B-142112, DEC. 6, 1961

B-142112, DEC. 6, 1961

TO EAST TEXAS MOTOR FREIGHT:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 7, 1961, WHICH, IN EFFECT, REQUESTS REVIEW OF THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM (TD 60-8892) FOR $70.63 IN ADDITION TO $961.17 PREVIOUSLY ALLOWED FOR THE TRANSPORTATION OF A SHIPMENT OF 327 BOXES OF MACHINE PARTS NOIBN (INTERNAL COMBUSTION ENGINE PARTS) ALUMINUM, WEIGHING 15,711 POUNDS, AND ONE TEST STAND WEIGHING 2,400 POUNDS, FROM PRATT AND WHITNEY, EAST HARTFORD, CONNECTICUT, TO SAN ANTONIO, TEXAS, UNDER BILL OF OF LADING NO. N-34456812 DURING OCTOBER 1959. THE BILL OF LADING IS ANNOTATED "EXCLUSIVE USE OF VEHICLE" AND "SEAL NO. 08-4071.'

YOU CLAIMED AND WERE PAID, ORIGINALLY, $1,031.80 FOR THE TRANSPORTATION OF THIS SHIPMENT. IN THE AUDIT OF THAT PAYMENT WE DETERMINED THAT THE CHARGE ON THE MACHINE PARTS, WEIGHING 15,711 POUNDS, PROVIDED IN EASTERN CENTRAL MOTOR CARRIERS ASSOCIATION, INC., AGENT, COMPUTED WAS $810.69. THE CHARGE FOR THE TRANSPORTATION OF THE TEST STAND, WEIGHING 2,400 POUNDS, WAS FOUND TO BE $150.48, COMPUTED ON THE BASIS OF THE CLASS-85 RATE OF $6.27 PER 100 POUNDS. YOU WERE ALLOWED TOTAL CHARGES OF $961.17. UPON YOUR FAILURE TO REFUND THE OVERPAYMENT OF $70.63 UPON REQUEST, THAT AMOUNT WAS COLLECTED BY SETOFF IN MAKING PAYMENT OF AMOUNTS OTHERWISE DUE YOU. THEREAFTER, YOU RECLAIMED THE AMOUNT OF $70.63 ON THE GROUND THAT EXCLUSIVE USE OF THIS TRUCK WAS REQUESTED AND FURNISHED AND THAT YOU WERE ENTITLED TO THE ADDITIONAL CHARGE ON THE BASIS OF THE PROVISIONS OF ITEM NO. 370, AS AMENDED, OF THE ABOVE-CITED TARIFF. THIS CLAIM WAS DISALLOWED ON THE BASIS OF A REPORT DATED JUNE 20, 1960, FILE EMW N383-36750, SER 13830-LMR, FROM THE BUREAU OF NAVAL WEAPONS REPRESENTATIVE, EAST HARTFORD, CONNECTICUT, TO THE EFFECT THAT THE "TRUCK WAS LOADED TO FULL VISIBLE CAPACITY.' WE CITED THE HOLDING OF THE INTERSTATE COMMERCE COMMISSION IN THE CASE OF CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, 303 I.C.C. 576, IN OUR SETTLEMENT DISALLOWING YOUR CLAIM.

IN YOUR REQUEST FOR REVIEW, YOU REFER TO YOUR LETTER OF FEBRUARY 15, 1961, WHEREIN YOU URGE THAT THE SHIPPING OFFICER ISSUED INSTRUCTIONS TO MOVE THIS SHIPMENT UNDER THE EXCLUSIVE-USE-OF-VEHICLE RULE AND THAT THIS SHIPMENT WAS SUBJECT TO THE CHARGES SPECIFIED IN ITEM 370-C SERIES OF THE ABOVE-MENTIONED TARIFF NO. 32-A. YOU STATE THAT IT WAS CONFIRMED BY OUR OFFICE THAT, IN THE EVENT INSTRUCTIONS WERE GIVEN TO A CARRIER WITH REFERENCE TO A PARTICULAR TARIFF REQUIREMENT NOT CONDEMNED BY THE INTERSTATE COMMERCE COMMISSION, A CARRIER MUST COLLECT AND RETAIN THE CHARGES FOR THE SERVICE PERFORMED. ALSO YOU REFER TO THE T.I.M.E. AND DAVIDSON CASES AS SUPPORTING SUCH ACTION.

ITEM 370-C IN SUPPLEMENT 56 TO FREIGHT TARIFF NO. 32-A IS, IN PERTINENT PART, AS FOLLOWS:

"EXCEPTION TO RULE 13 OF N.M.F.C.

