B-143616, OCT. 20, 1960

B-143616: Oct 20, 1960

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TO MERCHANTS FAST MOTOR LINES: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 21. EACH OF THE SHIPMENTS FILLED TO CAPACITY THE VEHICLE INTO WHICH IT WAS LOADED. CHARGES WERE BILLED AND PAID ON THE BASIS OF TARIFF EXCLUSIVE-USE CHARGES. THE CHARGES ALLOWED IN OUR SETTLEMENT WERE THOSE COMPUTED ON A VOLUME OR TRUCKLOAD BASIS AND THE CASE OF CURTIS LIGHTING. WAS CITED IN SUPPORT OF THIS BASIS. YOU ASSERT THAT THE CITED INTERSTATE COMMERCE COMMISSION DECISION TURNED ON QUESTIONS OF REASONABLENESS AND IS THUS WITHOUT EFFECT SINCE THE RULING BY THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF T.I.M.E. ALTHOUGH THE QUESTION OF REASONABLENESS OF THE CHARGES COLLECTED WAS RAISED BY THE PETITIONER IN THE CURTIS LIGHTING CASE.

B-143616, OCT. 20, 1960

TO MERCHANTS FAST MOTOR LINES:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 21, 1960, REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE DATED JUNE 13, 1960, WHICH DISALLOWED YOUR CLAIM FOR $241.90 ADDITIONAL FREIGHT CHARGES, PER YOUR SUPPLEMENTAL BILL NO. 441-57-A, OUR CLAIM NO. TK-676881, YOUR CLAIM 0/C 88120. THE SERVICE IN QUESTION CONSISTED OF THE TRANSPORTATION OF TWO SHIPMENTS OF GENERATORS AND ENGINES COMBINED (AND BATTERY FLUID) FROM COLUMBUS, INDIANA, TO FORT BLISS, TEXAS, UNDER BILLS OF LADING WY-6304509 AND WY- 6304510, IN MARCH 1957. EACH OF THE SHIPMENTS WEIGHED 28,044 POUNDS AND, ACCORDING TO A REPORT FROM THE MILITARY TRAFFIC MANAGEMENT AGENCY, EACH OF THE SHIPMENTS FILLED TO CAPACITY THE VEHICLE INTO WHICH IT WAS LOADED. CHARGES WERE BILLED AND PAID ON THE BASIS OF TARIFF EXCLUSIVE-USE CHARGES. THE CHARGES ALLOWED IN OUR SETTLEMENT WERE THOSE COMPUTED ON A VOLUME OR TRUCKLOAD BASIS AND THE CASE OF CURTIS LIGHTING, INC. V. MID- STATES FREIGHT LINES, NC., 303 I.C.C. 576, WAS CITED IN SUPPORT OF THIS BASIS.

IN YOUR REQUEST FOR REVIEW, YOU ASSERT THAT THE CITED INTERSTATE COMMERCE COMMISSION DECISION TURNED ON QUESTIONS OF REASONABLENESS AND IS THUS WITHOUT EFFECT SINCE THE RULING BY THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF T.I.M.E., INC. V. UNITED STATES, 359 U.S. 464. ALTHOUGH THE QUESTION OF REASONABLENESS OF THE CHARGES COLLECTED WAS RAISED BY THE PETITIONER IN THE CURTIS LIGHTING CASE, THE DECISION BY THE COMMISSION IN THAT CASE TURNED ON THE QUESTION OF THE APPLICABILITY OF THE TARIFF PROVISIONS INVOLVED. DISPOSITION OF THE CASE ON THE BASIS OF APPLICABILITY WAS IN ACCORDANCE WITH THE WELL-SETTLED RULE THAT THE APPLICABLE RATE MAY BE DETERMINED UNDER AN ALLEGATION OF UNREASONABLENESS. FOSTER WHEELER CORP. V. CENTRAL R. CO. OF NEW JERSEY, 272 I.C.C. 119. THE CASE WAS NOT, THEREFORE, ONE GOVERNED BY THE RULE OF THE T.I.M.E. CASE.

THE PRINCIPLE ESTABLISHED IN THE CURTIS LIGHTING CASE IS ONE WHICH WE HAVE CONSISTENTLY APPLIED, AND ARE CONTINUING TO APPLY, IN THE AUDIT OF TRANSPORTATION ACCOUNTS OF COMMON CARRIERS BY MOTOR VEHICLE INVOLVING CAPACITY-LEAD SHIPMENTS. SO LONG AS THE CASE REMAINS AS THE SOLE OUTSTANDING AUTHORITY ON THE PARTICULAR QUESTION INVOLVED, WE SEE NO REASON TO DEPART FROM THE CONCLUSION REACHED BY THE COMMISSION. THE SETTLEMENT HERE WAS CONSISTENT WITH THE PRINCIPLE OF THE CURTIS LIGHTING CASE AND IT IS, ACCORDINGLY, SUSTAINED.