B-146648, JAN. 29, 1962

TO NAVAJO FREIGHT LINES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 7, 1961, ACKNOWLEDGED AUGUST 17, IN WHICH YOU REQUEST REVIEW OF THE DISALLOWANCE OF YOUR CLAIM, GO 802, BILL NO. 573-2209-A, FOR $512.80 AS A PART OF THE CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF THREE BOXES OF AIRPLANE PARTS, FROM WARNER ROBINS, GEORGIA, TO ALBUQUERQUE, NEW MEXICO, UNDER BILL OF LADING NO. AF- 8191466, DATED FEBRUARY 5, 1959.

YOU CLAIMED ORIGINALLY FOR THIS TRANSPORTATION AND WERE PAID $1,153.80 COMPUTED ON THE BASIS OF THE CLASS 100 RATE OF $6.41 PER 100 POUNDS AND A MINIMUM TRUCKLOAD WEIGHT OF 18,000 POUNDS, THAT BEING THE MINIMUM CHARGE PRESCRIBED FOR EXCLUSIVE USE OF VEHICLE SERVICE UNDER ITEM 10020-D OF SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 505 A, MF-I.C.C. NO. 843. SINCE THE BILL OF LADING SHOWED THAT THE VEHICLE WAS LOADED TO FULL CAPACITY, THE APPLICABLE CHARGES WERE DETERMINED TO BE $641, COMPUTED ON THE BASIS OF THE CLASS 100 RATE OF $6.41 PER 100 POUNDS AND THE TRUCKLOAD MINIMUM WEIGHT OF 10,000 POUNDS. THE RESULTING OVERPAYMENT OF $512.80 WAS RECOVERED BY DEDUCTION IN MAKING PAYMENT OF AMOUNTS OTHERWISE DUE YOU. SEE 49 U.S.C. 66. THEREAFTER, YOU RECLAIMED THE AMOUNT SO DEDUCTED AND THIS CLAIM WAS DISALLOWED CITING CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576.

IN YOUR REQUEST FOR REVIEW YOU URGE THAT THE CURTIS LIGHTING CASE HAS NO BEARING UPON THE CHARGES FOR THIS TRANSPORTATION, AND DENY THAT THE TRAILER WAS LOADED TO CAPACITY.

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).'

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 7029-B IN SUPPLEMENT 43 TO SOUTHERN MOTOR CARRIERS RATE CONFERENCE, AGENT'S TARIFF NO. 505-A, MF-I.C.C. NO. 843, 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

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

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.

AS TO WHETHER THE TRUCK WAS FULLY LOADED, THE BILL OF LADING ITSELF BEARS THE NOTATION "LOADED TO FULL CAPACITY," AND THE ADMINISTRATIVE OFFICE REPORTED THAT THE VEHICLE WAS LOADED TO FULL CAPACITY IN THAT MORE OF THE SAME COMMODITIES COULD NOT HAVE BEEN LOADED THEREON. ALSO, IT REPORTED THE DIMENSIONS OF THE BOXES SHIPPED WERE AS FOLLOWS: "2 BOXES--- 200 INCHES L TIMES 37 INCHES W TIMES 73 INCHES H EACH; 1 BOX 345 INCHES L TIMES 18 INCHES W TIMES 60 INCHES H" AND THAT "AN IDENTICAL ITEM COULD NOT HAVE BEEN LOADED.' THE DIMENSIONS OF THE ARTICLES, AS THUS REPORTED, SUPPORT THE REPORT THAT THE TRUCK WAS FULLY LOADED. 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 DISALLOWANCE OF YOUR SUPPLEMENTAL BILL IS SUSTAINED.