B-145776, JAN. 3, 1962

B-145776: Jan 3, 1962

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TO SUPER SERVICE MOTOR FREIGHT CO.: FURTHER REFERENCE IS MADE TO YOUR LETTERS OF APRIL 28 AND AUGUST 23. YOU ORIGINALLY BILLED AND WERE PAID $2. UPON OUR AUDIT IT WAS DETERMINED THAT THE PROPER CHARGE BASIS SHOULD BE BASED ON A CLASS 50 TRUCKLOAD RATE OF $4.57 PER 100 POUNDS. 096.80 THUS DETERMINED TO HAVE BEEN OVERPAID WAS SUBSEQUENTLY DEDUCTED FROM MONIES OTHERWISE DUE YOU. OUR AUDIT ACTION ORIGINALLY WAS PREDICATED IN PART. ON THE PROPOSITION SET FORTH BY THE INTERSTATE COMMERCE COMMISSION THAT APPLICABLE CHARGES BASED ON THE EXCLUSIVE-USE-OF-VEHICLE RULE WERE UNJUST AND UNREASONABLE TO THE EXTENT THEY EXCEEDED THOSE BASED ON THE TRUCKLOAD RATE AND MINIMUM WEIGHT. YOU RAISE THE ADDITIONAL POINT THAT ALTHOUGH NO OTHER UNITS OF THE TYPE SHIPPED COULD HAVE BEEN LOADED IN THE VEHICLE.

B-145776, JAN. 3, 1962

TO SUPER SERVICE MOTOR FREIGHT CO.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF APRIL 28 AND AUGUST 23, 1961 (FILE OC 3172), IN WHICH YOU REQUESTED A REVIEW OF OUR SETTLEMENT CERTIFICATE OF APRIL 12, 1961 (TK-684870). THE SETTLEMENT IN QUESTION DISALLOWED YOUR CLAIM ON BILL NO. USA-2453 FOR ADDITIONAL FREIGHT CHARGES IN THE AMOUNT OF $1,096.80 REPRESENTING THE EXCLUSIVE USE-OF-VEHICLE PREMIUM CHARGES ON A SHIPMENT OF MACHINE PARTS, NOIBN, WHICH MOVED FROM SAN DIEGO, CALIFORNIA, TO TULLAHOMA, TENNESSEE, UNDER GOVERNMENT BILL OF LADING NO. AF 7289259, DATED JUNE 10, 1957. YOU ORIGINALLY BILLED AND WERE PAID $2,010.80, BASED ON A RATE OF $9.14 PER 100 POUNDS, APPLIED TO A MINIMUM WEIGHT OF 22,000 POUNDS, AS FOR EXCLUSIVE USE, BUT UPON OUR AUDIT IT WAS DETERMINED THAT THE PROPER CHARGE BASIS SHOULD BE BASED ON A CLASS 50 TRUCKLOAD RATE OF $4.57 PER 100 POUNDS, APPLIED TO A MINIMUM WEIGHT OF 20,000 POUNDS, RESULTING IN ALLOWABLE CHARGES OF $914. THE AMOUNT OF $1,096.80 THUS DETERMINED TO HAVE BEEN OVERPAID WAS SUBSEQUENTLY DEDUCTED FROM MONIES OTHERWISE DUE YOU.

OUR AUDIT ACTION ORIGINALLY WAS PREDICATED IN PART, ON THE PROPOSITION SET FORTH BY THE INTERSTATE COMMERCE COMMISSION THAT APPLICABLE CHARGES BASED ON THE EXCLUSIVE-USE-OF-VEHICLE RULE WERE UNJUST AND UNREASONABLE TO THE EXTENT THEY EXCEEDED THOSE BASED ON THE TRUCKLOAD RATE AND MINIMUM WEIGHT. BRODERICK AND BASCOM ROPE CO. V. HALL FREIGHT LINES, INC., ET AL., 302 I.C.C. 347. FOLLOWING THE DECISION OF THE UNITED STATES SUPREME COURT IN THE CASE OF T.I.M.E., INC. V. UNITED STATES, 359 U.S. 464, YOU SUBMITTED A SUPPLEMENTAL BILL FOR THE AMOUNT DEDUCTED. AFTER MAKING INQUIRY OF THE MILITARY AUTHORITIES CONCERNED WITH THE SUBJECT SHIPMENT, OUR OFFICE DISALLOWED YOUR CLAIM IN THE SETTLEMENT CERTIFICATE OF APRIL 12, 1961, CITING CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, 303 I.C.C. 576.

