A-14046, APRIL 23, 1926, 5 COMP. GEN. 851

A-14046: Apr 23, 1926

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TRANSPORTATION - RECOVERY OF EXCESS RATES BY SET-OFF THE UNITED STATES HAVING PAID TRANSPORTATION CHARGES ON A SHIPMENT BASED ON THROUGH PUBLISHED RATES WHICH WERE IN EXCESS OF THE COMBINATION OF INTERMEDIATE RATES TO WHICH IT WAS ENTITLED. THE SHIPMENT WAS DIVERTED TO A ROUTE VIA N.Y. WAS MADE BY THE DISBURSING OFFICER AS CLAIMED BY THE CARRIER. THE CORRECT CHARGE FOR THE SERVICE AS DETERMINED BY THIS OFFICE WAS $425.40 ON THE TWO SHIPMENTS FROM UNION MARKET. WHICH AMOUNT WAS DEDUCTED PER SETTLEMENT T-81184-W. THIS AMOUNT IS NOW CLAIMED BY THE CARRIER. WERE BASED UPON THE APPLICATION OF THE COMBINATION OF INTERMEDIATE RATES AS THE TOTAL AMOUNT TO WHICH THE CARRIER IS ENTITLED. CHARGES WHICH ARE SPECIFIED IN THE TARIFF FILED AND IN EFFECT AT THE TIME.'.

A-14046, APRIL 23, 1926, 5 COMP. GEN. 851

TRANSPORTATION - RECOVERY OF EXCESS RATES BY SET-OFF THE UNITED STATES HAVING PAID TRANSPORTATION CHARGES ON A SHIPMENT BASED ON THROUGH PUBLISHED RATES WHICH WERE IN EXCESS OF THE COMBINATION OF INTERMEDIATE RATES TO WHICH IT WAS ENTITLED, THE EXCESS MAY BE RECOVERED BY SET-OFF AGAINST ANY OTHER AMOUNTS DUE THE CARRIER BY THE GOVERNMENT, THE UNITED STATES NOT BEING RESTRICTED TO THE FILING OF A REPARATION CLAIM WITH PROOF OF DAMAGE, AS REQUIRED OF COMMERCIAL SHIPPERS.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 23, 1926:

THE NORFOLK SOUTHERN RAILROAD CO. APPLIED, PER LETTER OF JANUARY 25, 1926, FILE DESK 5, FOR REVIEW OF SETTLEMENT T-81184-W, OCTOBER 7, 1925, IN DEDUCTING FROM AMOUNT OTHERWISE DUE FOR FREIGHT TRANSPORTATION DURING APRIL AND MAY, 1925, THE SUM OF $83.58 AS OVERPAYMENT BY CAPTAIN HALLA, PER VOUCHERS 3781, NOVEMBER, 1924, AND 4019, MAY, 1924, FOR TRANSPORTATION SERVICES RENDERED THE GOVERNMENT PER BILL 4009, BILLS OF LADING 25504 AND 25505, APRIL 10, 1924, FROM UNION MARKET, MASS., TO CAPE HENRY, VA., AND PER BILL 3561, BILL OF LADING 1285881, MAY 25, 1923, FROM ABERDEEN, MD., TO CAPE HENRY, VA.

THE SHIPMENTS FROM UNION MARKET, MASS., CONSISTED OF TWO CARLOADS OF GUN- MOUNT PARTS, 47,360 POUNDS, ESTIMATED AT A MINIMUM WEIGHT FOR THE TWO CARLOADS OF 60,000 POUNDS, ROUTED VIA B. AND M. R.R., MERCHANTS AND MINERS TRANSPORTATION CO., AND N.S.R.R. THE STEAMSHIP COMPANY BEING UNABLE TO HANDLE THE HEAVY PACKAGES, THE SHIPMENT WAS DIVERTED TO A ROUTE VIA N.Y., N.H. AND H.R.R., PENNSYLVANIA R.R., AND N.S.R.R. THE SHIPMENT FROM ABERDEEN, MD., CONSISTED OF ONE CARLOAD OF GUN PARTS, 66,200 POUNDS, ROUTED VIA PENNSYLVANIA R.R. AND N.S.R.R.

