B-145001, MAY 8, 1961

B-145001, MAY 8, 1961

TO TRANSCON LINES:

REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 31, 1961, FILE B.795.10.RF, AND APRIL 25, 1961, FILE B.4.5.RF (YOUR CLAIM: 13264), REQUESTING REVIEW OF OUR SETTLEMENT DISALLOWING YOUR CLAIM PER BILL NO. 7-C-19 (11-102) FOR AN ADDITIONAL AMOUNT OF $1,266.60 FOR THE TRANSPORTATION OF SHEET STEEL SHIPPING DRUMS FROM GADSDEN AIR FORCE DEPOT, GAIRD, ALABAMA, TO OAKLAND, CALIFORNIA, UNDER GOVERNMENT BILL OF LADING AF-6612227 DATED NOVEMBER 9, 1956.

FOR THE TRANSPORTATION SERVICE INVOLVED, YOU ORIGINALLY CLAIMED AND WERE PAID $2,220, THE MINIMUM CHARGE SET FORTH IN THE APPLICABLE TARIFF FOR EXCLUSIVE USE OF VEHICLE SERVICE, COMPUTED AT THE FIRST CLASS RATE OF $11.10 PER 100 POUNDS ON A MINIMUM WEIGHT OF 20,000 POUNDS. THE ACTUAL WEIGHT OF THE SHIPMENT WAS 8,088 POUNDS. IN OUR AUDIT OF THE PAYMENT VOUCHER THE APPLICABLE FREIGHT CHARGES WERE DETERMINED TO BE $953.40 COMPUTED AT THE CLASS 55 TRUCKLOAD RATE OF $6.81 PER 100 POUNDS ON A MINIMUM WEIGHT OF 14,000. UPON YOUR FAILURE TO REFUND THE OVERCHARGE OF $1,266.60 (THE DIFFERENCE BETWEEN $2,220 AND $953.40) AN APPROPRIATE DEDUCTION WAS MADE FROM AMOUNTS OTHERWISE DUE ON A CURRENT BILL AS AUTHORIZED BY 49 U.S.C. 66. SUCH ACTION WAS PREDICATED ON THE DECISION DATED APRIL 22, 1958, OF THE INTERSTATE COMMERCE COMMISSION IN CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576, SINCE OUR RECORD REFLECTS THAT THE VEHICLE USED FOR THE INVOLVED SHIPMENT WAS LOADED TO CAPACITY, THE BILL OF LADING IN QUESTION CONTAINING THE FOLLOWING NOTATION:

"/LOADED TO FULL VISIBLE CAP.)"

IN YOUR REQUEST FOR REVIEW YOU ASSERT THAT THE CITED INTERSTATE COMMERCE COMMISSION DECISION TURNED ON THE QUESTION OF REASONABLENESS AND IS THUS WITHOUT EFFECT SINCE THE RULING OF THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF T.I.M.E., INC. V. UNITED STATES, 359 U.S. 464. YOU ALSO TAKE THE POSITION THAT SINCE THE SHIPMENT IN QUESTION WAS COMPLETED BEFORE THE COMMISSION'S DECISION IN THE CURTIS LIGHTING CASE WAS RENDERED, THAT DECISION WOULD HAVE NO APPLICATION TO THE INSTANT SHIPMENT.

UNDER THE BUDGET AND ACCOUNTING ACT OF 1921, 31 U.S.C. 71, IT IS PROVIDED THAT "ALL CLAIMS AND DEMANDS WHATEVER BY THE GOVERNMENT OF THE UNITED STATES OR AGAINST IT, AND ALL ACCOUNTS WHATEVER IN WHICH THE GOVERNMENT OF THE UNITED STATES IS CONCERNED, EITHER AS DEBTOR OR CREDITOR, SHALL BE SETTLED AND ADJUSTED IN THE GENERAL ACCOUNTING OFFICE.' IN THE SETTLEMENT OF SUCH ACCOUNTS INVOLVING INTERSTATE SHIPMENTS DUE CONSIDERATION MUST BE GIVEN TO THE TERMS AND PROVISIONS OF THE INTERSTATE COMMERCE ACT, AS AMENDED, AND TO THE INTERPRETATION AND CONSTRUCTION OF THAT ACT BY THE INTERSTATE COMMERCE COMMISSION AND THE COURTS.

