B-147391, JUN. 4, 1962
Highlights
LTD.: REFERENCE IS MADE TO YOUR LETTER DATED MARCH 27. IN YOUR LETTER YOU AGAIN URGE THAT EXCLUSIVE USE OF VEHICLE SERVICE WAS REQUESTED AND FURNISHED. EXCLUSIVE USE OF VEHICLE CHARGES ARE INAPPLICABLE WHEN THE VEHICLE HAS BEEN LOADED TO CAPACITY. IS THAT WHEN A VEHICLE IS SO LOADED THAT NO MORE OF THE SHIPMENT IN THE SHIPPING FORM TENDERED CAN BE LOADED IN OR ON THE VEHICLE. IT IS THEN LOADED TO CAPACITY. CHARGES BASED ON A TARIFF ITEM CONTAINING EXCLUSIVE USE PROVISIONS ARE NOT APPLICABLE. THAT ANOTHER LIKE CONTAINER COULD NOT HAVE BEEN LOADED IN THE VAN UTILIZED FOR THE SHIPMENT INVOLVED. THE PRINCIPLE OF THE CURTIS LIGHTING CASE PRECLUDES THE APPLICATION OF TRANSPORTATION CHARGES EXCEEDING THOSE COMPUTED ON THE BASIS OF THE TRUCKLOAD RATE APPLIED TO THE TRUCKLOAD MINIMUM WEIGHT WHEN THE VEHICLE UTILIZED IS LOADED TO CAPACITY.
B-147391, JUN. 4, 1962
TO WESTERN TRUCK LINES, LTD.:
REFERENCE IS MADE TO YOUR LETTER DATED MARCH 27, 1962, IN WHICH YOU REQUEST RECONSIDERATION OF OUR DECISION OF MARCH 6, 1962, B-147391, WHICH SUSTAINED OUR SETTLEMENT DISALLOWING YOUR CLAIM FOR ADDITIONAL CHARGES ALLEGED TO BE DUE FOR EXCLUSIVE USE OF VEHICLE SERVICE FOR THE TRANSPORTATION OF GOVERNMENT PROPERTY FROM HOLLOMAN AIR FORCE BASE, NEW MEXICO, TO THE NAVAL ORDNANCE TEST STATION, CHINA LAKE, CALIFORNIA ON GOVERNMENT BILL OF LADING NO. AF 8758405, DATED AUGUST 6, 1958.
IN YOUR LETTER YOU AGAIN URGE THAT EXCLUSIVE USE OF VEHICLE SERVICE WAS REQUESTED AND FURNISHED, AND YOU ASK IF WE CONSIDER THE CHARGES ALLOWED TO BE "THE LAWFUL CHARGES.' AS WE POINTED OUT TO YOU IN OUR PREVIOUS DECISION, EXCLUSIVE USE OF VEHICLE CHARGES ARE INAPPLICABLE WHEN THE VEHICLE HAS BEEN LOADED TO CAPACITY. OUR POSITION, BASED ON THE DECISION OF THE INTERSTATE COMMERCE COMMISSION IN CURTIS LIGHTING, INC. V. MID- STATES FREIGHT LINES, INC., 303 I.C.C. 576, IS THAT WHEN A VEHICLE IS SO LOADED THAT NO MORE OF THE SHIPMENT IN THE SHIPPING FORM TENDERED CAN BE LOADED IN OR ON THE VEHICLE, IT IS THEN LOADED TO CAPACITY, AND, IN SUCH CIRCUMSTANCES, CHARGES BASED ON A TARIFF ITEM CONTAINING EXCLUSIVE USE PROVISIONS ARE NOT APPLICABLE. YOU CONCEDED IN A LETTER DATED OCTOBER 5, 1961, THAT ANOTHER LIKE CONTAINER COULD NOT HAVE BEEN LOADED IN THE VAN UTILIZED FOR THE SHIPMENT INVOLVED. THE PRINCIPLE OF THE CURTIS LIGHTING CASE PRECLUDES THE APPLICATION OF TRANSPORTATION CHARGES EXCEEDING THOSE COMPUTED ON THE BASIS OF THE TRUCKLOAD RATE APPLIED TO THE TRUCKLOAD MINIMUM WEIGHT WHEN THE VEHICLE UTILIZED IS LOADED TO CAPACITY, AS DEFINED IN THAT CASE, NOTWITHSTANDING THAT EXCLUSIVE USE SERVICE IS REQUESTED AND THAT THERE IS A LITERAL COMPLIANCE WITH TARIFF PROVISIONS COVERING EXCLUSIVE USE. SEE OUR DECISION TO YOU DATED MAY 24, 1962, B-144650, IN CONNECTION WITH YOUR FILE G-01717.
AS STATED IN OUR DECISION OF MAY 24, 1962, THE ISSUE OF THE APPLICATION OF TARIFF RULES FOR EXCLUSIVE USE SERVICES IN SITUATIONS WHERE THE VEHICLE IS LOADED TO CAPACITY WITH THE ARTICLE SHIPPED (NOTWITHSTANDING THAT SOME SMALLER SPACE IS AVAILABLE IN THE VEHICLE) IS PRESENTLY PENDING IN THE UNITED STATES COURT OF CLAIMS AND IN SEVERAL UNITED STATES DISTRICT COURTS. SHOULD THESE CASES BE FINALLY DECIDED AGAINST THE UNITED STATES, WE WILL, UPON YOUR TIMELY REQUEST, RECONSIDER OUR PRESENT CONCLUSION.