PAYMENT FOR THE SERVICE, ON THE BASIS OF THROUGH RATES AS PUBLISHED IN TARIFFS FILED WITH THE INTERSTATE COMMERCE COMMISSION, WAS MADE BY THE DISBURSING OFFICER AS CLAIMED BY THE CARRIER, IN THE SUM OF $449.40 (WHICH INCLUDED A DIVERSION CHARGE OF $5.40 AT BOSTON, MASS.), ON THE SHIPMENTS FROM UNION MARKET, MASS., AND IN THE SUM OF $440.23 ON THE SHIPMENT FROM ABERDEEN, MD. THE CORRECT CHARGE FOR THE SERVICE AS DETERMINED BY THIS OFFICE WAS $425.40 ON THE TWO SHIPMENTS FROM UNION MARKET, MASS. (WHICH INCLUDED THE DIVERSION CHARGE AT BOSTON, MASS., OF $5.40 AS CLAIMED), AND $380.65 ON THE SHIPMENT FROM ABERDEEN, MD., RESULTING IN A DIFFERENCE OF $24 ON THE UNION MARKET SHIPMENTS AND $59.58 ON THE ABERDEEN SHIPMENT, A TOTAL OF $83.58 ON THE THREE SHIPMENTS, WHICH AMOUNT WAS DEDUCTED PER SETTLEMENT T-81184-W, SUPRA. THIS AMOUNT IS NOW CLAIMED BY THE CARRIER.

THE CORRECT ALLOWANCE FOR THE SERVICE AS DETERMINED BY THIS OFFICE AND THE CONSEQUENT DEDUCTIONS, SUPRA, WERE BASED UPON THE APPLICATION OF THE COMBINATION OF INTERMEDIATE RATES AS THE TOTAL AMOUNT TO WHICH THE CARRIER IS ENTITLED. THE COMPANY IN ITS APPLICATION FOR REVIEW CONTENDS AGAINST THE APPLICATION OF THE COMBINATION OF LOCAL RATES, CLAIMING ALLOWANCE ON THE BASIS OF THE THROUGH PUBLISHED RATES AS IN EFFECT AT THE TIME OF THIS SERVICE, AND REFERS TO PARAGRAPH 7, SECTION 6 OF THE INTERSTATE COMMERCE ACT, AS AMENDED JUNE 29, 1906, 34 STAT., 584, 587, WHICH REQUIRES CARRIERS ENGAGED OR PARTICIPATING IN THE TRANSPORTATION OF PASSENGERS OR PROPERTY TO FILE AND PUBLISH RATES, FARES, AND CHARGES FOR SUCH TRANSPORTATION, AND PROVIDES THAT NO CARRIER SHALL "CHARGE OR DEMAND OR COLLECT OR RECEIVE A GREATER OR LESS OR DIFFERENT COMPENSATION FOR SUCH TRANSPORTATION OF PASSENGERS OR PROPERTY OR FOR ANY SERVICE IN CONNECTION THEREWITH BETWEEN THE POINTS NAMED IN SUCH TARIFFS, THAN THE RATES, FARES, AND CHARGES WHICH ARE SPECIFIED IN THE TARIFF FILED AND IN EFFECT AT THE TIME.' THE CARRIER ALSO REFERS TO RULE 55 OF THE INTERSTATE COMMERCE COMMISSION CIRCULAR NO. 18-A, WHICH PROVIDES THAT:

A THROUGH RATE OR FARE FROM POINT OF ORIGIN TO DESTINATION OF A SHIPMENT OR PASSENGER IS THE LAWFUL RATE OR FARE APPLICABLE TO THAT MOVEMENT, WHETHER THE RATE OR FARE BE CONFINED TO THE LINE OF ONE CARRIER OR TO BE A JOINT RATE OR FARE APPLYING OVER THE LINES OF TWO OR MORE CARRIERS.

