B-144100, JUL. 18, 1961

B-144100: Jul 18, 1961

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THE BILL OF LADING WAS PREPARED AT THE HIGH SPEED FLIGHT STATION. WAS TENDERED TO DESERT EXPRESS FOR TRANSPORTATION FROM EDWARDS TO SAN DIEGO. THE BILL OF LADING WAS UNROUTED. WHEN WE AUDITED YOUR BILL IT WAS DETERMINED THAT FREIGHT CHARGES OF $79.20 WERE APPLICABLE TO THIS SHIPMENT. DESERT EXPRESS IS LISTED AS A PARTICIPATING CARRIER ON 11TH REVISED PAGE NO. 6 TO THE QUOTATION. AFTER NOTICE OF THE OVERPAYMENT WAS SENT TO YOU. THE OVERPAYMENT OF $55.60 WAS COLLECTED BY DEDUCTION. YOUR LATER CLAIM FOR THAT AMOUNT WAS DISALLOWED BY THE SETTLEMENT CERTIFICATE HERE UNDER REVIEW BECAUSE. IT IS OUR VIEW THAT UNDER BEELER'S QUOTATION NO. 1-A. COULD HAVE AND SHOULD HAVE TRANSPORTED THE UNROUTED SHIPMENT FROM ORIGIN TO DESTINATION.

B-144100, JUL. 18, 1961

TO CALIFORNIA CARTAGE COMPANY, INC.:

WE AGAIN REFER TO YOUR LETTERS OF MAY 8, 1961 AND SEPTEMBER 22, 1960 (WITH ENCLOSURE), CONCERNING YOUR O/C NO. 0-2573G, IN WHICH YOU REQUEST REVIEW OF OUR SETTLEMENT CERTIFICATE DATED AUGUST 23, 1960 (OUR CLAIM NO. TK-693180). THE SETTLEMENT DISALLOWED YOUR CLAIM, STATED ON YOUR SUPPLEMENTAL BILL NO. A-645728, DATED FEBRUARY 18, 1960, FOR $55.60, ALLEGEDLY THE ADDITIONAL FREIGHT CHARGES DUE FOR TRANSPORTATION SERVICES FURNISHED THE GOVERNMENT ON GOVERNMENT BILL OF LADING NO. AE-17505.

THE BILL OF LADING WAS PREPARED AT THE HIGH SPEED FLIGHT STATION, EDWARDS, CALIFORNIA, TO COVER A SHIPMENT OF 3,250 POUNDS OF AIRCRAFT PARTS WHICH, ON FEBRUARY 17, 1955, WAS TENDERED TO DESERT EXPRESS FOR TRANSPORTATION FROM EDWARDS TO SAN DIEGO, CALIFORNIA. THE BILL OF LADING WAS UNROUTED; IT SHOWS THAT THE CONSIGNEE TOOK DELIVERY OF THE SHIPMENT AT NORTH ISLAND (SAN DIEGO), CALIFORNIA, FROM CALIFORNIA CARTAGE COMPANY, INC., ON FEBRUARY 21, 1955.

FOR THE TRANSPORTATION SERVICE DESCRIBED ON THE BILL OF LADING YOU COLLECTED ON YOUR BILL NO. A-645728, DATED MAY 5, 1955, FREIGHT CHARGES OF $134.80, BASED ON A RATE OF $1.90 PER 100 POUNDS, TO LOS ANGELES, PLUS A RATE OF $1.47 PER 100 POUNDS, BEYOND, BOTH SUBJECT TO A MINIMUM WEIGHT OF 4,000 POUNDS. WHEN WE AUDITED YOUR BILL IT WAS DETERMINED THAT FREIGHT CHARGES OF $79.20 WERE APPLICABLE TO THIS SHIPMENT. OUR LOWER BASIS USES A CLASS 150 SINGLE FACTOR THROUGH DISTANCE RATE OF $1.98 PER 100 POUNDS, SUBJECT TO A LESS-THAN-TRUCKLOAD MINIMUM WEIGHT OF 4,000 POUNDS, NAMED IN AGENT BEELER'S SOUTHWESTERN MOTOR TARIFF BUREAU LOCAL U.S. GOVERNMENT QUOTATION NO. 1-A AS APPLYING FROM EDWARDS TO NORTH ISLAND. DESERT EXPRESS IS LISTED AS A PARTICIPATING CARRIER ON 11TH REVISED PAGE NO. 6 TO THE QUOTATION. AFTER NOTICE OF THE OVERPAYMENT WAS SENT TO YOU, THE OVERPAYMENT OF $55.60 WAS COLLECTED BY DEDUCTION; YOUR LATER CLAIM FOR THAT AMOUNT WAS DISALLOWED BY THE SETTLEMENT CERTIFICATE HERE UNDER REVIEW BECAUSE, AS STATED ON THE CERTIFICATE, IT IS OUR VIEW THAT UNDER BEELER'S QUOTATION NO. 1-A, AS IN EFFECT AT THE TIME OF THIS SHIPMENT, DESERT EXPRESS, HOLDER OF A CALIFORNIA INTRASTATE RADIAL HIGHWAY COMMON CARRIER PERMIT, COULD HAVE AND SHOULD HAVE TRANSPORTED THE UNROUTED SHIPMENT FROM ORIGIN TO DESTINATION, INSTEAD OF INTERCHANGING WITH YOU AT LOS ANGELES, CALIFORNIA.

