B-150431, MAY 2, 1963

B-150431: May 2, 1963

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FOR THE SERVICES PERFORMED YOU ORIGINALLY CLAIMED AND WERE PAID $525 ON EACH SHIPMENT. ON AUDIT OF THE PAYMENT VOUCHERS AN OVERPAYMENT WAS DISCOVERED WHEN WE COMPUTED THE CHARGES AT A TRUCKLOAD CLASS-125 RATE OF $4.68 PER 100 POUNDS AND A MINIMUM WEIGHT OF 7. THE AMOUNTS OVERPAID WERE RECOVERED BY DEDUCTION FROM AMOUNTS OTHERWISE DUE. YOUR CLAIMS WERE DISALLOWED BY SETTLEMENT CERTIFICATES OF NOVEMBER 17 AND DECEMBER 5. IN YOUR REQUEST FOR REVIEW YOU ADMIT THAT THE VEHICLES WERE LOADED TO CAPACITY BUT ARGUE THAT EXCLUSIVE USE DEPRIVED YOU OF REVENUE WHICH OTHERWISE MIGHT HAVE BEEN EARNED IF THE SHIPMENTS HAD BEEN DIVIDED INTO TWO TRAILERS AND SMALL SHIPMENTS HEADED IN THE SAME DIRECTION LOADED ON THE VEHICLES WITH THE SHIPMENTS IN QUESTION.

B-150431, MAY 2, 1963

TO MORRISON MOTOR FREIGHT, INC.:

IN YOUR LETTERS OF DECEMBER 5, 1962, FILES PRO NO. SL 2378A, VOUCHER NO. 33, DATED MARCH 25, 1960, AND SL 1733A, VOUCHER NO. 34, DATED MARCH 25, 1960, YOU REFER TO OUR FILE REFERENCES TK-697323 AND TK 697324 AND REQUEST REVIEW OF OUR SETTLEMENTS OF NOVEMBER 17, 1960, AND DECEMBER 5, 1960, WHICH DISALLOWED AN ADDITIONAL PAYMENT OF $164.64 CLAIMED BY YOU ON EACH VOUCHER. VOUCHERS 33 AND 34 COVER CHARGES FOR THE TRANSPORTATION OF AIRCRAFT PARTS FROM COFFEEVILLE, KANSAS, TO FAIRBORN, OHIO, UNDER GOVERNMENT BILLS OF LADING NOS. AF-7579728 AND AF-7579727, DATED OCTOBER 15 AND OCTOBER 10, 1957, RESPECTIVELY.

FOR THE SERVICES PERFORMED YOU ORIGINALLY CLAIMED AND WERE PAID $525 ON EACH SHIPMENT, REPRESENTING THE MINIMUM CHARGE FOR THE EXCLUSIVE USE OF THE VEHICLE UNDER ITEM 40-B IN SUPPLEMENT 47 TO MIDDLE-WEST MOTOR TARIFF NO. 26, MF-I.C.C. NO. 267, COMPUTED AT A CLASS-100 RATE OF $3.75 PER 100 POUNDS ON A MINIMUM WEIGHT OF 14,000 POUNDS. ON AUDIT OF THE PAYMENT VOUCHERS AN OVERPAYMENT WAS DISCOVERED WHEN WE COMPUTED THE CHARGES AT A TRUCKLOAD CLASS-125 RATE OF $4.68 PER 100 POUNDS AND A MINIMUM WEIGHT OF 7,700 POUNDS, IN RELIANCE ON THE DECISION OF THE INTERSTATE COMMERCE COMMISSION IN BRODERICK AND BASCOM ROPE COMPANY V. HALL FREIGHT LINES, INC., 302 I.C.C. 347. ON YOUR FAILURE TO REFUND THE OVERPAYMENTS, THE AMOUNTS OVERPAID WERE RECOVERED BY DEDUCTION FROM AMOUNTS OTHERWISE DUE.

IN RECLAIMING THE AMOUNTS DEDUCTED YOU REFERRED TO THE DECISION OF THE UNITED STATES SUPREME COURT IN THE T.I.M.E. AND DAVIDSON CASES, 359 U.S. 464, BUT YOUR CLAIMS WERE DISALLOWED BY SETTLEMENT CERTIFICATES OF NOVEMBER 17 AND DECEMBER 5, 1960, RESPECTIVELY, IN RELIANCE UPON THE DECISION OF THE INTERSTATE COMMERCE COMMISSION IN CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576.

IN YOUR REQUEST FOR REVIEW YOU ADMIT THAT THE VEHICLES WERE LOADED TO CAPACITY BUT ARGUE THAT EXCLUSIVE USE DEPRIVED YOU OF REVENUE WHICH OTHERWISE MIGHT HAVE BEEN EARNED IF THE SHIPMENTS HAD BEEN DIVIDED INTO TWO TRAILERS AND SMALL SHIPMENTS HEADED IN THE SAME DIRECTION LOADED ON THE VEHICLES WITH THE SHIPMENTS IN QUESTION. HOWEVER, IN THE CURTIS LIGHTING CASE, SUPRA, THE INTERSTATE COMMERCE COMMISSION HELD THAT WHEN A VEHICLE WAS LOADED TO CAPACITY EXCLUSIVE-USE CHARGES--- WHICH ARE INTENDED TO COVER THE FURNISHING OF TRUCKLOAD SERVICE TO LESS-THAN-TRUCKLOAD SHIPMENTS--- ARE INAPPLICABLE AND THE APPLICABLE CHARGES ARE THE TRUCKLOAD CHARGES. IN THAT DECISION THE INTERSTATE COMMERCE COMMISSION REJECTED AN ARGUMENT BY THE CARRIER THAT ADDITIONAL FREIGHT MIGHT HAVE BEEN LOADED EXCEPT FOR THE REQUEST FOR EXCLUSIVE-USE SERVICE.

THE COURT OF CLAIMS IN CAMPBELL "66" EXPRESS V. UNITED STATES, 302 F.2D 270, HELD THE CURTIS LIGHTING CASE TURNED ON A QUESTION OF REASONABLENESS AND UNDER THE DECISION OF THE SUPREME COURT IN T.I.M.E. V. UNITED STATES, 359 U.S. 464, WAS WITHOUT EFFECT IN A POST-SHIPMENT CHALLENGE OF CHARGES MADE PURSUANT TO TARIFF PROVISIONS FOR EXCLUSIVE USE. ALSO, IN NAVAJO FREIGHT LINES, INC. V. UNITED STATES, CIVIL ACTION 6753, IN THE UNITED STATES DISTRICT COURT, DISTRICT OF COLORADO, THE COURT MADE A SIMILAR RULING. HOWEVER, AN APPEAL WAS TAKEN TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT FROM SUCH RULING AND SUCH APPEAL IS STILL PENDING. UNTIL SUCH APPEAL IS FINALLY DISPOSED OF WE WOULD NOT BE WARRANTED IN DISREGARDING THE HOLDING OF THE INTERSTATE COMMERCE COMMISSION IN THE CURTIS LIGHTING CASE REFERRED TO ABOVE.

ACCORDINGLY AND ON THE PRESENT RECORD, OUR DISALLOWANCE OF YOUR CLAIM IS SUSTAINED. HOWEVER, IF THE APPEAL IN THE NAVAJO FREIGHT LINES CASE IS FINALLY DECIDED AGAINST THE UNITED STATES, WE WOULD BE PLEASED TO GIVE YOUR REQUEST FOR REVIEW OF THE DISALLOWANCES FURTHER CONSIDERATION.