B-148467, JUN. 14, 1962

B-148467, JUN. 14, 1962

TO MILNE TRUCK LINES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 15, 1962, REQUESTING REVIEW OF SETTLEMENT CERTIFICATE OF MARCH 1, 1962, WHICH DISALLOWED YOUR CLAIM O/C 4761 (OUR TK-724716) FOR $648.20 ADDITIONAL FREIGHT CHARGES ON A SHIPMENT OF GOVERNMENT PROPERTY MOVING UNDER GOVERNMENT BILL OF LADING AF-7415152, DATED AUGUST 9, 1957, FROM HOLLOMAN AIR FORCE BASE, NEW MEXICO, TO HURRICANE MESA, UTAH.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID $1,300.20, THE MINIMUM CHARGE FOR EXCLUSIVE USE OF VEHICLE SERVICE PROVIDED IN ITEM NO. 935 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU, TRANSCONTINENTAL DIRECTORY NO. 20-A, MF-I.C.C. NO. 79, COMPUTED AT THE FIRST-CLASS RATE OF $5.91 PER 100 POUNDS AUTHORIZED IN RMMTB TRANSCONTINENTAL CLASS TARIFF NO. 21-A, MF- I.C.C. NO. 95. THE ACTUAL WEIGHT OF THE SHIPMENT WAS 13,987 POUNDS.

IN OUR AUDIT OF THE PAYMENT VOUCHER WE DETERMINED THAT THE APPLICABLE FREIGHT CHARGES WERE TRUCKLOAD CHARGES OF $652. THESE CHARGES WERE COMPUTED AT A CLASS-55 TRUCKLOAD RATE OF $3.26 PER 100 POUNDS AND A 20,000 -POUND MINIMUM WEIGHT AUTHORIZED IN RMMTB TARIFF NO. 21-A, MF-I.C.C. NO. 95. THE APPLICATION OF THIS BASIS RESULTED IN AN OVERCHARGE OF $648.20, WHICH AMOUNT WAS COLLECTED BY DEDUCTION, AS AUTHORIZED BY 49 U.S.C. 66, FROM AN AMOUNT OTHERWISE DUE YOU. SUCH ACTION WAS PREDICATED ON THE DECISION OF THE INTERSTATE COMMERCE COMMISSION IN CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576, SINCE OUR RECORDS INDICATE THAT THE VEHICLE USED FOR THE INVOLVED SHIPMENT WAS LOADED TO CAPACITY.

IN YOUR REQUEST FOR REVIEW YOU ASSERT THAT THE SHIPMENT WEIGHED ONLY 13,987 POUNDS, WHICH YOU CONTEND IS NOT A FULL LOAD. YOU ALSO STATE THAT THIS IS NOT A TRUCKLOAD SHIPMENT AND THAT THE CHARGES ORIGINALLY BILLED WERE CORRECT, IN THAT EXCLUSIVE USE OF VEHICLE WAS ACTUALLY ACCORDED THE SHIPMENT.

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 SECTION 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 EXCLUSIVE-USE CHARGES WERE INAPPLICABLE AND THE APPLICABLE RATE WAS THE TRUCKLOAD RATE.

IT IS OUR VIEW THAT THE COMMISSION'S HOLDING IN THE CURTIS LIGHTING CASE IS CONTROLLING IN THE DISPOSITION OF THE INSTANT MATTER. SINCE THE SETTLEMENT ACTION IS CONSISTENT WITH THE RULING IN THAT CASE, IT APPEARS TO BE CORRECT AND IS ACCORDINGLY SUSTAINED.

HOWEVER, THE PROPRIETY OF PAYMENT OF EXCLUSIVE-USE CHARGES FOR A SHIPMENT WHICH MOVED IN A FULLY LOADED TRAILER IS PRESENTLY PENDING IN T.I.M.E., INC. V. UNITED STATES, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, LUBBOCK DIVISION, CIVIL ACTION NO. 2626, ET ., AND IN CAMPBELL "66" EXPRESS, INC. V. UNITED STATES, COURT OF CLAIMS NO. 296-59. IN THE EVENT THE FINAL JUDICIAL DECISION IN THESE CASES IS ADVERSE TO THE UNITED STATES AND YOU FEEL BASED UPON SUCH FINAL DECISIONS THAT YOUR CLAIM IS PROPERLY FOR ALLOWANCE, WE WILL, UPON YOUR REQUEST, RECONSIDER OUR CONCLUSION HEREIN.