B-145110, JUN. 29, 1961

B-145110: Jun 29, 1961

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INC.: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 14. FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID $684. IN OUR AUDIT OF THE PAYMENT VOUCHER WE DETERMINED THAT THE APPLICABLE CHARGES WERE $641.70. THE OVERPAYMENT OF $42.30 WAS COLLECTED BY DEDUCTION FROM AN AMOUNT OTHERWISE DUE YOU. WE WERE INFORMED BY THE ADMINISTRATIVE OFFICE THAT. IT WAS NOT POSSIBLE TO LOAD MORE OF THE SAME COMMODITY IN THE TRUCK. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT CERTIFICATE OF FEBRUARY 6. HOLDING THAT EXCLUSIVE-USE SERVICE WAS NOT RENDERED. BECAUSE ONCE A VEHICLE IS LOADED TO CAPACITY A SHIPPER DERIVES NO BENEFIT FROM EXCLUSIVE USE. YOU CONTEND THAT THIS SETTLEMENT IS NOT PROPER EVEN IF NO MORE OF THE SAME COMMODITY COULD BE LOADED IN THE TRUCK.

B-145110, JUN. 29, 1961

TO CENTRAL FREIGHT LINES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 14, 1961, IN WHICH YOU ASK FOR A REVIEW OF OUR SETTLEMENT CERTIFICATE OF FEBRUARY 6, 1961, WHICH DISALLOWED YOUR CLAIM--- BY LETTER OF JULY 27, 1960, FILE 28460- - FOR $42.30 ADDITIONAL FREIGHT CHARGES ON A SHIPMENT OF INTERNAL COMBUSTION ENGINES TRANSPORTED UNDER GOVERNMENT BILL OF LADING N 31022651, DATED JUNE 1, 1956, FROM EAST HARTFORD, CONNECTICUT, TO SAN ANTONIO, TEXAS.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID $684, THE CHARGE PROVIDED BY SUPPLEMENT NO. 1 OF RISS AND COMPANY, INC. - CENTRAL FREIGHT LINES, INC., UNIFORM TENDER NO. 1042-56, FOR EXCLUSIVE-USE-OF VEHICLE SERVICE. IN OUR AUDIT OF THE PAYMENT VOUCHER WE DETERMINED THAT THE APPLICABLE CHARGES WERE $641.70, COMPUTED AT THE CLASS-45 VOLUME RATE OF $2.79 PER 100 POUNDS ON A MINIMUM WEIGHT OF 23,000 POUNDS. THE OVERPAYMENT OF $42.30 WAS COLLECTED BY DEDUCTION FROM AN AMOUNT OTHERWISE DUE YOU. BY LETTER OF JULY 27, 1960, YOU RECLAIMED THE AMOUNT OF THE OVERPAYMENT. UPON INQUIRY, WE WERE INFORMED BY THE ADMINISTRATIVE OFFICE THAT, DUE TO THE DIMENSIONS OF THE DRUM AND BOX USED IN TRANSPORTING THE SHIPMENT, IT WAS NOT POSSIBLE TO LOAD MORE OF THE SAME COMMODITY IN THE TRUCK. ACCORDINGLY, YOUR CLAIM WAS DISALLOWED BY SETTLEMENT CERTIFICATE OF FEBRUARY 6, 1961, ON THE BASIS OF 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, HOLDING THAT EXCLUSIVE-USE SERVICE WAS NOT RENDERED, BECAUSE ONCE A VEHICLE IS LOADED TO CAPACITY A SHIPPER DERIVES NO BENEFIT FROM EXCLUSIVE USE.

YOU CONTEND THAT THIS SETTLEMENT IS NOT PROPER EVEN IF NO MORE OF THE SAME COMMODITY COULD BE LOADED IN THE TRUCK, THUS INDICATING THE POSSIBILITY THAT SOME OTHER TYPE FREIGHT COULD HAVE BEEN LOADED IN THE TRUCK. YOU FURTHER CONTEND THAT, IN ANY EVENT, EXCLUSIVE USE OF VEHICLE WAS ORDERED AND FURNISHED, THE SHIPMENT BEING DELIVERED WITH SEALS INTACT, AND THEREFORE EXCLUSIVE-USE CHARGES ARE APPLICABLE.

THE CHARGES DEEMED APPLICABLE BY OUR OFFICE ARE COMPUTED BY USING RATES PUBLISHED IN EASTERN CENTRAL MOTOR CARRIER'S ASSOCIATION TARIFF NO. 32, MF -I.C.C. NO. A-102. ITEM NO. 480 OF TARIFF NO. 32 SPECIFICALLY DEFINES LOADED TO CAPACITY AS FOLLOWS:

"THE TERMS "LOADED TO CAPACITY" OR "CAPACITY LOAD" REFER TO THE EXTENT TO WHICH A STANDARD TRUCK IS LOADED WITH FREIGHT, EACH TERM MEANING THAT QUANTITY OF FREIGHT WHICH, WHEN LOADED IN OR ON A STANDARD TRUCK WEIGHS NOT LESS THAN THE DESIGNATED MINIMUM WEIGHT APPLICABLE TO A SHIPMENT OF SUCH FREIGHT; OR, THAT QUANTITY OF FREIGHT WHICH, IN THE MANNER LOADED SO FILLS A STANDARD TRUCK THAT NO MORE OF THE SHIPMENT IN THE SHIPPING FORM TENDERED CAN BE LOADED IN OR ON THE RUCK; OR, THAT QUANTITY OF FREIGHT WHICH BECAUSE OF UNUSUAL SHAPE OR DIMENSIONS OR BECAUSE OF NECESSITY FOR SEGREGATION OR SEPARATION FROM OTHER FREIGHT REQUIRES THE ENTIRE CAPACITY OF A STANDARD TRUCK.'

THUS, ACCORDING TO TARIFF DEFINITION, THE VEHICLE WAS LOADED TO CAPACITY AND THIS BRINGS THE SUBJECT SHIPMENT WITHIN THE AMBIT OF THE COMMISSION'S HOLDING IN THE CURTIS LIGHTING CASE.

YOUR FURTHER CONTENTION IS THAT SINCE EXCLUSIVE USE OF VEHICLE WAS ORDERED AND FURNISHED, THE SHIPMENT BEING DELIVERED WITH SEALS INTACT, EXCLUSIVE-USE CHARGES ARE APPLICABLE. THE BASIS OF OUR SETTLEMENT ACTION IS THAT EVEN THOUGH A SHIPMENT MAY HAVE BEEN ACCORDED EXCLUSIVE USE SERVICE SUCH CHARGES ARE NOT APPLICABLE WHERE, AS HERE, THE VEHICLE IS LOADED TO CAPACITY, SINCE A SHIPPER DERIVES NO BENEFIT FROM EXCLUSIVE USE, WHICH IS DESIGNED TO ACCORD TRUCKLOAD SERVICE TO LESS THAN-TRUCKLOAD SHIPMENTS. CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576, 578.

ACCORDINGLY, NOTHING HAVING BEEN FOUND IN THE PRESENT RECORD WHICH WOULD WARRANT ANY MODIFICATION OF OUR SETTLEMENT ACTION, IT IS SUSTAINED.