B-150575, JUN. 10, 1963

B-150575, JUN. 10, 1963

TO THE A. AND H. TRUCK LINE, INC.:

WE AGAIN REFER TO YOUR LETTER OF JANUARY 3, 1963, YOUR CLAIM 110069, IN WHICH YOU REQUEST REVIEW OF FOUR SETTLEMENT CERTIFICATES DATED DECEMBER 6, 1962 (OUR CLAIM FILES TK-657735 THROUGH TK-657738). THE SETTLEMENTS DISALLOWED FOUR OF YOUR CLAIMS FOR $64.80, THE ADDITIONAL FREIGHT CHARGES ALLEGEDLY DUE ON EACH OF FOUR SHIPMENTS OF GAS COOLERS WHICH WERE TRANSPORTED ON COMMERCIAL BILLS OF LADING FROM THE ELLIOTT COMPANY, JEANNETTE, PENNSYLVANIA, TO THE ATOMIC ENERGY COMMISSION, C/O UNION CARBIDE NUCLEAR COMPANY, PEDUCAH, KENTUCKY, DURING SEPTEMBER 1959.

THE COMMERCIAL BILLS OF LADING COVERING THE FOUR SHIPMENTS APPARENTLY WERE PREPARED BY THE SHIPPER AND CONTAIN THE TYPEWRITTEN ANNOTATION "EXCLUSIVE USE OF TRAILER (SERIAL NUMBER OF TRAILER USED).' ON THREE OF THE BILLS OF LADING THE SHIPPER DESCRIBED THE COMMODITY AS "2 6 TIMES 6 PROCESS GAS COOLERS (4-HALVES); " ON THE FOURTH BILL OF LADING THE PARENTHETICAL MATERIAL IS OMITTED. THE FOUR HALVES OF THE TWO GAS COOLERS IN EACH SHIPMENT WERE NOT CRATED AND WERE LOADED INTO THE TRAILER WITH THE FLAT SURFACE OF EACH HALF RESTING ON THE TRAILER FLOOR, THE ARC OF THE HALVES BEING STAGGERED IN OPPOSITE DIRECTIONS, A LOADING ARRANGEMENT WHICH COVERED THE AVAILABLE FLOOR LOADING AREA OF THE TRAILER. THE DISTANCE FROM THE FLOOR OF THE TRAILER TO THE TOP OF THE LOAD WAS ABOUT THREE FEET. WHILE NONE OF THE BILLS OF LADING SHOW THE ACTUAL WEIGHT OF THE SHIPMENT, INFORMATION IN A LETTER DATED SEPTEMBER 28, 1961, FROM THE SHIPPER TO YOU, INDICATES THAT EACH SHIPMENT WEIGHED 6,000 POUNDS.

FREIGHT CHARGES OF $324 WERE BILLED AND COLLECTED ON EACH SHIPMENT. THEY ARE BASED ON A TRUCKLOAD RATE OF $1.44 PER 100 POUNDS APPLIED TO A TRUCKLOAD MINIMUM WEIGHT OF 18,000 POUNDS ($259.20), PLUS A 25 PERCENT INCREASE IN THOSE CHARGES ($64.80), YIELDING TOTAL CHARGES OF $324, A BASIS DERIVED FROM ITEM 300, TITLED "TRUCK ORDERED BY SHIPPER FOR EXCLUSIVE USE," OF CENTRAL STATES MOTOR FREIGHT BUREAU TARIFF NO. 500 G, MF-I.C.C. NO. 918.

OUR AUDIT ACTION AND THE DISALLOWANCE OF YOUR CLAIMS ON THE SETTLEMENT CERTIFICATES ARE BASED ON THE PREMISE THAT THE EXCLUSIVE USE CHARGE BASIS IS INAPPLICABLE BECAUSE EACH TRAILER WAS LOADED TO CAPACITY. THUS, UNDER THE RULING IN CURTIS LIGHTING, INC. V. MIDSTATES FREIGHT LINES, INC., 303 I.C.C. 576 (1958), TRUCKLOAD RATES AND CHARGES ARE APPLICABLE ON THE SHIPMENTS. THOSE CHARGES, BASED ON A RATE OF $1.44 PER 100 POUNDS, ARE DERIVED FROM ITEM 60340 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 15, MF-I.C.C. NO. 576, AND CENTRAL STATES MOTOR FREIGHT BUREAU TARIFF NO. 222- C, MF-I.C.C. NO. 576.

IN YOUR REQUEST FOR REVIEW YOU CONTEND THAT THE TRAILERS CANNOT BE CONSIDERED AS BEING LOADED TO CAPACITY BECAUSE THE GAS COOLERS IN THE TRAILER WERE PACKED IN A MANNER (I.E., WERE UNCRATED) WHICH DEPRIVED THE CARRIER OF THE USE OF THE SPACE LEFT IN EACH TRAILER FOR ANY ADDITIONAL LOADING. A SIMILAR ARGUMENT WAS REJECTED IN THE CURTIS LIGHTING CASE. THERE THE CARRIER, AFTER POINTING OUT THAT THE DEFINITION IN THE TARIFF THERE INVOLVED OF THE WORDS "LOADED TO CAPACITY" REFERRED TO "THAT QUANTITY OF FREIGHT WHICH, IN THE MANNER LOADED SO FILLS A STANDARD TRUCK THAT NO MORE OF THE SHIPMENT IN THE SHIPPING FORM TENDERED CAN BE LOADED IN OR ON THE TRUCK," MAINTAINED THAT POSSIBLY IT COULD HAVE LOADED OTHER FREIGHT IN THE VEHICLE. THE COMMISSION MADE THE FOLLOWING STATEMENT: "IT IS UNDUE SPECULATION AND NOT IN KEEPING WITH NORMAL TRUCKLOAD OPERATING PRACTICES TO SUGGEST THAT ADDITIONAL FREIGHT IN SMALLER UNITS MIGHT POSSIBLY HAVE BEEN LOADED INTO THE TRAILER.' IT WAS FURTHER SAID THAT "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.'

