B-142342, OCT. 24, 1960

B-142342, OCT. 24, 1960

TO STRICKLAND SYSTEM:

WE HAVE RECEIVED YOUR LETTER OF SEPTEMBER 19, 1960, WHEREIN YOU REQUEST FURTHER CONSIDERATION OF OUR DECISION OF JUNE 7, 1960, AS AFFIRMED IN DECISION OF SEPTEMBER 14, 1960, SUSTAINING THE SETTLEMENT DISALLOWING YOUR CLAIM FOR ADDITIONAL TRANSPORTATION CHARGES IN THE AMOUNT OF $211.80 SUBMITTED UNDER SUPPLEMENTAL BILL NO. 6982-A. THE DECISION OF SEPTEMBER 14 POINTED OUT THAT THE DECLINATION OF YOUR CLAIM WAS ON THE AUTHORITY OF THE DECISION OF THE INTERSTATE COMMERCE COMMISSION IN CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576, WHEREIN IT WAS HELD IN SUBSTANCE THAT EXCLUSIVE-USE TARIFF CHARGES WERE NOT APPLICABLE ON A SHIPMENT WHERE THE VEHICLE WAS LOADED TO FULL CAPACITY. YOU PRESENTLY STATE THAT SINCE THE BILL OF LADING WAS PREPARED BY THE SHIPPER YOU HAD NO ALTERNATIVE BUT TO ACCEPT THE EXCLUSIVE-USE ANNOTATION AND PROVIDE THE REQUESTED SERVICE, AND THAT THE FACT THAT THE BILL OF LADING BORE AN ANNOTATION INDICATING A CAPACITY LOAD "CARRIES NO WEIGHT" FROM STANDPOINT OF REQUESTED SERVICE. YOU SUGGEST, ALSO, THAT THE SUBJECT SHIPMENT AND THE SHIPMENT CONCERNED IN THE CURTIS LIGHTING CASE WERE NOT PARALLEL IN THAT THE LATTER WAS AN OVERFLOW SHIPMENT UNDER A COMMERCIAL BILL OF LADING WHILE THIS WAS NOT ONE INVOLVING OVERFLOW AND WAS UNDER A GOVERNMENT BILL OF LADING.

YOUR SUGGESTION THAT THE ANNOTATION ON THE FACE OF THE BILL OF LADING WHICH CLEARLY SHOWS THAT THE VEHICLE WAS LOADED TO FULL CAPACITY CARRIES NO WEIGHT FROM THE STANDPOINT OF SERVICES REQUESTED OR THE ASSESSMENT OF CHARGES, IS APPARENTLY MADE BECAUSE YOU QUESTION THE RELEVANCE OF A FULL CAPACITY LOAD WHEN THE ANNOTATION SHOWING THE REQUEST FOR EXCLUSIVE USE FURTHER INDICATES THAT A NEED FOR EXPEDITED SERVICE PROMPTED THE REQUEST. IT IS OFTEN THE CASE THAT RAPID TRANSIT IS THE REASON BEHIND A REQUEST FOR EXCLUSIVE USE, BUT ENTITLEMENT TO FREIGHT CHARGES FOR EXCLUSIVE-USE SERVICE PROPERLY SEEMS TO BE LIMITED TO LESS-THAN-TRUCKLOAD SHIPMENTS. CASES OF TRUCKLOAD SHIPMENTS IT IS ASSUMED THAT THE CARRIER WILL ROUTE THE VEHICLE DIRECTLY THROUGH TO DESTINATION WITHOUT STOPS TO SHIFT FREIGHT OR ADD FREIGHT, AS MIGHT WELL BE THE CASE IF THE SHIPMENT WERE LESS-THAN- TRUCKLOAD AND WHEN EXCLUSIVE USE WAS NOT REQUESTED. AS THE COMMISSION SAID IN THE CURTIS LIGHTING CASE, CITED ABOVE, AT PAGE 578, "ONCE A VEHICLE IS LOADED TO CAPACITY, A SHIPPER DERIVES NO BENEFIT FROM EXCLUSIVE USE, WHICH IS DESIGNED TO ACCORD TRUCKLOAD SERVICE TO LESS-THAN-TRUCKLOAD SHIPMENTS.' THE FACT THAT A SHIPPER DERIVES NO BENEFIT FROM EXCLUSIVE USE WHEN THE VEHICLE IS FULLY LOADED IS AS TRUE IN CASES WHERE EXPEDITED SERVICE IS REQUESTED AS IT IS IN THOSE CASES WHEN THE SHIPPER DESIRES THAT HIS FREIGHT NOT BE MIXED WITH THE FREIGHT OF OTHERS. THE EXCLUSIVE USE OF VEHICLE TARIFF PROVISIONS YOU CONSIDER APPLICABLE IN THIS INSTANCE CONTAIN NO SPECIAL REFERENCE TO PAYMENT OF THE CHARGE THEREIN FOR EXPEDITED SERVICE. THERE IS, THEREFORE, NO TARIFF AUTHORITY FOR PAYING PREMIUM CHARGES ON THIS BASIS ALONE. FURTHERMORE, THE ANNOTATION WITH RESPECT TO EXPEDITED SERVICE STATES THE SHIPMENT MUST BE DELIVERED ON OR BEFORE MAY 12,1957. THE CONSIGNEE'S CERTIFICATE OF DELIVERY ON THE BILL OF LADING STATES THE SHIPMENT WAS DELIVERED ON MAY 13, 1957.

