B-144317, FEB. 20, 1961
Highlights
FOR THE SERVICE PERFORMED YOU ORIGINALLY CLAIMED AND WERE PAID FREIGHT CHARGES OF $277.50 FOR EACH SHIPMENT. ON AUDIT OF THE PAYMENT VOUCHER IN OUR OFFICE IT WAS DETERMINED THAT AN OVERCHARGE OF $229.50 HAD BEEN MADE AND THAT AMOUNT SUBSEQUENTLY WAS RECOVERED BY ADMINISTRATIVE DEDUCTION PURSUANT TO SECTION 322 OF THE TRANSPORTATION ACT OF 1940. YOUR ORIGINAL CLAIM FOR THE REFUND WAS BASED UPON THE DECISION OF THE UNITED STATES SUPREME COURT IN THE T.I.M.E. IN WHICH IT WAS HELD THAT A SHIPPER OF GOODS BY A CERTIFICATED MOTOR CARRIER MAY NOT CHALLENGE IN POST SHIPMENT LITIGATION. THAT THE RATES AND CHARGES AS ORIGINALLY PRESENTED AND PAID WERE CORRECT. IN SUBSTANTIAL COMPLIANCE WITH THAT REQUIREMENT EACH BILL OF LADING WAS ANNOTATED "EXCLUSIVE USE OF VEHICLE REQUESTED BY THE GOVERNMENT.'.
B-144317, FEB. 20, 1961
TO WESTERN TRUCK LINES, LTD.:
BY YOUR LETTERS OF OCTOBER 14, 1960, YOUR CLAIMS NOS. G-01735 AND G 02187, YOU REQUEST REVIEW OF THE DISALLOWANCE OF YOUR CLAIMS FOR ADDITIONAL FREIGHT CHARGES IN THE AMOUNTS OF $229.50 AND $289.42, RESPECTIVELY, ALLEGED TO BE DUE FOR THE TRANSPORTATION OF FOUR SHIPMENTS OF GOVERNMENT PROPERTY DURING MARCH 1957 AND JULY 1958.
THE FIRST CLAIM IN THE AMOUNT OF $229.50 CONCERNS THREE SHIPMENTS OF MILITARY TARGETS TRANSPORTED FROM LOS ANGELES CALIFORNIA, TO YUMA, ARIZONA, UNDER GOVERNMENT BILLS OF LADING NOS. AF-6703116, AF-6703115 AND AF-6703114 DURING MARCH 1957. FOR THE SERVICE PERFORMED YOU ORIGINALLY CLAIMED AND WERE PAID FREIGHT CHARGES OF $277.50 FOR EACH SHIPMENT. THIS REPRESENTS THE MINIMUM CHARGE FOR EXCLUSIVE USE OF VEHICLE SERVICE COMPUTED AT THE FIRST-CLASS RATE OF $1.85 PER 100 POUNDS OR A MINIMUM WEIGHT OF 15,000 POUNDS AS PROVIDED IN INTERSTATE FREIGHT CARRIERS CONFERENCE, AGENT-S, TARIFF NO. 1-D, MF-I.C.C. NO. 3. ON AUDIT OF THE PAYMENT VOUCHER IN OUR OFFICE IT WAS DETERMINED THAT AN OVERCHARGE OF $229.50 HAD BEEN MADE AND THAT AMOUNT SUBSEQUENTLY WAS RECOVERED BY ADMINISTRATIVE DEDUCTION PURSUANT TO SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66.
YOUR ORIGINAL CLAIM FOR THE REFUND WAS BASED UPON THE DECISION OF THE UNITED STATES SUPREME COURT IN THE T.I.M.E. AND DAVIDSON CASES, 359 U.S. 464, IN WHICH IT WAS HELD THAT A SHIPPER OF GOODS BY A CERTIFICATED MOTOR CARRIER MAY NOT CHALLENGE IN POST SHIPMENT LITIGATION, THE REASONABLENESS OF A CARRIER'S CHARGES MADE IN ACCORDANCE WITH THE TARIFF GOVERNING THE SHIPMENT. IN YOUR LETTER OF OCTOBER 14, 1960, YOU ARGUE THAT EACH BILL OF LADING SPECIFICALLY REQUESTED THE EXCLUSIVE USE OF VEHICLE WHICH WOULD RESULT IN THE ONLY LAWFUL RATE, AND THAT THE RATES AND CHARGES AS ORIGINALLY PRESENTED AND PAID WERE CORRECT.