YOU CONTEND, IN EFFECT, THAT THE CHARGE BASIS IN BEELER'S QUOTATION NO. 1 -A IS INAPPLICABLE TO THIS SHIPMENT FOR THE REASON THAT DESERT EXPRESS, UNDER WHAT YOU CALL ITS "RADIAL HIGHWAY PERMIT," "ONLY HANDLES FREIGHT AT ITS OPTION AND UNLIKE A CERTIFICATE (I.E., OPERATIONS UNDER A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY), WHICH IS CONSIDERABLY MORE LIMITED," DESERT EXPRESS IS NOT "FORCED TO ACCEPT FREIGHT AS A MATTER OF PUBLIC RESPONSIBILITY.' TO SUPPORT YOUR CONTENTION YOU POINT OUT THAT IN A LETTER DATED NOVEMBER 2, 1955 (COPY ENCLOSED WITH YOUR LETTER), TO THE SHIPPING AGENCY, DESERT EXPRESS NOTIFIED THE AGENCY THAT IT WOULD NOT EXERCISE ITS PERMITTED OPERATIONS--- THOSE AUTHORIZED IN PERMITS ISSUED BY THE CALIFORNIA PUBLIC UTILITIES COMMISSION--- TO POINTS BEYOND THOSE SERVED WITHIN THE SCOPE OF ITS CERTIFICATED OPERATIONS--- THOSE AUTHORIZED IN CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY ISSUED BY THAT COMMISSION. YOU REFER TO THE FOLLOWING NOTE IN "U.S. GOVERNMENT QUOTATION NO. 1: "

"RATES IN THIS QUOTATION APPLICABLE TO SHIPMENTS WEIGHING LESS THAN 20,000 POUNDS APPLY ONLY BETWEEN POINTS LOCATED WITHIN THE SCOPE OF DESERT EXPRESS COMMON CARRIER CERTIFICATE AS DESCRIBED IN WESTERN MOTOR TARIFF BUREAU, INC., AGENT, SCOPE OF OPERATIONS AND PARTICIPATING CARRIER TARIFF NO. 100, CAL.P.U.C. NO. 3, MF-I.C.C. NO. 3.'

THIS NOTE WAS NOT A PART OF, OR PUBLISHED IN BEELER'S QUOTATION NO. 1-A, WHICH WAS IN EFFECT ON FEBRUARY 17, 1955, THE DATE OF THIS SHIPMENT.

YOU REFER ALSO TO AN ITEM IN QUOTATION NO. 1-A WHICH RESERVES TO THE CARRIERS PARTIES THERETO THE RIGHT "TO REFUSE ANY SHIPMENT, AT ANY TIME, UNDER RATES IN THIS QUOTATION WHERE THE VOLUME OF FREIGHT OFFERED IS NOT SUFFICIENT TO WARRANT OPERATION OF EQUIPMENT.' FINALLY, YOU ASSERT THAT OUR USE OF THE SINGLE FACTOR THROUGH RATE BASIS IN BEELER'S QUOTATION NO. 1-A DEPRIVES THE MANAGEMENT OF DESERT EXPRESS OF THE RIGHT TO ELECT THE BASIS UPON WHICH TO OPERATE ITS BUSINESS.