AS TO YOUR REFERENCE TO OVERFLOW SHIPMENTS AND COMMERCIAL BILLS OF LADING IT IS NOTED THAT IN THE OPINION IN THE CURTIS LIGHTING CASE THE COMMISSION DID NOT LIMIT ITS CONCLUSIONS TO CASES WHEREIN ONE OR BOTH OF THESE FACTORS ARE PRESENT. THE COMMISSION APPLIED THE PRINCIPLE OF THE CASE TO THE FIRST TRUCK--- THE ONE WITH THE CAPACITY LOAD. WE CAN SEE NO REASON TO DISTINGUISH CASES OF FREIGHT OVERFLOW FROM THOSE WHEREIN THE SHIPMENT TENDERED WAS OF SUCH A CHARACTER AS TO OCCUPY THE CAPACITY OF ONLY ONE VEHICLE. THE PRINCIPLE OF THE CASE APPLIES TO THE CAPACITY LOAD REGARDLESS OF WHETHER OR NOT THERE WAS EXCESS FREIGHT TO BE SHIPPED IN ANOTHER VEHICLE. SIMILARLY, FOR THE PURPOSES OF THIS CASE NO DISTINCTION MAY BE DRAWN BETWEEN A COMMERCIAL AND GOVERNMENT BILL OF LADING. ON THE REVERSE SIDE OF THE GOVERNMENT BILL OF LADING, IN THE COLUMN ENTITLED "CONDITIONS," IT IS PROVIDES AS FOLLOWS:

"2. UNLESS OTHERWISE SPECIFICALLY PROVIDED FOR OTHERWISE STATED HEREON, THIS BILL OF LADING IS SUBJECT TO THE SAME RULES AND CONDITIONS AS GOVERN COMMERCIAL SHIPMENTS MADE ON THE USUAL FORMS PROVIDED THEREFOR BY THE CARRIER.'

THE GOVERNMENT BILL OF LADING NOWHERE SPECIFICALLY PROVIDES OR OTHERWISE STATES THAT IT IS TO BE DISTINGUISHED FROM A COMMERCIAL BILL IN THE MANNER YOU WOULD SUGGEST.

SINCE WE FIND THE CONSIDERATIONS YOU HAVE ADVANCED IN YOUR LETTER OF SEPTEMBER 19, 1960, TO BE INSUFFICIENT TO JUSTIFY ALLOWANCE OF THE CHARGES CLAIMED, OUR DECISION OF JUNE 7, 1960, WHICH SUSTAINED THE SETTLEMENT DISALLOWING YOUR CLAIM, IS RE-AFFIRMED.