B-142904, SEP. 8, 1960

B-142904, SEP. 8, 1960

TO TRANSCON LINES:

REFERENCE IS MADE TO YOUR LETTER OF MAY 9, 1960, FILE B.903.20. SEB, IN WHICH YOU REQUEST A REVIEW OF THE DISALLOWANCE OF YOUR CLAIM FOR $448.20, ON BILL NO. 7-C51 (10-63) 7-C 12 (7-124), FOR ADDITIONAL TRANSPORTATION CHARGES ON A SHIPMENT OF AIRCRAFT INTERNAL COMBUSTION ENGINES WHICH MOVED FROM BROOKLEY AIR FORCE BASE, ALABAMA, TO PLANEHAVEN, CALIFORNIA, ON BILL OF LADING AF-5696917, DATED SEPTEMBER 23, 1955.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID $2,397.87, COMPUTED ON THE BASIS OF A JOINT THROUGH CLASS RATE. IN OUR AUDIT OF THE PAYMENT VOUCHER WE DETERMINED THAT LOWER CHARGES WOULD RESULT FROM THE USE OF A COMBINATION RATE CONSTRUCTED OVER THE ROUTE OF MOVEMENT, USING AS ONE FACTOR A CLASS-55 UNRELEASED RATING TO OKLAHOMA CITY, OKLAHOMA, AND A COMMODITY RATE BEYOND AS THE OTHER FACTOR. THE APPLICATION OF THIS BASIS RESULTED IN AN OVERPAYMENT OF $448.20, WHICH AMOUNT WAS COLLECTED THROUGH A PARTIAL REFUND BY YOU OF $397.85 AND A DEDUCTION IN THE AMOUNT OF $50.35 FROM AN AMOUNT OTHERWISE DUE YOU. YOU PRESENTED SUPPLEMENTAL BILLS RECLAIMING THE AMOUNT OF THE OVERPAYMENT, BASED UPON THE RULING OF THE UNITED STATES SUPREME COURT IN T.I.M.E., INC. V. UNITED STATES AND DAVIDSON TRANSFER AND STORAGE CO., INC. V. UNITED STATES, 359 U.S. 464. OUR OFFICE DISALLOWED THE BILLS IN OUR SETTLEMENT CERTIFICATE OF MARCH 14, 1960, AND YOU WERE REQUESTED TO REFUND AN ADDITIONAL AMOUNT OF $27.65. YOU WERE INFORMED THAT THE T.I.M.E. DAVIDSON CASE HAD NO APPLICATION, SINCE THAT CASE HELD THAT A SHIPPER OF GOODS BY A CERTIFICATED COMMON CARRIER BY MOTOR VEHICLE COULD NOT CHALLENGE IN POST-SHIPMENT LITIGATION THE REASONABLENESS OF THE CARRIER'S CHARGES WHICH WERE MADE IN ACCORDANCE WITH THE TARIFF GOVERNING THE SHIPMENT, AND THE ISSUE HERE DOES NOT CONCERN THE REASONABLENESS OF THE CHARGES ASSESSED BUT THEIR APPLICABILITY. THE ADDITIONAL OVERCHARGE OF $27.65 WAS BASED UPON THE USE OF A CLASS-45 RELEASED VALUE RATE AS THE FIRST FACTOR OF THE COMBINATION OF RATES, IN PLACE OF THE CLASS-55 UNRELEASED VALUE RATE.

YOUR OBJECTION TO OUR USE OF THIS COMBINATION OF RATES IS APPARENTLY PREDICATED UPON YOUR CONTENTION THAT BROOKLEY AIR FORCE BASE IS LOCATED WITHIN THE CORPORATE LIMITS OF MOBILE AND CONSEQUENTLY THE RATES APPLICABLE FROM MOBILE APPLY WITH EQUAL VALIDITY FROM BROOKLEY AIR FORCE BASE. YOU CONTEND, THEREFORE, THAT THE THROUGH RATES AS ORIGINALLY CLAIMED ARE APPLICABLE. THE THROUGH RATE CLAIMED BY YOU WAS THAT CONTAINED IN ROCKY MOUNTAIN MOTOR TARIFF BUREAU TARIFF NO. 5 A, MF-I.C.C. NO. 31. HOWEVER, THE RATES PUBLISHED IN THAT TARIFF APPLY ONLY TO THE EXTENT INDICATED IN THE GOVERNING TERRITORIAL DIRECTORY, ROCKY MOUNTAIN MOTOR TARIFF BUREAU TARIFF NO. 20-A, MF I.C.C. NO. 79. APPARENTLY IT IS YOUR POSITION THAT BROOKLEY AIR FORCE BASE WAS NOT PROVIDED IN RMMTB TARIFF NO. 20-A, MF-I.C.C. NO. 79, AT THE TIME OF MOVEMENT, BUT NEVERTHELESS, SINCE BROOKLEY AIR FORCE BASE WAS LOCATED WITHIN THE CORPORATE LIMITS OF MOBILE, A POINT WHICH WAS SHOWN IN RMMTB TARIFF NO. 20 -A, THERE WAS A THROUGH RATE APPLICABLE AND THUS NO NEED EXISTED FOR CONSTRUCTING A COMBINATION OF RATES.