THE CALIFORNIA PUBLIC UTILITIES COMMISSION TELLS US THAT DESERT EXPRESS, IN ADDITION TO OPERATIONS AUTHORIZED IN ITS CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY, IS AUTHORIZED TO PERFORM FOUR TYPES OF PERMITTED--- AS DISTINGUISHED FROM CERTIFICATED--- OPERATIONS, INCLUDING THOSE UNDER RADIAL HIGHWAY COMMON CARRIER PERMIT NO. 19-34356 AND UNDER HIGHWAY CONTRACT CARRIER PERMIT NO. 19-34357, BOTH ISSUED MARCH 31, 1948. UNDER SECTION 3516 OF THE CALIFORNIA PUBLIC UTILITY CODE, OPERATIONS UNDER A RADIAL HIGHWAY COMMON CARRIER PERMIT CAN ONLY BE AS A COMMON CARRIER, NOLAN V. PUBLIC UTILITIES COMMISSION, 260 P.2D 790, 792 (1953); AND ONE OF THE HALLMARKS OF A COMMON CARRIER IS THAT IT OFFERS TO SERVE ANYONE WITHIN THE SCOPE OF ITS DEDICATION. SEE SAMUELSON V. PUBLIC UTILITIES COMMISSION, 227 P.2D 256 (1951); KELLEY V. GENERAL ELECTRIC COMPANY, 110 F.SUPP. 4, 6 (1953); AND SEE THE DEFINITIONS OF A RADIAL HIGHWAY COMMON CARRIER AND A HIGHWAY CONTRACT CARRIER IN RAMPONE V. LEONARDINI, 39 CALIFORNIA RAILROAD COMMISSION DECISIONS 562, 567 (1936). IT IS CLEAR, THEREFORE, THAT DESERT EXPRESS HAD APPROPRIATE AUTHORITY, AND HAVING ACCEPTED THE SHIPMENT WITHOUT NOTIFYING THE SHIPPER OF ITS INTENTIONS TO INTERCHANGE WITH YOU, IT WAS BOUND TO TRANSPORT THE SHIPMENT FROM ORIGIN TO DESTINATION. WE CALL YOUR ATTENTION TO THE FACT THAT ON FEBRUARY 17, 1955, THE RATES AND CHARGES IN BEELER'S QUOTATION NO. 1-A APPLIED WITHOUT ANY RESTRICTIONS TO ALL OPERATIONS OF DESERT EXPRESS, WHETHER PERMITTED OR CERTIFICATED.

CONCERNING DESERT EXPRESS' LETTER OF NOVEMBER 2, 1955, TO THE SHIPPING AGENCY, TO WHICH YOU REFER, EVEN IF CONSIDERED AS A VALID LIMITATION ON THE APPLICATION OF THE RATES IN BEELER'S QUOTATION NO. 1 A, THE LETTER COULD HARDLY BE CONSIDERED AS AFFECTING A SHIPMENT TENDERED TO THAT CARRIER ON FEBRUARY 17, 1955, NEARLY TEN MONTHS BEFORE. ALSO, WHEN IT ACCEPTED THE UNROUTED SHIPMENT FOR TRANSPORTATION AS TENDERED, DESERT EXPRESS WAIVED THE RIGHT TO REFUSE THE SHIPMENT, RESERVED TO IT BY ITEM NO. 110 (B) OF BEELER'S QUOTATION NO. 1-A. FINALLY, OUR USE OF THE QUOTATION BASIS HAS NOT DEPRIVED THE CARRIER MANAGEMENT OF THE RIGHT TO ELECT THE BASIS UPON WHICH TO OPERATE ITS BUSINESS. DESERT EXPRESS ELECTED TO BECOME A PARTICIPATING CARRIER IN BEELER'S QUOTATION NO. 1-A--- A BASIS UPON WHICH TO OPERATE ITS BUSINESS--- AND, AS STATED ABOVE, AT THE TIME THIS TRANSPORTATION WAS PERFORMED, FEBRUARY 17, 1955, WE FIND NO RESTRICTIONS IN THAT QUOTATION WHICH LIMIT OR PRECLUDE ITS APPLICATION TO THE UNROUTED SHIPMENT TENDERED TO DESERT EXPRESS FOR TRANSPORTATION UNDER BILL OF LADING AE-17505.

THE SETTLEMENT CERTIFICATE DATED AUGUST 13, 1960 (OUR CLAIM NO. TK 693180), IS NOT SHOWN TO ..END :