B-144738, APR. 20, 1961

B-144738, APR. 20, 1961

TO SMITH'S TRANSFER CORPORATION OF STAUNTON, VIRGINIA:

BY LETTER OF DECEMBER 21, 1960, ACKNOWLEDGED JANUARY 6, 1961,YOU, IN EFFECT, REQUEST REVIEW OF OUR DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES OF $16.38 ALLEGED TO BE DUE FOR THE TRANSPORTATION OF EIGHT PACKAGES OF GOVERNMENT-OWNED EXPOSITION EXHIBIT MATERIAL, WEIGHING 2,481 POUNDS, FROM BLACKSBURG TO ARLINGTON, VIRGINIA, UNDER COMMERCIAL BILL OF LADING CONVERTED AT DESTINATION TO GOVERNMENT BILL OF LADING NO. N -33032911, DATED APRIL 30, 1959.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID FREIGHT CHARGES IN THE AMOUNT OF $65 COMPUTED AT A RATE OF $2.62 PER 100 POUNDS ON THE ACTUAL WEIGHT. THEREAFTER, YOU SUBMITTED YOUR SUPPLEMENTAL BILL NO. A-722603 FOR THE ADDITIONAL CHARGES OF $16.38 COMPUTED ON THE BASIS OF A RATE OF $3.28, SHOWING THE FOLLOWING CITATION AS AUTHORITY AND EXPLANATION FOR THE RATE: "CHANGE RATE: ITEM 35560, NMFC, A-4, CLASS 125.' YOUR CLAIM WAS DISALLOWED FOR THE REASON AS SET FORTH IN OUR SETTLEMENT CERTIFICATE OF DECEMBER 14, 1960, THAT OUR TRANSPORTATION DIVISION DETERMINED THE PROPER CHARGE TO BE ONE COMPUTED AT A CLASS 125 L.T.L. RATE OF $2.49 PER 100 POUNDS ON THE ACTUAL WEIGHT AS PROVIDED IN ITEM 35560, NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4, MF-I.C.C.NO. 1, AND IN SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 93-C, MF-I.C.C.NO. 7.

IN YOUR REQUEST FOR REVIEW YOU ALLEGE THAT YOU ARE NOT A PARTY TO SMCRC NO. 93-C USED IN OUR SETTLEMENT, AND THAT RATE BASE 92 IN MIDDLE ATLANTIC CONFERENCE FREIGHT TARIFF NO. 7-G, MF-I.C.C.NO. 7, UPON WHICH YOUR CLAIM FOR ADDITIONAL CHARGES IS BASED, IS APPLICABLE TO THIS SHIPMENT. UPON REVIEW OF YOUR CLAIM WE FIND THAT SMITH'S TRANSFER CORPORATION OF STAUNTON, VIRGINIA, IS SHOWN AS A PARTICIPATING CARRIER IN SMCRC NO. 93-C, BUT NOT IN THE RATES EFFECTIVE EITHER TO CHRISTIANSBURY, VIRGINIA, THE RATE BASING POINT FOR BLACKSBURG, OR TO ALEXANDRIA, VIRGINIA, THE RATE BASING POINT FOR ARLINGTON. ACCORDINGLY, IT APPEARS THAT YOU WERE NOT A PARTY TO THE RATES PROVIDED IN SMCRC 93-C FOR THE TYPE OF TRAFFIC INVOLVED IN THIS CASE. HOWEVER, EXAMINATION OF MIDDLE ATLANTIC CONFERENCE TARIFF NO. 7-G, URGED BY YOU AS APPLICABLE, LIKEWISE SHOWS THAT TARIFF TO BE INAPPLICABLE FOR THE INTRASTATE TRAFFIC INVOLVED SINCE RULE 7 ON PAGE 23, COVERING "NON APPLICATION OF RATES ON INTRASTATE TRAFFIC," PROVIDES:

"WITH THE EXCEPTION OF RATES ON INTRASTATE TRAFFIC BETWEEN POINTS IN THE STATE OF MARYLAND FOR ACCOUNT OF CARRIERS NAMED AS MARYLAND INTRASTATE PARTICIPANTS IN PARTICIPATING CARRIER TARIFF NO. 31-L, MF P.S.C-MD.NO. A- 69, THIS TARIFF IS APPLICABLE ONLY ON INTERSTATE TRAFFIC AND HAS NO APPLICATION TO TRAFFIC HAVING ORIGIN, DESTINATION AND ENTIRE TRANSPORTATION WITHIN ONE STATE.'

