B-154186, SEP. 23, 1964

B-154186, SEP. 23, 1964

TO MCLEAN TRUCKING COMPANY:

REFERENCE IS MADE TO YOUR LETTERS OF MAY 8 AND JULY 24, 1964, REQUESTING A REVIEW OF THE SETTLEMENTS WHICH DISALLOWED YOUR CLAIMS FOR RECOVERY OF DEDUCTIONS MADE IN CONNECTION WITH EIGHT HAYES FREIGHT LINES BILLS FOR CHARGES ON SHIPMENTS OF LESS-THAN-TRUCKLOAD LOTS OF CLASS A AND B EXPLOSIVES ORIGINATING AT POINTS NAMED IN ROCKY MOUNTAIN MOTOR TARIFF BUREAU TRANSCONTINENTAL TERRITORIAL DIRECTORY NO. 20-C, MF-I.C.C. NO. 123.

EACH OF THE SHIPMENTS IN QUESTION MOVED VIA ROUTES OVER WHICH NO JOINT SINGLE-FACTOR THROUGH RATES WERE APPLICABLE. THERE IS NO DISPUTE AS TO THE FACT THAT THE LOWEST APPLICABLE CHARGE BASIS IS A COMBINATION OF RATES TO AND FROM MEMPHIS, TENNESSEE.

THE PRESENT CONTROVERSY CONCERNS THE WEIGHT FACTOR TO BE USED IN COMPUTING THE FREIGHT CHARGES FROM THE POINTS OF ORIGIN TO MEMPHIS, TENNESSEE. IN EACH INSTANCE WE COMPUTED THE CHARGES TO MEMPHIS ON THE BASIS OF THE DOUBLE-FIRST CLASS, OR CLASS 200, RATE, AT THE ACTUAL WEIGHT OF THE SHIPMENT, OR 1,000 POUNDS, WHICHEVER WAS GREATER. IT IS YOUR POSITION, HOWEVER, THAT THE CHARGES TO MEMPHIS MUST BE COMPUTED AT A MINIMUM WEIGHT OF 7,500 POUNDS, WHICH IS GREATER THAN THE ACTUAL WEIGHT OF THE SHIPMENTS.

OUR TARIFF AUTHORITY FOR USING THE ACTUAL WEIGHT OR 1,000 POUNDS, WHICHEVER IS GREATER, IN COMPUTING THE CHARGES TO MEMPHIS IS NOTE 1 IN ITEM 932 OF ROCKY MOUNTAIN TARIFF 20-SERIES. THE NOTE PROVIDES THAT TRAFFIC WHICH MOVES FROM ORIGIN TO DESTINATION VIA THE ROUTES OF CARRIERS NAMED IN THE NOTE WILL BE SUBJECT TO A MINIMUM CHARGE OF 1,000 POUNDS AT THE APPLICABLE RATE ON THE ARTICLE SHIPPED.

YOU CONTEND THAT MEMPHIS IS NOT THE DESTINATION OF THE SHIPMENTS. FOR THAT REASON YOU MAINTAIN THAT NOTE 1 HAS NO APPLICATION TO THE SHIPMENTS HERE INVOLVED, AND THE 7,500 POUND MINIMUM WEIGHT FACTOR, AS SHOWN IN THE FIRST PARAGRAPH OF ITEM 932, IS APPLICABLE. WITH YOUR LETTER OF MAY 8, 1964, YOU FURNISH COPIES OF LETTERS FROM AN ATTORNEY AND FROM THE ASSISTANT DIRECTOR OF THE BUREAU OF TRAFFIC, INTERSTATE COMMERCE COMMISSION.

WE HAVE STUDIED THE AUTHORITIES YOU FURNISH IN SUPPORT OF YOUR POSITION, AND WOULD EMPHASIZE THE POINT THAT THESE SHIPMENTS MOVED ON A COMBINATION OF RATES OVER MEMPHIS, NOT AN AGGREGATE OF INTERMEDIATE RATES USED IN LIEU OF A HIGHER JOINT SINGLE-FACTOR THROUGH RATE. THE TARIFF NAMING THE RATE TO MEMPHIS HAS NO APPLICATION TO THE MOVEMENT BEYOND MEMPHIS, AND THE WORD "DESTINATION," AS USED IN NOTE 1 OF ITEM 932, HAS MEANING ONLY INSOFAR AS THE TARIFF HAS APPLICATION. IN OTHER WORDS, MEMPHIS, TENNESSEE, IS THE DESTINATION WITHIN THE MEANING OF THAT ITEM.

IN SWIFT AND COMPANY V. ALTON RAILROAD COMPANY, 268 I.C.C. 103 (1946), THE INTERSTATE COMMERCE COMMISSION STATED AT PAGE 106:

"UNDER ESTABLISHED RULES OF TARIFF CONSTRUCTION, A COMBINATION RATE CANNOT BE APPLIED UNDER SECTION 6 (7) OF THE ACT ON THROUGH TRAFFIC EXCEPT (A) IN THE ABSENCE OF A JOINT RATE, OR (B) IN SITUATIONS WHERE THE TARIFF BY AN ALTERNATIVE RULE AUTHORIZES THE ALTERNATIVE USE OF THE COMBINATION RATE. IN EITHER CASE, HOWEVER, THE SEPARATE FACTORS OF SUCH A COMBINATION ARE APPLIED ON THROUGH TRAFFIC UNDER TARIFF PROVISIONS CONTAINED IN THE SEPARATE TARIFFS IN WHICH SUCH FACTORS ARE PUBLISHED; THE APPLICATION OF THE COMBINATION RATE IS LIMITED STRICTLY TO THE ROUTES AUTHORIZED IN CONNECTION WITH THE SEPARATE RATE FACTORS; AND THERE IS NO AGREEMENT BETWEEN THE CARRIERS PARTIES TO THE THROUGH ROUTE THAT THE COMBINATION RATE WILL HAVE ANY DIFFERENT OR BROADER APPLICATION THAN IS AUTHORIZED IN THE TARIFFS CONTAINING THE SEPARATE FACTORS.'

WHILE THE AFORESAID STATEMENT WAS MADE IN CONNECTION WITH SECTION 6 (7) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 6 (7), IT APPLIES WITH EQUAL FORCE TO SITUATIONS UNDER SECTION 217 (B) OF THE ACT, 49 U.S.C. 317 (B). THE ENCLOSED COPY OF OUR DECISION, B-152324, DATED APRIL 21, 1964, TO THE M.R. AND R. TRUCKING COMPANY, CRESTVIEW, FLORIDA, MORE FULLY EXPLAINS OUR POSITION AS TO THE SIGNIFICANCE OF NOTE 1, ITEM 932 OF ROCKY MOUNTAIN TARIFF NO. 20-SERIES.

FOR THE REASONS STATED HEREIN AND IN B-152324, WE SUSTAIN THE SETTLEMENT ACTION WHICH DISALLOWED YOUR CLAIMS FOR TRANSPORTATION CHARGES COMPUTED ON A MINIMUM WEIGHT BASIS OF 7,500 POUNDS IN THE FACTOR APPLICABLE FROM THE POINTS OF ORIGIN TO MEMPHIS, TENNESSEE.