B-153745, OCT. 8, 1964

B-153745, OCT. 8, 1964

TO MR. RUSSELL R. SAGE:

REFERENCE IS MADE TO YOUR LETTERS OF MARCH 16 AND OCTOBER 1, 1964, IN WHICH REQUEST IS MADE IN BEHALF OF YOUR CLIENT, ROADWAY EXPRESS, INC., FOR A REVIEW OF THE SETTLEMENT WHICH DISALLOWED THAT CARRIER'S CLAIM FOR $1,331.55 IN ADDITIONAL FREIGHT CHARGES FOR THE TRANSPORTATION SERVICES RENDERED IN TOWING U.S. NAVY TRAILER NO. 97 03531 FROM MERCURY, NEVADA, TO SILVER SPRING, MARYLAND. WITH YOUR LETTER OF MARCH 16, 1964, YOU ENCLOSED A SUPPLEMENTAL (BALANCE DUE) BILL FOR $1,528.15.

THE RECORD SHOWS THAT THE TRAILER WAS TENDERED FOR SHIPMENT ON OCTOBER 20, 1960, TO PACIFIC INTERMOUNTAIN EXPRESS CO., ON UNIFORM STRAIGHT BILL OF LADING MARKED "/TO BE CONVERTED TO GOVERNMENT BILL OF LADING AT DESTINATION.)" AND LATER SO CONVERTED TO GOVERNMENT BILL OF LADING A- 1169981. THE SHIPMENT MOVED VIA THAT CARRIER TO ST. LOUIS, MISSOURI, AND THENCE VIA ROADWAY EXPRESS, INC., TO FINAL DESTINATION. FOR THE SERVICES PERFORMED, THE LATTER CARRIER BILLED AND WAS PAID $2,545.40, WHICH APPARENTLY WAS COMPUTED AT THE RATE PROVIDED FOR EXCLUSIVE USE SERVICE IN ITEM 940 OF ROCKY MOUNTAIN MOTOR TARIFF 21-B, MF-I.C.C. 117, AND THE ARBITRARIES PROVIDED IN ROCKY MOUNTAIN MOTOR TARIFF 27-D, MF-I.C.C. 116. NO REQUEST FOR EXCLUSIVE USE OF VEHICLE WAS MADE BY THE SHIPPER AND IN OUR AUDIT OF THE CHARGES ASSESSED, A NOTICE OF OVERCHARGE WAS ISSUED REQUESTING A REFUND OF $1,331.55, BASED ON NATIONAL AUTOMOBILE TRANSPORTERS ASSOCIATION TARIFF 82-E, MF I.C.C. 375, AND UPON THE FAILURE OF THE BILLING CARRIER TO REFUND, THE AMOUNT WAS DEDUCTED AS AUTHORIZED BY 49 U.S.C. 66 FROM OTHER MONIES PAYABLE TO THE CARRIER. A RECLAIM OF THAT AMOUNT WAS DISALLOWED BY OUR SETTLEMENT DATED OCTOBER 10, 1963.

THE CARRIER IN ADDITION TO THE NET AMOUNT OF $1,213.85 RECEIVED ($2,545.40 LESS DEDUCTION OF $1,331.55) NOW CLAIMS ON ITS BALANCE DUE BILL $1,528.15 BASED ON THE SECOND CLASS RATING PROVIDED BY ITEM147850, NATIONAL MOTOR FREIGHT CLASSIFICATION A-5, MF-I.C.C. 3, AND ROCKY MOUNTAIN MOTOR TARIFF 21-B, MF-I.C.C. 117. HOWEVER, CLAIM FOR ANY AMOUNT IN EXCESS OF THE AMOUNT DEDUCTED ($1,331.55) AS THE RESULT OF OUR AUDIT ACTION IS BARRED BY PUBLIC LAW 85-762, 72 STAT. 860, 49 U.S.C. 66, AS AMENDED, SINCE MORE THAN THREE YEARS ELAPSED BETWEEN THE DATE OF ORIGINAL PAYMENT ON JANUARY 23, 1961, AND THE TIME WHEN THE BALANCE DUE BILL WAS RECEIVED HERE ON MARCH 17, 1964.

WITH YOUR REQUEST FOR REVIEW OF THIS DISALLOWANCE, YOU ENCLOSE A COPY OF LETTER DATED FEBRUARY 13, 1964, WHEREIN AN OFFICIAL OF THE INTERSTATE COMMERCE COMMISSION EXPRESSES THE INFORMAL VIEW THAT THE RATINGS IN NATIONAL MOTOR FREIGHT CLASSIFICATION A-5, MF-I.C.C. 3, WOULD HAVE APPLICATION WHERE THE CARRIER, HAVING PROPER OPERATING AUTHORITY, PERFORMS SO-CALLED TOW-AWAY SERVICE (FURNISHES THE TRACTOR AND DRIVER), IN THE ABSENCE OF PROVISIONS IN THE RATE TARIFFS WHICH PRECLUDE SUCH APPLICATION.

