B-148522, JUN. 14, 1962

B-148522, JUN. 14, 1962

TO WESTERN TRUCK LINES, LTD.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 21, 1962, FILE G 02478, IN WHICH YOU REQUESTED A REVIEW OF OUR SETTLEMENT CERTIFICATE OF FEBRUARY 12, 1962 (TE-654196), DISALLOWING YOUR CLAIM FOR $548.87. THE CLAIM YOU HAVE PRESENTED ARISES FROM A SHIPMENT OF MISCELLANEOUS FREIGHT THAT MOVED FROM CORPUS CHRISTI, TEXAS, TO ALAMEDA, CALIFORNIA, DURING SEPTEMBER 1959. YOU ORIGINALLY CLAIMED AND WERE PAID FREIGHT CHARGES IN THE AMOUNT OF $1,380.72, BUT IN OUR AUDIT IT WAS DETERMINED THAT THE ALLOWABLE CHARGES WERE $831.85 COMPUTED OVER A LOWER-RATED ROUTE THAN THE ONE INVOLVING THE THREE CARRIERS REPORTEDLY USED. THE OVERCHARGE OF $548.87 SO DETERMINED WAS SUBSEQUENTLY COLLECTED BY DEDUCTION FROM MONIES OTHERWISE DUE YOU.

IN YOUR REQUEST FOR REVIEW YOU REFER TO THE FACT THAT UNDER PART II OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 301 ET SEQ., A SHIPPER HAS NO RIGHT TO ROUTE A SHIPMENT, AND YOU STATE THAT THE ,ONLY LAWFUL RATE WOULD BE THAT RATE BASED ON THE ROUTE OF MOVEMENT.' YOU INDICATE THAT AN ALLEGATION OF MISROUTING CONCERNS AN UNREASONABLE PRACTICE, FOR WHICH ADJUSTMENT IS NOT PROVIDED UNDER THE INTERSTATE COMMERCE ACT. PRESUMABLY, YOUR OPINION IS BASED ON THE CONCLUSION REACHED BY THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF T.I.M.E. V. UNITED STATES, 359 U.S. 464, WHICH DID NOT DEAL SPECIFICALLY WITH THE QUESTION OF LIABILITY FOR MISROUTING.

REGARDLESS OF A SHIPPER'S ROUTING RIGHTS UPON ENGAGING THE SERVICES OF MOTOR CARRIERS, THE INTERSTATE COMMERCE COMMISSION HAS OFTEN CONCLUDED THAT MISROUTING IS AN UNREASONABLE PRACTICE VIOLATIVE OF THE PROVISIONS OF SECTION 216 (B) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 316 (B). SEE: THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, V. ONTARIO FREIGHT LINES CORP., 46 M.C.C. 237; METZNER STOVE REPAIR COMPANY V. RANFT, 47 M.C.C. 151; THE MURRAY COMPANY OF TEXAS V. MORROW, INC., TR M.C.C. 442; AND HEWITT-ROBINS, INC. V. EASTERN FREIGHT-WAYS, INC., 302 I.C.C. 173. WHETHER OR NOT MISROUTING BY MOTOR CARRIERS IS A MATTER OF UNREASONABLENESS FALLING WITHIN THE SCOPE OF THE T.I.M.E. DECISION, THEREBY PRECLUDING SHIPPERS FROM RAISING THE ISSUE AFTER THE FACT OF SHIPMENT, IS STILL AN UNANSWERED QUESTION. THIS PRECISE ISSUE HAS BEEN RAISED IN THE CASE OF HEWITT-ROBINS, INC. V. EASTERN FREIGHT WAYS, INC., 187 F.SUPP. 722, AFFIRMED 293 F.2D 205, FOLLOWING WHICH THE SUPREME COURT OF THE UNITED STATES GRANTED THE SHIPPER'S PETITION FOR CERTIORARI, 368 U.S. 951. WE UNDERSTAND THAT THE CASE WILL BE ARGUED BEFORE THE SUPREME COURT LATER THIS YEAR.

SINCE THE QUESTION RAISED IN THIS CASE WILL NOT BE FINALLY SETTLED UNTIL IT IS DETERMINED BY THE SUPREME COURT, WE BELIEVE THE ALLOWABLE CHARGES SHOULD NOT EXCEED THOSE AVAILABLE OVER THE LOW-RATED ROUTE. OUR SETTLEMENT CERTIFICATE WAS CONSISTENT WITH THAT VIEW AND, ACCORDINGLY, IS SUSTAINED.