B-144503, OCT. 2, 1961

B-144503: Oct 2, 1961

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LTD.: REFERENCE IS MADE TO YOUR LETTER OF JUNE 9. SINCE THE TRAILER USED IN TRANSPORTING THE SHIPMENT WAS LOADED TO CAPACITY. THE DECISION IN THE CURTIS LIGHTING CASE HELD IN SUBSTANCE THAT EXCLUSIVE-USE TARIFF CHARGES ARE NOT APPLICABLE ON A SHIPMENT WHERE THE VEHICLE WAS LOADED TO FULL CAPACITY. YOU CONTEND THAT THE RULING IN THE CURTIS LIGHTING CASE IS NOT FOR APPLICATION SINCE THE SUBJECT SHIPMENT DOES NOT INVOLVE THE SAME TARIFF PROVISION. MERELY BECAUSE A DIFFERENT BUT SIMILAR TARIFF IS INVOLVED IN THIS CASE. WE UNDERSTAND THAT SUCH A MINIMUM CHARGE IS SO PROVIDED. OUR POSITION IS THAT SUCH TARIFF PROVISION IS NOT APPLICABLE TO A FULLY LOADED VEHICLE. OUR VIEW IS BASED UPON THE AFOREMENTIONED CURTIS LIGHTING CASE WHERE THE COMMISSION DECLINED TO APPLY A SIMILAR MINIMUM CHARGE PROVISION TO A FULLY LOADED VEHICLE DESPITE THE FACT THAT THE BILL OF LADING BORE A NOTATION TO THE EFFECT THAT EXCLUSIVE USE OF A TRAILER HAD BEEN REQUESTED.

B-144503, OCT. 2, 1961

TO WESTERN TRUCK LINES, LTD.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 9, 1961, REQUESTING RECONSIDERATION OF THE HOLDING IN OUR DECISION OF MAY 29, 1961, B 144503, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM (G-02555) FOR $516.80 ALLEGED TO BE DUE AS CHARGES FOR EXCLUSIVE-USE ON A SHIPMENT WHICH MOVED IN A FULLY LOADED TRAILER. SINCE THE TRAILER USED IN TRANSPORTING THE SHIPMENT WAS LOADED TO CAPACITY, OUR OFFICE RELYING UPON 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, COMPUTED THE APPLICABLE CHARGES USING TRUCKLOAD RATES. THE DECISION IN THE CURTIS LIGHTING CASE HELD IN SUBSTANCE THAT EXCLUSIVE-USE TARIFF CHARGES ARE NOT APPLICABLE ON A SHIPMENT WHERE THE VEHICLE WAS LOADED TO FULL CAPACITY.

YOU CONTEND THAT THE RULING IN THE CURTIS LIGHTING CASE IS NOT FOR APPLICATION SINCE THE SUBJECT SHIPMENT DOES NOT INVOLVE THE SAME TARIFF PROVISION. THE INTERSTATE COMMERCE COMMISSION CONSIDERED A SIMILAR RULE IN THE CURTIS LIGHTING CASE AND WE PERCEIVE NO PROPER BASIS FOR CONCLUDING THAT THE COMMISSION WOULD REACH A CONTRARY CONCLUSION, WITHOUT DISTINGUISHING FACTS, MERELY BECAUSE A DIFFERENT BUT SIMILAR TARIFF IS INVOLVED IN THIS CASE. SEE TRAUGOTT SCHMIDT AND SONS V. MICHIGAN R.R., 23 I.C.C. 684, 685; PACIFIC MUTUAL DOOR CO. V. ANN ARBOR R.CO., 101 I.C.C. 633, 634; BLANCHARD LUMBER CO. V. NEW YORK, N.H. AND H.R.CO., 157 I.C.C. 643, 644.

YOU INDICATE THAT ITEM 935 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU TARIFF NO. 20-A, MF-I.C.C.NO. 79, PROVIDES THE MINIMUM CHARGE FOR EXCLUSIVE-USE SERVICE. WE UNDERSTAND THAT SUCH A MINIMUM CHARGE IS SO PROVIDED; HOWEVER, OUR POSITION IS THAT SUCH TARIFF PROVISION IS NOT APPLICABLE TO A FULLY LOADED VEHICLE. OUR VIEW IS BASED UPON THE AFOREMENTIONED CURTIS LIGHTING CASE WHERE THE COMMISSION DECLINED TO APPLY A SIMILAR MINIMUM CHARGE PROVISION TO A FULLY LOADED VEHICLE DESPITE THE FACT THAT THE BILL OF LADING BORE A NOTATION TO THE EFFECT THAT EXCLUSIVE USE OF A TRAILER HAD BEEN REQUESTED, AND WHERE THE COMMISSION FOUND THAT THE APPLICABLE CHARGES WERE THE TRUCKLOAD CHARGES COMPUTED UNDER ANOTHER RULE IN THE TARIFF.

SINCE THE TRUCKLOAD CHARGES OUR OFFICE DEEM PROPER ARE COMPUTED USING THE APPLICABLE TARIFFS AND PROVISIONS GOVERNING THE TRAFFIC, THERE APPEARS NO MERIT IN YOUR CONTENTION THAT IF THE MATTER IS SETTLED ON THE BASIS OF THE TRUCKLOAD CHARGES YOUR COMPANY AND THE GOVERNMENT WOULD BE IN VIOLATION OF THE INTERSTATE COMMERCE ACT. THE CHARGES PAID YOUR COMPANY ARE SPECIFIED IN THE EFFECTIVE TARIFFS AS REQUIRED BY THE ACT. 49 U.S.C. 317 (B).

ACCORDINGLY, AND SINCE YOUR LETTER OF JUNE 9, 1961, CONTAINS NOTHING TO WARRANT A REVERSAL OR MODIFICATION OF OUR DECISION OF MAY 29, 1961, IT IS AFFIRMED.