B-150776, JUL. 11, 1963

B-150776: Jul 11, 1963

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WAS ISSUED AND THE AMOUNT RECOVERED BY ADMINISTRATIVE DEDUCTION. SUGGEST THAT OUR AUDIT ACTION ON ONE OR THE OTHER IS IN ERROR. WY-8470219 WAS PREPARED AT SHARPE GENERAL DEPOT. FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID $459.07. LOWER CHARGES OF $405.27 WERE FOUND TO BE APPLICABLE. THE OVERCHARGE WAS RECOVERED BY ADMINISTRATIVE DEDUCTION. ALLEGING THAT THE SHIPMENT WAS PICKED UP BY VALLEY MOTOR LINES. SINCE WESTERN DOES NOT HAVE OPERATING AUTHORITY TO SERVICE LYOTH. YOUR CLAIM WAS DISALLOWED BY OUR CERTIFICATE OF SETTLEMENT DATED SEPTEMBER 4. IN YOUR REQUEST FOR REVIEW YOU REASSERTED THE PRIOR CONTENTION AND ARGUED THAT YOU DO NOT HAVE PROPER INTERSTATE OPERATING AUTHORITY TO HANDLE TRAFFIC ROUTED "WESTERN TRUCK LINES.

B-150776, JUL. 11, 1963

TO WESTERN TRUCK LINES, LTD.:

IN YOUR LETTER OF JANUARY 28, 1963, YOU REQUEST REVIEW OF OUR DISALLOWANCE OF YOUR CLAIM NO. G-02392 FOR ADDITIONAL CHARGES ALLEGED TO BE DUE FOR SHIPMENTS TRANSPORTED UNDER GOVERNMENT BILLS OF LADING NOS. WY- 8470219 AND WY-7532712 DATED JULY 9, 1958, AND MAY 29, 1958, RESPECTIVELY. YOU ALSO REFER TO THE SHIPMENT UNDER GOVERNMENT BILL OF LADING NO. WY-9303754 AGAINST WHICH A STATEMENT OF OVERPAYMENT, CAO FORM 1003, WAS ISSUED AND THE AMOUNT RECOVERED BY ADMINISTRATIVE DEDUCTION. YOU QUESTION WHY THE DOCTRINE OF CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576, DOES NOT APPLY IN THIS INSTANCE, AS WELL AS IN CONNECTION WITH GOVERNMENT BILL OF LADING NO. WY-7532712, AND SUGGEST THAT OUR AUDIT ACTION ON ONE OR THE OTHER IS IN ERROR.

GOVERNMENT BILL OF LADING NO. WY-8470219 WAS PREPARED AT SHARPE GENERAL DEPOT, LATHROP, CALIFORNIA, AND EXECUTED BY THE WESTERN TRUCK LINES, LTD., FOR THE MOVEMENT OF 45,030 POUNDS OF MISCELLANEOUS CANNED GOODS AND OTHER GROCERY ITEMS FROM LYOTH, CALIFORNIA, TO PICKLE MEADOWS, CALIFORNIA, ON JULY 9, 1958. FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID $459.07, ALLEGED TO BE BASED ON A COMBINATION OF RATES OVER STOCKTON, CALIFORNIA. ON AUDIT OF THE PAYMENT VOUCHER IN OUR OFFICE, LOWER CHARGES OF $405.27 WERE FOUND TO BE APPLICABLE, COMPUTED ON THE BASIS OF A 5TH CLASS THROUGH RATE OF 90 CENTS PER 100 POUNDS, SUBJECT TO 45,000 POUNDS MINIMUM WEIGHT, PROVIDED IN INTERSTATE FREIGHT CARRIERS CONFERENCE TARIFF NO. 7-A, MF-I.C.C. A-7, FOR CANNED GOODS AND GROCERY STORE ITEMS, RESULTING IN AN OVERCHARGE OF $53.80. SUBSEQUENTLY, THE OVERCHARGE WAS RECOVERED BY ADMINISTRATIVE DEDUCTION.

IN A LETTER DATED JUNE 19, 1961, YOU RECLAIMED THE AMOUNT DEDUCTED, ALLEGING THAT THE SHIPMENT WAS PICKED UP BY VALLEY MOTOR LINES, LEASING A WESTERN TRUCK LINES VEHICLE, SINCE WESTERN DOES NOT HAVE OPERATING AUTHORITY TO SERVICE LYOTH, CALIFORNIA, AND WOULD, THEREFORE, BE UNABLE TO PROTECT THE RATE USED IN OUR AUDIT. YOUR CLAIM WAS DISALLOWED BY OUR CERTIFICATE OF SETTLEMENT DATED SEPTEMBER 4, 1962.

IN YOUR REQUEST FOR REVIEW YOU REASSERTED THE PRIOR CONTENTION AND ARGUED THAT YOU DO NOT HAVE PROPER INTERSTATE OPERATING AUTHORITY TO HANDLE TRAFFIC ROUTED "WESTERN TRUCK LINES, LTD. INTERSTATE SHIPMENT VIA RENO, NEVADA.' THEREFORE, YOU ALLEGE THAT "* * * THE COMBINATION OF RATES AS ASSESSED ORIGINALLY APPEARS TO BE IN ORDER.'

