B-159564, MAR. 8, 1967

B-159564, MAR. 8, 1967

TO NAVAJO FREIGHT LINES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 23, 1966, REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE OF JANUARY 10, 1966, WHICH DISALLOWED YOUR CLAIM 18446-0 (OUR CLAIM TK-818707) FOR $157.60 ADDITIONAL TRANSPORTATION CHARGES ON SUPPLEMENTAL BILL 2301-7274-A. WE ALSO HAVE YOUR LETTER OF DECEMBER 6, 1966, IN WHICH YOU ASK FOR PAYMENT OF YOUR CLAIM.

WE INDICATED IN OUR LETTER OF OCTOBER 20, 1966, THAT OUR TRANSPORTATION DIVISION WOULD RECOMPUTE THE CHARGES FOR THE INVOLVED SHIPMENT AND ALLOW THE ADDITIONAL AMOUNT CLAIMED, IF OTHERWISE PROPER. HOWEVER, UPON RECOMPUTATION OF THE CHARGES, THE ADDITIONAL AMOUNT CLAIMED IS FOUND NOT TO BE PROPERLY FOR ALLOWANCE.

THE RECORD SHOWS THAT THE SHIPMENT IN QUESTION INVOLVED THE CARRIAGE OF 1,350 POUNDS OF HIGH EXPLOSIVES AND 70 POUNDS OF ELECTRICAL INSTRUMENTS FROM AMARILLO, TEXAS, TO PORT CHICAGO, CALIFORNIA, UNDER GOVERNMENT BILL OF LADING A-5592916, DATED JUNE 19, 1964. THE BILL OF LADING BEARS THE NOTATIONS "SLANDC" AND "EXCLUSIVE USE OF MOTOR VEHICLE REQUESTED BY GOVERNMENT * * *," AND SHOWS THAT A 35-FOOT TRUCK WAS ORDERED AND A 40- FOOT TRUCK WAS FURNISHED. SEAL NUMBERS USNADA65ORD 26575 AND 26576, WERE APPLIED BY THE SHIPPER AND THERE IS NO SHOWING THAT THEY WERE NOT INTACT AT DESTINATION.

YOUR CLAIM RAISES THE QUESTION OF THE PROPER METHOD OF COMPUTING CHARGES FOR THE EXCLUSIVE USE OF VEHICLE AS PROVIDED IN PARAGRAPH 5 OF ITEM 940 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU TRANS-CONTINENTAL TERRITORIAL DIRECTORY 20-E, MF-I.C.C. 146. THE PERTINENT PART OF PARAGRAPH 5 READS AS FOLLOWS:

"* * * THE CHARGE WILL BE FOR THE ACTUAL WEIGHT OF THE SHIPMENT AT THE RATE APPLICABLE, OR AT THE MINIMUM WEIGHT PROVIDED FOR IN CONNECTION WITH THE APPLICABLE RATE, WHICHEVER IS GREATER, SUBJECT TO A MINIMUM CHARGE FOR EACH VEHICLE USED COMPUTED ON A WEIGHT OF 22,000 POUNDS AT THE CLASS 100 RATE * * *.'

YOU CONTEND THAT THE APPLICABLE CHARGES SHOULD BE BASED ON THE CLASS 100 RATE OF $7.88 PER 100 POUNDS AT A TRUCKLOAD MINIMUM WEIGHT OF 24,000 POUNDS. THOSE CHARGES ARE APPARENTLY DERIVED FROM SECTION 1 OF RULE 130, TITLED "MIXED VOLUME OR TRUCKLOAD SHIPMENTS," OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-7, MF-I.C.C. 5. IT IS OUR VIEW THAT THE MINIMUM CHARGE OF 22,000 POUNDS AT THE CLASS 100 RATE, PROVIDED FOR IN SECTION 5 OF ITEM 940, SHOULD BE ASSESSED SINCE IT EXCEEDS CHARGES DERIVED FROM SECTION 3 OF RULE 130 WHICH ALLOWS, IN COMPUTING THE CHARGES FOR A MIXED VOLUME OR TRUCKLOAD SHIPMENT, THE USE OF LESS THAN TRUCKLOAD RATES ON PART OF A MIXED TRUCKLOAD SHIPMENT.

