B-142342, JAN. 14, 1964

B-142342, JAN. 14, 1964

TO STRICKLAND SYSTEM:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 14, 1963, IN WHICH YOU CONTINUE TO QUESTION THE PROPRIETY OF OUR SETTLEMENT ON YOUR CLAIM GAO 1349. THE SETTLEMENT CERTIFICATE INVOLVED, DATED FEBRUARY 2, 1960, DISALLOWED YOUR CLAIM FOR $211.80, ON SUPPLEMENTAL BILL 6982-A. THIS CLAIM WAS MADE IN CONNECTION WITH THE TRANSPORTATION OF 2,250 POUNDS OF MILITARY TARGETS, SET-UP, FROM BATON ROUGE, LOUISIANA, TO MCGUIRE AIR FORCE BASE, NEW JERSEY, UNDER BILL OF LADING AF-5422294, IN MAY 1957. FURTHER DETAILS ON THE TRANSACTION IN QUESTION ARE SET FORTH IN OUR DECISION, B-142342, DATED JUNE 7, 1960, WHICH SHOWS THAT YOU ORIGINALLY CLAIMED AND WERE PAID $759 PRIOR TO OUR AUDIT UNDER THE PROVISIONS OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66. IN OUR AUDIT WE REDUCED THE ALLOWABLE CHARGES TO $547.20 AND EVENTUALLY COLLECTED THE DIFFERENCE OF $211.80.

THIS MATTER HAS BEEN THE SUBJECT OF OUR DECISIONS DATED JUNE 7, 1960, SEPTEMBER 14, 1960, OCTOBER 24, 1960, AUGUST 15, 1962, AND AUGUST 27, 1963. IN THESE DECISIONS THE DISALLOWANCE OF YOUR CLAIM FOR $211.80 WAS AFFIRMED. YOUR PRESENT LETTER DOES NOT CONTAIN ANYTHING WHICH JUSTIFIES REVERSING THE CONCLUSION REACHED IN THE MENTIONED DECISIONS.

YOU AGAIN REFER TO THE CASE OF CAMPBELL "66" EXPRESS, INC. V. UNITED STATES, 302 F. 2D 270, WHICH WE HAVE PREVIOUSLY INDICATED WAS NOT CONTROLLING UPON OUR AUDIT OF TRANSACTIONS SIMILAR TO THOSE INVOLVED IN THE CASE. OUR ACTION HAS BEEN PREDICATED ON THE CASE OF CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576, IN WHICH THE INTERSTATE COMMERCE COMMISSION UPHELD THE APPLICATION OF TRUCKLOAD RATES AS DISTINGUISHED FROM THE USE OF EXCLUSIVE USE RATES SINCE "ONCE A VEHICLE IS LOADED TO CAPACITY, THE SHIPPER DERIVES NO BENEFIT FROM EXCLUSIVE USE WHICH IS DESIGNED TO ACCORD TRUCKLOAD RATES TO LESS-THAN-TRUCKLOAD SHIPMENTS.'

THERE IS NOT OTHER REPORTED CASE IN WHICH THE INTERSTATE COMMERCE COMMISSION HAD TO PASS UPON THE QUESTION OF APPLICABLE CHARGES WHERE CAPACITY LOADED VEHICLES IN EXCLUSIVE USE SERVICE WERE INVOLVED, ALTHOUGH THE COMMISSION HAD OCCASION TO CONSIDER A PETITION BY THE M. AND R. TRUCKING COMPANY, CRESTVIEW, FLORIDA, IN DOCKET NO. 34147, FOR A DETERMINATION AS TO THE APPLICABILITY OF ITEM 940 (AN EXCLUSIVE USE ITEM) IN ROCKY MOUNTAIN MOTOR TARIFF BUREAU TARIFF NO. 20-C, MF-I.C.C. NO. 123. HEARING EXAMINER BAMFORD, IN HIS RECOMMENDED REPORT AND ORDER, FOUND IN FAVOR OF THE CARRIER TO THE EFFECT THAT EXCLUSIVE USE CHARGES ARE NOT RENDERED INAPPLICABLE SOLELY BECAUSE A SHIPMENT FILLS A VEHICLE TO CAPACITY, AND THE RATES AND PRACTICES REVIEW BOARD UPHELD THE RECOMMENDED REPORT AND ORDER. DIVISION 2 OF THE COMMISSION IN ITS ORDER DATED AUGUST 7, 1963, VACATED AND SET ASIDE THE RATES AND PRACTICES REVIEW BOARD ORDER OF APRIL 10, 1963. IN ITS ORDER OF DECEMBER 5, 1963, DIVISION 2 DENIED THE CARRIER'S PETITION FOR RECONSIDERATION FOR THE REASON THAT SUFFICIENT GROUNDS WERE NOT PRESENTED TO SET ASIDE THE ORDER OF AUGUST 7, 1963.

AS TO THE NAVAJO FREIGHT LINES CASE, CIVIL ACTION NO. 6753, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO, THE GOVERNMENT, AS YOU POINT OUT, CONCEDED SEVERAL OF THE EXCLUSIVE USE ITEMS INVOLVED IN THAT CASE AND RESISTED THE CARRIER'S CLAIMS ON OTHER EXCLUSIVE USE ITEMS. IT SHOULD BE NOTED THAT THE CONCEDED ITEMS WERE NOT COMPARABLE TO THOSE WHICH INVOLVED CAPACITY LOADS. OUR OFFICE IS NOT DECLINING PAYMENT OF EXCLUSIVE USE CHARGES IN THE APPROPRIATE TARIFF SITUATIONS WHERE THE VEHICLES INVOLVED DO NOT CONTAIN CAPACITY LOADS. HOWEVER, WE HAVE CONSISTENTLY OPPOSED THE ALLOWANCE OF EXCLUSIVE USE CHARGES IN THE CASE OF TARIFF PROVISIONS SUCH AS THOSE INVOLVED IN THIS INSTANCE WHERE THE RECORD INDICATES VEHICLE USED IS FULLY LOADED.