TARIFF NO. 20-A CONTAINS A LIST OF THE CARRIERS CONCURRING IN THE PROVISIONS OF THAT TARIFF AND RMMTB NO. 5-A, TOGETHER WITH THE CONCURRING NUMBER ASSIGNED TO EACH CARRIER. THE NUMBER ASSIGNED DEATON TRUCK LINES, INC., WAS D 73. TARIFF NO. 20-A CONTAINS ALSO A LIST OF ORIGIN AND DESTINATIONS STATIONS FROM AND TO WHICH THE RATES IN RMMTB NO. 5-A APPLY. IT IS FOR NOTING THAT BOTH BROOKLEY AIR FORCE BASE AND MOBILE WERE LISTED IN TARIFF NO. 20-A AT THE TIME OF MOVEMENT, BROOKLEY FIELD ON THE 2ND REVISED PAGE 176, AND MOBILE ON THE 2ND REVISED PAGE 179. BOTH OF THESE PAGES ARE EFFECTIVE AS OF AUGUST 30, 1955, AND THERECORD DISCLOSES THAT THE SUBJECT SHIPMENT MOVED ON SEPTEMBER 26, 1955. IT WILL BE OBSERVED, HOWEVER, THAT THE NUMBER ASSIGNED DEATON TRUCK LINES (D 73) IS NOT AMONG THE PARTICIPATING CARRIER NUMBERS LISTED IN CONNECTION WITH THE RATES IN RMMTB NO. 5-A FROM AND TO BROOKLEY FIELD OR MOBILE. YOUR CONSTRUCTION OF THIS TARIFF PROVISION WOULD GIVE NO EFFECT TO THE DESIGNATION OF THE CARRIERS WHICH PARTICIPATE IN THE RATES PUBLISHED FROM AND TO THE POINTS LISTED, THE CLEAR PURPOSE OF WHICH WAS TO LIMIT THE APPLICATION OF THE RATES TO MOVEMENTS FROM AND TO POINTS BY SUCH CARRIERS SHOWN AS INITIAL OR DESTINATION LINES. MOREOVER, THE 4TH REVISED PAGES 176 AND 179, EFFECTIVE ON DECEMBER 8, 1955, OR SUBSEQUENT TO THE DATE OF MOVEMENT OF THE SUBJECT SHIPMENT, SHOW THAT DEATON TRUCK LINES PARTICIPATES IN THE RATES FROM AND TO BOTH BROOKLEY FIELD AND MOBILE. ALSO, THE TWO STATIONS ARE MARKED BY SYMBOLS WHICH INDICATE THAT THE CHANGE IS AN ADDITION TO THE TARIFF AND IS A REDUCTION. THUS, IT APPEARS THAT THE ADDITION TO CARRIERS PARTICIPATING IN THE RATES FROM AND TO THESE STATIONS, OF WHICH DEATON TRUCK LINES IS ONE, INDICATES THAT THIS IS IN ADDITION TO THE TARIFF WHICH RESULTS IN A REDUCTION, PRESUMABLY SINCE THERE IS NOW A JOINT THROUGH RATE WITH DEATON AS AN ORIGIN CARRIER. THEREFORE, IT WOULD APPEAR THAT AT THE TIME OF THE SHIPMENT IN QUESTION IT WAS THE CLEAR PURPOSE OF THE TARIFF FRAMERS TO LIMIT THE APPLICATION OF THE RATES REFERRED TO THEREIN TO MOVEMENTS FROM AND TO THOSE POINTS BY SUCH CARRIERS AS WERE SHOWN AS INITIAL OR DESTINATION LINES. SEE, IN THIS CONNECTION, J. AND H. BERGE V. CENTRAL FREIGHT CO., 47 M.C.C. 331. YOUR CONTENTION THAT BROOKLEY FIELD IS WITHIN THE CORPORATE LIMITS OF MOBILE AS WELL AS YOUR REFERENCE TO THE COMMISSION'S RULING IN THE HULME AND HART V. ATCHISON, T. AND S.F. R.CO., CASE IS APPARENTLY WITHOUT MERIT SINCE DEATON TRUCK LINES DID NOT PARTICIPATE IN THE RATES FROM EITHER POINT AT THE TIME OF SHIPMENT.

SINCE THERE WAS NO JOINT THROUGH RATE PUBLISHED AT TIME OF SHIPMENT BETWEEN BROOKLEY FIELD OR MOBILE, ALABAMA, AND PLANEHAVEN, CALIFORNIA, WITH DEATON TRUCK LINES AS THE ORIGIN CARRIER, A COMBINATION RATE OVER THE ROUTE OF SERVICE IS THE APPLICABLE RATE AND IS THE PROPER MEASURE OF CHARGES FOR THE SHIPMENT. UPON FURTHER EXAMINATION OF YOUR ACCOUNT IT NOW APPEARS THAT A LOWER COMBINATION OF RATES MADE OVER FORT SMITH, ARKANSAS, ANOTHER POINT IN THE ROUTE OF MOVEMENT, RATHER THAN OVER OKLAHOMA CITY, OKLAHOMA, AS PREVIOUSLY CONSTRUCTED, IS FOR APPLICATION.

ACCORDINGLY, AN AMENDED FORM 1003, SHOWING AN ADDITIONAL OVERCHARGE AND REQUESTING AN ADDITIONAL REFUND, IS BEING ISSUED.