ALTHOUGH THE QUESTION OF REASONABLENESS OF THE CHARGES COLLECTED WAS RAISED BY THE PETITIONER IN THE CURTIS LIGHTING CASE, THE DECISION BY THE COMMISSION IN THAT CASE TURNED ON THE QUESTION OF THE APPLICABILITY OF THE TARIFF PROVISION INVOLVED. THUS THE COMMISSION STATED "WE FIND THAT THE APPLICABLE RATE ON THE SHIPMENT WAS THE TRUCKLOAD CLASS 55 RATE" AND "WE CONCLUDE THAT THE ASSAILED CHARGES ON THE DESCRIBED SHIPMENT WERE INAPPLICABLE.' DISPOSITION OF THE CASE 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 RAILROAD COMPANY OF NEW JERSEY, 273 I.C.C. 119. THE CASE WAS NOT, THEREFORE, ONE GOVERNED BY THE RULE OF THE T.I.M.E. CASE.

IN THE CURTIS LIGHTING CASE, AS HERE, THE VEHICLE WAS LOADED TO CAPACITY. THE ORIGINAL FREIGHT BILL THERE INVOLVED BORE A NOTATION TO THE EFFECT THAT EXCLUSIVE USE OF A TRAILER HAD BEEN REQUESTED, AND ONE OF THE VEHICLES SHOWN AS HAVING BEEN LOADED TO CAPACITY WAS SEALED. ON THE SEALED VEHICLE MID-STATES FREIGHT LINES BILLED ON THE BASIS OF EXCLUSIVE USE SERVICE. THE COMPLAINANT IN THAT CASE ASKED FOR REPARATIONS ON THE GROUNDS THAT UNDER THE CIRCUMSTANCES THE EXCLUSIVE USE OF VEHICLE RATE AND CHARGES WERE UNJUST, UNREASONABLE AND OTHERWISE UNLAWFUL IN VIOLATION OF SECTIONS 216 (D) AND 217 (B) OF THE INTERSTATE COMMERCE ACT,AS AMENDED, 49 U.S.C. 316 (D) AND 317 (B). THE INTERSTATE COMMERCE COMMISSION SAID WHETHER OR NOT THE COMPLAINANT REQUESTED EXCLUSIVE USE, SUCH SERVICE--- WHICH IS DESIGNED TO ACCORD TRUCKLOAD SERVICE TO LESS-THAN-TRUCKLOAD SHIPMENTS--- WAS NOT RENDERED, AND THAT ONCE A VEHICLE IS LOADED TO CAPACITY, A SHIPPER DERIVES NO BENEFIT FROM EXCLUSIVE USE. IT WAS THEREFORE FOUND THAT THE APPLICABLE RATE WAS THE TRUCKLOAD RATE. SANCTION THE PAYMENT OF PUBLIC FUNDS IN CIRCUMSTANCES WHERE SIMILAR CHARGES IN SIMILAR CIRCUMSTANCES HAVE BEEN DECLARED BY THE COMMISSION TO BE INAPPLICABLE WOULD VIOLATE THE DUTY IMPOSED BY LAW UPON US TO CONSIDER, IN THE SETTLEMENT OF CLAIMS, SUBSTANTIVE DEFENSES IN LAW. IN THIS SITUATION THE GENERAL ACCOUNTING OFFICE, IN THE PERFORMANCE OF ITS AUTHORIZED DUTIES TO "SETTLE AND ADJUST ALL ACCOUNTS," WOULD NOT BE JUSTIFIED IN HOLDING PUBLIC FUNDS TO BE AVAILABLE FOR THE PAYMENT OF INAPPLICABLE PREMIUM CHARGES. THE FACT THAT THE SHIPMENT INVOLVED WAS COMPLETED BEFORE THE COMMISSION'S DECISION WAS RENDERED WOULD HAVE NO BEARING ON THE PRINCIPLE LAID DOWN THEREIN, THAT EXCLUSIVE USE CHARGES--- WHICH ARE DESIGNED TO ACCORD TRUCKLOAD SERVICE TO LESS-THAN-TRUCKLOAD SHIPMENTS--- ARE INAPPLICABLE TO TRUCKS LOADED TO FULL VISIBLE CAPACITY.

THE PRINCIPLE ESTABLISHED IN THE CURTIS LIGHTING CASE IS ONE WHICH WE HAVE CONSISTENTLY APPLIED, AND ARE CONTINUING TO APPLY, IN THE AUDIT OF TRANSPORTATION ACCOUNTS OF COMMON CARRIERS BY MOTOR VEHICLE INVOLVING CAPACITY-LOAD SHIPMENTS. SO LONG AS THE CASE REMAINS AS THE SOLE OUTSTANDING AUTHORITY ON THE PARTICULAR QUESTION INVOLVED, WE SEE NO REASON TO DEPART FROM THE CONCLUSION REACHED BY THE COMMISSION. THE SETTLEMENT HERE WAS CONSISTENT WITH THE PRINCIPLE OF THE CURTIS LIGHTING CASE AND IT IS, ACCORDINGLY, SUSTAINED.