B-129982, MAR. 20, 1957

B-129982, MAR. 20, 1957

TO CAROLINA FREIGHT CARRIERS CORPORATION:

REFERENCE IS MADE TO YOUR LETTERS DATED JANUARY 11, 1957, AND DECEMBER 3, 1956, FILE REFERENCE OC-2131C, PRO. NO. 479750-1, RELATIVE TO AN OVERPAYMENT FOUND IN THE AUDIT OF YOUR UNNUMBERED BILL COVERING CHARGES ON TWO SHIPMENTS OF "ENGINES I.C. NOIBN," TRANSPORTED UNDER BILLS OF LADING NOS. AF-585874 AND AF-585873.

IN THE AUDIT OF THE FREIGHT CHARGES PAID ON VOUCHER 37373 IN THE AUGUST 1952 ACCOUNTS OF J. L. WHIPPLE, OVERCHARGES WERE STATED BY OUR TRANSPORTATION DIVISION ON FORM NO. 1003 DATED OCTOBER 6, 1954, IN CONNECTION WITH TWO SHIPMENTS OF "ENGINES I.C. NOIBN," EACH WEIGHING 8,320 POUNDS, TENDERED TO YOU AT MIDDLETOWN, PENNSYLVANIA, ON JUNE 25, 1952, BY THE TRANSPORTATION OFFICER, MIDDLETOWN AIR MATERIEL AREA, FOR TRANSPORTING TO EGLIN AIR FORCE BASE, EGLIN FIELD, FLORIDA, UNDER THE INVOLVED BILLS OF LADING.

THE BILLS OF LADING DID NOT INDICATE THAT EXCLUSIVE USE OF THE VEHICLES WAS REQUESTED OR REQUIRED BY THE SHIPPER, SINCE THEY DID NOT CONFORM WITH THE MANDATORY REQUIREMENT OF ITEM 9100 OF SUPPLEMENT 14 TO MOTOR CARRIERS TRAFFIC ASSOCIATION TARIFF BUREAU, R. S. COOPER, AGENT, MOTOR FREIGHT TARIFF NO. 129-A, MF-I.C.C. NO. 321, THAT EACH BILL OF LADING COVERING SHIPMENTS FOR WHICH EXCLUSIVE USE OF THE VEHICLE IS PROVIDED MUST BEAR THE NOTATION "EXCLUSIVE USE OF VEHICLE ORDERED BY SHIPPER.'

IT WAS DETERMINED IN THE AUDIT THAT THE PROPER CHARGES ON THESE SHIPMENTS WERE COMPUTED ON THE BASIS OF THE ACTUAL WEIGHT OF THE ENGINES AND A CLASS -2 LTL (LESS TRUCKLOAD) RATE OF $2.98 PER 100 POUNDS PUBLISHED IN SECTION 5 OF THE CITED TARIFF NO. 129-A, CONTAINING MINIMUM SCALES OF RATES. CLASS-70 LTL RATING IS PROVIDED BY ITEM 61250 OF MOTOR CARRIERS TRAFFIC ASSOCIATION TARIFF BUREAU, R. S. COOPER, AGENT, MOTOR FREIGHT TARIFF NO. 76-B, MF-I.C.C. NO. 348, FOR "ENGINES, STEAM OR INTERNAL COMBUSTION, NOI," HOWEVER, IF EFFECT IS GIVEN TO ITEM 955D OF SECTION 1 OF SUPPLEMENT 14 TO TARIFF NO. 129 A, WHICH PROVIDES THAT RATES PUBLISHED IN THE TARIFF ON TRAFFIC MOVING VIA CAROLINA FREIGHT CARRIERS CORPORATION ARE SUBJECT TO MINIMUM RATES TO THE EXTENT INDICATED THEREIN, CLASS 2-LTL IS TO BE OBSERVED AS THE MINIMUM RATE BETWEEN PENNSYLVANIA AND FLORIDA, EXCEPT TO JACKSONVILLE AND POINTS TAKING THE SAME RATES. IT IS CLEAR THAT THE CLASS -2 LTL RATE OF $2.98 PER 100 POUNDS CONTAINED IN SECTION 5 OF TARIFF NO. 129 A IS THE RATE PROPERLY APPLICABLE TO THESE SHIPMENTS, SINCE IT IS HIGHER THAN THE CLASS-70 RATE OF $2.93 PER 100 POUNDS NAMED IN SECTION 4 THEREOF, WHICH PRODUCES LOWER CHARGES, AND THE CHARGES WERE COMPUTED BY OUR OFFICE ON THE BASIS OF THE $2.98 RATE. SEE ITEM 950 (D) OF SECTION 1.

