B-148222, JUN. 13, 1962

B-148222, JUN. 13, 1962

TO THE JACK COLE COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 13, 1962, IN WHICH YOU, IN EFFECT, REQUEST A REVIEW OF OUR SETTLEMENT CERTIFICATE DATED FEBRUARY 5, 1962, DISALLOWING YOUR CLAIM FOR $294 ADDITIONAL FREIGHT CHARGES SUBMITTED UNDER SUPPLEMENTAL BILL NO. 14,214 "A" , OUR CLAIM NO. TK 726351. THE SHIPMENT OF "FREIGHT ALL KINDS," WEIGHING 15,678 POUNDS, WAS MOVED FROM DOVER AIR FORCE BASE, DELAWARE, TO BROOKLEY AIR FORCE BASE, ALABAMA, UNDER GOVERNMENT BILL OF LADING A 8605170, DATED APRIL 12, 1961. NOTATIONS ON THE BILL OF LADING INDICATE THAT EXCLUSIVE USE OF A VEHICLE WAS REQUESTED AND THAT THE SHIPMENT FULLY LOADED "TRUCK NO. JACK COLE 170.' A NOTATION WHICH READS:

"LOADED TO FULL CAPACITY EXCLUSIVE USE OF VEHICLE REQUESTED BY GOVERNMENT" IS WRITTEN ON THE ORIGINAL FREIGHT BILL, W.B.NO. N-68389.

CHARGES OF $480 WERE BILLED AND PAID ON THE BASIS OF A 16,000 POUND TRUCKLOAD MINIMUM WEIGHT RATE OF 300 CENTS PER 100 POUNDS. THIS RATE IS PROVIDED IN THE MASTEN TRANSPORTATION, INC., AND JACK COLE,INC., TENDER NUMBER I.C.C.NO. 10, SUPPLEMENT NO. 1, EFFECTIVE JULY 18, 1960. YOU SUBMITTED SUPPLEMENTAL BILL NO. 14,214 "A," DATED SEPTEMBER 12, 1961, AND FREIGHT BILL CORRECTION FORM DATED SEPTEMBER 7, 1961. THE SUPPLEMENTAL BILL AND THE CORRECTION FORM ALLEGED THAT THE CHARGES SHOULD HAVE BEEN COMPUTED AT RATES PROVIDED FOR EXCLUSIVE USE OF VEHICLE SERVICE UNDER ITEM 487A OF SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 517-J, MF- I.C.C. 1118. BY OUR SETTLEMENT CERTIFICATE OF FEBRUARY 5, 1962, YOU WERE INFORMED THAT THE CHARGES OF $480 ORIGINALLY BILLED AND PAID WERE PROPER SINCE THE BILL OF LADING AND THE FREIGHT BILL WERE NOTED TO SHOW THE TRUCK WAS FULLY LOADED TO CAPACITY. TO SUPPORT OUR POSITION, WE CITED THE HOLDING OF THE INTERSTATE COMMERCE COMMISSION IN THE CASE OF CURTIS LIGHTING, INC., V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576. YOU SEEM TO URGE THAT THE EXCLUSIVE USE OF VEHICLE RULE IN ITEM 487A OF THE ABOVE MENTIONED TARIFF IS APPLICABLE AND CITE THE T.I.M.E., INC. V. UNITED STATES, 359 U.S. 464, TO SUPPORT YOUR POSITION. ALTHOUGH THE ISSUE OF REASONABLE AS WELL AS APPLICABILITY OF THE CHARGES COLLECTED WAS RAISED IN THE CURTIS LIGHTING CASE, THE COMMISSION'S DECISION TURNED ON THE APPLICABILITY OF THE TARIFF PROVISIONS. THE COMMISSION IN EFFECT HELD THAT EXCLUSIVE-USE CHARGES ARE PROPERLY APPLICABLE ONLY TO LESS THAN- TRUCKLOAD SHIPMENTS. AS FOR TRUCKLOAD SHIPMENTS, IT IS APPARENTLY ASSUMED THAT THE CARRIER WILL ROUTE THE VEHICLE DIRECTLY THROUGH TO DESTINATION WITHOUT STOPS TO SHIFT THE LOAD OR ADD FREIGHT WHICH MIGHT OCCUR IF THE SHIPMENT WERE LESS THAN TRUCKLOAD WHEN EXCLUSIVE USE IS NOT ORDERED. THE COMMISSION SAID IN THE CURTIS LIGHTING CASE, AT PAGE 578,"ONCE A VEHICLE IS LOADED TO CAPACITY, A SHIPPER DERIVES NO BENEFIT FROM EXCLUSIVE USE, WHICH IS DESIGNED TO ACCORD TRUCKLOAD SERVICE TO LESS-THAN-TRUCKLOAD SHIPMENTS.' THERE APPEARS TO BE NOTHING IN THE T.I.M.E. CASE, HOWEVER, TO PRECLUDE OUR USE OF THE PRINCIPLE EXPRESSED IN THE CURTIS LIGHTING CASE THAT EXCLUSIVE-USE CHARGES, DESIGNED TO COVER TRUCKLOAD SERVICE TO LESS- THAN-TRUCKLOAD SHIPMENTS, ARE NOT APPLICABLE ON A SHIPMENT WHERE THE VEHICLE IS LOADED TO FULL CAPACITY.

ACCORDINGLY, WE HAVE CONSISTENTLY APPLIED THE CURTIS LIGHTING PRINCIPLE EXPRESSED ABOVE IN THE AUDIT OF TRANSPORTATION ACCOUNTS OF COMMON CARRIERS BY MOTOR VEHICLES CONCERNING CAPACITY-LOAD SHIPMENTS. OUR SETTLEMENT OF FEBRUARY 5, 1962, IS CONSISTENT WITH SUCH PRINCIPLE, AND IS SUSTAINED.

WE WISH TO ADVISE YOU, HOWEVER, THAT THE PROPRIETY OF THE ASSESSMENT OF EXCLUSIVE-USE CHARGES IN INSTANCES WHERE VEHICLE IS LOADED TO CAPACITY IS PRESENTLY PENDING IN THE UNITED STATES COURT OF CLAIMS IN CAMPBELL "66" EXPRESS, INC. V. UNITED STATES, COURT OF CLAIMS 296-59, IN T.I.M.E. V. UNITED STATES, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, LUBBOCK DIVISION, CIVIL ACTION 2626 ET AL., AND IN SEVERAL OTHER CASES PENDING BEFORE UNITED STATES DISTRICT COURTS. WHILE THE CAMPBELL "66" EXPRESS CASE WAS DECIDED ADVERSELY TO THE GOVERNMENT IN A DECISION DATED MAY 9, 1962, OF THE COURT OF CLAIMS, SUCH DECISION HAS NOT BECOME FINAL AND CONSIDERATION IS BEING GIVEN TO FURTHER PROCEEDINGS THEREON. SHOULD THESE CASES BE FINALLY DECIDED AGAINST THE UNITED STATES, WE WILL, UPON YOUR TIMELY REQUEST, GIVE THE MATTER FURTHER CONSIDERATION.