B-144484, OCTOBER 27, 1961, 41 COMP. GEN. 266

B-144484, OCTOBER 27, 1961, 41 COMP. GEN. 266

TRANSPORTATION - RATES - EXCLUSIVE USE OF VEHICLE - LOADED TO CAPACITY A TRUCK WHICH WHEN LOADED WITH FOUR GENERATORS AND ENGINES BEING SHIPPED UNDER A GOVERNMENT BILL OF LADING PURSUANT TO A REQUEST BY THE GOVERNMENT FOR EXCLUSIVE USE OF THE VEHICLE DOES NOT HAVE SPACE FOR ANY ADDITIONAL GENERATORS, EVEN THOUGH ADDITIONAL FREIGHT IN SMALLER UNITS MIGHT POSSIBLY BE LOADED IN THE TRAILER, IS REGARDED AS LOADED TO CAPACITY UNDER THE RULE IN CURTIS LIGHTING, INC. V. MIDSTATES FREIGHT LINES, INC., 303 I.C.C. 576, IN WHICH THE INTERSTATE COMMERCE COMMISSION HELD THAT ONCE A VEHICLE IS LOADED TO CAPACITY A SHIPPER DOES NOT DERIVE ANY BENEFIT FROM EXCLUSIVE USE OF THE VEHICLE, WHICH IS A SERVICE DESIGNED TO ACCORD TRUCKLOAD SERVICE TO LESS THAN TRUCKLOAD SHIPMENTS; THEREFORE, NOTWITHSTANDING THAT EXCLUSIVE USE WAS REQUESTED AND THE SHIPPING DOCUMENTS WERE ANNOTATED IN COMPLIANCE WITH THE TARIFF REQUIREMENT, EXCLUSIVE-USE SERVICE WAS NOT PERFORMED AND THE OVERCHARGES BASED ON EXCLUSIVE USE ARE FOR RECOVERY FROM THE CARRIER.

TO THE CAROLINA FREIGHT CARRIERS CORPORATION, OCTOBER 27, 1961:

IN YOUR LETTER OF MARCH 20, 1961, YOU REQUEST REVIEW OF THE AUDIT ACTION TAKEN BY OUR TRANSPORTATION DIVISION IN CONNECTION WITH YOUR CLAIM 1060- 1270, YOUR PRO. 967819, FOR THE TRANSPORTATION OF FOUR GENERATORS AND ENGINES COMBINED, MOUNTED ON TRAILERS, LOOSE, WEIGHING 12,760 POUNDS, FROM WASHINGTON, D.C., TO PATRICK AIR FORCE BASE, FLORIDA, UNDER GOVERNMENT BILL OF LADING NO. N-34068728, DATED OCTOBER 23, 1959.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID $634.50, THE MINIMUM CHARGES SET FORTH IN THE APPLICABLE TARIFF FOR EXCLUSIVE USE OF VEHICLE SERVICE. THIS CHARGE IS COMPUTED ON THE BASIS OF THE CLASS 100 RATE OF $4.23 PER 100 POUNDS ON A MINIMUM WEIGHT OF 15,000 POUNDS. AUDIT OF THE PAYMENT VOUCHER IN OUR OFFICE THE APPLICABLE CHARGES WERE DETERMINED TO BE $456, COMPUTED AT THE CLASS 45 TRUCKLOAD RATE OF $1.90 PER 100 POUNDS AND A MINIMUM TRUCKLOAD WEIGHT OF 24,000 POUNDS. THIS ACTION WAS TAKEN FOR THE REASON THAT THE DEPARTMENT OF THE NAVY REPORTED, IN A LETTER DATED AUGUST 10, 1960, A COPY OF WHICH WAS FURNISHED TO YOU, THAT: " VEHICLE WAS LOADED TO FULL VISIBLE CAPACITY," AND THE INTERSTATE COMMERCE COMMISSION HELD, IN CURTIS LIGHTING, INC. V. MIDSTATES FREIGHT LINES, INC., 303 I.C.C. 576, THAT ONCE A VEHICLE IS LOADED TO CAPACITY A SHIPPER DERIVES NO BENEFIT FROM EXCLUSIVE-USE SERVICE--- WHICH IS DESIGNED TO ACCORD TRUCKLOAD SERVICE TO LESS-THAN-TRUCKLOAD SHIPMENTS--- AND, THEREFORE, CHARGES FOR EXCLUSIVE USE OF VEHICLE SERVICE ARE NOT APPLICABLE. A STATEMENT OF OVERCHARGE, GAO FORM 1003, WAS ISSUED FOR THE AMOUNT OF $178.50.

