B-181517, MAR 17, 1975

B-181517, MAR 17, 1975

RATES OFFERED UNITED STATES BY APPLICANT SEEKING PERMANENT TRANSFER OF INTRASTATE PENNSYLVANIA CERTIFICATE OF PUBLIC CONVENIENCE FROM PUBLIC UTILITY MOTOR CARRIER NOT APPLICABLE ON GOVERNMENT SHIPMENT WHERE STATE PUBLIC UTILITY COMMISSION DENIED APPLICANT TEMPORARY AUTHORITY AND OPERATIONS AGREEMENT BETWEEN CARRIER AND APPLICANT INEFFECTIVE UNDER STATE LAW TO ACCOMPLISH OBJECTIVE INDIRECTLY. RATES IN CARRIER'S TENDER IN EFFECT ON DATE OF GOVERNMENT SHIPMENT APPLICABLE WHERE GBL CONTAINS ANNOTATION OF CARRIER'S TENDER SERIES, PLUS ITS NAME AS RECEIVING AND DELIVERING CARRIER, AND TERMS OF OPERATIONS AGREEMENT BETWEEN CARRIER AND CLAIMANT PURPORTING TO GRANT CLAIMANT EXCLUSIVE RIGHT TO PERFORM TRANSPORTATION SERVICES UNDER CARRIER'S INTRASTATE PENNSYLVANIA OPERATING AUTHORITY ARE UNKNOWN TO UNITED STATES AT TIME OF SHIPMENT, DESPITE FACT CLAIMANT PERFORMED THE TRANSPORTATION SERVICES.

S.R.T. MOTOR FREIGHT, INC.:

S.R.T. MOTOR FREIGHT, INC. (S.R.T.) SEEKS REVIEW OF THE SETTLEMENT DISALLOWING ITS CLAIM FOR $148 IN CONNECTION WITH THE TRANSPORTATION OF A SHIPMENT CONSISTING OF ONE ARMY TRACTOR TANK WITH GUNS MOUNTED, WEIGHING 57,900 POUNDS, FROM YORK, BAIR SIDING, PENNSYLVANIA, TO LETTERKENNY ARMY DEPOT, CHAMBERSBURG, PENNSYLVANIA, ON GOVERNMENT BILL OF LADING NO. F- 5886204 (GBL), DATED JUNE 30, 1971.

THE BILL OF LADING SHOWS THAT THE SHIPMENT WAS TENDERED TO AND RECEIVED BY AETNA FREIGHT LINES, AND THE CONSIGNEE'S CERTIFICATE OF DELIVERY INDICATES DELIVERY BY AETNA FREIGHT LINES. ON ITS FACE THE BILL OF LADING EVIDENCES A TRANSPORTATION CONTRACT BETWEEN THE UNITED STATES AND AETNA; THERE IS NO REFERENCE WHATEVER TO S.R.T. MOTOR FREIGHT, INC., AND NOTHING WHATEVER TO SHOW ANY AGREEMENT OR PRIVITY OF CONTRACT BETWEEN THAT COMPANY AND THE UNITED STATES. HOWEVER, CHARGES FOR THE SHIPMENT WERE BILLED AND COLLECTED BY S.R.T. MOTOR FREIGHT, INC. UNDER A "WAIVER" EXECUTED ON BEHALF OF AETNA BY ITS SECRETARY, IN ACCORDANCE WITH THE PROVISIONS OF A PURPORTED SPECIAL TENDER OF RATES UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT, AS AMENDED, 49 U.S.C. 22 AND 317(B), REQUIRING ASSESSMENT OF CHARGES ON THE APPLICABLE CHARGE NAMED THEREIN, BUT IN NO CASE LESS THAN THE CHARGE FOR 100 MILES. UPON SUBSEQUENT AUDIT, THE TRANSPORTATION AND CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE ISSUED A NOTICE OF OVERCHARGE FOR $148, BASED ON CHARGES FOR THE ACTUAL DISTANCE OF 60 MILES, IN ACCORDANCE WITH AETNA'S TENDER I.C.C. NO. 10, PA. P.U.C. NO. 8, WHICH PROVIDES A MINIMUM CHARGE BASED ON 40 MILES. S.R.T. MADE REFUND AND FILED A CLAIM FOR THE AMOUNT REFUNDED.