IT IS TRUE THAT, CONTRARY TO OUR RECOMMENDATION, THE DEPARTMENT OF JUSTICE WITHDREW ITS APPEAL TO THE CIRCUIT COURT OF APPEALS IN THE NAVAJO FREIGHT LINES CASE. ALSO, THE CAMPBELL "66" EXPRESS CASE WAS NOT PROSECUTED FURTHER, ONE OF THE MAIN REASONS BEING THAT FURTHER PROCEEDINGS WOULD HAVE INVOLVED A PETITION TO THE SUPREME COURT OF THE UNITED STATES FOR A WRIT OF CERTIORARI SINCE THERE IS NO INTERMEDIATE COURT TO WHICH COURT OF CLAIMS' JUDGMENTS ARE APPEALABLE.

OUR AUDIT ACTION IS TAKEN UNDER SPECIFIC STATUTORY PROVISIONS WHICH REQUIRE OUR OFFICE TO SETTLE AND ADJUST ALL CLAIMS BY OR AGAINST THE UNITED STATES. 31 U.S.C. 71 AND 49 U.S.C. 66. SEE UNITED STATES EX REL SKINNER AND EDDY CORP. V. MCCARL, COMPTROLLER GENERAL, 275 U.S. 1, 4 (NOTE 2). OUR OBLIGATION UNDER THESE STATUTES IS INDEPENDENT OF THE RESPONSIBILITIES AND DUTIES OF THE DEPARTMENT OF JUSTICE IN ITS LITIGATION ACTIVITIES. GENERALLY SPEAKING, WE WILL GIVE EFFECT IN OUR AUDIT TO DECISIONS OF THE LOWER COURTS UPON ISSUES WHICH MAY ARISE IN ACCOUNTS EXAMINED IN OUR OFFICE. WE ARE NOT NECESSARILY BOUND, HOWEVER, BY THE DECISIONS OF THE LOWER COURTS AND, ON OCCASIONS, WILL LIMIT ALLOWANCE ON DISPUTED CLAIMS TO THOSE WHICH ARE PRESCRIBED IN A FINAL JUDGMENT OF A LOWER COURT. IN EXCLUSIVE USE SERVICE CASES WE HAVE CONTINUED IN OUR AUDIT TO ADHERE TO THE POSITION THAT THE MAXIMUM TO WHICH THE CARRIER IS ENTITLED ON A FULLY LOADED VEHICLE IS THE AMOUNT WHICH WILL COMPENSATE THE CARRIER FOR THE UTILIZATION OF THE PARTICULAR VEHICLE USED IN TRANSPORTING A PARTICULAR ARTICLE, THAT IS, MINIMUM TRUCKLOAD CHARGES (OR CHARGES BASED ON ACTUAL WEIGHT IF HIGHER THAN MINIMUM WEIGHT), NOTWITHSTANDING THAT A SHIPPING OFFICER MAY DESIGNATE A PARTICULAR SHIPMENT FOR EXCLUSIVE USE HANDLING.

ALTHOUGH THE DEPARTMENT OF JUSTICE DID DISCONTINUE APPELLATE PROCEEDINGS IN THE ABOVE-MENTIONED NAVAJO CASE AND IN A SUIT BROUGHT BY T.I.M.E., INC., AGAINST THE UNITED STATES, CIVIL ACTION NO. 2626, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, IT HAS NOT ABANDONED DEFENSE OF SUITS IN THE LOWER COURTS BROUGHT BY MOTOR CARRIERS FOR CONCLUSIVE USE CHARGES ON CAPACITY LOADED VEHICLES. FOR EXAMPLE, THERE IS STILL PENDING THE CASE OF GARRETT FREIGHT LINES, INC. V. UNITED STATES, CIVIL ACTION NO. 2297, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO, EASTERN DIVISION.

AS WE SAID IN OUR DECISION OF AUGUST 27, 1963, THERE IS NOTHING IN OUR RECORDS TO SHOW THE SIZE OR DIMENSIONS OF TRAILER T-1020 WHICH WAS USED TO TRANSPORT THIS SHIPMENT AND THERE IS NO WAY OF VERIFYING YOUR ALLEGATION THAT SIX MORE CARTONS OF MILITARY TARGETS COULD HAVE BEEN LOADED IN THE TRAILER. CONTRARY TO YOUR VIEW, WE BELIEVE THAT THE DIMENSIONS OF THE TRAILER AND OF THE LOAD INVOLVED ARE MATERIAL AND HAVE A BEARING ON THE QUESTION WHETHER EXCLUSIVE USE CHARGES ARE ALLOWABLE. IT IS OUR STANDARD PRACTICE TO ALLOW EXCLUSIVE USE CHARGES IN INSTANCES WHERE THE ONLY QUESTION REMAINING IS WHETHER OR NOT A PARTICULAR VEHICLE IS FULLY LOADED AND IT IS ESTABLISHED THAT ADDITIONAL UNITS OF THE SAME ARTICLE IN THE SHIPPING FORM TENDERED COULD HAVE BEEN LOADED ON THE VEHICLE.

IN THE CIRCUMSTANCES, THE CONCLUSION REACHED IN THE PRIOR DECISIONS SUSTAINING THE DISALLOWANCE ..END :