B-145157, JUN. 8, 1961

B-145157: Jun 8, 1961

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 20. THE BILL OF LADING WAS ANNOTATED TO SHOW THAT: "THIS SHIPMENT IS MADE AT THE RESTRICTED OR LIMITED VALUATION SPECIFIED IN THE TARIFF OR CLASSIFICATION AT OR UNDER WHICH THE LOWEST RATE IS AVAILABLE. NO OTHER VALUATION PROVISION IS SHOWN ON THE BILL OF LADING. THE AMOUNT SO CLAIMED WAS PAID ON VOUCHER 039594 OF THE JULY 30. THE RATE AND MINIMUM ORIGINALLY CLAIMED AND PAID ARE PROVIDED IN EASTERN CENTRAL MOTOR CARRIERS ASSOCIATION. - WERE COMPUTED ON THE BASIS OF A RATING OF CLASS 45 OR FOURTH CLASS. 000 POUNDS IS REDUCED TO 23. YOU WERE REQUESTED TO REFUND THE AMOUNTS OF $165.80 AND $36.70. THE AMOUNT OF $202.50 WAS DEDUCTED FROM AMOUNTS OTHERWISE DUE YOU.

B-145157, JUN. 8, 1961

TO JONES TRUCK LINES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 20, 1961, YOUR PRO 472907, REQUESTING REVIEW OF THE DISALLOWANCE OF YOUR CLAIM OF JULY 19, 1960 (BILL NO. 472907), FOR $202.50 IN ADDITION TO THE AMOUNT PREVIOUSLY ALLOWED FOR THE TRANSPORTATION OF A SHIPMENT OF TWO INTERNAL COMBUSTION ENGINES, WEIGHING 16,470 POUNDS, FROM LANGLEY AIR FORCE BASE, VIRGINIA, TO TINKER AIR FORCE BASE, MIDWEST CITY, OKLAHOMA, UNDER BILL OF LADING NO. AF -7180369, IN JUNE 1957.

THE RECORD SHOWS THAT THIS SHIPMENT CONSISTED OF TWO CANS OF INTERNAL COMBUSTION ENGINES, N.O.I. (ACFT JET PROPULSION TYPE J57-F21), EACH WEIGHING 8,235 POUNDS, MAKING A TOTAL WEIGHT OF 16,470 POUNDS. THE BILL OF LADING WAS ANNOTATED TO SHOW THAT:

"THIS SHIPMENT IS MADE AT THE RESTRICTED OR LIMITED VALUATION SPECIFIED IN THE TARIFF OR CLASSIFICATION AT OR UNDER WHICH THE LOWEST RATE IS AVAILABLE, UNLESS OTHERWISE INDICATED ON THE FACE HEREOF.'

NO OTHER VALUATION PROVISION IS SHOWN ON THE BILL OF LADING. THE BILL OF LADING ALSO CONTAINED THE FOLLOWING NOTATION: "EXCLUSIVE USE OF VEHICLE AS REQUESTED BY GOVT.' FOR THE TRANSPORTATION OF THIS SHIPMENT YOU CLAIMED ORIGINALLY, AS FOR "EXCLUSIVE USE OF VEHICLE," $779.80, COMPUTED ON THE BASIS OF THE FIRST CLASS RATE OF $5.57 AND A MINIMUM WEIGHT OF 14,000 POUNDS. THE AMOUNT SO CLAIMED WAS PAID ON VOUCHER 039594 OF THE JULY 30, 1957, ACCOUNT OF S. GADDIS, ARMY DISBURSING OFFICER. THE RATE AND MINIMUM ORIGINALLY CLAIMED AND PAID ARE PROVIDED IN EASTERN CENTRAL MOTOR CARRIERS ASSOCIATION, AGENT, TARIFF NO. 32, MF-I.C.C. NO. A-102. IN THE AUDIT OF THIS PAYMENT THE CHARGES ON THE SHIPMENT--- DUE TO THE RELEASED VALUATION PROVISION ON THE BILL OF LADING--- WERE COMPUTED ON THE BASIS OF A RATING OF CLASS 45 OR FOURTH CLASS, MINIMUM 24,000 POUNDS, AS PROVIDED IN ITEM 61244 OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-3. THIS MINIMUM OF 24,000 POUNDS IS REDUCED TO 23,000 POUNDS BY ITEM NO. 130 OF TARIFF NO. 32. ACCORDINGLY, YOU WERE REQUESTED TO REFUND THE AMOUNTS OF $165.80 AND $36.70, TOTALING $202.50, BASED ON CHARGES AT THE FOURTH CLASS OR CLASS 45 RATE OF $2.51 PER 100 POUNDS AND THE MINIMUM WEIGHT OF 23,000 POUNDS. UPON YOUR FAILURE TO MAKE THE REFUND, THE AMOUNT OF $202.50 WAS DEDUCTED FROM AMOUNTS OTHERWISE DUE YOU. YOU RECLAIMED THE AMOUNT OF $202.50 AND YOUR CLAIM WAS DISALLOWED FOR THE REASONS STATED IN THE DISALLOWANCE OF FEBRUARY 6, 1961.

