B-146461, JAN. 29, 1962

B-146461: Jan 29, 1962

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INC.: REFERENCE IS MADE TO YOUR LETTER OF JULY 14. 140 WERE BILLED AND PAID ON THE BASIS OF EXCLUSIVE USE OF VEHICLE SERVICE AND WERE COMPUTED AT THE CLASS 1 RATE OF $4.56 PER 100 POUNDS ON A MINIMUM WEIGHT OF 25. IN OUR AUDIT IT WAS DETERMINED THAT THE APPLICABLE CHARGES WERE $552. THE OVERCHARGE OF $588 WAS LATER DEDUCTED FROM MONIES OTHERWISE DUE YOUR COMPANY. IS THAT THERE WAS EXCLUSIVE USE OF THE VEHICLE BECAUSE THERE WAS ROOM IN THE VEHICLE LOADED TO CAPACITY. AFTER POINTING OUT THAT THE DEFINITION IN THE TARIFF THERE INVOLVED OF THE WORDS "LOADED TO CAPACITY" REFERRED TO "THAT QUANTITY OF FREIGHT WHICH IN THE MANNER LOADED SO FILLS A STANDARD TRUCK THAT NO MORE OF THE SHIPMENT IN THE FORM TENDERED CAN BE LOADED ON THE TRUCK" MAINTAINED THAT POSSIBLY IT COULD HAVE LOADED OTHER FREIGHT IN THE VEHICLE.

B-146461, JAN. 29, 1962

TO COAST-LEE AND EASTES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 14, 1961, ACKNOWLEDGED JULY 25, IN WHICH YOU REQUEST REVIEW OF OUR SETTLEMENT CERTIFICATE OF JUNE 16, 1961, DISALLOWING YOUR CLAIM PER BILL NO. 11/21/7, FOR $588 ADDITIONAL CHARGES ALLEGEDLY DUE FOR THE TRANSPORTATION OF THREE CANS OF ENGINES, WEIGHING 13,500 POUNDS, FROM HAMILTON AIR FORCE BASE, CALIFORNIA, TO PAINE AIR FORCE BASE, WASHINGTON, UNDER GOVERNMENT BILL OF LADING NO. AF- 8725094, DATED APRIL 28, 1959.

CHARGES OF $1,140 WERE BILLED AND PAID ON THE BASIS OF EXCLUSIVE USE OF VEHICLE SERVICE AND WERE COMPUTED AT THE CLASS 1 RATE OF $4.56 PER 100 POUNDS ON A MINIMUM WEIGHT OF 25,000 POUNDS. IN OUR AUDIT IT WAS DETERMINED THAT THE APPLICABLE CHARGES WERE $552, COMPUTED AT CLASS 45 TRUCKLOAD RATE OF $2.30 PER 100 POUNDS ON A MINIMUM WEIGHT OF 24,000 POUNDS, BECAUSE THE RECORD DID NOT SUPPORT CHARGES FOR EXCLUSIVE USE OF VEHICLE. THE OVERCHARGE OF $588 WAS LATER DEDUCTED FROM MONIES OTHERWISE DUE YOUR COMPANY. IN RESPONSE TO YOUR SUPPLEMENTAL BILL FOR $588, WE ISSUED OUR SETTLEMENT CERTIFICATE OF JUNE 16, 1961, WHICH DISALLOWED YOUR CLAIM 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.

IN SUBSTANCE, THE BASIS FOR YOUR REQUEST FOR REVIEW, AS EXPRESSED IN LETTERS WRITTEN BY YOU AND YOUR ATTORNEY, IS THAT THERE WAS EXCLUSIVE USE OF THE VEHICLE BECAUSE THERE WAS ROOM IN THE VEHICLE LOADED TO CAPACITY. HOWEVER, THE CARRIER, IN THE CURTIS LIGHTING CASE, 303 I.C.C. 576, AFTER POINTING OUT THAT THE DEFINITION IN THE TARIFF THERE INVOLVED OF THE WORDS "LOADED TO CAPACITY" REFERRED TO "THAT QUANTITY OF FREIGHT WHICH IN THE MANNER LOADED SO FILLS A STANDARD TRUCK THAT NO MORE OF THE SHIPMENT IN THE FORM TENDERED CAN BE LOADED ON THE TRUCK" MAINTAINED THAT POSSIBLY IT COULD HAVE LOADED OTHER FREIGHT IN THE VEHICLE. THE INTERSTATE COMMERCE COMMISSION ON SUCH POINT STATED "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.' THE DEFINITION USED BY THE COMMISSION AS TO THE TERM "LOADED TO CAPACITY" IS SIMILAR TO THAT USED IN THE TARIFFS PUBLISHED BY VARIOUS REGIONAL MOTOR CARRIER ASSOCIATIONS AND SEEMS GENERALLY TO BE USED AND ACCEPTED IN THE TRANSPORTATION INDUSTRY. THUS, THE TEST OF WHETHER A TRUCK IS LOADED TO CAPACITY IS CAN MORE OF THE SHIPMENT IN THE SHIPPING FORM TENDERED BE LOADED IN OR ON THE VEHICLE. CONSEQUENTLY, IT APPEARS THAT HERE, AS IN THE CURTIS LIGHTING CASE, 303 I.C.C. 576, AT PAGE 578, IT IS NOT MATERIAL WHETHER ADDITIONAL FREIGHT IN SMALLER UNITS MIGHT POSSIBLY HAVE BEEN LOADED IN THE VEHICLE. ACCORDINGLY,ALTHOUGH EXCLUSIVE USE OF VEHICLE WAS REQUESTED BY THE ADMINISTRATIVE OFFICE AND THE BILL OF LADING WAS SO ANNOTATED, EXCLUSIVE-USE SERVICE WAS NOT ACTUALLY PERFORMED, SINCE IT IS ADMINISTRATIVELY REPORTED THAT THE VEHICLE WAS LOADED TO CAPACITY, TO THE EXTENT THAT NO MORE OF LIKE COMMODITY COULD HAVE BEEN LOADED THEREON. 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.'

ALSO, IN SUCH CASE, THE COMMISSION HELD THAT WHERE THE TRUCK IS FULLY LOADED, THE APPLICABLE CHARGE IS THE TRUCKLOAD CHARGE NOT THE CHARGE FOR EXCLUSIVE USE AND IN THE INSTANT CASE, THE NET CHARGES PAID YOU WERE THE TRUCKLOAD CHARGES.

THE PRINCIPLE EXPRESSED 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 JUNE 16, 1961, IS CONSISTENT WITH SUCH PRINCIPLE AND IS SUSTAINED.