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B-144650, JUN. 9, 1961

B-144650 Jun 09, 1961
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LTD.: FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED DECEMBER 12. FOR THE TRANSPORTATION SERVICE INVOLVED YOU CLAIMED ORIGINALLY AND WERE PAID $559.50 ON EACH SHIPMENT. IN THE AUDIT OF THE PAYMENT VOUCHER BY OUR TRANSPORTATION DIVISION THE APPLICABLE FREIGHT CHANGES WERE DETERMINED TO BE $397.60 ON EACH SHIPMENT. THE SUM WAS COLLECTED BY DEDUCTION FROM AMOUNTS DUE ON SUBSEQUENT BILLS. THE CLAIM WAS DISALLOWED FOR THE REASON THAT. WHEN A VEHICLE IS LOADED TO CAPACITY. THAT TRUCKLOAD CHARGES ARE APPLICABLE IN SUCH A CASE. YOU AGAIN URGE THAT YOU ARE ENTITLED TO PAYMENT ON THE BASIS OF THE EXCLUSIVE USE OF VEHICLE CHARGE UNDER ITEM 1380. SINCE THE BILLS OF LADING CLEARLY INDICATED THAT EXCLUSIVE USE OF VEHICLE SERVICE WAS REQUESTED AND FURNISHED.

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B-144650, JUN. 9, 1961

TO WESTERN TRUCK LINES, LTD.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED DECEMBER 12, 1960, AND MAY 16, 1961, CONCERNING YOUR CLAIM VOUCHER G-01717, IN WHICH YOU REQUESTED A REVIEW OF THE SETTLEMENT DISALLOWING YOUR CLAIM FOR THE ADDITIONAL AMOUNT OF $323.80 ALLEGED TO BE DUE FOR THE TRANSPORTATION OF STEEL CONTAINERS FROM MCCLELLAN AIR FORCE BASE, PLANEHAVEN, CALIFORNIA, TO DAVIS-MONTHAN AIR FORCE BASE, TUCSON, ARIZONA, UNDER GOVERNMENT BILLS OF LADING NO. AF-5216892 AND AF-5216893, DATED MAY 18, 1956.

FOR THE TRANSPORTATION SERVICE INVOLVED YOU CLAIMED ORIGINALLY AND WERE PAID $559.50 ON EACH SHIPMENT, THE CHARGES SET FORTH IN THE APPLICABLE TARIFF FOR EXCLUSIVE USE OF VEHICLE SERVICE, COMPUTED AT THE FIRST-CLASS RATE OF $3.73 PER 100 POUNDS ON A MINIMUM WEIGHT OF 15,000 POUNDS. IN THE AUDIT OF THE PAYMENT VOUCHER BY OUR TRANSPORTATION DIVISION THE APPLICABLE FREIGHT CHANGES WERE DETERMINED TO BE $397.60 ON EACH SHIPMENT, COMPUTED AT THE THIRD-CLASS TRUCKLOAD RATE OF $2.84 PER 100 POUNDS ON A TRUCKLOAD MINIMUM WEIGHT OF 14,000 POUNDS. WHEN YOU FAILED TO REFUND THE OVERCHARGES OF$323.80 SO DETERMINED, THE SUM WAS COLLECTED BY DEDUCTION FROM AMOUNTS DUE ON SUBSEQUENT BILLS. FOLLOWING THE SUPREME COURT DECISION IN THE T.I.M.E. AND DAVIDSON CASES, 359 U.S. 464, YOU SUBMITTED A SUPPLEMENTAL BILL TO RECOVER THE DEDUCTED AMOUNTS. THE CLAIM WAS DISALLOWED FOR THE REASON THAT, AS THE INTERSTATE COMMERCE COMMISSION HAD HELD IN THE CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576, WHEN A VEHICLE IS LOADED TO CAPACITY, A SHIPPER DERIVES NO BENEFIT FROM EXCLUSIVE USE SERVICE, AND THAT TRUCKLOAD CHARGES ARE APPLICABLE IN SUCH A CASE.

IN YOUR LETTER OF DECEMBER 12, 1960, YOU AGAIN URGE THAT YOU ARE ENTITLED TO PAYMENT ON THE BASIS OF THE EXCLUSIVE USE OF VEHICLE CHARGE UNDER ITEM 1380, INTERSTATE FREIGHT CARRIERS CONFERENCE TARIFF NO. ID, MF-I.C.C. NO. 1380, SINCE THE BILLS OF LADING CLEARLY INDICATED THAT EXCLUSIVE USE OF VEHICLE SERVICE WAS REQUESTED AND FURNISHED. YOU EXPRESS A BELIEF THAT THE REFERENCE IN THE SETTLEMENT TO CURTIS LIGHTING, INC. CASE INDICATES THAT OUR DISALLOWANCE WAS BASED ON "PRIMA FACIE EVIDENCE TO THE EFFECT THAT THE CHARGES ASSESSED WERE UNREASONABLE.' THIS IS NOT THE CASE. OUR VIEW, BASED ON THE OPINION OF THE INTERSTATE COMMERCE COMMISSION IN THE CITED CASE, IS THAT EXCLUSIVE USE OF VEHICLE CHARGES ARE INAPPLICABLE WHERE, AS HERE, THE VEHICLE INVOLVED WAS LOADED TO CAPACITY. AS INDICATED IN OUR SETTLEMENT, THE COMMISSION HELD, IN THAT CASE, THAT ONCE A VEHICLE IS LOADED TO FULL VISIBLE CAPACITY THE SHIPPER DERIVES NO BENEFIT FROM EXCLUSIVE USE SERVICE, WHICH IS DESIGNED TO ACCORD TRUCKLOAD SERVICE ON LESS-THAN-TRUCKLOAD QUANTITIES. SEE, IN THIS CONNECTION, THE ENCLOSED COPY OF OUR DECISION TO YOU DATED FEBRUARY 20, 1961, B-144317, CONCERNING YOUR CLAIMS G-01735 AND G-02187.

THE HEADQUARTERS, WESTERN TRAFFIC REGION, MILITARY TRAFFIC MANAGEMENT AGENCY, OAKLAND, CALIFORNIA, REPORTS THAT THE SHIPMENTS IN EACH INSTANCE CONSISTED OF THREE STEEL CONTAINERS FOR RADIAL CYLINDER TYPE AIRCRAFT ENGINES AND THAT ANOTHER CONTAINER COULD NOT HAVE BEEN LOADED IN THE VAN UTILIZED FOR EACH SHIPMENT. IN THOSE CIRCUMSTANCES, THE CHARGES PROPERLY WERE COMPUTED ON THE BASIS OF THE TRUCKLOAD RATE AND MINIMUM TRUCKLOAD WEIGHT APPLICABLE ON THE COMMODITY INVOLVED.

SINCE YOU HAVE ALREADY BEEN PAID THE AMOUNTS PROPERLY DUE ON SUCH BASIS, THE SETTLEMENT DATED OCTOBER 21, 1960, WAS CORRECT, AND IS HEREBY SUSTAINED.

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