THE CARRIER THEN CONTENDS THAT IF THE THROUGH RATE IS CONSIDERED TO BE EXCESSIVE THE PROPER PROCEDURE IS TO PAY THE FREIGHT CHARGES ON THE BASIS OF THE THROUGH RATE AND FILE REPARATION CLAIM.

THESE SHIPMENTS APPEAR TO HAVE MOVED TO THE FLOAT BRIDGE AT PORT NORFOLK, VA., IN ROAD HAUL OVER THE N.Y., P. AND N.R.R. (PENNSYLVANIAR.R., NORFOLK DIVISION), THENCE BY SWITCHING SERVICE OVER THE NORFOLK AND PORTSMOUTH BELT LINE RY. TO COLEMAN PLACE JUNCTION, THENCE NORFOLK SOUTHERN R.R. TO CAPE HENRY, VA., AS THE POINT OF INTERCHANGE BETWEEN THE N. AND P.B.L. RY. AND THE S.R.R., NORTH ROUTE, IS AT COLEMAN PLACE JUNCTION, WHICH APPEARS TO BE LOCATED BETWEEN NORTH JUNCTION AND COLEMAN PLACE AND THE DISTANCE BETWEEN CAPE HENRY AND COLEMAN PLACE IS 14 MILES AND NORTH JUNCTION 15 MILES.

THE THROUGH CLASS RATES FROM UNION MARKET, MASS., TO CAPE HENRY, VA., PER AGENT COTTRELL'S TARIFF I.C.C. 450, GOVERNED BY SOUTHERN CLASSIFICATION, ARE:

1 2 3 4 5 6

1.32 1.17 0.99 0.74 0.60 0.51

THE THROUGH CLASS RATES FROM ABERDEEN, MD., TO CAPE HENRY, VA., PER AGENT COTTRELL'S TARIFF I.C.C. 331, GOVERNED BY SOUTHERN CLASSIFICATION, ARE:

1 23 4 5 6

1.13 1/2 0.95 1/2 0.83 0.66 1/2 0.52 0.43

THE THROUGH CLASS RATES FROM UNION MARKET, MASS., TO NORFOLK, VA., PER BOSTON AND MAINE R.R. TARIFF I.C.C. 1860, GOVERNED BY OFFICIAL CLASSIFICATION, ARE:

1 2 34 5 6

0.86 1/2 0.74 1/2 0.65 1/2 0.55 0.41 1/2 0.38

THE THROUGH CLASS RATES FROM ABERDEEN, MD., TO NORFOLK, VA., PER PENNSYLVANIA R.R. TARIFF G.O., I.C.C. 13238, GOVERNED BY OFFICIAL CLASSIFICATION, ARE:

1 2 3 4 5 6

0.57 0.51 0.41 1/2 0.34 1/2 0.29 0.24

THE RATES FROM BOTH UNION MARKET, MASS., AND ABERDEEN, MD., TO NORFOLK, VA., APPLY VIA THE PENNSYLVANIA R.R., NORFOLK DIVISION, AND UNDER THE PROVISIONS OF PENNSYLVANIA R.R. TARIFFS G.O., I.C.C. 12180 AND 13946 THE CHARGES MADE FOR SWITCHING BY THE NORFOLK AND PORTSMOUTH BELT LINE RY. TO AND FROM INTERCHANGE TRACKS, INDUSTRIES, ETC., WITHIN THE SWITCHING DISTRICT OF NORFOLK, ARE ABSORBED BY THE LINE INTO NORFOLK ON SHIPMENTS WEIGHING IN EXCESS OF 10,000 POUNDS, AND SUCH BEING THE CASE THE RATES INTO NORFOLK WILL INCLUDE THE SWITCH DELIVERY OF THESE CARLOAD SHIPMENTS AT THE INTERCHANGE TRACKS AT COLEMAN PLACE JUNCTION, WHERE THE N. AND P.B.L. RY. MAKES DELIVERY TO THE NORFOLK SOUTHERN RAILROAD.