WHILE THE TERMS "CAPACITY LOAD" OR "LOADED TO CAPACITY" ARE NOT DEFINED IN THE TARIFFS APPLICABLE TO THESE SHIPMENTS (ITEM 215 OF TARIFF NO. 500-G USES THE TERM CAPACITY LOAD BUT DOES NOT DEFINE IT), WE APPLIED THE DEFINITION COMMONLY USED IN OTHER MOTOR CARRIER TARIFFS WHICH IS TO THE EFFECT THAT A VEHICLE IS LOADED TO CAPACITY WHEN NO MORE OF THE SHIPMENT IN THE SHIPPING FORM TENDERED CAN BE LOADED ON OR IN THE VEHICLE. AND, AS PROOF OF THAT FACT, THE CONSIGNEE, UNION CARBIDE NUCLEAR COMPANY, IN A LETTER DATED OCTOBER 9, 1962, HAS REPORTED TO USE THAT IT WOULD HAVE BEEN IMPRACTICAL TO LOAD ANY ADDITIONAL QUANTITY OF THE COOLERS IN EACH VEHICLE WITHOUT SUBSTANTIALLY DAMAGING THE MATERIALS SHIPPED. A COPY OF THAT LETTER PREVIOUSLY WAS FURNISHED YOU. IT IS NOTED THAT ITEM 60340 OF CLASSIFICATION NO. 15 CONTAINS THE APPLICABLE RATING ON THIS COMMODITY AND DOES NOT RESTRICT THE TYPE OF PACKAGING TO BE USED IN SHIPPING IT. WE BELIEVE THAT TRUCKLOAD CHARGES ARE APPLICABLE ON THESE SHIPMENTS.

OUR BELIEF THAT TRUCKLOAD CHARGES ARE APPLICABLE AND THAT EXCLUSIVE USE CHARGES ARE INAPPLICABLE ON THE SHIPMENTS DOES NOT REST SOLELY UPON THE GROUND THAT THE VEHICLES INVOLVED WERE LOADED TO CAPACITY, SINCE THERE HAS NOT BEEN COMPLIANCE WITH THE REQUIREMENTS OF ITEM 300 OF TARIFF NO. 500-G. THAT ITEM READS IN PART:

"UPON REQUEST OF SHIPPER, A TRUCK SHALL BE FURNISHED BY THE CARRIER FOR SHIPPER'S EXCLUSIVE USE, PROVIDED SHIPPER GUARANTEES PAYMENT OF FREIGHT CHARGES ON THE BASIS PROVIDED IN THIS ITEM (SEE NOTE 4).

"NOTE 4.--- EACH BILL OF LADING AND FREIGHT BILL COVERING SHIPMENT FOR WHICH EXCLUSIVE USE OF TRUCK IS PROVIDED MUST BE MARKED OR STAMPED AS FOLLOWS:

" "EXCLUSIVE USE OF TRUCK ORDERED, AND PAYMENT OF FREIGHT CHARGES FOR EXCLUSIVE USE THEREOF GUARANTEED, BY SHIPPER" "

THE COMMERCIAL BILLS OF LADING AND THE COPIES OF THE FREIGHT BILLS PREPARED ON THE SHIPMENTS INVOLVED ARE NOT MARKED OR STAMPED AS REQUIRED BY THE TARIFF ITEM AND THOSE REQUIREMENTS CANNOT BE WAIVED; THEREFORE, THE EXCLUSIVE USE CHARGE BASIS SHOWN IN THAT ITEM IS INAPPLICABLE ON THESE SHIPMENTS. GUS BLASS CO. V. POWELL BROS. TRUCK LINE, 53 M.C.C. 603 (1951); SOUTHERN KNITWEAR MILLS, INC. V. ASSOCIATED TRANSPORT, INC., 9 FED.CAR.CAS. 710, (1953. THE LEGEND "EXCLUSIVE USE OF TRAILER * * *," SHOWN ON THE COMMERCIAL BILLS OF LADING, AND THE ANNOTATION "25 PERCENT FOR EXC USE," APPEARING ON THE COPIES OF THE FREIGHT BILLS, CANNOT BE SAID TO SUBSTANTIALLY COMPLY WITH THE ANNOTATION REQUIRED BY THE TARIFF. THAT TARIFF PRESCRIBED ANNOTATION REQUIRES ON BILLS OF LADING AND FREIGHT BILLS AN EXPLICIT ORDER FOR EXCLUSIVE USE OF A TRUCK AND AN EQUALLY EXPLICIT STATEMENT THAT PAYMENT OF THE EXCLUSIVE USE CHARGES ARE GUARANTEED BY THE SHIPPER. NEITHER IS SHOWN ON THE SHIPPING PAPERS COVERING THESE FOUR SHIPMENTS.

THE SETTLEMENT CERTIFICATES WHICH DISALLOWED THE CLAIMS INVOLVED ARE NOT SHOWN TO HAVE BEEN IN ..END :