IN DETERMINING WHETHER A SHIPMENT IS A TRUCKLOAD SHIPMENT, THE CIRCUMSTANCES SURROUNDING THE SHIPMENT MUST BE CONSIDERED AND WEIGHT ALONE IS NOT CONCLUSIVE IN DETERMINING WHAT CONSTITUTES A TRUCKLOAD. SEE MILNE TRUCK LINE, INC.---INVESTIGATION OF COLLECTION OF TARIFF RATES, 325 I.C.C. 128, 133 (1965); ASSEMBLING RATES TO ATLANTA, CHARLOTTE, GREENSBORO, 323, I.C.C. 543 (1964); PAPER BAGS FROM CHICAGO TO KANSAS CITY, MO., 321 I.C.C. 732 (1964).

THUS, IN GUS BLASS CO. V. POWELL BROTHERS TRUCK LINE, 53 M.C.C. 603, 605 (1951), WHERE THE ACTUAL WEIGHT OF THE SHIPMENT WAS LESS THAN THE APPLICABLE TRUCKLOAD MINIMUM WEIGHT AND MOVED UNDER SEALS, THE INTERSTATE COMMERCE COMMISSION HELD THAT THE UNDISPUTED FACT OF THE CONSIGNOR'S SEALING THE VEHICLE CLEARLY JUSTIFIES A CONCLUSION THAT THE SHIPMENT WAS TENDERED AND RECEIVED AS A TRUCKLOAD OR VOLUME SHIPMENT. MOREOVER, EXCLUSIVE USE OF VEHICLE SERVICE IS SAID TO HAVE BEEN DESIGNED TO ACCORD TRUCKLOAD SERVICE TO LESS THAN TRUCKLOAD SHIPMENTS. CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576 (1958).

IT SEEMS CLEAR, THEN, THAT THE SHIPMENT HERE INVOLVED IS A MIXED TRUCKLOAD SHIPMENT OF TWO COMMODITIES ACCORDED EXCLUSIVE USE OF VEHICLE SERVICE ON WHICH A TRUCKLOAD CHARGE BASIS WOULD BE APPLICABLE.

ITEM 940 OF RMMTB TARIFF 20-E PROVIDES THE MANNER OF ASCERTAINING THE CHARGES FOR A SHIPMENT ACCORDED EXCLUSIVE USE OF VEHICLE SERVICE. UNDER THE TERMS OF ITEM 940 THE CHARGES FOR SUCH SHIPMENTS ARE BASED ON THE ACTUAL WEIGHT OF THE SHIPMENT AT THE "RATE APPLICABLE" OR AT THE MINIMUM WEIGHT PROVIDED FOR IN CONNECTION WITH THE "APPLICABLE RATE" SUBJECT TO A MINIMUM CHARGE COMPUTED ON A WEIGHT OF 22,000 POUNDS AT THE CLASS 100 RATE. AT THE OUTSET, WE THINK YOU WILL AGREE THAT IT IS FIRST NECESSARY TO COMPUTE CHARGES AT THE APPLICABLE RATE. ITEM 87 OF RMMTB TARIFF 20-E MAKES CERTAIN EXCEPTIONS TO RULE 130, SECTIONS 1 AND 3 OF THE GOVERNING CLASSIFICATION, NMFC A-7, WHICH RULE GENERALLY ESTABLISHES THE METHOD OF ASCERTAINING THE APPLICABLE RATES AS TO MIXED COMMODITY SHIPMENTS. NOTE 2 OF ITEM 87 SPECIFICALLY PROVIDES THAT SUCH EXCEPTIONS WILL NOT BE APPLICABLE WHERE ONE OF THE ARTICLES SHIPPED, AS IN THIS CASE, CONSISTS OF EXPLOSIVES, CLASS A OR B AND PROVIDES ON SUCH A SHIPMENT THAT THE PROVISIONS OF SECTIONS 1 AND 3 OF RULE 130, SUBJECT TO PARAGRAPH 8 OF ITEM 87 WILL APPLY. PARAGRAPH 8 OF ITEM 87, PROVIDING FOR LOWER CHARGES WHERE THE SHIPMENT IS CONSIDERED AS TWO SEPARATE SHIPMENTS, DOES NOT PRODUCE LOWER CHARGES AS TO THE INSTANT SHIPMENT AND HENCE IS NOT FOR APPLICATION HERE. THUS, TO DETERMINE THE RATE APPLICABLE, WE MUST REFER TO RULE 130 OF NMFC A-7 WHICH PROVIDES THE MANNER OF COMPUTING CHARGES ON

"* * * A NUMBER OF ARTICLES FOR WHICH THE SAME OR DIFFERENT VOLUME OR TRUCKLOAD RATES, CLASSES (RATINGS) OR MINIMUM WEIGHTS ARE PROVIDED, CONSTITUTING A MIXED VOLUME OR MIXED TRUCKLOAD SHIPMENT * * *.'

