B-161553, JAN. 18, 1968

B-161553: Jan 18, 1968

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WHERE CARRIER ACCEPTED LESS THAN TRUCKLOAD QUANTITY OF FREIGHT WITHOUT PROTEST OR QUALIFICATION AND THE RECORD DOES NOT SHOW THAT THE SHIPMENT WAS REQUIRED TO BE HANDLED OR RECEIVED AS A TRUCKLOAD QUANTITY. THE SHIPPER IS ENTITLED TO THE LESS THAN TRUCKLOAD CHARGE BASIS IN THE NATIONAL MOTOR FREIGHT CLASSIFICATION NO. IT WAS TRANSPORTED FROM MCCHORD AIR FORCE BASE. THESE CHARGES WERE COMPUTED ON THE BASIS OF A CLASS 100 RATING AND RATE APPLIED TO A MINIMUM WEIGHT OF 12. WHICH BASIS IS SET FORTH IN ITEM 1840 OF PACIFIC ISLAND TARIFF BUREAU TARIFF NO. 9-D. ITEM 1840 ALSO SHOWS THAT LESS TRUCKLOAD SHIPMENTS OF TANKS OF 100 GALLONS OR GREATER CAPACITY ARE "NOT TAKEN.'. WE HAVE REEXAMINED THE FACTS IN THIS CASE AND NOW CONCLUDE THAT THE APPLICABLE CHARGES ARE $54.68.

B-161553, JAN. 18, 1968

TRANSPORTATION - FREIGHT CHARGES DECISION TO LOS ANGELES-SEATTLE MOTOR EXPRESS, INC., REQUESTING REFUND OF OVERCHARGES ON THE SHIPMENT OF AN ALUMINUM TANK FROM MCCHORD AIR FORCE BASE TO MCCLELLAN AIR FORCE BASE. WHERE CARRIER ACCEPTED LESS THAN TRUCKLOAD QUANTITY OF FREIGHT WITHOUT PROTEST OR QUALIFICATION AND THE RECORD DOES NOT SHOW THAT THE SHIPMENT WAS REQUIRED TO BE HANDLED OR RECEIVED AS A TRUCKLOAD QUANTITY, THE SHIPPER IS ENTITLED TO THE LESS THAN TRUCKLOAD CHARGE BASIS IN THE NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-8 TARIFF. THEREFORE OVERCHARGE MUST BE REFUNDED.

TO LOS ANGELES-SEATTLE MOTOR EXPRESS, INC.:

PLEASE REFER TO YOUR LETTER OF OCTOBER 5, 1967, IN WHICH YOU DECLINED TO MAKE A VOLUNTARY ADJUSTMENT IN CHARGES ON A SHIPMENT MOVING UNDER GOVERNMENT BILL OF LADING NO. C-6494441, DATED MAY 18, 1966. THE SHIPMENT CONSISTED OF ONE ALUMINUM TANK, SET UP, 18 GAUGE OR THICKER, EXCEEDING 250 GALLONS IN CAPACITY; IT WAS TRANSPORTED FROM MCCHORD AIR FORCE BASE, WASHINGTON, TO MCCLELLAN AIR FORCE BASE, CALIFORNIA.

ON YOUR BILL NO. 66-442, PAID JULY 22, 1966, YOU CLAIMED CHARGES OF $669.60 FOR THIS TRANSPORTATION. THESE CHARGES WERE COMPUTED ON THE BASIS OF A CLASS 100 RATING AND RATE APPLIED TO A MINIMUM WEIGHT OF 12,000 POUNDS, WHICH BASIS IS SET FORTH IN ITEM 1840 OF PACIFIC ISLAND TARIFF BUREAU TARIFF NO. 9-D, MF-I.C.C. NO. 125. ITEM 1840 ALSO SHOWS THAT LESS TRUCKLOAD SHIPMENTS OF TANKS OF 100 GALLONS OR GREATER CAPACITY ARE "NOT TAKEN.' AT THAT TIME NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-8, ITEM 180860, PROVIDED A LESS THAN TRUCKLOAD RATING OF CLASS 200; THE CLASS 200 RATE OF $11.16, RATE BASIS 558-A, NAMED IN TARIFF NO. 9-D, APPLIED TO THE ACTUAL BILL OF LADING WEIGHT OF 490 POUNDS, PRODUCES TOTAL CHARGES OF $54.68 OR $614.92 LESS THAN PAID TO YOUR COMPANY. WE HAVE REEXAMINED THE FACTS IN THIS CASE AND NOW CONCLUDE THAT THE APPLICABLE CHARGES ARE $54.68.