THE CLAIM FOR REFUND IS PREDICATED ON THE CONTENTION THAT THE TRANSPORTATION SERVICES ACTUALLY WERE PERFORMED BY S.R.T. UNDER AN "OPERATIONS AGREEMENT" DATED JUNE 10, 1971. AS FAR AS PERTINENT HERE, THAT AGREEMENT PROVIDES:

"WHEREAS, IT NOW APPEARS THAT TEMPORARY AUTHORITY CANNOT BE OBTAINED FROM THE PENNSYLVANIA P.U.C. FOR S.R.T. TO OPERATE THE P.U.C. OPERATING AUTHORITY IT IS ACQUIRING, BUT THAT THE PARTIES CAN ENTER INTO A VALID OPERATIONS AGREEMENT TO PERMIT S.R.T. TO TEMPORARILY OPERATE THE SAID P.U.C. OPERATING AUTHORITY;

"NOW THEREFORE, IT IS AGREED ...

"1. S.R.T. SHALL BE AND IS HEREBY AUTHORIZED SOLELY AND EXCLUSIVELY TO PERFORM ALL OPERATIONS IN PENNSYLVANIA INTRASTATE COMMERCE AS PERMITTED BY THE SUBJECT P.U.C. AUTHORITY, BEING THAT SET FORTH IN THE NAME OF THE AETNA FREIGHT LINES, INC., DOCKET NO. A. 85636 AND FOLDERS THEREUNDER.

"2. ALL OPERATIONS PERFORMED BY S.R.T. AS SET FORTH IN PARAGRAPH ONE ABOVE, SHALL BE BY THE USE OF S.R.T.'S OWN EQUIPMENT AND PERSONNEL. THE EQUIPMENT SHALL BE PLACARDED TO SHOW AETNA'S NAME AND DOCKET NUMBER AND S.R.T. SHALL FURTHER NOTIFY THE PENNSYLVANIA P.U.C. TO ADD THE EQUIPMENT INVOLVED TO AETNA'S PENNSYLVANIA P.U.C. EQUIPMENT CERTIFICATE."

IN THE LIGHT OF THESE EXPRESS PROVISIONS OF THE AGREEMENT, IT IS CONCLUSIVELY ESTABLISHED THAT IN PERFORMING THE SERVICES HERE INVOLVED S.R.T. WAS IN FACT, AND AS AGREED, ACTING AS AETNA. IT IS LIKEWISE CLEAR THAT ON THE DATE OF ISSUANCE OF S.R.T.'S PURPORTED TENDER, PA. P.U.C. NO. 1, CONTAINING THE HIGHER MINIMUM DISTANCE PROVISION, S.R.T. HAD NO OPERATING AUTHORITY FOR PERFORMING INTRASTATE SERVICE IN PENNSYLVANIA OTHER THAN THAT IT EXERCISED AS AETNA UNDER DOCKET NO. 85636, AS REPRESENTED IN ITEM 17 OF SUCH DOCUMENT. IT FURTHER APPEARS THAT AT THE TIME THE SHIPMENT WAS TENDERED FOR MOVEMENT NO NOTICE OF CANCELLATION OF AETNA'S TENDER I.C.C. NO. 10, PA. P.U.C. NO. 8, HAD BEEN GIVEN, AS PROVIDED IN ITEM 21 THEREOF; THEREFORE SUCH TENDER REMAINED, AT THE TIME OF MOVEMENT, IN FULL FORCE AND EFFECT. WE CONCLUDE, THEREFORE, THAT THE CHARGES LAWFULLY APPLICABLE ON THE SHIPMENT ARE THOSE DETERMINABLE UNDER AETNA'S TENDER I.C.C. NO. 10, PA. P.U.C. NO. 8.

THE SETTLEMENT ACTION TAKEN BY THE TRANSPORTATION AND CLAIMS DIVISION WAS THEREFORE CORRECT, AND IS SUSTAINED.