CONSEQUENTLY, IT DOES NOT APPEAR THAT THERE IS ANY RATE PUBLISHED BY OR FOR SMITH'S TRANSFER CORPORATION FOR THE SERVICE PERFORMED.

UNDER THESE CIRCUMSTANCES IT IS THE ESTABLISHED POLICY OF OUR OFFICE TO USE THE RATES OF OTHER DULY AUTHORIZED CARRIERS FOR THE SAME OR SIMILAR SERVICE--- THE USUAL OR GOING RATE--- AS THE MEASURE OF A PROPER CHARGE. IN THIS CONNECTION SEE CONRAD FAFARD, INC. V. CANADIAN NATIONAL RAILWAYS, 302 I.C.C. 163; MAPLE ISLAND FARMS, INC. V. CHICAGO, B. AND O.R., 280 I.C.C. 353; CHARLES A. GREEN AND SONS, INC. V. PENNSYLVANIA R.CO., ID. 357; LYNCHBURG FOUNDRY CO. V. ATCHISON, T. AND S.F.RY., 279 I.C.C. 171, 175; AND O.C. FIELD GASOLINE CORP. V. NEVADA N.RY., 258 I.C.C. 350, IN WHICH THE INTERSTATE COMMERCE COMMISSION HAS HELD THAT A COMPARISON WITH PRESCRIBED AND PREVAILING RATES ON LIKE TRAFFIC IN THE SAME GENERAL TERRITORY FROM AND TO POINTS SIMILARLY SITUATED IS THE BEST TEST OF THE PROPRIETY OF A RATE. ALSO IN R. E. SHUTT V. UNITED STATES, 218 F.2D 10, CERT. DENIED 350 U.S. 822, THE UNITED STATES COURT OF APPEALS HELD THAT BY EXECUTION OF THE PAYEE'S CERTIFICATE ON THE FACE OF THE PUBLIC VOUCHER FROM WHICH PROVIDES:

"I CERTIFY THAT THE ACCOUNT STATED HEREON, AS EVIDENCED BY THE ATTACHED SUBVOUCHERS, IS CORRECT AND JUST; THAT THE SERVICES HAVE BEEN RENDERED AS INDICATED: THAT PAYMENT HAS NOT BEEN RECEIVED; AND THAT THE RATES CHARGED ARE NOT IN EXCESS OF THE LOWEST NET RATES AVAILABLE FOR THE GOVERNMENT, BASED ON TARIFFS EFFECTIVE AT THE DATE OF SERVICE.'

THE CARRIER, WHO WAS NOT A PARTY TO ANY EFFECTIVE RATES OF ITS OWN, HAD ENTERED INTO AN AGREEMENT TO PROTECT THE LOWEST NET RATE PUBLISHED FOR THE SERVICE BY OTHER CARRIERS. SUCH A CERTIFICATE WAS EXECUTED BY YOUR CASHIER, RICHARD W. FISHER, ON THE VOUCHER EVIDENCING PAYMENT OF THE $65 CHARGE MADE BY YOUR COMPANY.

THE CLASS 125 L.T.L. RATE OF $2.49 PER 100 POUNDS USED BY OUR OFFICE IS THE RATE PUBLISHED BY OTHER CARRIERS FOR THIS SAME TRAFFIC, AND, ON THE BASIS OF THE RULES STATED ABOVE, IT APPEARS TO BE THE PROPER RATE IN THE PRESENT INSTANCE. COMPUTATION OF THE CHARGES ON THE BASIS OF THE RATE OF $2.49 PER 100 POUNDS FOR 2,481 POUNDS, RESULTS IN A FREIGHT CHARGE OF $61.78. SINCE YOU WERE ORIGINALLY PAID $65 IT APPEARS THAT YOU HAVE BEEN ALREADY OVERPAID $3.22. ACCORDINGLY, OUR DISALLOWANCE OF YOUR SUPPLEMENTAL CLAIM FOR $16.38, APPEARS TO BE CORRECT AND IS SUSTAINED.