B-144676, FEB. 20, 1961

B-144676: Feb 20, 1961

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LTD.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 13. NOTATIONS ON THE BILL OF LADING INDICATE THAT EXCLUSIVE USE OF A VEHICLE WAS REQUESTED AND THAT THE SHIPMENT WAS "LOADED TO FULL VISIBLE CAPACITY (ONE TRUCK USED).'. 672.98 WERE BILLED AND PAID ON THE BASIS OF EXCLUSIVE USE OF VEHICLE SERVICE AND WERE COMPUTED AT THE FIRST-CLASS LESS-THAN TRUCKLOAD RATE OF $7.28 PER 100 POUNDS ON THE ACTUAL WEIGHT OF 21. IN OUR AUDIT IT WAS DETERMINED THAT THE APPLICABLE CHARGES WERE $852.85. THE OVERCHARGES OF $820.13 WERE LATER DEDUCTED FROM MONIES OTHERWISE DUE YOUR COMPANY. IN YOUR REQUEST FOR REVIEW YOU SEEM TO URGE THAT THE INTERSTATE COMMERCE COMMISSION'S DECISION IN THE CURTIS LIGHTING CASE TURNED ON QUESTIONS OF REASONABLENESS AND IS WITHOUT EFFECT IN VIEW OF THE RULING BY THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF T.I.M.E.

B-144676, FEB. 20, 1961

TO WESTERN TRUCK LINES, LTD.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 13, 1960, IN WHICH YOU REQUEST A REVIEW OF OUR SETTLEMENT CERTIFICATE DATED OCTOBER 28, 1960, DISALLOWING YOUR CLAIM FOR $820.13 ADDITIONAL FREIGHT CHARGES SUBMITTED UNDER SUPPLEMENTAL BILL NO. G-01979, OUR CLAIM NO. TK 685442. THE SHIPMENT, WEIGHING 21,812 POUNDS, CONSISTED OF INTERNAL COMBUSTION ENGINES MOVED FROM KELLY AIR FORCE BASE, SAN ANTONIO, TEXAS, TO TRAVIS AIR FORCE BASE, CALIFORNIA, UNDER GOVERNMENT BILL OF LADING NO. AF-6641224, DATED JUNE 14, 1956. NOTATIONS ON THE BILL OF LADING INDICATE THAT EXCLUSIVE USE OF A VEHICLE WAS REQUESTED AND THAT THE SHIPMENT WAS "LOADED TO FULL VISIBLE CAPACITY (ONE TRUCK USED).'

CHARGES OF $1,672.98 WERE BILLED AND PAID ON THE BASIS OF EXCLUSIVE USE OF VEHICLE SERVICE AND WERE COMPUTED AT THE FIRST-CLASS LESS-THAN TRUCKLOAD RATE OF $7.28 PER 100 POUNDS ON THE ACTUAL WEIGHT OF 21,812 POUNDS, PLUS AN ARBITRARY OF 39 CENTS PER 100 POUNDS. IN OUR AUDIT IT WAS DETERMINED THAT THE APPLICABLE CHARGES WERE $852.85, COMPUTED AT A TRUCKLOAD RATE OF $3.52 PER 100 POUNDS, PLUS AN ARBITRARY CHARGE OF 39 CENTS PER 100 POUNDS. TO SUPPORT THE COMPUTATION OF OUR CHARGES WE CITED THE DECISION OF THE INTERSTATE COMMERCE COMMISSION IN THE CASE OF CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576. THE OVERCHARGES OF $820.13 WERE LATER DEDUCTED FROM MONIES OTHERWISE DUE YOUR COMPANY.

IN YOUR REQUEST FOR REVIEW YOU SEEM TO URGE THAT THE INTERSTATE COMMERCE COMMISSION'S DECISION IN THE CURTIS LIGHTING CASE TURNED ON QUESTIONS OF REASONABLENESS AND IS WITHOUT EFFECT IN VIEW OF 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.C. 464. EVEN THOUGH THE ISSUE OF REASONABLENESS OF THE CHARGES COLLECTED WAS RAISED IN THE CURTIS LIGHTING CASE, THE COMMISSION'S DECISION TURNED ON THE APPLICABILITY OF THE TARIFF PROVISIONS. THE COMMISSION IN EFFECT HELD THAT EXCLUSIVE-USE CHARGES ARE PROPERLY APPLICABLE ONLY TO LESS-THAN TRUCKLOAD SHIPMENTS. IN CASES OF TRUCKLOAD SHIPMENTS IT IS ASSUMED THAT THE CARRIER WILL ROUTE THE VEHICLE DIRECTLY THROUGH TO DESTINATION WITHOUT STOPS TO SHIFT THE LOAD OR ADD FREIGHT WHICH MIGHT OCCUR IF THE SHIPMENT WERE LESS THAN TRUCKLOAD WHEN EXCLUSIVE USE IS NOT ORDERED. AS THE COMMISSION SAID IN THE CURTIS LIGHTING CASE, AT PAGE 578,"ONCE A VEHICLE IS LOADED TO CAPACITY, A SHIPPER DERIVES NO BENEFIT FROM EXCLUSIVE USE, WHICH IS DESIGNED TO ACCORD TRUCKLOAD SERVICE TO LESS-THAN-TRUCKLOAD SHIPMENTS.' DISPOSITION OF THE CASE BY THE COMMISSION 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, 273 I.C.C. 119. THE CASE WAS NOT, THEREFORE, ONE GOVERNED BY THE RULE IN THE T.I.M.E. CASE.

THE PRINCIPLE ESTABLISHED IN THE CURTIS LIGHTING CASE IS ONE WHICH WE HAVE APPLIED CONSISTENTLY IN THE AUDIT OF TRANSPORTATION ACCOUNTS OF COMMON CARRIERS BY MOTOR VEHICLE CONCERNING CAPACITY-LOAD SHIPMENTS. OUR SETTLEMENT OF OCTOBER 28, 1960, IS CONSISTENT WITH SUCH PRINCIPLE AND IT IS SUSTAINED.