ITEM 1380 OF IFCC, AGENT-S, TARIFF NO. 1-D, GOVERNING EXCLUSIVE-USE REQUIRES THAT THE BILLS OF LADING BE ENDORSED "EXCLUSIVE USE OF VEHICLE REQUESTED.' IN SUBSTANTIAL COMPLIANCE WITH THAT REQUIREMENT EACH BILL OF LADING WAS ANNOTATED "EXCLUSIVE USE OF VEHICLE REQUESTED BY THE GOVERNMENT.' IN RESPONSE TO YOUR LETTER OF MARCH 7, A REPORT WAS SECURED FROM THE ADMINISTRATIVE OFFICE DATED JULY 25, 1960, AUTOSTATIC COPY ENCLOSED, WHICH STATED:
"COMMODITY DESCRIPTION: EXCLUSIVE USE OF THE CARRIER'S VEHICLE WAS ORDERED AND ACTUALLY FURNISHED FROM ORIGIN TO DESTINATION ON EACH SHIPMENT REFERENCED IN YOUR LETTER. EACH VEHICLE WAS LOADED TO THE EXTENT THAT NO MORE OF LIKE COMMODITY COULD HAVE BEEN LOADED THEREON. SHIPMENTS WERE OF HIGH PRIORITY AND DUE TO THE TIME ELEMENT INVOLVED, EXCLUSIVE USE WAS REQUIRED.'
IN CURTIS LIGHTING, INC. V. MID-STATES FREIGHT, INC., 303 I.C.C. 576, THE INTERSTATE COMMERCE COMMISSION HELD THAT ONCE A VEHICLE IS LOADED TO FULL VISIBLE CAPACITY THE SHIPPER DERIVES NO BENEFIT FROM EXCLUSIVE USE WHICH IS DESIGNED TO ACCORD TRUCKLOAD SERVICE TO LESS THAN-TRUCKLOAD SHIPMENTS AND CHARGES FOR TRUCKLOAD SERVICE APPLY RATHER THAN THE CHARGES FOR EXCLUSIVE-USE SERVICE. THE DECISION IN THE CURTIS LIGHTING,INC. CASE, SUPRA, STANDS FOR THE PROPOSITION THAT CHARGES FOR EXCLUSIVE USE ARE NOT APPLICABLE ON A SHIPMENT WHICH COMPLETELY FILLS THE VEHICLE UTILIZED FOR THE REASON THAT EXCLUSIVE-USE SERVICE IS APPLICABLE AND INTENDED TO APPLY ONLY TO LESS-THAN TRUCKLOAD SHIPMENTS. ALTHOUGH OUR AUDIT ACTION WAS ORIGINALLY BASED UPON THE UNREASONABLENESS OF THE CHARGE IN ACCORDANCE WITH THE DECISION OF THE COMMISSION IN THE BRODERICK AND BASCOM ROPE COMPANY CASE, 302 I.C.C. 347, IT IS NOW PREDICATED UPON THE HOLDING IN THE CURTIS LIGHTING, INC. CASE, SUPRA, THAT EXCLUSIVE-USE CHARGES ARE NOT APPLICABLE TO TRUCKLOAD SHIPMENTS AND THE REPORT OF THE ADMINISTRATIVE OFFICE INDICATING THAT THE TRUCKS INVOLVED WERE FULLY LOADED TO THE EXTENT THAT NO MORE OF A LIKE COMMODITY COULD BE LOADED THEREON.
ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM NO. G-01735 IS SUSTAINED.
YOUR CLAIM NO. G-02187 IN THE AMOUNT OF $289.42 CONCERNS A SHIPMENT OF "MILITARY IMPEDIMENTA" FROM MOUNTAIN VIEW, CALIFORNIA, TO FALLON, NEVADA, UNDER GOVERNMENT BILL OF LADING NO. N-8405726 DATED JULY 23, 1958. ANNOTATION ON THE FACE OF THE BILL OF LADING UNDER THE "MARKS" COLUMN PROVIDED: "EXCLUSIVE USE OF 1 CLOSED VAN AUTH. UNDER R/O DR-13408-N5.MIN WT. 30,000 LBS PER T/L. TENDER 57-11.' AND UNDER THE "DESCRIPTION OF ARTICLES"---
"US NAVY SEALS: 3036654,55.
