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B-141820, JUN. 14, 1960

B-141820 Jun 14, 1960
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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 21. YOUR PRESENT REQUEST FOR REVIEW IS BASED UPON THE DECISION OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS IN THE CASE OF UNITED STATES V. THAT DECISION HELD THAT THE UNITED STATES WAS BOUND BY THE TWO-YEAR STATUTE OF LIMITATIONS PRESCRIBED IN THE INTERSTATE COMMERCE ACT ON ACTIONS FOR THE RECOVERY OF OVERCHARGES. 49 U.S.C. 16 (3) (C). THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT REVERSED THIS DECISION AND FOUND THERE WAS NO ADEQUATE BASIS FOR HOLDING THAT CONGRESS HAD MANIFESTED ANY INTENTION THAT THIS TWO YEAR LIMITATION SHOULD APPLY TO ACTIONS BROUGHT BY THE UNITED STATES GOVERNMENT FOR THE RECOVERY OF OVERCHARGES.

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B-141820, JUN. 14, 1960

TO THE HENNIS FREIGHT LINES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 21, 1960, FILE OC- 4062 GRIGGS, REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE IN CLAIM NO. TK 674898, DATED SEPTEMBER 23, 1959, WHICH DISALLOWED YOUR CLAIM FOR $121.37 ADDITIONAL FREIGHT CHARGES ALLEGEDLY DUE ON A SHIPMENT OF AIRPLANE WING SECTIONS MOVING FROM IRVINE, CALIFORNIA, TO CHERRY POINT, NORTH CAROLINA, UNDER GOVERNMENT BILL OF LADING NO. N 13453928.

YOUR PRESENT REQUEST FOR REVIEW IS BASED UPON THE DECISION OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS IN THE CASE OF UNITED STATES V. DE QUEEN AND EASTERN RAILROAD, 167 F.SUPP. 545. THAT DECISION HELD THAT THE UNITED STATES WAS BOUND BY THE TWO-YEAR STATUTE OF LIMITATIONS PRESCRIBED IN THE INTERSTATE COMMERCE ACT ON ACTIONS FOR THE RECOVERY OF OVERCHARGES. 49 U.S.C. 16 (3) (C). HOWEVER, THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT REVERSED THIS DECISION AND FOUND THERE WAS NO ADEQUATE BASIS FOR HOLDING THAT CONGRESS HAD MANIFESTED ANY INTENTION THAT THIS TWO YEAR LIMITATION SHOULD APPLY TO ACTIONS BROUGHT BY THE UNITED STATES GOVERNMENT FOR THE RECOVERY OF OVERCHARGES. SEE UNITED STATES. V. DE QUEEN AND EASTERN RAILROAD, 271F.2D 597.

IN MAY 1959 YOU SUBMITTED YOUR SUPPLEMENTAL BILL NO. 22322 FOR $121.37 ON THE BASIS OF THE DECISION OF THE SUPREME COURT IN T.I.M.E., INC. V. UNITED STATES, 359 U.S. 464. THAT DECISION DEALT ONLY WITH THE SHIPPER'S RIGHT TO CHALLENGE THE REASONABLENESS OF RATES ON PAST MOTOR CARRIER SHIPMENTS. THE COURT HELD THAT THE COMMON-LAW REMEDY FOR THE EXACTION OF UNREASONABLE RATES DID NOT SURVIVE THE PASSAGE OF THE MOTOR CARRIER ACT.

THE OVERCHARGES STATED AGAINST YOUR COMPANY SEEM TO INVOLVE THE SO CALLED MISROUTING SITUATION; SUCH OVERCHARGES DO NOT ARISE FROM THE INTRINSIC UNREASONABLENESS OF PAST RATES AS WAS THE SITUATION IN THE T.I.M.E. CASE. IN THE PRESENT CASE OUR DETERMINATION OF OVERCHARGES WAS BASED ON A LOWER COMBINATION OF RATES THAN APPLIED BY YOUR COMPANY ON THE THEORY THAT THE SHIPPER IS ENTITLED TO THE LOWER RATED OF TWO EQUALLY AVAILABLE ROUTES. YOU HAVE NOT FURNISHED ANYTHING WHICH TENDS TO ESTABLISH THE INCORRECTNESS OF OUR OVERCHARGE BASIS. ACCORDINGLY, THERE IS NO PROPER BASIS FOR THE ALLOWANCE OF YOUR SUPPLEMENTAL BILL AND OUR SETTLEMENT CERTIFICATE OF SEPTEMBER 23, 1959, IS SUSTAINED.

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