B-144317, MAY 18, 1962

B-144317, MAY 18, 1962

TO WESTERN TRUCK LINES, LTD:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 8, 1962, FILE G-01735, ACKNOWLEDGED MARCH 16, 1962, REQUESTING FURTHER CONSIDERATION OF OUR DECISIONS DATED FEBRUARY 20 AND DECEMBER 1, 1961, B-144317, TO THE EXTENT TO WHICH THEY SUSTAINED THE DISALLOWANCE OF THE PORTION OF YOUR CLAIM NO. G-01735 COVERING ADDITIONAL FREIGHT CHARGES ON TWO SHIPMENTS OF MILITARY TARGETS MOVING FROM LOS ANGELES, CALIFORNIA, TO YUMA, ARIZONA, UNDER GOVERNMENT BILLS OF LADING NOS. AF-6703115 AND AF 6703116, DURING MARCH 1957.

THE FACTS AND CIRCUMSTANCES GIVING RISE TO YOUR CLAIM AND THE BASIS FOR OUR ACTION WERE FULLY SET FORTH IN OUR DECISIONS OF FEBRUARY 20 AND DECEMBER 1, 1961, B-144317. THE SOLE ISSUE IN CONTROVERSY IS WHETHER YOU ARE ENTITLED TO EXCLUSIVE-USE-OF-VEHICLE CHARGES ON THESE TWO SHIPMENTS. IN REQUESTING RECONSIDERATION OF THE MATTER YOU ADMIT THAT EACH OF THE VEHICLES IN QUESTION WAS LOADED TO THE EXTENT THAT NO MORE OF A LIKE COMMODITY COULD HAVE BEEN LOADED THEREIN, BUT YOU CONTINUE TO URGE THAT OTHER FREIGHT COULD HAVE BEEN LOADED ON THE TWO VEHICLES HAD NOT EXCLUSIVE USE OF VEHICLE BEEN REQUESTED.

UPON REQUEST, THE DEFENSE TRAFFIC MANAGEMENT SERVICE, WESTERN TRAFFIC REGION, OAKLAND, CALIFORNIA, CONDUCTED A FURTHER INVESTIGATION AS TO THESE SHIPMENTS. THE CHIEF, TRAFFIC SERVICES DIVISION, IN A LETTER DATED MARCH 6, 1962, ELABORATED MORE FULLY UPON INFORMATION PREVIOUSLY FURNISHED THIS OFFICE, BUT FURNISHED NO ADDITIONAL PERTINENT INFORMATION EXCEPT TO STATE THAT EXPEDITED SERVICE WAS REQUIRED TO INSURE ARRIVAL OF THE SHIPMENTS AT YUMA THE FOLLOWING MORNING BECAUSE OF A SPECIAL TEST BEING CONDUCTED DURING AN AIR SHOW, AND THAT YOU DID PERFORM THE EXPEDITED SERVICES AS REQUESTED ON AN EXCLUSIVE-USE BASIS.