"NAVY SEALS APPLIED TO VAN. DO NOT BREAK SEALS EXCEPT IN EMERGENCY OR WITH PRIOR APPROVAL OF THE NAVY DEPT. IF BROKEN, APPLY CARRIER SEALS IMMEDIATELY AND NOTIFY CONSIGNEE.'
FOR THE SERVICE PERFORMED YOU ORIGINALLY CLAIMED AND WERE PAID FREIGHT CHARGES OF $658.42 COMPUTED ON THE BASIS OF THE FIRST-CLASS LTL RATE OF $3.38 PER 100 POUNDS ON THE ACTUAL WEIGHT OF 19,480 POUNDS. THE NAVAL SUPPLY CENTER AT OAKLAND, CALIFORNIA, DETERMINED THAT THE APPLICABLE CHARGE WAS $369 AT THE TRUCKLOAD RATE OF $1.23 PER 100 POUNDS AND A MINIMUM WEIGHT OF 30,000 AS PROVIDED IN GOVERNMENT TENDER NO. 57-11, RESULTING IN AN OVERCHARGE OF $289.42 WHICH WAS SUBSEQUENTLY RECOVERED BY ADMINISTRATIVE DEDUCTION. YOUR CLAIM FOR REFUND WAS DISALLOWED BY OUR SETTLEMENT CERTIFICATE OF AUGUST 1, 1960, IN RELIANCE UPON THE DECISION OF THE COMMISSION IN THE CURTIS LIGHTING, INC. CASE, SUPRA. IN RESPONSE TO YOUR PRESENT REQUEST FOR REVIEW A REPORT DATED JANUARY 10, 1961, WAS SECURED FROM THE ADMINISTRATIVE OFFICE. THAT REPORT CONTAINED THE STATEMENT THAT "C. THE TRAILER WAS NOT LOADED TO FULL VISIBLE CAPACITY.'
ITEM NO. 898 OF IFCC, AGENT-S, TARIFF NO. 7-A, MF-I.C.C. A-7, GOVERNING THE EXCLUSIVE USE OF VEHICLE PROVIDES:
"EXCEPT AS OTHERWISE PROVIDED, WHEN THE SHIPPER REQUESTS THE EXCLUSIVE USE OF A VEHICLE OR COMBINATION OF VEHICLES, CHARGES WILL BE ASSESSED ON THE ACTUAL WEIGHT OR AUTHORIZED MINIMUM WEIGHT, WHICHEVER IS HIGHER, AT THE RATE APPLICABLE, SUBJECT TO A MINIMUM CHARGE COMPUTED ON A WEIGHT OF 15,000 LBS. AT THE FIRST CLASS LTL RATE OR THE CLASS 100 RATE, SHOWN ON PAGES 115 THRU 119 AND 120-H THRU 120-K, FOR EACH VEHICLE OR COMBINATION OF VEHICLES USED.
"NOTE 2: SHIPPER SHALL ENDORSE ON THE BILL OF LADING: "EXCLUSIVE USE OF VEHICLE REQUESTED" .'
THE BILL OF LADING WAS ANNOTATED IN SUBSTANTIAL COMPLIANCE WITH THE TARIFF REQUIREMENT AND THE VEHICLE WAS SEALED BY THE ADMINISTRATIVE OFFICE WITH INSTRUCTIONS NOTED ON THE BILL OF LADING THAT THE SEALS WERE NOT TO BE BROKEN. THE REPORT OF THE ADMINISTRATIVE OFFICE INDICATES THE TRUCK WAS NOT FULLY LOADED MAKING INAPPLICABLE THE PRINCIPLE IN THE CURTIS LIGHTING CASE. CONSEQUENTLY IT APPEARS THAT CHARGES FOR EXCLUSIVE USE ARE PROPER. ACCORDINGLY, YOUR CLAIM NO. G 02187 IS BEING RETURNED TO OUR TRANSPORTATION DIVISION WITH INSTRUCTIONS TO ADJUST THE AMOUNT ALLOWED TO THOSE DUE FOR EXCLUSIVE USE, IF OTHERWISE PROPER.