BY LETTER OF NOVEMBER 16, 1960, FILE CLAIM 1060-1270, PRO. 967819, ADDRESSED TO THE COMPTROLLER GENERAL OF THE UNITED STATES, YOU REQUESTED A REVIEW OF THE STATEMENT OF OVERCHARGE. HOWEVER, SINCE NO "SETTLEMENT" ACTION HAD BEEN TAKEN WITHIN THE MEANING OF SECTION 55.2, TITLE 4 OF THE CODE OF FEDERAL REGULATIONS, 1960 SUPPLEMENT, CONCERNING REVIEW BY THE COMPTROLLER GENERAL, YOUR LETTER WAS REFERRED TO OUR TRANSPORTATION DIVISION FOR HANDLING AS A PROTEST TO OUR AUDIT ACTION UNDER SECTION 53.2, TITLE 4 OF THE CODE OF FEDERAL REGULATIONS, 1960 SUPPLEMENT. ON SUCH CONSIDERATION BY OUR TRANSPORTATION DIVISION THE AUDIT ACTION WAS SUSTAINED, AGAIN REFERRING TO THE CURTIS LIGHTING DECISION, SUPRA, AND DISTINGUISHING IT FROM THE DECISION OF THE UNITED STATES SUPREME COURT IN T.I.M.E., INC. V. UNITED STATES, 359 U.S. 464. IN YOUR LETTER OF MARCH 20 YOU AGAIN REQUEST REVIEW BY THE COMPTROLLER OF THAT AUDIT ACTION. ALTHOUGH REVIEW BY THE COMPTROLLER GENERAL OF AUDIT ACTIONS IS NOT PROVIDED FOR IN THE REGULATIONS OF THE GENERAL ACCOUNTING OFFICE, PUBLISHED IN TITLE 4 OF THE CODE OF FEDERAL REGULATIONS, SUBCHAPTER D, PARTS 51 THROUGH 55, YOUR REQUEST OF MARCH 20, UNDER THE CIRCUMSTANCES OF THE PRESENT CASE, WILL BE CONSIDERED ON ITS MERITS.

IN REPLY TO YOUR LETTER OF JANUARY 16, 1961, REQUESTING THE DIMENSIONS OF THE FOUR UNITS TRANSPORTED, YOU WERE FURNISHED WITH A COPY OF A LETTER FROM THE U.S. NAVAL RESEARCH LABORATORY DATED FEBRUARY 28, 1961, WHICH READS AS FOLLOWS:

1. ONE (1) 35 FOOT TRAILER WAS ORDERED AND FURNISHED BY THE CARRIER.

2. THE CUBICAL DIMENSIONS OF EACH OF THE FOUR (4) GENERATORS IS 92 INCHES X 72 INCHES X 65 INCHES.

THE ACCOMPANYING LETTER OF MARCH 14, 1961, FROM OUR OFFICE STATED, IN PART, THAT: " IT IS EVIDENT FROM THESE DIMENSIONS THAT NO MORE OF THE SAME COMMODITY COULD HAVE BEEN LOADED ON THE 35-FOOT TRAILER FURNISHED.' YOUR REQUEST FOR REVIEW, YOU STATE:

WE WHOLE HEARTEDLY DISAGREE. A VOLUMINOUS AMOUNT OF SMALL FREIGHT COULD BE LOADED IN A SPACE 4.8 INCHES LONG, 6 FT. WIDE, AND 6 FT. HIGH, SHIPMENT IN OUR PRO. 967819 COVERED BY GOVERNMENT BILL OF LADING N 34068728, 4 GENERATORS WEIGHING 12,760 LBS., MEASURING 92 INCHES X 72 INCHES X 65 INCHES, SO THE MEASUREMENTS ARE NOT OURS, BUT THE GOVERNMENTS.