AS YOU POINT OUT, YOUR TARIFF LAYS DOWN THE RULES UNDER WHICH EXCLUSIVE USE WILL BE FURNISHED, AND A REQUEST FOR EXPEDITED SERVICE DOES NOT MEET THOSE TERMS. THE TRANSPORTATION SERVICE PERFORMED WAS THAT OF A COMMON CARRIER UNDER A PUBLISHED TARIFF. THE RULE WAS A PART OF TARIFF AND COULD NOT BE WAIVED. DAVIS V. HENDERSON, 266 U.S. 92; BIENVILLE WAREHOUSE CORP., INC. V. ILLINOIS CENTRAL RAILROAD CO., 208 I.C.C. 583, 585, AND NATURAL PRODUCTS REFINING CO. V. CENTRAL RAILROAD OF NEW JERSEY, 216 I.C.C. 105, 107. ALTHOUGH CARRIERS DO NOT GENERALLY HOLD THEMSELVES OUT TO MEET SCHEDULES, A SHIPPER MAY REQUEST AND BE FURNISHED EXPEDITED SERVICE WITHOUT RECEIVING EXCLUSIVE USE OF THE VEHICLE AND VICE VERSA. SIMILAR SITUATION WAS CONSIDERED BY THE INTERSTATE COMMERCE COMMISSION IN TUMPSON AND COMPANY V. N. BRADDOCK MOTOR LINES, 8 FED. CARRIER CASES 479, IN THAT CASE THE DEFENDANT MOTOR CARRIER CONTENDED, AMONG OTHER THINGS, THAT THE SHIPPER KNEW THAT THE ENTIRE VEHICLE WOULD BE USED, SINCE THE REQUESTED 24-HOUR DELIVERY WOULD NOT PERMIT ADDITIONAL PICK-UPS AND DELIVERIES AND THAT THEREFORE IT WAS ENTITLED TO THE TRUCKLOAD CHARGE. THE EXAMINER FOUND THE DEFENDANT'S CONTENTIONS WITHOUT MERIT AND THE COMMISSION ADOPTED THE EXAMINER'S FINDINGS AND REPORT.

THE CASE OF CURTIS LIGHTING, INC., V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576, STANDS FOR THE PROPOSITION THAT CHARGES FOR EXCLUSIVE USE ARE NOT APPLICABLE ON A SHIPMENT WHICH COMPLETELY FILLS THE VEHICLE UTILIZED TO THE EXTENT THAT NO MORE OF A LIKE COMMODITY COULD BE LOADED THEREON FOR THE REASON THAT EXCLUSIVE USE SERVICE IS APPLICABLE AND INTENDED TO APPLY ONLY TO LESS-THAN-TRUCKLOAD SHIPMENTS.

THE CONTENTS OF YOUR LETTER OF MARCH 8, 1962, HAVE BEEN CAREFULLY CONSIDERED AND YOU HAVE NOT PRESENTED ANY FACTS OR EVIDENCE THAT WOULD WARRANT ANY MODIFICATION OF THE CONCLUSION REACHED IN OUR DECISIONS OF FEBRUARY 20, AND DECEMBER 1, 1961, AS TO THE TWO SHIPMENTS IN QUESTION. ACCORDINGLY, THE CONCLUSION REACHED IN THOSE DECISIONS IS AFFIRMED.

WE ARE AWARE, OF COURSE, THAT ON MAY 9, 1962, THE COURT OF CLAIMS RULED AGAINST THE UNITED STATES ON A QUESTION INVOLVING THE APPLICABILITY OF EXCLUSIVE-USE CHARGES ON TWO TYPES OF SHIPMENTS IN THE CASE OF CAMPBELL "66" EXPRESS, INC. V. UNITED STATES, COURT OF CLAIMS NO. 431-60. THAT DECISION, HOWEVER, IS NOT FINAL. THE EXCLUSIVE-USE ISSUE ON VARIOUS TYPES OF SHIPMENTS IS INVOLVED IN T.I.M.E. FREIGHT, INC. V. UNITED STATES, CIVIL ACTION NOS. 2625 AND 2626, NOW PENDING IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, LUBBOCK DIVISION, AND IN HILL LINES, INC. AND ILLINOIS-CALIFORNIA EXPRESS, INC. V. UNITED STATES, CIVIL ACTION NO. 7319, AND NAVAJO FREIGHT LINES, INC. V. UNITED STATES, CIVIL ACTION NO. 6753, NOW PENDING IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. IN THE EVENT THE FINAL JUDICIAL DECISION IN THESE CASES IS ADVERSE TO THE UNITED STATES AND YOU FEEL THAT, BASED UPON SUCH FINAL DECISIONS, YOUR CLAIM IS PROPERLY FOR ALLOWANCE, WE WILL, UPON YOUR REQUEST, RECONSIDER OUR CONCLUSION HEREIN.