B-148580, FEB. 19, 1963

B-148580, FEB. 19, 1963

TO ILLINOIS-CALIFORNIA EXPRESS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 20, 1962, FILE I.C.X. CLAIM BILL NO. 614-61-A, ADDRESSED TO THE TRANSPORTATION DIVISION OF THIS OFFICE, FORWARDING YOUR SUPPLEMENTAL BILL 614-61-A OF JULY 16, 1962, WHICH, IN EFFECT, REQUESTS FURTHER CONSIDERATION OF OUR DECISION OF JULY 5, 1962, B- 148580. THIS DECISION SUSTAINED THE DISALLOWANCE OF YOUR CLAIM BY BILL NO. 614-61 FOR EXCLUSIVE USE OF VEHICLE CHARGES OF $847.35 FOR THE TRANSPORTATION OF 20,212 POUNDS OF MIXED MILITARY ITEMS FROM RED RIVER ARSENAL, DEFENSE, TEXAS, TO TRAVIS AIR FORCE BASE, CALIFORNIA, UNDER GOVERNMENT BILL OF LADING B-0592745 DATED MARCH 31, 1961.

IT APPEARS TO BE YOUR CONTENTION THAT SINCE THE SHIPMENT DID NOT FULLY LOAD THE VEHICLE, THE BILL OF LADING SHOWS IT MOVED UNDER SEAL APPLIED BY SHIPPER AND UNDER SHIPPER'S LOAD AND COUNT, NO OPPORTUNITY WAS AFFORDED THE CARRIER TO LOAD ADDITIONAL FREIGHT IN THIS TRAILER AND UNDER THE DECISION OF THE COURT OF CLAIMS IN CAMPBELL "66" EXPRESS, INC. V. THE UNITED STATES, EXCLUSIVE-USE CHARGES ARE PROPERLY PAYABLE.

PARAGRAPH 2 OF ITEM 940 OF THE ROCKY MOUNTAIN MOTOR TARIFF BUREAU TARIFF NO. 20-C, MF-I.C.C. NO. 123, PROVIDES, IN PART:

"UPON REQUEST OF THE CONSIGNOR, THE CARRIER WILL FURNISH A VEHICLE * * * WHICH VEHICLE WILL BE ASSIGNED TO, AND EXCLUSIVELY USED BY THE CARRIER FOR, THE TRANSPORTATION OF THE SHIPMENT. ONLY ONE VEHICLE PER SHIPMENT WILL BE FURNISHED AND A BILL OF LADING, BEARING A NOTATION INDICATING THAT THE SHIPPER REQUESTS SUCH EXCLUSIVE USE OF THE VEHICLE, MUST BE PROVIDED FOR EACH SUCH SHIPMENT * * *"

IN CAMPBELL "66" EXPRESS, INC. V. UNITED STATES, 302 F.2D 270, REFERRED TO BY YOU THE COURT HELD THAT THE TARIFF RATES FOR EXCLUSIVE USE APPLY WHENEVER THE SHIPPER REQUESTS EXCLUSIVE USE, REGARDLESS OF WHETHER THE SHIPMENT FULLY LOADS THE VEHICLE, PROVIDED THE BILL OF LADING IS ANNOTATED TO SHOW THE SHIPPER REQUESTED THE EXCLUSIVE USE OF THE VEHICLE IN EXACT OR SUBSTANTIAL COMPLIANCE WITH THE PROVISIONS OF THE TARIFF RULE. IT FURTHER HELD THAT WHERE THE SHIPPER STAMPED THE BILL OF LADING IN SUCH A MANNER AS TO CALL UPON THE DESTINATION CARRIER TO SIGN A CERTIFICATE "I CERTIFY THAT EXCLUSIVE VEHICLE SERVICE WAS FURNISHED FROM---- TO----" SUCH STAMP CONSTITUTED A REQUEST FOR EXCLUSIVE USE OF VEHICLE SUBSTANTIALLY COMPLYING WITH THE TARIFF.

THE HOLDING OF THE COURT OF CLAIMS THAT EXCLUSIVE-USE CHARGES ARE APPLICABLE TO TRUCKLOAD (AS WELL AS LESS-THAN-TRUCKLOAD) SHIPMENTS WHERE THE SHIPPER REQUESTS EXCLUSIVE USE OF THE VEHICLE AND THE BILL OF LADING IS ANNOTATED TO SO INDICATE IN COMPLIANCE WITH THE APPLICABLE TARIFF IS NOT BEING FOLLOWED IN OUR AUDIT OF CARRIERS' BILLS SINCE IT APPEARS TO CONFLICT WITH THE OPINION OF THE INTERSTATE COMMERCE COMMISSION IN CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, 303 I.C.C. 576, AND THE DEPARTMENT OF JUSTICE HAS APPEALED SEVERAL SIMILAR HOLDINGS OF THE DISTRICT COURTS OF THE UNITED STATES. UNTIL SUCH APPEALS ARE FINALLY DECIDED, IT IS OUR VIEW THAT THE DECISION OF THE COURT OF CLAIMS IN THE CAMPBELL "66" CASE IS NOT SO CONCLUSIVE OF THE QUESTION AS TO WHETHER EXCLUSIVE-USE CHARGES ARE APPLICABLE TO TRUCKLOAD SHIPMENTS AS TO WARRANT OUR APPLYING IT IN THE AUDIT OF CARRIERS' ACCOUNTS. HOWEVER, THERE APPEARS TO BE NOTHING OF RECORD HERE TO INDICATE THE TRAILER INVOLVED IN THE INSTANT SHIPMENT WAS FULLY LOADED AND OUR DISALLOWANCE OF YOUR BILL WAS NOT PREDICATED ON THAT BASIS BUT THAT THE BILL OF LADING WAS NOT ANNOTATED AS REQUIRED BY ITEM 940 OF THE TARIFF TO SHOW THE SHIPPER REQUESTED EXCLUSIVE USE OF THE VEHICLE. THE TARIFF RATES FOR EXCLUSIVE USE UNDER THE PROVISIONS OF ITEM 940 OF THE ROCKY MOUNTAIN TARIFF BUREAU TARIFF NO. 20-C ARE NOT FOR APPLICATION UNLESS THE BILL OF LADING IS ANNOTATED TO SHOW THE SHIPPER REQUESTED EXCLUSIVE USE OF VEHICLE. THERE IS NO SUCH NOTATION ON THE INVOLVED BILL OF LADING. FURTHERMORE, THERE IS NO WRITTEN NOTATION ON THE BILL OF LADING WHICH WOULD REASONABLY APPRISE THE CARRIER THAT EXCLUSIVE USE OF THE VEHICLE WAS REQUESTED BY THE SHIPPER. THEREFORE, THE SUBSTANTIAL COMPLIANCE PORTION OF THE COURT OF CLAIMS DECISION IN THE CAMPBELL "66" CASE CITED ABOVE IS NOT APPLICABLE.

ACCORDINGLY, THERE IS NO BASIS UPON WHICH TO MODIFY OUR PREVIOUS DECISION WHICH HELD THAT EXCLUSIVE USE OF THE VEHICLE CHARGES ARE NOT PAYABLE AND OUR DECISION OF JULY 5, 1962, B-148580, IS AFFIRMED.