NO INFORMATION IS OF RECORD HERE AS TO THE WIDTH OF THE 35-FOOT TRUCK FURNISHED BY YOU FOR THE TRANSPORTATION. HOWEVER, CONSIDERING THAT THE ARTICLES SHIPPED WERE 92 INCHES (7 FEET 8 INCHES) LONG, AND MOUNTED ON TRAILERS, LOOSE, AND THE USUAL WIDTH OF THE INTERIOR OF SUCH A TRUCK, IT SEEMS APPARENT THAT THE GENERATORS AND ENGINES COMBINED COULD NOT HAVE BEEN LOADED ACROSS THE WIDTH OF THE TRUCK NOR IN TIERS BUT NECESSARILY WOULD HAVE TO BE LOADED END TO END IN THE LENGTH OF THE TRUCK. ALSO, THE FOUR GENERATORS LOADED END TO END, WITHOUT ALLOWING FOR THE SPACE NECESSARY FOR THE CHOCKING OR BRACING, IF ANY, WOULD TAKE 30 FEET 8 INCHES OF THE 35-FOOT TRUCK. THUS, IT SEEMS EVIDENT THAT NO MORE OF SUCH GENERATORS COULD BE LOADED IN THE TRUCK.

THE CARRIER IN THE CURTIS LIGHTING CASE, 303 I.C.C. 576, AFTER POINTING OUT THAT THE DEFINITION IN THE TARIFF THERE INVOLVED OF THE WORDS "LOADED TO CAPACITY" REFERRED TO "THAT QUANTITY OF FREIGHT, WHICH IN THE MANNER LOADED SO FILLS A STANDARD TRUCK THAT NO MORE OF THE SHIPMENT IN THE FORM TENDERED CAN BE LOADED ON THE TRUCK" MAINTAINED THAT POSSIBLY IT COULD HAVE LOADED OTHER FREIGHT IN THE VEHICLE. THE COMMISSION, ON SUCH POINT, MADE THE FOLLOWING RULING "IT IS UNDUE SPECULATION AND NOT IN KEEPING WITH NORMAL TRUCKLOAD OPERATING PRACTICES TO SUGGEST THAT ADDITIONAL FREIGHT IN SMALLER UNITS MIGHT POSSIBLY HAVE BEEN LOADED INTO THE TRAILER.' IT WENT ON TO STATE," 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.'

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). (303 I.C.C. 578) ( ITALICS AND PARENTHETICAL WORDS SUPPLIED.)

THE DEFINITION USED BY THE COMMISSION AS TO THE TERM "LOADED TO CAPACITY" IS SIMILAR TO THAT USED IN TARIFFS PUBLISHED BY VARIOUS REGIONAL MOTOR CARRIER ASSOCIATIONS AND SEEMS GENERALLY TO BE THAT USED AND ACCEPTED IN THE TRANSPORTATION INDUSTRY. ALSO, IT IS NOTED THAT ITEM 7025 B IN SUPPLEMENT 167 TO SOUTHERN MOTOR CARRIERS RATE CONFERENCE, AGENT'S TARIFF NO. 504, MF-1ICC NO. 614, THE TARIFF HERE INVOLVED, WHILE APPARENTLY LIMITED BY NOTES C AND D TO CERTAIN CARRIERS PARTIES TO THE TARIFF OTHER THAN YOUR CORPORATION, DEFINES THE TERM " LOADED TO CAPACITY" OR " CAPACITY LOAD" AS