YOUR REQUEST FOR REVIEW RELATES TO THE BILL OF LADING ANNOTATION "EXCLUSIVE USE OF VEHICLE AS REQUESTED BY GOVT.' AND YOU URGE THAT THE CHARGES FOR THIS TRANSPORTATION SHOULD BE COMPUTED UNDER THE RULE IN ITEM 370 OF TARIFF NO. 32-A. TARIFF NO. 32-A DID NOT BECOME EFFECTIVE UNTIL JUNE 21, 1957, SO IT HAS NO APPLICATION ON THIS SHIPMENT. ITEM NO. 150-A OF TARIFF NO. 32, EFFECTIVE ON THE DATE OF SHIPMENT, IS IN PERTINENT PART AS FOLLOWS:

EXCLUSIVE USE OF EQUIPMENT

"EXCLUSIVE USE OF A VEHICLE WILL BE FURNISHED ON REQUEST OF THE SHIPPING FOR THE TRANSPORTATION OF A SHIPMENT. CHARGES WILL BE COMPUTED AT THE LAWFULLY PUBLISHED RATE SUBJECT TO THE MINIMUM OF 14,000 POUNDS AT THE CLASS 100 RATE APPLICABLE VIA THE ROUTE OF MOVEMENT.

"EACH BILL OF LADING COVERING SHIPMENTS FOR WHICH EXCLUSIVE USE OF VEHICLE IS PROVIDED MUST BE MARKED OR STAMPED AS FOLLOWS:

------------------------------------ EXCLUSIVE USE OF VEHICLE ORDERED BY SHIPPER

------------------------------------- SHIPPER'S SIGNATURE"

WHILE THE NOTATION SHOWN ON THE BILL OF LADING AS TO EXCLUSIVE USE IS IN SUBSTANTIAL COMPLIANCE WITH THE TARIFF PROVISION, IT IS FOR NOTING THAT THE REQUEST IS NOT SIGNED AS REQUIRED BY THE TARIFF. FURTHERMORE, EVEN IF IT SHOULD BE ESTABLISHED THAT EXCLUSIVE USE OF THE VEHICLE WAS ORDERED BY THE SHIPPER AND FURNISHED BY THE CARRIERS, ITEM NO. 480 OF THE TARIFF PROVIDES THE RULE FOR DETERMINING WHEN THE TRUCK IS "LOADED TO CAPACITY," OR HAS A "CAPACITY LOAD.' ONE OF THE PROVISIONS IS "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 TRUCK.' THIS ITEM LIKEWISE DEFINES THE TERM "STANDARD TRUCK.' THE RECORD HERE SHOWS THAT THE CANS IN WHICH THESE ENGINES WERE PACKED WERE EACH 193 INCHES LONG, 63 INCHES WIDE, AND 73 INCHES HIGH. THUS, THE ENTIRE SHIPMENT WAS 32 FEET 2 INCHES LONG, 5 FEET 3 INCHES WIDE AND 6 FEET 1 INCH HIGH. THIRD ENGINE WAS A LENGTH OF 193 INCHES (16 FEET 1 INCH) COULD NOT HAVE BEEN LOADED ON THE TRUCK. THIS APPEARS TO BE CONCEDED BY YOU IN YOUR LETTER OF FEBRUARY 20, 1961. THEREFORE, INSOFAR AS THIS SHIPMENT WAS CONCERNED, THE TRUCK WAS LOADED TO CAPACITY. THE ALLEGED PRACTICE OF YOUR COMPANY OF LOADING OTHER FREIGHT IN TRUCKS CONTAINING SIMILAR LOTS OF FREIGHT CANNOT CHANGE THE PUBLISHED PROVISIONS OF THE TARIFF. SEE DAVIS V. HENDERSON, 266 U.S. 92. FURTHER, IN A FIRST ENDORSEMENT DATED DECEMBER 14, 1960, FROM THE COMMERCIAL TRANSPORTATION OFFICER,LANGLEY AIR FORCE BASE, VIRGINIA, TO THE REGIONAL DIRECTOR, ETR, MTMA, PITTSBURGH, PENNSYLVANIA, IT IS STATED THAT THE--- "SUBJECT VEHICLE WAS LOADED TO FULL VISIBLE CAPACITY.'

IN THE CASE OF CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576, THE INTERSTATE COMMERCE COMMISSION, IN EFFECT, STATED THAT EXCLUSIVE-USE CHARGES WERE PROPERLY APPLICABLE ONLY TO LESS-THAN-TRUCKLOAD SHIPMENTS. IN THE CASE OF TRUCKLOAD SHIPMENTS IT IS ASSUMED THAT THE CARRIER WILL ROUTE THE VEHICLE DIRECTLY THROUGH TO DESTINATION WITHOUT STOPS TO SHIFT THE LOAD TO ADD FREIGHT, WHICH WOULD PROBABLY OCCUR IF THE SHIPMENTS WERE LESS-THAN-TRUCKLOAD AND EXCLUSIVE USE WAS NOT ORDERED. FURTHER, THE COMMISSION STATED, ON PAGE 578, THAT "ONCE A VEHICLE IS LOADED TO CAPACITY, A SHIPPER DERIVES NO BENEFIT FROM EXCLUSIVE USE, WHICH IS TO ACCORD TRUCKLOAD SERVICE TO LESS-THAN-TRUCKLOAD SHIPMENTS.'

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 DISALLOWANCE OF FEBRUARY 6, 1961, IS CONSISTENT WITH THAT PRINCIPLE, AND IT IS SUSTAINED.