B-147214, MAR. 8, 1962

B-147214, MAR. 8, 1962

TO MID-CONTINENT FREIGHT LINES, INC.:

IN YOUR TWO LETTERS DATED SEPTEMBER 12, 1961, YOUR CLAIMS NOS. 159 50 AND 1159-56, YOU, IN EFFECT, REQUEST REVIEW OF THE DISALLOWANCE OF YOUR CLAIM FOR $931.09 ON BILL NO. 159-50 AND OF THE DEDUCTION OF$4,740.46 IN CONNECTION WITH YOUR BILL NO. 1159-56.

SINCE NO PREVIOUS CLAIM FOR REFUND OF THE DEDUCTION IN CONNECTION WITH YOUR BILL NO. 1159-56 HAS BEEN FILED WITH OUR TRANSPORTATION DIVISION, THAT CLAIM IS BEING CONSIDERED BY OUR TRANSPORTATION DIVISION AND YOU WILL BE ADVISED BY THAT DIVISION OF THE SETTLEMENT ACTION TAKEN IN DUE COURSE.

YOUR CLAIM ON BILL NO. 159-50 FOR ADDITIONAL CHARGES ON A SHIPMENT OF GOVERNMENT PROPERTY TRANSPORTED FROM TINKER AIR FORCE BASE, MIDWEST CITY, OKLAHOMA, TO MILWAUKEE, WISCONSIN, UNDER GOVERNMENT BILL OF LADING NO. 7673735, DATED DECEMBER 4, 1957, WAS DISALLOWED BY OUR SETTLEMENT OF JUNE 12, 1961. IN DISALLOWING YOUR CLAIM WE RELIED UPON CURTIS LIGHTING, INC. V. UNITED STATES, 303 I.C.C. 576, IN WHICH THE COMMISSION HELD THAT CHARGES FOR EXCLUSIVE USE OF A VEHICLE ARE NOT APPLICABLE WHEN THE VEHICLE IS LOADED TO CAPACITY, SINCE EXCLUSIVE USE IS DESIGNED TO ACCORD TRUCKLOAD SERVICE TO LESS-THAN-TRUCKLOAD SHIPMENTS, AND THE SHIPPER DERIVES NO BENEFIT FROM EXCLUSIVE USE ONCE THE VEHICLE IS LOADED TO CAPACITY.

IN YOUR REQUEST FOR REVIEW, HOWEVER, YOU STATE:

"A COPY OF A LETTER DATED APRIL 5, 1961 FROM AC SPARK PLUG IS ATTACHED, WHICH CONFIRMS THAT THE FIRST TRAILER WAS FULLY LOADED, BUT THE SECOND WAS NOT, AND THAT CONSEQUENTLY WE ARE BEING REQUIRED TO REFUND CHARGES ON THE LATTER WITHOUT HAVING ANY CONTROL OVER IT.

"THE OPERATING CONDITIONS OF LOADING ADDED TRAFFIC TO THE 2ND UNIT WAS DENIED US, AND ACCORDINGLY PROTECTING OUR REVENUE AS THE TARIFFS ARE INTENDED TO PROVIDE. UNDER THESE CONDITIONS WE FEEL THAT AN ADJUSTMENT IS IN ORDER AS OUTLINED, AND WE WOULD APPRECIATE YOUR EARLY CONCLUSION OF THIS OLD FILE.'

THE LETTER OF APRIL 5, 1961, FROM AC SPARK PLUG CONTAINS THE STATEMENT, WITH REFERENCE TO BILL OF LADING NO. AF-7673735:

"I AM ENCLOSING A COPY OF YOUR PRO 1-6500 COVERED BY AF 7673735 WHICH INDICATED THAT YOU USED TWO TRUCKS ON THIS GOVERNMENT BILL OF LADING, AND IN BOTH CASES, EXCLUSIVE USE OF THE TRAILER WAS REQUESTED BY THE TRANSPORTATION OFFICER AT TINKER AIR FORCE BASE. ALSO, THESE TRAILERS WERE SEALED BY THE SHIPPER. THIS WOULD INDICATE THAT THE TRAILER COULD NOT BE USED BY YOUR COMPANY TO LOAD ANY ADDITIONAL FREIGHT. HOWEVER, YOU WILL NOTE THAT TRAILER NO. 617 WAS LOADED WITH 17,491 POUNDS AND TRAILER NO. 811 HAD ONLY 7,447 POUNDS. IF TRAILER NO. 811 WAS SEALED BY THE SHIPPER, YOU WERE OBLIGATED NOT TO BREAK THE SEAL AND LOAD WITH ADDITIONAL FREIGHT.'

SINCE THE FIRST VEHICLE, ADMITTEDLY, WAS LOADED TO CAPACITY IT IS SUBJECT TO THE DOCTRINE OF THE CURTIS LIGHTING CASE, SUPRA, AND THE CHARGES ARE PROPERLY COMPUTED ON THE BASIS OF TRUCKLOAD RATES AND ACTUAL WEIGHT. CONCERNING THE SECOND TRUCK, HOWEVER, THE EVIDENCE NOW IN THE RECORD INDICATES THAT EXCLUSIVE-USE SERVICE WAS REQUESTED BY THE SHIPPER AND NOTED ON THE FACE OF THE BILL OF LADING IN SUBSTANTIAL COMPLIANCE WITH THE TARIFF REQUIREMENT. THE SECOND VEHICLE, APPARENTLY WAS NOT LOADED TO CAPACITY BUT WAS SEALED BY THE SHIPPER AT ORIGIN, WITH INSTRUCTIONS NOTED ON THE BILL OF LADING THAT THE SEALS WERE NOT TO BE BROKEN, AND THERE IS NO INDICATION THAT THE SEALS WERE NOT INTACT UPON ARRIVAL AT DESTINATION. UNDER THESE CIRCUMSTANCES, IT APPEARS THAT CHARGES FOR EXCLUSIVE USE ARE PROPERLY APPLICABLE TO THE SECOND VEHICLE.

ACCORDINGLY, YOUR CLAIM IS BEING RETURNED TO OUR TRANSPORTATION DIVISION FOR FURTHER CONSIDERATION IN ACCORDANCE WITH THE SITUATION OUTLINED ABOVE.