THE CLASS RATES FROM COLEMAN PLACE JUNCTION TO CAPE HENRY, VA., PER N.S.R.R. TARIFF A-299, GOVERNED BY SOUTHERN CLASSIFICATION, ARE:

1 2 3 4 5 6

0.38 1/2 0.33 1/2 0.29 1/2 0.25 0.20 0.16

GUN CARRIAGE PARTS, SUCH AS WERE SHIPPED IN THE CASES UNDER CONSIDERATION, ARE RATED AT FOURTH CLASS IN SOUTHERN AND FIFTH CLASS IN OFFICIAL CLASSIFICATIONS, AND THE CARRIER BILLED FOR AND WAS PAID CHARGES ON THE SHIPMENTS FROM UNION MARKET, MASS., ON BASIS OF FOURTH CLASS RATE OF 74 CENTS PER 100 POUNDS, WHILE THE COMBINATION RATE OF 41 1/2 CENTS TO NORFOLK AND 25 CENTS BEYOND, MAKING A THROUGH COMBINATION RATE OF 66 1/2 CENTS PER 100 POUNDS, WAS IN EFFECT OVER THE SAME ROUTE, AND ON THE SHIPMENT FROM ABERDEEN, MD., THE CARRIER BILLED FOR AND WAS PAID CHARGES ON BASIS OF THE FOURTH-CLASS RATE OF 66 1/2 CENTS PER 100 POUNDS, WHILE THE COMBINATION RATE OF 29 CENTS TO NORFOLK AND 25 CENTS BEYOND, MAKING A THROUGH COMBINATION RATE OF 54 CENTS PER 100 POUNDS, WAS IN EFFECT OVER THE SAME ROUTE.

THE PAYMENT TO THE CARRIER IN THIS CASE AT THE PUBLISHED THROUGH RATE OF 74 CENTS PER 100 POUNDS FROM UNION MARKET, MASS., TO CAPE HENRY, VA., PLUS A DIVERSION CHARGE OF $5.40 FOR THE TWO CARS AT BOSTON, RESULTS IN A PAYMENT OF $45 IN EXCESS OF THE COMBINATION RATE OF 66 1/2 CENTS OVER NORFOLK, AND THE PAYMENT ON THE SHIPMENT FROM ABERDEEN AT THE THROUGH RATE OF 66 1/2 CENTS PER 100 POUNDS RESULTS IN A PAYMENT OF $82.75 IN EXCESS OF THE COMBINATION RATE OF 54 CENTS OVER NORFOLK, MAKING A TOTAL EXCESS PAYMENT OF $127.75, OR $44.17 IN EXCESS OF THE AMOUNT DEDUCTED IN SETTLEMENT T-81184-W, SUPRA.

THE QUESTION IN THIS CASE IS THE AMOUNT ULTIMATELY CHARGEABLE TO THE GOVERNMENT FOR THE SERVICES UNDER CONSIDERATION. IN COMMERCIAL BUSINESS THE SHIPPER MUST PAY THE PUBLISHED TARIFF RATES AND SEEK REPARATION FOR ANY EXCESS OF CHARGES THROUGH THE INTERSTATE COMMERCE COMMISSION OR THE COURTS. THE CARRIER HAS BEEN PAID IN THIS CASE BY THE DISBURSING OFFICER, ON BEHALF OF THE UNITED STATES, AT THE PUBLISHED TARIFF RATES. IF THERE HAS BEEN AN EXCESSIVE PAYMENT, HOW MAY REPARATION THEREFOR BE SECURED?

