B-143708, NOV. 30, 1960

B-143708: Nov 30, 1960

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 1. FOR SUCH SERVICE YOUR COMPANY ASSESSED AND WAS PAID CHARGES IN THE AMOUNT OF $311. ON THE BASIS THAT EXCLUSIVE USE OF THE VEHICLE SERVICE WAS FURNISHED. OUR TRANSPORTATION DIVISION FOUND THAT CHARGES OF $251 SHOULD HAVE BEEN ASSESSED. THE OVERPAYMENT IN THE AMOUNT OF $60 WAS DEDUCTED FROM AMOUNTS DUE ON A SUBSEQUENT BILL. YOUR CLAIM FOR REFUND OF THAT AMOUNT WAS DISALLOWED FOR THE REASON THAT THE TRAILER WAS LOADED TO CAPACITY TO THE EXTENT THAT NO MORE OF THE SAME ARTICLES COULD HAVE BEEN LOADED THEREON. WHICH IS DESIGNED TO ACCORD TRUCKLOAD SERVICE TO LESS-THAN-TRUCKLOAD SHIPMENTS. YOU STATE THAT A REVIEW OF YOUR RECORDS DOES NOT DISCLOSE THAT THE TRAILER WAS LOADED TO CAPACITY AND THAT WE HAD NOT OFFERED ANY PROOF THAT THE TRAILER WAS SO LOADED.

B-143708, NOV. 30, 1960

TO LEE WAY MOTOR FREIGHT, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 1, 1960, YOUR FILE LW-7-8-21-M, IN WHICH YOU REQUESTED A REVIEW OF OUR SETTLEMENT CERTIFICATE DATED JULY 13, 1960, DISALLOWING YOUR CLAIM G-1061 FOR ADDITIONAL FREIGHT CHARGES ON A SHIPMENT OF AIRCRAFT PARTS, OTHER THAN CLOTH OR WOOD AND METAL COMBINED, WEIGHING 4,033 POUNDS, MOVING FROM CONTINENTAL CAN COMPANY, COFFEYVILLE, KANSAS, TO BENBROOK, TEXAS, DURING JULY 1957. FOR SUCH SERVICE YOUR COMPANY ASSESSED AND WAS PAID CHARGES IN THE AMOUNT OF $311, ON THE BASIS THAT EXCLUSIVE USE OF THE VEHICLE SERVICE WAS FURNISHED. UPON AUDITING THE PAYMENT, OUR TRANSPORTATION DIVISION FOUND THAT CHARGES OF $251 SHOULD HAVE BEEN ASSESSED, BASED ON THE TRUCKLOAD RATE AND MINIMUM WEIGHT APPLICABLE UNDER MIDDLEWEST MOTOR FREIGHT BUREAU TARIFF NO. 35-A, MF-I.C.C. NO. 240, SUPPLEMENT 94. UPON YOUR FAILURE TO MAKE REFUND AS REQUESTED, THE OVERPAYMENT IN THE AMOUNT OF $60 WAS DEDUCTED FROM AMOUNTS DUE ON A SUBSEQUENT BILL. YOUR CLAIM FOR REFUND OF THAT AMOUNT WAS DISALLOWED FOR THE REASON THAT THE TRAILER WAS LOADED TO CAPACITY TO THE EXTENT THAT NO MORE OF THE SAME ARTICLES COULD HAVE BEEN LOADED THEREON, AND THAT THE GOVERNMENT DERIVED NO BENEFIT FROM THE EXCLUSIVE USE SERVICE, WHICH IS DESIGNED TO ACCORD TRUCKLOAD SERVICE TO LESS-THAN-TRUCKLOAD SHIPMENTS.

IN YOUR LETTER OF AUGUST 8, 1960, YOU STATE THAT A REVIEW OF YOUR RECORDS DOES NOT DISCLOSE THAT THE TRAILER WAS LOADED TO CAPACITY AND THAT WE HAD NOT OFFERED ANY PROOF THAT THE TRAILER WAS SO LOADED. WE ARE ENCLOSING AUTOSTATIC COPIES OF A LETTER DATED MAY 10, 1960, FROM HEADQUARTERS, CENTRAL TRAFFIC REGION, MILITARY TRAFFIC MANAGEMENT AGENCY, IN REPLY TO OUR INQUIRY, COPY ALSO ENCLOSED, IN WHICH WE WERE INFORMED THAT THE SHIPPER, THE CONTINENTAL CAN COMPANY, HAD ADVISED THAT THE TRAILER WAS LOADED TO CAPACITY SO THAT NO MORE OF THE SAME ARTICLES COULD HAVE BEEN LOADED THEREON. IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, SUFFICIENT TO OVERCOME THE PRESUMPTION OF CORRECTNESS THEREOF, WE MUST REGARD THIS REPORT OF THE ADMINISTRATIVE OFFICE AS BEING CONCLUSIVE OF THE FACTUAL ISSUE INVOLVED.

ON THE BASIS OF THE PRESENT RECORD, INDICATING THAT THE VEHICLE WAS FILLED TO CAPACITY, IT IS OUR VIEW THAT THE RULING OF THE INTERSTATE COMMERCE COMMISSION, IN THE CASE OF CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, 303 I.C.C. 576, IS APPLICABLE HERE. ACCORDINGLY, THE SETTLEMENT ACTION WHICH DISALLOWED YOUR SUPPLEMENTAL BILL WAS PROPER, AND IS HEREBY SUSTAINED.