WE NOTE, HOWEVER, THAT THE RATINGS PROVIDED BY ITEMS 147850 AND 148180 OF THE CLASSIFICATION ARE BASED ON VOLUME MINIMUM WEIGHTS. WE ALSO NOTE THAT IN RATES AND RULES--- BARBOUR TRANSP. CO., INC., 34 M.C.C. 87, AT PAGE 90, THE COMMISSION DEFINED A TRUCKLOAD AS THE TRANSPORTATION OF A LOAD OF FREIGHT TO THE CAPACITY OF THE CARRIER'S VEHICLE. UNDER THE RULES AND REGULATIONS OF SECTION 5 (ITEMS 670 AND 675) OF ROCKY MOUNTAIN MOTOR TARIFF 21-B, IT IS PROVIDED THAT FOR SHIPMENTS MOVING UNDER VOLUME OR TRUCKLOAD RATES THE CARRIER WILL FURNISH A VEHICLE AND THAT THE CHARGE WILL BE BASED ON THE ACTUAL WEIGHT LOADED INTO SUCH VEHICLES. THIS PROVISION THUS LIMITS THE APPLICATION OF THE VOLUME OR TRUCKLOAD RATES IN THAT TARIFF TO SHIPMENTS WHICH ARE CARRIED ON THE CARRIER'S VEHICLE AND SUCH RATES THEREIN ARE PREDICATED ON SUCH CARRIAGE. THE SHIPMENT IN CONTROVERSY WAS MOVED IN TOW-AWAY SERVICE AND WAS NOT CARRIED IN SUCH VEHICLE. THUS THE VOLUME AND TRUCKLOAD RATES NAMED IN THE TARIFF DO NOT APPEAR TO BE FOR APPLICATION.

ATTENTION ALSO IS INVITED TO INTERSTATE VAN SERVICE, INC., EXTENSION - TRAILERS AND PASSENGERS, 62 M.C.C. 325, PAGE 330, WHERE THE INTERSTATE COMMERCE COMMISSION FOUND THAT SIMILAR ARTICLES WERE WITHIN THE COMMODITY DESCRIPTION "TRAILERS" WHEN MOVED IN TRUCK-AWAY SERVICE. SEE, ALSO, AUTOMOBILES FROM WISCONSIN TO MINNESOTA, 246 I.C.C. 114, 115, WHERE THE COMMISSION STATED THAT DRIVE-AWAY OR SO CALLED TOW-BAR SERVICE WAS THE CHEAPEST FORM OF MOTOR-CARRIER COMPETITION, AND THE LEAST DESIRABLE SINCE MANY PERSONS OBJECT TO RECEIVING A NEW CAR WHICH HAS BEEN DRIVEN OR TOWED ANY SUBSTANTIAL DISTANCE.

THUS THE RATE SOUGHT DOES NOT APPEAR TO BE APPLICABLE NOR DO THE CARRIERS APPEAR TO HAVE ANY PUBLISHED RATES APPLICABLE TO THE TOW-AWAY SERVICE RENDERED. IN CIRCUMSTANCES OF THIS KIND, 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 THE PROPER CHARGE. IN THIS CONNECTION SEE MAPLE ISLAND FARMS, INC. V. CHICAGO, B. AND Q. R. CO., 280 I.C.C. 353, 356; CHARLES A. GREEN AND SONS, INC. V. PENNSYLVANIA R. CO. ID. 357, 360; 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, CERTIORARI DENIED 350 U.S. 822, THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT, HELD THAT BY EXECUTION OF THE PAYEE'S CERTIFICATE ON THE FACE OF THE PUBLIC VOUCHER FORM 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 CLIENT ON THE VOUCHER ON WHICH THE BILL OF LADING IN QUESTION WAS PAID.

THE RATE EMPLOYED BY OUR TRANSPORTATION DIVISION IN COMPUTING THE OVERCHARGE ON THIS SHIPMENT IS PUBLISHED IN NATIONAL AUTOMOBILE TRANSPORTERS ASSOCIATION TARIFF 83-E, MF-I.C.C. 375, FOR ACCOUNT OF NATIONAL TRAILER CONVEY, INC. RE-EXAMINATION OF THE SETTLEMENT BASIS, HOWEVER, CONFIRMS YOUR STATEMENT THAT INCORRECT MILEAGE WAS USED IN DETERMINING THE CHARGES UNDER THIS TARIFF. WE ARE INSTRUCTING OUR TRANSPORTATION DIVISION TO RECOMPUTE THE CHARGES BASED ON THE CORRECT MILEAGE AND TO ISSUE A REVISED SETTLEMENT IN THE ADDITIONAL AMOUNT DUE YOUR CLIENT FOR TOW-AWAY SERVICE UNDER THE RATE IN THE ABOVE TARIFF. CERTIFICATE OF SETTLEMENT ALLOWING SUCH AMOUNT AND PAYMENT THEREOF SHOULD BE RECEIVED IN DUE COURSE.