B-144503, NOV. 29, 1961

B-144503: Nov 29, 1961

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LTD.: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 9. SINCE THE TRAILER USED FOR THIS SHIPMENT WAS FULLY LOADED WE APPLIED TRUCKLOAD RATES. THAT EXCLUSIVE-USE TARIFF CHARGES ARE NOT APPLICABLE ON A SHIPMENT WHERE THE VEHICLE IS LOADED TO FULL CAPACITY. YOU CONTEND THAT THE CURTIS LIGHTING CASE INVOLVED QUESTIONS OF REASONABLENESS AND IS THUS WITHOUT EFFECT IN VIEW OF THE RULING OF THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF T.I.N.H. ALTHOUGH THE QUESTION OF REASONABLENESS WAS RAISED BY THE PETITIONER IN THE CURTIS LIGHTING CASE. DISPOSITION OF THE CASE ON THE BASIS OF APPLICABILITY WAS IN ACCORDANCE WITH THE WELL-SETTLED RULE THAT THE APPLICABLE RATE MAY BE DETERMINED UNDER AN ALLEGATION OF UNREASONABLENESS.

B-144503, NOV. 29, 1961

TO WESTERN TRUCK LINES, LTD.:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 9, 1961, REQUESTING RECONSIDERATION OF THE HOLDING IN OUR DECISION OF OCTOBER 2, 1961, B 144503, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM (G-02555) FOR $516.80 ALLEGED TO BE DUE FOR EXCLUSIVE-USE SERVICE ON A SHIPMENT WHICH MOVED IN A FULLY LOADED TRAILER. SINCE THE TRAILER USED FOR THIS SHIPMENT WAS FULLY LOADED WE APPLIED TRUCKLOAD RATES, CITING AS AUTHORITY CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576, WHICH HELD, IN SUBSTANCE, THAT EXCLUSIVE-USE TARIFF CHARGES ARE NOT APPLICABLE ON A SHIPMENT WHERE THE VEHICLE IS LOADED TO FULL CAPACITY.

YOU CONTEND THAT THE CURTIS LIGHTING CASE INVOLVED QUESTIONS OF REASONABLENESS AND IS THUS WITHOUT EFFECT IN VIEW OF THE RULING OF THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF T.I.N.H., INC. V. UNITED STATES, 359 U.S. 464. ALTHOUGH THE QUESTION OF REASONABLENESS WAS RAISED BY THE PETITIONER IN THE CURTIS LIGHTING CASE, THE DECISION BY THE INTERSTATE COMMERCE COMMISSION IN THAT CASE TURNED ON THE QUESTION OF THE APPLICABILITY OF THE TARIFF PROVISIONS INVOLVED. DISPOSITION OF THE CASE ON THE BASIS OF APPLICABILITY WAS IN ACCORDANCE WITH THE WELL-SETTLED RULE THAT THE APPLICABLE RATE MAY BE DETERMINED UNDER AN ALLEGATION OF UNREASONABLENESS. FOSTER WHEELER CORP. V. CENTRAL R.CO. OF NEW JERSEY, 273 I.C.C. 119. THE CASE WAS NOT, THEREFORE, ONE GOVERNED BY THE RULE OF THE T.I.M.E. CASE.

YOU ALSO CONTEND THAT YOU ARE REQUIRED TO COLLECT THE TARIFF CHARGE AND CITE THE CASE OF TUMPSON AND COMPANY V. NORTH BRADDOCK MOTOR LINES, 8 FEDERAL CARRIERS CASES, PAR. 32, 266, WHEREIN IT IS STATED--- "NOR IS THE CUBIC CAPACITY OF THE PARTICULAR TRAILER USED BY THE DEFENDANT, AND WHETHER OR NOT OTHER FREIGHT COULD HAVE BEEN LOADED THEREON, RELEVANT HEREIN. THE CARRIER IS REQUIRED TO COLLECT, AND THE SHIPPER TO PAY, THE CHARGES SPECIFIED IN THE CONTROLLING TARIFF, IN ACCORDANCE WITH THE APPLICABLE MINIMUM WEIGHT, WITHOUT DEVIATING THEREFROM.'

THE TUMPSON AND COMPANY CASE CONCERNED A SITUATION WHERE THE DEFENDANT CARRIER WAS ATTEMPTING TO APPLY A RULE IN THE TARIFF WHICH PROVIDED THAT WHERE THE SHIPMENT CONSISTED OF ARTICLES OF UNUSUAL SHAPE OR DIMENSIONS THE AUTHORIZED RATE WOULD APPLY, SUBJECT TO THE CHARGE FOR 10,000 POUNDS AT THE FIRST-CLASS LESS-THAN-TRUCKLOADRATE AS MINIMUM; PROVIDED, HOWEVER, THAT IN NO CASE SHOULD THE CHARGE ON THE TRUCKLOAD BASIS BE EXCEEDED. THE SHIPMENT CONSISTED OF 4,733 POUNDS AND THE DEFENDANT CARRIER CONTENDED THE SIZE OF THE ENTIRE SHIPMENT MADE IT IMPOSSIBLE TO HAUL IT IN ONE TRAILER LOAD PROFITABLY, SINCE THERE WAS INSUFFICIENT SPACE FOR ANY OTHER COMMODITIES AND CONSEQUENTLY THE ABOVE-MENTIONED RULE WAS APPLICABLE. THE INTERSTATE COMMERCE COMMISSION FOUND THAT THE SHIPMENT COULD NOT BE CONSTRUED AS CONTAINING ARTICLES HAVING UNUSUAL SHAPE OR DIMENSIONS AND DID NOT COME WITHIN THE CONTENDED-FOR RULE. THE COMMISSION THEN WENT ON TO SAY THAT WHETHER OR NOT THE TRAILER WAS LOADED TO CAPACITY WOULD HAVE NO BEARING UPON A RULE THAT DEPENDED UPON THE SHIPMENT BEING OF UNUSUAL SHAPE OR DIMENSIONS. THUS, THE CASE WAS DECIDED ON STRICT APPLICABILITY OF THE TARIFF, THE COMMISSION MERELY STATING THAT A CERTAIN TARIFF RULE WAS NOT APPLICABLE. LIKEWISE, IN THE PRESENT SITUATION IT IS OUR VIEW THAT THE EXCLUSIVE-USE ITEM OF THE TARIFF IS NOT APPLICABLE FOR THE REASONS STATED IN THE CURTIS LIGHTING CASE AND THE CHARGES ..END :