BY LETTER DATED OCTOBER 13, 1954, YOU PROTESTED THE APPLICATION OF THIS RATE TO THESE SHIPMENTS AND CONTENDED THAT TWO UNITS WERE ORDERED TO MAKE THE PICK-UP AND THAT THE FREIGHT BILLS STATED THAT THE CAPACITY LOAD WAS RATED UNDER AUTHORITY CONTAINED IN "ITEM 8.7-A SMCRC TARIFF 4-G," AND THAT THE NUMBER OF VEHICLES LOADED TO CAPACITY FURNISHED BY THE ORIGINATING CARRIER TO TRANSPORT THIS SHIPMENT WAS "ONE.' THESE FREIGHT BILLS OR COPIES THEREOF ARE NOT ON FILE HERE, NOR IS IT APPARENT WHY "ITEM 8.7-A SMCRC TARIFF 4-G" HAS ANY APPLICATION TO THESE SHIPMENTS, SINCE YOU ADMIT THAT THE TARIFF APPLICABLE THERETO IS TARIFF NO. 129-A. IT WILL BE NOTED THAT ITEM 20B OF SUPPLEMENT 14 THERETO LISTS THE PUBLICATIONS GOVERNING THE SUBJECT TARIFF AND THAT "SMCRC TARIFF 4-G" IS NOT INCLUDED. YOU ALSO DIRECTED ATTENTION TO ITEM 565 OF SUPPLEMENT 14 TO TARIFF NO. 129-A, AND TO THE PROVISIONS RELATING TO MINIMUM CHARGES ON CAPACITY LOADS. ALTHOUGH YOU ORIGINALLY BILLED CHARGES COMPUTED AT A THIRD-CLASS VOLUME RATE OF $2.72 PER 100 POUNDS PUBLISHED IN SECTION 4 OF SAID TARIFF NO. 129-A, AND A MINIMUM WEIGHT OF 22,000 POUNDS PROVIDED IN ITEM 565, YOU CONTENDED THAT NOTE F THEREOF WOULD PERMIT APPLICATION OF A 25,000-POUND MINIMUM WEIGHT TO EACH OF THESE SHIPMENTS, AS PROVIDED IN NOTE G OF ITEM 955D OF SUPPLEMENT 14 TO TARIFF NO. 129-A. HAD THESE VEHICLES BEEN LOADED TO CAPACITY AND THE REQUIREMENTS OF ITEM 910C OF SUPPLEMENT 14 BEEN COMPLIED WITH, YOUR CONTENTION MIGHT HAVE BEEN CORRECT. IT WILL BE NOTED, HOWEVER, THAT IN REPLY TO AN INQUIRY ADDRESSED TO MIDDLETOWN AIR MATERIEL AREA, THE CHIEF, TRANSPORTATION DIVISION, DIRECTORATE OF SUPPLY AND SERVICES, BY 1ST INDORSEMENT DATED JANUARY 31, 1955, ADVISED THAT THE TRAILERS IN QUESTION WERE NOT LOADED TO FULL VISIBLE CAPACITY AND THAT AT LEAST ONE ADDITIONAL ENGINE COULD HAVE BEEN PLACED IN EACH TRAILER BEFORE CAPACITY OF THE TRUCK COULD HAVE BEEN CLAIMED AND YOU WERE SO ADVISED BY LETTER DATED JUNE 24, 1955. WHEN NO FURTHER OBJECTION WAS RECEIVED HERE, DEDUCTION OF THE OVERCHARGES IN THE SUM OF $742.96 WAS EFFECTED ON APRIL 6, 1956, BY THE ADMINISTRATIVE OFFICE IN THE PAYMENT OF YOUR BILL NO. 137-56-JW.

THEREAFTER, BY LETTER OF MAY 28, 1956, YOU PROTESTED THE DEDUCTION AND STATED THAT INFORMATION HAD BEEN REQUESTED FROM THE TRANSPORTATION OFFICER, MIDDLETOWN AIR MATERIEL AREA, ON APRIL 12, 1956, WITH RESPECT TO THE DIMENSIONS OF THE DRUMS OR CONTAINERS IN WHICH THESE ENGINES WERE SHIPPED. IN THIS CONNECTION YOU ENCLOSED A COPY OF THE REPLY RECEIVED FROM THE CHIEF, TRANSPORTATION DIVISION, DIRECTORATE OF SUPPLY AND SERVICES, WHEREIN IT WAS SUGGESTED THAT THIS INFORMATION COULD BE REQUESTED FROM OUR OFFICE. YOU APPARENTLY WERE OF THE OPINION THAT THIS INFORMATION WAS ON RECORD HERE, AND BY LETTER OF OCTOBER 10, 1956, YOU REQUESTED A COMPREHENSIVE REPLY FROM THIS OFFICE.

THE FOREGOING EXPLANATION OF THE MANNER IN WHICH THE CHARGES ON THESE SHIPMENTS HAVE BEEN COMPUTED BY OUR OFFICE, WITH CITATION TO ALL PERTINENT TARIFF PROVISIONS, SEEMS TO FULFILL THE REQUEST MADE IN YOUR LETTERS OF DECEMBER 3, 1956, AND JANUARY 11, 1957, FOR INFORMATION SUBSTANTIATING THE DEDUCTION OF THE OVERPAYMENT. THUS, INFORMATION AS TO THE DIMENSIONS OF THE DRUMS IN WHICH THE ENGINES WERE SHIPPED DOES NOT SEEM NECESSARY. HOWEVER, THE TRANSPORTATION DIVISION OF OUR OFFICE HAS REQUESTED THIS INFORMATION FROM THE ADMINISTRATIVE OFFICE AND THAT INFORMATION WILL BE TRANSMITTED TO YOU BY OUR TRANSPORTATION DIVISION WHEN IT IS RECEIVED.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE DEDUCTION OF THE OVERPAYMENT WAS PROPER.