B-149020, JAN. 5, 1965

B-149020, JAN. 5, 1965

TO GENERAL EXPRESSWAYS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 9, 1964, GEX CLAIM E 4236, IN WHICH YOU REQUESTED FURTHER CONSIDERATION OF OUR DECISION DATED NOVEMBER 26, 1962 (AFFIRMED IN DECISION DATED JUNE 4, 1963) SUSTAINING THE DISALLOWANCE OF YOUR CLAIM FOR $120.71 AS ADDITIONAL TRANSPORTATION CHARGES ALLEGEDLY DUE ON A SHIPMENT OF PARABOLIC ANTENNAS, WEIGHING, 7,350 POUNDS, TRANSPORTED UNDER GOVERNMENT BILL OF LADING AF-9661916, DURING MAY 1959.

YOU CONTINUE TO BASE YOUR CLAIM ON THE PROVISIONS OF RULE 62-1 (VEHICLES LOADED TO CAPACITY) OF MIDDLE ATLANTIC CONFERENCE FREIGHT TARIFF NO. 15-J, MF-I.C.C. NO. A-949. THIS RULE PROVIDES THAT TRUCKLOAD CHARGES WILL BE ASSESSED ON SHIPMENTS WHERE NO MORE "OF THE SAME KIND OF FREIGHT IN THE SHIPPING FORM ALREADY TENDERED CAN BE LOADED ON THE VEHICLE.'

THE GOVERNMENT BILL OF LADING WAS ANNOTATED "TENDERED AS L/T/L " AND YOUR FREIGHT BILL WAS ANNOTATED "LOADED TO FULL VISIBLE CAPABILITY DUE TO HEIGHT OF FREIGHT . . OPEN TOP LOAD.'

IN OUR DECISION OF NOVEMBER 26, 1962, WE OBSERVED THAT THERE WAS NOTHING IN THE RECORD TO ESTABLISH THAT THE VEHICLE USED WAS ACTUALLY LOADED TO CAPACITY. AND LIKEWISE, THE INTERSTATE COMMERCE COMMISSION- - IN LETTER OF OCTOBER 24, 1963, ANSWERING YOUR REQUEST FOR AN INFORMAL OPINION CONCERNING THIS MATTER--- REACHED THE SAME CONCLUSION, STATING AS FOLLOWS:

"RULE 62-1, HOWEVER, STATES THAT FOR A SHIPMENT TO BE CONSIDERED "LOADED TO CAPACITY" THAT NO MORE "OF THE SAME KIND OF FREIGHT IN THE SHIPPING FORM ALREADY TENDERED COULD BE LOADED ON THE VEHICLE.' THE RECORD DOES NOT SHOW THAT ANY MORE OF THE SAME KIND OF FREIGHT COULD BE LOADED THEREIN NOR DOES IT APPEAR AT THIS LATE DATE THAT ANY CONCLUSIVE EVIDENCE IN REGARD THERETO CAN BE FURNISHED BY THE PARTIES. FOR INSTANCE, IN RESPONSE TO A QUESTION AS TO WHETHER ANY MORE OF THE SAME FREIGHT COULD HAVE BEEN LOADED IN THE VEHICLE, YOU STATED AS FOLLOWS IN YOUR LETTER OF JULY 18, 1963:

"* * * YOUR SECOND QUESTION REQUESTING THAT WE ADVISE WHETHER OR NOT OTHER ARTICLES CONSISTING OF THE SAME FREIGHT COULD HAVE BEEN PLACED IN THIS VEHICLE, CANNOT BE ANSWERED FROM ANY RECORDS WE HAVE AVAILABLE AND YOU WILL NOTE THAT THE GOVERNMENT BILL OF LADING IS ALSO DEFICIENT IN THIS RESPECT.'

UNDER THE CIRCUMSTANCES, IT CANNOT BE DETERMINED WHETHER OR NOT THE INSTANT SHIPMENT LOADED THE VEHICLE TO FULL VISIBLE CAPACITY AS REQUIRED BY THE NOTE QUOTED ABOVE IN RULE 62-1 OF THE TARIFF, THAT IS, WHILE THE NOTATION ON THE FREIGHT BILL REFERS TO "HEIGHT OF FREIGHT" AND AN OPEN-TOP VEHICLE, SUCH NOTATION WOULD NOT BE DETERMINATIVE AS TO WHETHER ANOTHER PIECE OF THE SAME FREIGHT COULD HAVE BEEN PLACED ALONG SIDE OF THOSE ALREADY IN THE TRAILER.

"UPON THE RECORD AS PRESENTED, IT IS THE INFORMAL VIEW OF THE COMMISSION THAT IT HAS NOT BEEN SHOWN THAT CHANGES COMPUTED ON THE BASIS PROVIDED IN ITEM 62-1 IS NOT APPLICABLE.

SINCE IN YOUR PRESENT REQUEST FOR FURTHER CONSIDERATION YOU HAVE SUBMITTED NO NEW EVIDENCE TO SUBSTANTIATE YOUR CONTENTION OF CAPACITY LOADING, WE HAVE NO RECOURSE BUT TO AGAIN HOLD THAT RULE 62-1 IS NOT APPLICABLE.

ACCORDINGLY, EVEN IF THE VIEW THAT RULE 62-1 IS MORE SPECIFIC THAN RULE 25 (APPLICATION OF MAXIMUM CHARGES) AND TAKES PRECEDENCE IN SITUATIONS INVOLVING CAPACITY LOADING WERE TO BE GIVEN EFFECT IN THIS INSTANCE, FAVORABLE ACTION ON YOUR CLAIM WOULD NOT BE JUSTIFIED. THE DISALLOWANCE OF YOUR CLAIM IN OUR SETTLEMENT CERTIFICATE OF FEBRUARY 5, 1962, THEREFORE, IS AGAIN SUSTAINED.