RULE 130 IS DIVIDED INTO SIX SECTIONS PROVIDING FIVE MIXING PROVISIONS AND WE FIND NO PERTINENT RESTRICTION TO THE APPLICATION OF THE VARIOUS SECTIONS. HOWEVER, UNDER YOUR INTERPRETATION OF ITEM 940, YOU RESTRICT THE APPLICATION OF THE MIXING PROVISIONS OF RULE 130 TO SECTION 1, WHICH PROVIDES A CHARGE BASED ON THE HIGHEST TRUCKLOAD RATE AND THE HIGHEST TRUCKLOAD MINIMUM WEIGHT ON ANY ARTICLE IN THE MIXED TRUCKLOAD SHIPMENT. IN A LETTER DATED APRIL 4, 1966, TO OUR TRANSPORTATION DIVISION, YOU SAY THAT THIS CONSTRUCTION IS REQUIRED BECAUSE SUCH CONSTRUCTION WAS SUSTAINED BY THE I.C.C. AND THE COMPTROLLER GENERAL OF THE UNITED STATES AND THE LANGUAGE IN THE EXCLUSIVE USE ITEM CLEARLY CALLS FOR " "MINIMUM WEIGHT RATES" * * * NO LTL BASED RATES.'

WE DISAGREE. IN OUR VIEW, THE INTERSTATE COMMERCE COMMISSION'S INFORMAL OPINION OF JANUARY 15, 1964, FILE 500-966002, AND OUR LETTER OF AUGUST 11, 1965, B-156114, BOTH TO YOUR COMPANY, AND BOTH CONCERNING A SIMILARLY WORDED EXCLUSIVE USE OF VEHICLE RULE AS APPLIED TO STRAIGHT TRUCKLOAD SHIPMENTS, MERELY UPHELD THE USE OF A TRUCKLOAD CHARGE BASIS ON THOSE EXCLUSIVE-USE SHIPMENTS. WE FIND NOTHING IN THE OPINION OR IN THE LETTER WHICH WOULD PRECLUDE US FROM USING LESS THAN TRUCKLOAD RATES IN DETERMINING WHETHER THE EXCLUSIVE-USE MINIMUM CHARGE TRUCKLOAD BASIS OR ONE OF THE FIVE MIXED TRUCKLOAD CHARGE BASES OF RULE 130 APPLIES TO A MIXED TRUCKLOAD SHIPMENT ACCORDED THE EXCLUSIVE USE OF VEHICLE SERVICE UNDER ITEM 940. FURTHER, SECTIONS 2 AND 3 OF RULE 130 ARE SPECIFICALLY MADE ALTERNATIVE WITH SECTION 1 (AS IS SECTION 4, COVERING PROVISIONS FOR SPECIFIC TRUCKLOAD OR VOLUME MIXTURES). SINCE THE BASIS OF CHARGES CLAIMED BY YOU IS DERIVED FROM RULE 130, IT IS NOT APPARENT WHY THE ALTERNATIVE PROVISIONS OF SECTION 3, USED IN OUR CHARGE BASIS, ARE NOT EQUALLY FOR APPLICATION. SEE EXCEPTIONS TO RULE ON MIXED CARLOADS, 163 I.C.C. 795, 798 (1930).

OUR CHARGE BASIS FOR THIS TRUCKLOAD SHIPMENT ACCORDED EXCLUSIVE USE OF VEHICLE SERVICE IS DERIVED FROM THE ALTERNATIVE PROVISIONS OF SECTION 3 OF RULE 130. THIS TRUCKLOAD CHARGE BASIS, OF COURSE, IS SUBJECT TO THE MINIMUM CHARGE COMPUTED ON A WEIGHT OF 22,000 POUNDS AT THE CLASS 100 RATE AND SINCE THE MINIMUM CHARGE EXCEEDS THE APPLICABLE TRUCKLOAD CHARGE, THE MINIMUM CHARGE, UNDER PARAGRAPH 5 OF ITEM 940, IS THE PROPER CHARGE FOR THE SHIPMENT. YOU HAVE ALREADY BEEN PAID SUCH MINIMUM CHARGE.

ACCORDINGLY, THE DISALLOWANCE OF YOUR ADDITIONAL CLAIM FOR $157.60 IS SUSTAINED.