IN YOUR LETTER OF APRIL 28, 1961, YOU STATE THAT YOU EXAMINED THE CURTIS LIGHTING CASE AND CONCLUDED IT WOULD NOT CONTROL HERE. YOU SAY THAT THE COMPLAINANT IN THE CURTIS LIGHTING CASE BASED HIS ARGUMENT ON THE REASONABLENESS OF THE RATE ASSAILED, AND, CONSEQUENTLY, THE LANGUAGE OF THE T.I.M.E. CASE PREVENTS THE APPLICATION HERE OF THE CURTIS LIGHTING HOLDING. YOU ALSO POINT OUT THAT THE CURTIS LIGHTING CASE CONCERNED AN OVERFLOW SHIPMENT WHILE THE INSTANT CASE INVOLVES A SINGLE VEHICLE AND, UNLIKE THE SHIPPER IN THE CURTIS LIGHTING CASE, THE SHIPPER IN THE PRESENT CASE DEMANDED A DEFINITE DELIVERY SCHEDULE. IT APPEARS TO BE YOUR BELIEF THAT THE COMMISSION'S STATEMENT THAT A SHIPPER DERIVES NO BENEFIT FROM EXCLUSIVE USE ON A CAPACITY LOAD PRESENTS A QUESTION OF REASONABLENESS. IN YOUR LETTER OF AUGUST 23, 1961, YOU RAISE THE ADDITIONAL POINT THAT ALTHOUGH NO OTHER UNITS OF THE TYPE SHIPPED COULD HAVE BEEN LOADED IN THE VEHICLE, IT MIGHT HAVE BEEN POSSIBLE TO LOAD OTHER MISCELLANEOUS FREIGHT IN THE VEHICLE.

WE DISAGREE WITH YOUR INTERPRETATION OF THE CURTIS LIGHTING CASE. WE DO NOT BELIEVE THAT THE CONCLUSION REACHED IN THE CURTIS LIGHTING CASE OR THE PRESENT CASE TURNS ON THE QUESTION OF REASONABLENESS, WITH WHICH THE T.I.M.E. CASE WAS CONCERNED. THE COMPLAINANT IN THE CURTIS LIGHTING CASE ALLEGED THAT THE RATES AND CHARGES ASSAILED WERE UNJUST, UNREASONABLE, AND OTHERWISE UNLAWFUL, IN VIOLATION OF SECTIONS 216 (D) AND 217 (B), 49 U.S.C. 316 (D) AND 317 (B), THEREBY RAISING THE ISSUE OF APPLICABILITY AS WELL AS UNREASONABLENESS. AS A MATTER OF FACT, A GENERAL ALLEGATION OF UNREASONABLENESS IS SUFFICIENT TO PERMIT THE CONSIDERATION OF AN ALLEGATION OF INAPPLICABILITY. LOUTHAN-DOWELL MOTORS V. ALTON AND S.R., 300 I.C.C. 741, 742. WHEN THE COMMISSION SAID THAT A SHIPPER DERIVES NO BENEFIT FROM EXCLUSIVE USE ONCE A VEHICLE IS LOADED TO CAPACITY, IT DID NOT PASS UPON THE QUESTION OF REASONABLENESS. THE CONCLUSION REACHED WAS THAT, HAVING RECEIVED AND TRANSPORTED A CAPACITY LOAD, THE CARRIER WAS NOT AFFORDING EXCLUSIVE USE SERVICE AND, HENCE, THE EXCLUSIVE-USE CHARGE WAS NOT APPLICABLE. THE APPLICABLE CHARGE WAS FOUND TO BE THE TRUCKLOAD CLASS RATE, AND THE DISPUTED RATE AND CHARGE WERE FOUND TO BE INAPPLICABLE. THUS, ALTHOUGH THE ISSUE OF REASONABLENESS WAS ALLEGED IN THE COMPLAINT, THE COMMISSION REACHED ITS CONCLUSION ON GROUNDS OF APPLICABILITY RATHER THAN REASONABLENESS. SEE 303 I.C.C. 576, AT PAGE 578. IT IS NOTED THAT IN THE T.I.M.E. CASE THE COURT'S DECISION DID NOT RUN TO THE APPLICABILITY OF THE RATES IN ISSUE, BUT MERELY CONCLUDED THAT A SHIPPER BY MOTOR COMMON CARRIER COULD NOT QUESTION IN POST-SHIPMENT LITIGATION THE REASONABLENESS OF AN OTHERWISE APPLICABLE RATE. THE COURT HAD NO OCCASION TO CONCERN ITSELF WITH THE QUESTION OF APPLICABILITY, AND THE COMMISSION HAD PREVIOUSLY RULED THAT THE THROUGH RATE RATHER THAN THE COMBINATION OF RATES WAS APPLICABLE.

