERENCE FREIGHT TARIFF NO. 5-F, MF I.C.C. NO. A-845, AND MIDDLE ATLANTIC CONFERENCE MASTER TARIFF NO. 18, MF-I.C.C. NO. A-830, SUPPLEMENT 1, LINE C, IN ACCORDANCE WITH RULE 25, PARAGRAPH (D) OF MIDDLE ATLANTIC CONFERENCE EXCEPTIONS TARIFF NO. 10 M, MF-I.C.C.NO. A-870, WHICH PROVIDES:

"WHEN THE CHARGE ON A SHIPMENT IS MADE LOWER BY BILLING IT AS A LESS-THAN -TRUCKLOAD SHIPMENT, SUCH LOWER CHARGE WILL APPLY.'

UPON YOUR FAILURE TO REFUND THE OVERPAYMENT OF $155.30, THE CERTIFICATE OF INDEBTEDNESS WAS ISSUED.

IT IS YOUR POSITION THAT SINCE THIS SHIPMENT WAS SAID TO OCCUPY THE ENTIRE VEHICLE IT SHOULD BE PAID FOR AT THE TRUCKLOAD RATE AND MINIMUM WEIGHT, ALTHOUGH YOU HAVE CITED NO TARIFF AUTHORITY THAT WOULD PERMIT YOU TO LAWFULLY COLLECT TRUCKLOAD MINIMUM FREIGHT CHARGES ON A LESS THAN- TRUCKLOAD QUANTITY OF FREIGHT. A LESS-THAN-TRUCKLOAD LOT OF FREIGHT, EVEN THOUGH IT FILLED A VEHICLE TO FULL VISIBLE CAPACITY AS ALLEGED HERE, WOULD BE SUBJECT TO TRUCKLOAD CHARGES ONLY WHERE THE GOVERNING TARIFF SO PROVIDED, AS BY A CAPACITY LOAD RULE SUCH AS THAT PROVIDED IN RULE 62-2 OF EXCEPTIONS TARIFF NO. 10-M. HOWEVER, RULE 62 2 LISTS, IN PARAGRAPH (B), THE CARRIERS IN CONNECTION WITH WHICH IT APPLIES. THE PENNSYLVANIA TRANSFER COMPANY IS NOT INCLUDED IN THAT LIST. CONSEQUENTLY, RULE 62-2 IS NOT APPLICABLE TO THIS SHIPMENT; NOR DO THE GOVERNING TARIFFS CONTAIN ANY OTHER RULES WHICH WOULD REQUIRE THE PAYMENT OF TRUCKLOAD CHARGES ON THIS SHIPMENT. IT SHOULD, THEREFORE, HAVE BEEN BILLED AS A LESS-THAN-TRUCKLOAD SHIPMENT IN ACCORDANCE WITH RULE 25, PARAGRAPH (D), OF THE EXCEPTION TARIFF, OR BY RULE 13, SECTION 2 (D) OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4, MF-I.C.C.NO. 1.

IN THE CIRCUMSTANCES, WE CONCLUDE THAT THE CERTIFICATE OF INDEBTEDNESS WAS PROPERLY ISSUED, AND THE OVERCHARGE OF $155.30 SHOULD BE REFUNDED WITHIN 30 DAYS TO AVOID EITHER COLLECTION BY DEDUCTION FROM AMOUNTS OTHERWISE DUE YOU, IN ACCORDANCE WITH SECTION 322 OF THE TRANSPORATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66, OR BY REFERENCE OF THE CERTIFICATE OF INDEBTEDNESS TO THE DEPARTMENT OF JUSTICE FOR APPROPRIATE ACTION.