B-148222, JAN. 22, 1964
Highlights
TO JACK COLE COMPANY: REFERENCE IS MADE TO YOUR CLAIM (SUPPLEMENTAL BILL NO. 14. 214 "A") WHICH IS. THAT DECISION WAS BASED UPON THE RULING OF THE INTERSTATE COMMERCE COMMISSION IN CURTIS LIGHTING. THAT WHEN A VEHICLE IS LOADED TO CAPACITY TRUCKLOAD CHARGES RATHER THAN EXCLUSIVE-USE CHARGES ARE APPLICABLE. THESE DECISIONS HAVE SINCE BEEN DECIDED ADVERSE TO THE POSITION OF THE GOVERNMENT. YOUR PRESENT CLAIM BASIS IS SUBSTANTIALLY SIMILAR TO THE BASIS URGED IN YOUR LETTER OF FEBRUARY 13. OUR OFFICE HAS CONSISTENTLY REFUSED TO ALLOW CONCLUSIVE- USE CHARGES IN EXCESS OF TRUCKLOAD CHARGES WHERE THE RECORDS SHOW THAT THE VEHICLE OR VEHICLES WERE LOADED TO FULL CAPACITY IN VIEW OF THE DECISION OF THE INTERSTATE COMMERCE COMMISSION IN THE CURTIS LIGHTING CASE.
B-148222, JAN. 22, 1964
TO JACK COLE COMPANY:
REFERENCE IS MADE TO YOUR CLAIM (SUPPLEMENTAL BILL NO. 14,214 "A") WHICH IS, IN EFFECT, A REQUEST FOR RECONSIDERATION OF OUR DECISION OF JUNE 13, 1962, B-148222, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR $294 ADDITIONAL FREIGHT CHARGES FURNISHED PURSUANT TO BILL OF LADING A-8605170, DATED APRIL 12, 1961. THAT DECISION WAS BASED UPON THE RULING OF THE INTERSTATE COMMERCE COMMISSION IN CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576 (1958), WHICH HELD, IN EFFECT, THAT WHEN A VEHICLE IS LOADED TO CAPACITY TRUCKLOAD CHARGES RATHER THAN EXCLUSIVE-USE CHARGES ARE APPLICABLE. WE INDICATED IN OUR DECISION THAT WE WOULD GIVE FURTHER CONSIDERATION TO YOUR CLAIM UPON A FINAL DECISION BEING RENDERED IN THE CASE OF CAMPBELL "66" EXPRESS, INC. V. UNITED STATES, 302 F.2D 270 (1962), AND IN SEVERAL OTHER CASES PENDING BEFORE UNITED STATES DISTRICT COURTS WHICH INVOLVED THE CURTIS LIGHTING ISSUE. THESE DECISIONS HAVE SINCE BEEN DECIDED ADVERSE TO THE POSITION OF THE GOVERNMENT.
YOUR PRESENT CLAIM BASIS IS SUBSTANTIALLY SIMILAR TO THE BASIS URGED IN YOUR LETTER OF FEBRUARY 13, 1962. AS STATED IN OUR REPLY OF JUNE 13, 1962, B-148222, OUR OFFICE HAS CONSISTENTLY REFUSED TO ALLOW CONCLUSIVE- USE CHARGES IN EXCESS OF TRUCKLOAD CHARGES WHERE THE RECORDS SHOW THAT THE VEHICLE OR VEHICLES WERE LOADED TO FULL CAPACITY IN VIEW OF THE DECISION OF THE INTERSTATE COMMERCE COMMISSION IN THE CURTIS LIGHTING CASE. THIS CONNECTION SEE 41 COMP. GEN. 266. THE COURT OF CLAIMS, IN THE CAMPBELL "66" CASE, INDICATED ITS BELIEF THAT THE CURTIS LIGHTING DECISION WAS PREDICATED ON UNREASONABLENESS AND THE COURT ALLOWED TARIFF RATES FOR EXCLUSIVE USE WHEN SUCH SERVICE WAS REQUESTED AND THE PROVISIONS OF THE TARIFF WERE SUBSTANTIALLY COMPLIED WITH EVEN THOUGH THE SHIPMENT FULLY LOADED THE VEHICLE. CERTAIN COURT CASES WERE SETTLED BY THE DEPARTMENT OF JUSTICE ON THE BASIS OF THE CAMPBELL "66" CASE AND THE OPINION OF THE HEARING EXAMINER OF THE INTERSTATE COMMERCE COMMISSION IN THE APPLICABILITY OF RATES AND CHARGES, M.B. AND R. TRUCKING CO., I.C.C. DOCKET NO. 34147, WHICH FOLLOWED THE CAMPBELL "66" EXPRESS DECISION. HOWEVER, THE M.R. AND R. DECISION WAS LATER SET ASIDE AND VACATED AND THE CARRIER'S APPEAL FOR RECONSIDERATION OF SUCH ACTION HAS NOW BEEN DISMISSED BY THE INTERSTATE COMMERCE COMMISSION. ALSO, THE DEPARTMENT OF JUSTICE HAS AUTHORIZED FURTHER LITIGATION OF THE EXCLUSIVE USE-CAPACITY LOAD ISSUE IN ANOTHER CASE PENDING IN THE DISTRICT COURT OF IDAHO, EASTERN DIVISION (GARRETT FREIGHT LINES V. UNITED STATES, CIVIL ACTION NO. 2297).
ACCORDINGLY, AND SINCE THE ISSUE IS STILL BEING LITIGATED, WE WOULD NOT BE WARRANTED IN REVERSING THE CONCLUSION IN OUR DECISION OF JULY 13, 1962, B-148222, AND OTHER DECISIONS UNDER THE SAME B-NUMBER WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR $294 ON YOUR BILL NO. 14,214 .' HOWEVER, IF UPON FINAL CONCLUSION OF LITIGATION ON THE ISSUE, THE DECISION IS ADVERSE TO THE UNITED STATES, WE WILL, UPON YOUR REQUEST, GIVE THE MATTER FURTHER CONSIDERATION.