THE CLASS 100 RATING WHICH YOU APPLIED IN COMPUTING YOUR CHARGES IS SHOWN IN ITEM 1840 OF TARIFF NO. 9-D TO BE A TRUCKLOAD RATING. IT WOULD SEEM THAT THE EFFECT OF THE TARIFF LANGUAGE ,NOT TAKEN" IS TO SIGNIFY THAT NO LESS THAN TRUCKLOAD SHIPMENTS WILL BE ACCEPTED FOR TRANSPORTATION; BUT THE FACT REMAINS THAT THE PRESENT SHIPMENT WAS TENDERED TO YOUR COMPANY AS A LESS THAN TRUCKLOAD QUANTITY OF FREIGHT AND THERE IS NOTHING IN THE RECORD TO SHOW THAT THE SHIPMENT WAS REQUIRED TO BE HANDLED OR RECEIVED TREATMENT AS A TRUCKLOAD QUANTITY OF FREIGHT. IN SUCH A CASE, IT WOULD APPEAR THAT WHILE THERE IS NO EXCEPTION RATING BASIS PROVIDED FOR LESS THAN TRUCKLOAD SHIPMENTS OF THE KIND OF ALUMINUM TANKS INVOLVED, THERE IS A CLASSIFICATION BASIS - CLASS 200 -- IN WHICH YOUR COMPANY PARTICIPATES. IF THIS WERE NOT SO, NO PUBLISHED APPLICABLE RATES WOULD BE IN EFFECT ON LESS THAN TRUCKLOAD SHIPMENTS OF THE SUBJECT ALUMINUM TANKS, AND THE OMISSION OF ANY LESS THAN TRUCKLOAD RATINGS AND RATES WOULD RESULT IN A VIOLATION OF THE INTERSTATE COMMERCE ACT PROVISIONS WHICH REQUIRE CARRIERS TO PUBLISH AND FILE RATES ON ALL COMMODITIES TRANSPORTED BY THEM.

ACCORDING TO ESTABLISHED CASE PRECEDENT, IF ALTERNATIVE CHOICES OF TARIFF CONSTRUCTION ARE AVAILABLE, THE ONE WHICH WILL NOT RESULT IN A VIOLATION OF LAW WILL BE APPLIED. THUS, SINCE YOUR COMPANY ACCEPTED A LESS THAN TRUCKLOAD SHIPMENT WITHOUT PRIOR PROTEST OR QUALIFICATION WHICH CLEARLY DISCLOSED THAT THE SHIPMENT WAS BEING RECEIVED, HANDLED, AND RATED AS A TRUCKLOAD SHIPMENT UNDER THE CONDITIONS OF ITEM 1840 OF TARIFF NO. 9-D, THE SHIPPER IS ENTITLED TO THE LESS THAN TRUCKLOAD CHARGE BASIS NAMED IN NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-8. IF IT WERE INTENDED THAT NO LESS THAN TRUCKLOAD RATING, INCLUDING THAT PUBLISHED IN CLASSIFICATION NO. A-8 WOULD BE AVAILABLE, APPROPRIATE LANGUAGE SHOULD HAVE BEEN USED IN ITEM 1840 OF TARIFF NO. 9-D TO REMOVE ANY DOUBT THAT SUCH RATINGS WERE INAPPLICABLE EVEN THOUGH LESS THAN TRUCKLOAD SHIPMENTS WERE "TAKEN.'

WE THEREFORE BELIEVE THAT YOU HAVE OVERCHARGED THE GOVERNMENT $614.92 ON THE DISPUTED SHIPMENT. THAT AMOUNT SHOULD BE REFUNDED WITHIN 45 DAYS TO AVOID COLLECTION BY OTHER MEANS.