(3) THE TERMS " LOADED TO CAPACITY" OR " CAPACITY LOAD" REFER TO THE EXTENT TO WHICH A VEHICLE IS LOADED WITH FREIGHT, EACH TERM MEANING THAT QUANTITY OF FREIGHT, WHICH, WHEN LOADED IN OR ON A VEHICLE WEIGHS NOT LESS THAN THE VOLUME MINIMUM WEIGHT APPLICABLE TO A SHIPMENT OF SUCH FREIGHT, OR THAT QUANTITY OF FREIGHT WHICH, IN THE MANNER LOADED, SO FILLS A VEHICLE THAT NO MORE OF THE SHIPMENT IN THE SHIPPING FORM TENDERED CAN BE LOADED IN OR ON THE VEHICLE. ( ITALICS SUPPLIED.)

CONSEQUENTLY, IT APPEARS THAT HERE, AS IN THE CURTIS LIGHTING CASE, 303 I.C.C. 576, AT 578, IT IS IMMATERIAL WHETHER ADDITIONAL FREIGHT IN SMALLER UNITS MIGHT POSSIBLY HAVE BEEN LOADED INTO THE TRAILER. IN CASES OF TRUCKLOAD SHIPMENTS IT SEEMS TO BE ASSUMED THAT THE CARRIER WILL ROUTE THE VEHICLE DIRECTLY THROUGH TO DESTINATION WITHOUT STOPS TO SHIFT OR ADD FREIGHT, AS MIGHT WELL BE THE CASE IF THE SHIPMENT WERE LESS-THAN- TRUCKLOAD AND EXCLUSIVE USE WAS NOT REQUESTED. THE HOLDING OF THE COMMISSION IN THE CURTIS LIGHTING CASE, SUPRA, APPEARS APPLICABLE TO THE FACTS IN THE PRESENT CASE, AND EVEN THOUGH EXCLUSIVE USE OF THE VEHICLE WAS REQUESTED BY THE ADMINISTRATIVE OFFICE, AND THE SHIPPING DOCUMENTS WERE ANNOTATED IN SUBSTANTIAL COMPLIANCE WITH THE TARIFF REQUIREMENTS, EXCLUSIVE-USE SERVICE WAS NOT PERFORMED SINCE THE VEHICLE WAS LOADED TO CAPACITY. CONSEQUENTLY, PREMIUM CHARGES FOR EXCLUSIVE USE ARE NOT APPLICABLE.

IN ADDITION YOU STATE:

WE ARE IN A MUCH MORE ADVANTAGEOUS POSITION TO DETERMINE WHETHER OR NOT A UNIT IS LOADED TO FULL VISIBLE CAPACITY, AND MR. COOPER'S REFERENCE TO "NO MORE OF THE SAME COMMODITY SHIPPED COULD HAVE BEEN LOADED" IS PRESUMPTION, UNSUPPORTED BY THE INFORMATION HE ALLOWED US.

HOWEVER, THE ADMINISTRATIVE OFFICE REPORTED THAT THE VEHICLE WAS LOADED TO FULL CAPACITY, AND THE DIMENSIONS OF THE ARTICLES, AS ALSO REPORTED, TEND AS SHOWN ABOVE TO SUPPORT THAT REPORT. IN ANY CASE INVOLVING A DISPUTE OVER QUESTIONS OF FACT BETWEEN THE ADMINISTRATIVE OFFICE AND THE CLAIMANT, IT IS THE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT THE STATEMENT OF FACTS FURNISHED BY THE ADMINISTRATIVE OFFICE, IN THE ABSENCE OF EVIDENCE CLEARLY REQUIRING A CONTRARY CONCLUSION. 36 COMP. GEN. 529, 530. SUCH EVIDENCE HAS NOT BEEN FURNISHED IN THIS CASE.

ACCORDINGLY, THE STATEMENT OF OVERCHARGE AND THE REJECTION BY OUR TRANSPORTATION DIVISION OF YOUR PROTEST ARE SUSTAINED. THE AMOUNT OF THE OVERCHARGE SHOULD BE REFUNDED PROMPTLY TO AVOID COLLECTION BY OTHER MEANS.