B-144662, JUL. 3, 1961

B-144662: Jul 3, 1961

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CROSS: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 16. THE COMMERCIAL BILL (COPY ATTACHED) WAS ANNOTATED "EXCLUSIVE USE OF TRUCK.'. THIS ANNOTATION WAS NOT PLACED ON THE GOVERNMENT BILL OF LADING. FOR THIS SERVICE THE CARRIER CLAIMED AND WAS PAID $352 COMPUTED AT A THIRD-CLASS (70) RATE OF $1.76 PER 100 POUNDS ON A CONSTRUCTIVE WEIGHT OF 20. IN OUR AUDIT THE APPLICABLE CHARGES WERE DETERMINED TO BE $301.20. NO. 265) WHICH PROVIDES THAT THE MINIMUM CHARGE WILL BE COMPUTED ON A MINIMUM WEIGHT AT THE FIRST-CLASS RATE APPLICABLE VIA ROUTE OF MOVEMENT (IN THIS INSTANCE. A DEDUCTION OF $50.80 WAS MADE UPON THE CARRIER'S FAILURE TO REFUND VOLUNTARILY. THE DISALLOWANCE OF THE CARRIER'S CLAIM WAS INADVERTENTLY STATED IN THE SETTLEMENT AS BEING FOR THE REASON THAT THE BILL OF LADING WAS NOT INCLUDED IN THE ORIGINAL COMPLAINT FILED IN CIVIL ACTION NO. 63755.

B-144662, JUL. 3, 1961

TO DONALD E. CROSS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 16, 1960, IN WHICH YOU REQUEST REVIEW OF OUR SETTLEMENT CERTIFICATE (CLAIM TK 593814) DATED NOVEMBER 18, 1960, DISALLOWING THE CLAIM OF YOUR CLIENT, ASSOCIATED TRANSPORT, INC., FOR $50.80 ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE ON A SHIPMENT OF ELECTRIC TRANSFORMERS AND PARTS, WEIGHING 8,369 POUNDS, WHICH MOVED FROM PITTSFIELD, MASSACHUSETTS, TO ELZA, TENNESSEE, DURING AUGUST 1944, UNDER A COMMERCIAL BILL OF LADING CONVERTED TO GOVERNMENT BILL OF LADING WT-1501367. THE COMMERCIAL BILL (COPY ATTACHED) WAS ANNOTATED "EXCLUSIVE USE OF TRUCK.' HOWEVER, THIS ANNOTATION WAS NOT PLACED ON THE GOVERNMENT BILL OF LADING.

FOR THIS SERVICE THE CARRIER CLAIMED AND WAS PAID $352 COMPUTED AT A THIRD-CLASS (70) RATE OF $1.76 PER 100 POUNDS ON A CONSTRUCTIVE WEIGHT OF 20,000 POUNDS. IN OUR AUDIT THE APPLICABLE CHARGES WERE DETERMINED TO BE $301.20, COMPUTED UNDER THE EXCLUSIVE-USE PROVISION OF THE TARIFF (ITEM 23075, SUPPLEMENT 55, SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 4 -C, MF-I.C.C. NO. 265) WHICH PROVIDES THAT THE MINIMUM CHARGE WILL BE COMPUTED ON A MINIMUM WEIGHT AT THE FIRST-CLASS RATE APPLICABLE VIA ROUTE OF MOVEMENT (IN THIS INSTANCE, A 12,000 POUND MINIMUM AT $2.51 PER 100 POUNDS). A DEDUCTION OF $50.80 WAS MADE UPON THE CARRIER'S FAILURE TO REFUND VOLUNTARILY. THE DISALLOWANCE OF THE CARRIER'S CLAIM WAS INADVERTENTLY STATED IN THE SETTLEMENT AS BEING FOR THE REASON THAT THE BILL OF LADING WAS NOT INCLUDED IN THE ORIGINAL COMPLAINT FILED IN CIVIL ACTION NO. 63755.

WE HAVE RE-EXAMINED OUR BASIS AND BELIEVE THAT IT IS CORRECT. THE LESS- THAN-TRUCKLOAD RATE OF $1.76 (THIRD CLASS BY EXCEPTIONS) AT THE ACTUAL WEIGHT OF SHIPMENT (8,369 POUNDS) PRODUCES CHARGES OF $147.29, WHICH WOULD HAVE BEEN APPLICABLE TO THIS SHIPMENT IF EXCLUSIVE-USE SERVICE HAD NOT BEEN REQUESTED AND FURNISHED. THE TRUCKLOAD RATE OF $1.76 (THIRD CLASS BY MINIMUM RATE STOP) AT A PRESCRIBED MINIMUM WEIGHT OF 30,000 POUNDS (NOT 20,000 AS BILLED BY THE CARRIER) YIELDS CHARGES OF $528 AND, IN ANY EVENT, WOULD BE INAPPLICABLE BECAUSE SUCH CHARGES WERE HIGHER THAN THE LESS-THAN- TRUCKLOAD CHARGES. THEREFORE, THE MINIMUM CHARGE BASIS SET OUT IN THE EXCLUSIVE-USE ITEM GOVERNS AND THE APPLICABLE CHARGES ARE $301.20, AS SPECIFIED IN GREATER DETAIL ON OUR ORIGINAL NOTICE OF OVERCHARGE. QUESTION OF REASONABLENESS IS PRESENTED AND, CONSEQUENTLY, THE DECISION IN THE T.I.M.E. CASE, 359 U.S. 464, IS NOT CONTROLLING.