(EXCLUSIVE USE OF EQUIPMENT)

EXCLUSIVE USE OF A VEHICLE WILL BE FURNISHED ON REQUEST OF THE SHIPPER FOR THE TRANSPORTATION OF A SHIPMENT. CHARGES WILL BE COMPUTED AT THE LAWFULLY PUBLISHED RATE AT THE ACTUAL OR MINIMUM WEIGHT APPLICABLE (WHICHEVER IS GREATER) IN CONNECTION THEREWITH, SUBJECT TO A MINIMUM CHARGE FOR 14,000 POUNDS AT THE CLASS 100 VOLUME OR TRUCKLOAD RATE.

EACH BILL OF LADING COVERING SHIPMENTS FOR WHICH EXCLUSIVE USE OF VEHICLE IS PROVIDED MUST BE MARKED OR STAMPED AS FOLLOWS:

"EXCLUSIVE USE OF VEHICLE ORDERED BY SHIPPER"

SHIPPERS SIGNATURE"

IT WILL BE NOTED THAT THIS ITEM REQUIRES THAT EACH BILL OF LADING COVERING SHIPMENTS FOR WHICH EXCLUSIVE USE OF VEHICLE IS PROVIDED MUST BE MARKED OR STAMPED IN A SPECIFIED MANNER AND BEAR THE SIGNATURE OF THE SHIPPER. THE BILL OF LADING, WHICH FORMS THE CONTRACT FOR THE TRANSPORTATION OF THIS SHIPMENT, WAS ANNOTATED "EXCLUSIVE USE OF TRUCK.' HOWEVER, SUCH ANNOTATION DOES NOT COMPLY WITH THE REQUIREMENT OF THE TARIFF, IN THAT IT DOES NOT SHOW THAT SUCH EXCLUSIVE USE WAS REQUESTED; NEITHER DOES IT BEAR THE SIGNATURE OF THE SHIPPER. THE TRANSPORTATION SERVICE PERFORMED IN CONNECTION WITH THIS SHIPMENT WAS THAT OF A COMMON CARRIER UNDER A PUBLISHED TARIFF. THE RULE--- ITEM 370-C--- AUTHORIZING THE CARRIER TO FURNISH THE EXCLUSIVE USE OF A VEHICLE AND REQUIRING A SPECIFIC ANNOTATION AND THE SIGNATURE OF THE SHIPPER ON THE BILL OF LADING --- WAS A PART OF THE PUBLISHED TARIFF. THE REQUIREMENT OF SUCH RULES MAY NOT BE WAIVED. SEE DAVIS, AGENT V. HENDERSON, 266 U.S. 92; BIENVILLE WAREHOUSES CORP., INC. V. ILLINOIS CENTRAL RAILROAD CO., 208 I.C.C. 583, 585; AND NATURAL PRODUCTS REFINING CO. V. CENTRAL RAILROAD COMPANY OF NEW JERSEY, 216 I.C.C. 105, 107; AND 39 COMP. GEN. 755.

THE SHIPPING OFFICER HAS REPORTED THAT THE TRUCK USED IN TRANSPORTING THIS SHIPMENT WAS LOADED TO FULL VISIBLE CAPACITY. THE INTERSTATE COMMERCE COMMISSION, IN THE CASE OF CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576, STATED, IN EFFECT, THAT EXCLUSIVE USE CHARGES WERE PROPERLY APPLICABLE ONLY TO LESS-THAN TRUCKLOAD SHIPMENTS. IN THE CASE OF TRUCKLOAD SHIPMENTS IT IS ASSUMED THAT THE CARRIER WILL ROUTE THE VEHICLE DIRECTLY THROUGH TO DESTINATION WITHOUT STOPS TO SHIFT THE LOAD OR ADD FREIGHT, WHICH WOULD PROBABLY OCCUR IF THE SHIPMENTS WERE LESS-THAN-TRUCKLOAD AND EXCLUSIVE USE WAS NOT ORDERED. FURTHER, THE COMMISSION STATED, ON PAGE 578, THAT "ONCE A VEHICLE IS LOADED TO CAPACITY, A SHIPPER DERIVES NO BENEFIT FROM EXCLUSIVE USE, WHICH IS DESIGNED TO ACCORD TRUCKLOAD SERVICES TO LESS-THAN-TRUCKLOAD SHIPMENTS.'

CONCERNING YOUR REFERENCE TO THE CASES OF T.I.M.E. AND DAVIDSON V. UNITED STATES, 359 U.S. 464, THE COURT'S DECISION IN THESE CASES CONCERNS THE REASONABLENESS OF PAST CHARGES WHICH WERE MADE IN ACCORDANCE WITH APPLICABLE TARIFFS FILED UNDER SECTION 217 OF THE INTERSTATE COMMERCE ACT. THE QUESTION HERE DOES NOT CONCERN THE REASONABLENESS OF A PUBLISHED TARIFF. ACCORDINGLY, THOSE CASES HAVE NO APPLICATION WHERE, AS HERE, THE REASONABLENESS OF THE TARIFF RATES AND CHARGES IS NOT IN ISSUE.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL CHARGES ON THIS SHIPMENT IS SUSTAINED.