AS TO YOUR REFERENCE TO THE OVERFLOW ASPECT OF THE CURTIS LIGHTING CASE THE RULING THEREIN WAS NOT LIMITED TO CASES WHERE THE OVERFLOW FACTOR IS PRESENT. THE COMMISSION APPLIED THE PRINCIPLE OF THE CASE TO THE FIRST TRUCK--- THE ONE WITH THE CAPACITY LOAD. WE CANNOT FIND ANY PRECEDENT OR AUTHORITY FOR DISTINGUISHING CASES OF FREIGHT OVERFLOW FROM THOSE WHEREIN THE SHIPMENT TENDERED WAS OF SUCH A CHARACTER AS TO OCCUPY THE CAPACITY OF ONLY ONE VEHICLE. SO FAR AS WE ARE ABLE TO DETERMINE THE PRINCIPLE OF THE CASE APPLIES TO THE CAPACITY LOAD WHETHER OR NOT THERE WAS EXCESS FREIGHT TO BE SHIPPED IN ANOTHER VEHICLE. SIMILARLY, FOR THE PURPOSES OF THIS CASE WE SEE NO RELEVANCE OF A DEMANDED DELIVERY DATE TO THE COMMISSION'S CURTIS LIGHTING OPINION. THE PERTINENT TARIFF PROVISION CONCERNING EXCLUSIVE USE RELATES TO A SERVICE WHICH CONTEMPLATES NONINTERMINGLING WITH OTHER CUSTOMERS' FREIGHT AND NOT TO EXPEDITED SERVICE. IT WOULD SEEM THAT UNDER SUCH TARIFF PROVISIONS, IF EXCLUSIVE USE WERE REQUESTED AND PERFORMED, THE CARRIER WOULD BE ENTITLED TO THE PREMIUM CHARGE REGARDLESS OF DELIVERY DATE. THE FACT THAT A CARRIER SUCCEEDS IN FULFILLING A DEMAND FOR A PARTICULAR DELIVERY DATE DOES NOT IN AND OF ITSELF ENTITLE THAT CARRIER TO CHARGES ON THE EXCLUSIVE-USE BASIS WHEN PERFORMANCE OF THE EXCLUSIVE-USE SERVICE IS NOT OTHERWISE SHOWN.

REGARDING YOUR CONTENTION THAT UNITS OF OTHER COMMODITIES MIGHT POSSIBLY HAVE BEEN LOADED INTO THE VEHICLE HERE UTILIZED, IT MAY BE OBSERVED THAT A SIMILAR QUESTION WAS CONSIDERED BY THE COMMISSION IN THE CURTIS LIGHTING CASE. IT WAS THERE STATED (PAGE 578) THAT "IN VIEW OF THE DEFENDANT'S ACCEPTANCE AND BILLING OF THE VEHICLE AS LOADED TO CAPACITY, IT IS UNDUE SPECULATION AND NOT IN KEEPING WITH NORMAL TRUCKLOAD OPERATING PRACTICES TO SUGGEST THAT ADDITIONAL FREIGHT IN SMALLER UNITS MIGHT POSSIBLY HAVE BEEN LOADED INTO THE TRAILER.' HERE, WE CONTEND THAT YOU AND YOUR CONNECTING CARRIER ACCEPTED A TRUCKLOAD SHIPMENT, ON WHICH BASIS PAYMENT HAS BEEN MADE, AND SINCE YOUR TARIFF DOES NOT DEFINE A CAPACITY LOAD, IT SEEMS PROPER, IN SUCH INSTANCES, TO CONCLUDE THAT WHEN NO MORE OF THE TYPE OF LADING TENDERED CAN BE LOADED IN OR ON A VEHICLE, THEN THAT VEHICLE HAS BEEN LOADED TO CAPACITY.

IN LIGHT OF THE FOREGOING STATEMENTS WE MUST CONCLUDE THAT OUR SETTLEMENT CERTIFICATE OF APRIL ..END :