CONCERNING YOUR CONTENTION THAT VALLEY MOTOR LINES AND NOT WESTERN TRUCK LINES PICKED UP THE SHIPMENT AT ORIGIN, THE VALLEY MOTOR LINES, IN A LETTER DATED FEBRUARY 13, 1961, ADDRESSED TO THE MILITARY TRAFFIC MANAGEMENT AGENCY, OAKLAND ARMY TERMINAL, COPY ENCLOSED, STATED THAT WESTERN TRUCK LINES APPARENTLY LEASED A VALLEY MOTOR LINES TRACTOR, AND AN AGENT OF WESTERN TRUCK LINES, ONE JOHNSON, SIGNED THE BILL OF LADING. THE GOVERNING BILL OF LADING SHOWS THAT THE SHIPMENT WAS TENDERED TO, AND ACCEPTED BY, WESTERN TRUCK LINES AS ORIGIN CARRIER. WESTERN TRUCK LINES IS SHOWN IN THE APPROPRIATE SPACE AS ORIGIN CARRIER AND THE BILL OF LADING IS SIGNED BY ONE JOHNSON, AS AGENT OF WESTERN TRUCK LINES, ACKNOWLEDGING RECEIPT OF THE SHIPMENT AT ORIGIN. CONSEQUENTLY, WESTERN TRUCK LINES IS SHOWN AS THE ORIGIN CARRIER IN THE CONTRACT OF CARRIAGE, AND IF ANY OTHER CARRIER ACTUALLY PICKED UP THE SHIPMENT AT POINT OF ORIGIN, SUCH CARRIER MUST HAVE ACTED AS AN AGENT OF WESTERN TRUCK LINES.

SINCE, AS YOU ALLEGE, WESTERN TRUCK LINES WAS NOT AUTHORIZED TO ACCEPT SHIPMENTS ORIGINATING AT LYOTH, CALIFORNIA, YOU APPARENTLY HAVE NO RATES PUBLISHED FOR THE SERVICE PERFORMED, AND WE HAVE BEEN REFERRED TO NONE. CONSEQUENTLY, THE CHARGES MUST BE DETERMINED ON THE BASIS OF QUANTUM MERUIT. UNDER SIMILAR CIRCUMSTANCES, THE COURTS HELD THE CARRIERS INVOLVED IN SHUTT V. UNITED STATES, 218 F. 2ND 10, CERTIORARI DENIED, 350 U.S. 822; AND IN UNITED STATES V. GARCIA AND DIAZ, INC., 291 F. 2ND 242, TO THE OBSERVANCE OF THE LOWEST TARIFF RATES PUBLISHED BY OTHER CARRIERS FOR THE SAME SERVICE, WHETHER OR NOT THE CARRIERS IN QUESTION WERE PARTIES TO THE TARIFFS OR TO ANY OF THE RATES PUBLISHED THEREIN. AS IN THE CASES CITED, WESTERN TRUCK LINES EXECUTED THE PAYEE'S CERTIFICATE ON THE PUBLISHED VOUCHER FORMS SUBMITTED FOR PAYMENT, WHICH ARE TO THE EFFECT THAT " * * * THE RATES CHARGED ARE NOT IN EXCESS OF THE LOWEST NET RATES AVAILABLE FOR THE GOVERNMENT, BASED ON TARIFFS EFFECTIVE AT THE DATE OF SERVICE.' ACCORDINGLY, AS IN THE SHUTT AND THE GARCIA AND DIAZ, INC., CASES, IT APPEARS THAT THE PUBLISHED TARIFF THROUGH RATE USED IN OUR AUDIT IS APPLICABLE. ON THE BASIS OF WHAT IS SAID ABOVE OUR DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL CHARGES IN CONNECTION WITH THE SHIPMENT UNDER GOVERNMENT BILL OF LADING NO. WY-8470219 IS SUSTAINED.

OUR ACTION AS TO THE SHIPMENT UNDER GOVERNMENT BILL OF LADING NO. WY 7532712 WAS BASED UPON DECISION OF THE INTERSTATE COMMERCE COMMISSION IN CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576, HOLDING THAT PREMIUM CHARGES FOR EXCLUSIVE USE OF VEHICLES, WHICH ARE DESIGNED TO ACCORD TRUCKLOAD SERVICE TO LESS-THAN-TRUCKLOAD SHIPMENTS, ARE INAPPLICABLE ONCE THE VEHICLE IS LOADED TO CAPACITY, AND THE MAXIMUM APPLICABLE CHARGES ARE THE TRUCKLOAD CHARGES. HOWEVER, THE RECORD HERE IS NOT CLEAR AS TO WHETHER YOUR TRAILER NO. T 944 WAS LOADED TO FULL VISIBLE CAPACITY AND IN ORDER THAT WE MAY GIVE YOUR CLAIM AS TO THE SHIPMENT UNDER BILL OF LADING NO. WY-7532712 FURTHER CONSIDERATION IN THE LIGHT OF THE CURTIS LIGHTING PRINCIPLE AND CERTAIN LATER COURT DECISIONS CLARIFYING SUCH PRINCIPLE, IT IS REQUESTED THAT YOU ADVISE US OF THE INSIDE DIMENSIONS (HEIGHT, WIDTH AND LENGTH) OF YOUR TRAILER NO. T-944 AND WHETHER THE QUANTITY OF FREIGHT LOADED ON SUCH TRAILER UNDER BILL OF LADING NO. WY-7532712 (1702 CUBIC FEET) LOADED SUCH VEHICLE TO FULL VISIBLE CAPACITY. ON RECEIPT OF SUCH INFORMATION, WE WILL ADVISE YOU FURTHER WITH RESPECT TO SUCH CLAIM.