B-145506, MAR. 28, 1962

B-145506, MAR. 28, 1962

TO EAST TEXAS MOTOR FREIGHT:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 27, 1961, FILE TD-58 2978, REQUESTING REVIEW OF THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL CHARGES OF $938.60 ON THE SHIPMENT OF INTERNAL COMBUSTION ENGINES TRANSPORTED FROM VAN NUYS, CALIFORNIA, TO DAINGERFIELD, TEXAS, UNDER BILL OF LADING AF-6712955.

FOR THE SERVICES RENDERED ON THAT SHIPMENT, YOUR COMPANY ORIGINALLY BILLED AND WAS PAID $1,722.60 REPRESENTING THE CHARGES FOR THE EXCLUSIVE USE OF A VEHICLE. IN THE AUDIT HERE, THE CHARGES WERE ADJUSTED TO $784 BASED ON THE CLASS 45 TRUCKLOAD RATE OF $3.92 PER HUNDRED POUNDS, MINIMUM WEIGHT OF 20,000 POUNDS, NAMED IN ROCKY MOUNTAIN MOTOR TARIFF 21-A, MF- I.C.C. 95. UNDER OUR PROCEDURES, YOUR LETTER OF MARCH 28, 1961, WAS CONSIDERED TO BE A RECLAIM OF THE $938.60 WITHHELD IN EFFECTING THE ADJUSTMENT OF THE CHARGES ON THE SHIPMENT, AND WAS REFERRED TO OUR TRANSPORTATION DIVISION. BY SETTLEMENT DATED DECEMBER 20, 1961, YOUR CLAIM WAS DISALLOWED BASED ON FINDINGS OF THE INTERSTATE COMMERCE COMMISSION IN CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, 303 I.C.C. 576.

YOU CONTEND THAT THE CURTIS LIGHTING CASE INVOLVED A DETERMINATION OF REASONABLENESS, WHICH, UNDER THE DECISION OF THE UNITED STATES SUPREME COURT IN T.I.M.E. INC. AND DAVIDSON V. UNITED STATES, 359 U.S. 464, CANNOT BE GIVEN APPLICATION. YOU URGE, THEREFORE, THAT THE CHARGES MUST BE ASSESSED AND COLLECTED ON THE BASIS OF EXCLUSIVE USE SINCE SUCH SERVICES WERE REQUESTED AND FURNISHED.

IN THE CURTIS LIGHTING CASE, THE COMMISSION STATED THAT 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 COMMISSION THEN FOUND THAT WHETHER OR NOT EXCLUSIVE USE HAD BEEN REQUESTED, THE SERVICE WAS NOT FURNISHED WHEN THE TRUCK WAS FULLY LOADED AND THE APPLICABLE CHARGES WERE THOSE COMPUTED AT THE TRUCKLOAD RATE.

ALTHOUGH THE COMPLAINANT IN THAT CASE DID ALLEGE THAT THE RATES AND CHARGES WERE UNREASONABLE IN VIOLATION OF SECTION 216 (D) OF THE INTERSTATE COMMERCE ACT, AS AMENDED, 49 U.S.C. 316 (D), IT ALSO ALLEGED THE RATES WERE INAPPLICABLE AND IN VIOLATION OF SECTION 217 (B) OF THAT ACT, 49 U.S.C. 317 (B). THE COMMISSION BASED ITS CONCLUSION ON THE GROUNDS OF APPLICABILITY RATHER THAN REASONABLENESS. SEE PAGE 578 OF THE DECISION WHERE THE COMMISSION STATED: "WE CONCLUDE THAT THE ASSAILED CHARGES (EXCLUSIVE-USE CHARGES) ON THE DESCRIBED SHIPMENT WERE INAPPLICABLE, AND THAT THE APPLICABLE CHARGES WERE THOSE STATED IN THE PARAGRAPH NEXT ABOVE (TRUCKLOAD CHARGES).' SEE ALSO LOUTHAN DOWELL MOTORS V. ALTEN AND S.R., 300 I.C.C. 741, WHEREIN ON PAGE 742 THE COMMISSION STATED THAT A GENERAL ALLEGATION OF UNREASONABLENESS PERMITS CONSIDERATION OF APPLICABILITY. IN THE T.I.M.E. CASE THE COURT HELD THAT A SHIPPER BY MOTOR COMMON CARRIER COULD NOT QUESTION IN POST SHIPMENT LITIGATION THE REASONABLENESS OF AN OTHERWISE APPLICABLE RATE. SINCE THE COMMISSION HAD PREVIOUSLY RULED THAT THE THROUGH RATE RATHER THAN THE COMBINATION OF RATES WAS THE APPLICABLE RATE, THE QUESTION OF APPLICABILITY WAS NOT CONSIDERED.

IT IS OUR VIEW, THEREFORE, THAT THE COMMISSION'S FINDING IN THE CURTIS LIGHTING CASE HELD THAT EXCLUSIVE-USE CHARGES ARE INAPPLICABLE ON VEHICLES LOADED TO CAPACITY. SINCE THE SETTLEMENT OF YOUR CLAIM IS CONSISTENT WITH THE RULING IN THAT CASE, IT IS SUSTAINED.

WE FIND NOTHING IN OUR FILE, B-142114, REFERRED TO BY YOU WHICH WOULD INDICATE THAT EXCLUSIVE-USE CHARGES ARE ALLOWABLE AS TO TRUCKLOAD SHIPMENTS. THIS SEEMS CLEARLY TO BE BORNE OUT BY OUR DECISION OF MARCH 6, 1962, B-142112, TO YOU WHERE, AT PAGE 3, WE STATE IN THAT REGARD:

"IT IS OUR VIEW THAT, FOLLOWING THE PRINCIPLE IN CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576, HOLDING THAT EXCLUSIVE USE CHARGES--- WHICH ARE DESIGNED TO COVER TRUCKLOAD SERVICE ON LESS-THAN- TRUCKLOAD SHIPMENTS--- ARE INAPPLICABLE TO TRUCKLOAD SHIPMENTS, NO MORE THAN TRUCKLOAD CHARGES PROPERLY ARE ALLOWABLE.'