B-127182, JUL. 17, 1956
Highlights
WE HAVE EXAMINED THE FILES PERTINENT TO LUPER'S BILLS NOS. 707 TO 711. WE FIND THAT YOUR CLIENT'S POSITION IS THAT THE PROPER CHARGE FOR THE SHIPMENTS COVERED BY THOSE BILLS IS $842 PER TRUCKLOAD BASED ON A RATE OF 420 CENTS PER 100 POUNDS APPLIED TO A MINIMUM WEIGHT OF 20. THIS CHARGE IS SAID TO BE BASED UPON THE FACT "THAT EACH LOAD REQUIRED THE FULL USE OF A VEHICLE. VEHICLES WERE SEALED BY THE SHIPPER. WHICH IN EFFECT WAS A REQUEST AND DEMAND FOR TRUCK LOAD SERVICE. WHICH WAS GRANTED ON THE PART OF THE LINES INVOLVED.'. WE HAVE BEEN UNABLE. TO WHICH LUPER WAS A PARTY. THAT EACH WAS TENDERED AT ONE TIME AT ONE PLACE BY ONE CONSIGNOR FOR SHIPMENT TO ONE CONSIGNEE AT ONE DESTINATION UNDER ONE BILL OF LADING.
B-127182, JUL. 17, 1956
TO MAX G. MORGAN, ESQUIRE:
IN ACCORDANCE WITH THE REQUEST IN YOUR LETTER OF MAY 25, 1956, WE ENCLOSE A COPY OF CERTIFICATE OF INDEBTEDNESS DATED MARCH 2, 1956, IN THE AMOUNT OF $12,747.39, AND A COPY OF SUPPLEMENT NO. 1 TO THE CERTIFICATE, IN THE AMOUNT OF $4,375.32, ISSUED TO THE LUPER TRANSPORTATION COMPANY.
WE HAVE EXAMINED THE FILES PERTINENT TO LUPER'S BILLS NOS. 707 TO 711, INCLUSIVE, AND WE FIND THAT YOUR CLIENT'S POSITION IS THAT THE PROPER CHARGE FOR THE SHIPMENTS COVERED BY THOSE BILLS IS $842 PER TRUCKLOAD BASED ON A RATE OF 420 CENTS PER 100 POUNDS APPLIED TO A MINIMUM WEIGHT OF 20,000 POUNDS PER TRUCK. THIS CHARGE IS SAID TO BE BASED UPON THE FACT "THAT EACH LOAD REQUIRED THE FULL USE OF A VEHICLE, AND VEHICLES WERE SEALED BY THE SHIPPER, WHICH IN EFFECT WAS A REQUEST AND DEMAND FOR TRUCK LOAD SERVICE, WHICH WAS GRANTED ON THE PART OF THE LINES INVOLVED.' SEE LETTER OF MAY 12, 1955, FROM R. H. NAHKUNST, GENERAL TRAFFIC MANAGER, LUPER TRANSPORTATION COMPANY, TO THE DIRECTOR OF OUR TRANSPORTATION DIVISION. WE HAVE BEEN UNABLE, HOWEVER, TO FIND ANY TARIFF PROVISION AUTHORIZING THE CHARGES SO CLAIMED.
THE RECORD SHOWS THAT EACH OF THE SHIPMENTS COVERED BY THE CITED BILLS WEIGHED IN EXCESS OF THE VOLUME MINIMUM WEIGHT PROVIDED IN THE THEN CURRENT NATIONAL MOTOR FREIGHT CLASSIFICATION, TO WHICH LUPER WAS A PARTY, AND THAT EACH WAS TENDERED AT ONE TIME AT ONE PLACE BY ONE CONSIGNOR FOR SHIPMENT TO ONE CONSIGNEE AT ONE DESTINATION UNDER ONE BILL OF LADING. THUS, EACH OF THE SHIPMENTS WAS WITHIN THE TARIFF DEFINITION OF A VOLUME SHIPMENT AND WAS REQUIRED TO BE CHARGED FOR AT THE APPLICABLE VOLUME RATE APPLIED TO THE ACTUAL WEIGHT OF THE SHIPMENT. RULE 13, NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 11. IN THIS CONNECTION, SEE WILLINGHAM V. SELIGMAN, 179 F.2D 257.
THE RECORD FURTHER SHOWS THAT EACH OF THE SHIPMENTS WAS LOADED INTO TWO VANS AND IT IS INDICATED THAT NAVY SEALS WERE PLACED ON EACH VAN. WE ARE UNABLE TO FIND, HOWEVER, ANY TARIFF PROVISION REQUIRING, BECAUSE OF THESE CONDITIONS, AN INCREASE IN THE OTHERWISE APPLICABLE VOLUME CHARGES. THE ABSENCE, THEREFORE, OF SOME TARIFF PROVISION REQUIRING CHARGES OTHER THAN THOSE COMPUTED AT THE VOLUME RATE TIMES ACTUAL WEIGHT, WE BELIEVE THAT THE CHARGES COMPUTED HERE ARE CORRECT AND THAT THE RESULTANT OVERPAYMENTS WERE PROPERLY INCLUDED IN THE TOTAL AMOUNT OF THE INDEBTEDNESS.