THE FOURTH SECTION OF THE INTERSTATE COMMERCE ACT, AS AMENDED, 24 STAT. 379, 380; 36 STAT. 539, 547; AND 41 STAT. 456, 480, PROVIDES:

THAT IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER SUBJECT TO THE PROVISIONS OF THIS ACT TO CHARGE OR RECEIVE ANY GREATER COMPENSATION IN THE AGGREGATE FOR THE TRANSPORTATION OF PASSENGERS OR OF LIKE KIND OF PROPERTY FOR A SHORTER THAN FOR A LONGER DISTANCE OVER THE SAME LINE OR ROUTE IN THE SAME DIRECTION, THE SHORTER BEING INCLUDED WITH THE LONGER DISTANCE, OR TO CHARGE ANY GREATER COMPENSATION AS A THROUGH RATE THAN THE AGGREGATE OF THE INTERMEDIATE RATES SUBJECT TO THE PROVISIONS OF THIS ACT * * *, PROVIDED THAT UPON APPLICATION TO THE COMMISSION SUCH COMMON CARRIER MAY IN SPECIAL CASES, AFTER INVESTIGATION, BE AUTHORIZED BY THE COMMISSION TO CHARGE LESS FOR LONGER THAN FOR SHORTER DISTANCES FOR THE TRANSPORTATION OF PASSENGERS OR PROPERTY.

THE RELIEF AUTHORIZED BY THIS SECTION APPLIES ALSO TO THE CASE OF A THROUGH RATE IN EXCESS OF COMBINATION OF INTERMEDIATES, AS HEREINAFTER SET FORTH.

THERE DOES NOT APPEAR TO HAVE BEEN ANY RELIEF GRANTED BY THE INTERSTATE COMMERCE COMMISSION FROM THE OPERATION OF THE PROVISIONS OF THIS SECTION, NOR THAT ANY APPLICATION THEREFOR HAS BEEN FILED.

IN THE CASE OF J. W. PATTERSON ET AL. V. LOUISVILLE AND NASHVILLE RAILROAD CO. ET AL., DECIDED BY THE SUPREME COURT OCTOBER 12, 1925, WHICH INVOLVED THE APPLICATION OF THE AGGREGATE-OF-INTERMEDIATES CLAUSE OF THE INTERSTATE COMMERCE ACT, IT WAS STATED THAT THE CONSTRUCTION ADOPTED SOON AFTER THE PASSAGE OF THE AMENDMENT BY THE ACT OF JUNE 18, 1910, 36 STAT. 547, OF SECTION 4 OF THE INTERSTATE COMMERCE ACT, THAT THE POWER TO GRANT RELIEF BY THE INTERSTATE COMMERCE COMMISSION APPLIED TO BOTH THE LONG AND SHORT HAUL CLAUSE AND THE AGGREGATE-OF-INTERMEDIATES CLAUSE, HAS BEEN ACTED UPON CONSISTENTLY EVER SINCE; IT APPEARS THAT NO COURT, FEDERAL OR STATE, HAS TAKEN A DIFFERENT VIEW, AND THAT CONGRESS HAS ACQUIESCED; AND THE COMMISSION SINCE THAT TIME HAS REPEATEDLY HELD THAT A THROUGH RATE HIGHER THAN THE AGGREGATE OF THE INTERMEDIATES, UNLESS PROTECTED BY PROPER APPLICATION, WAS NOT MERELY PRIMA FACIE UNREASONABLE, BUT UNLAWFUL BY EXPRESS STATUTORY PROVISION. ORIGINALLY THE CARRIERS WERE AT LIBERTY TO INTRODUCE THE RATE WITHOUT FIRST SECURING THE CONSENT OF THE COMMISSION AND COULD ESCAPE LIABILITY BY ESTABLISHING ITS JUSTIFICATION IN CASE ITS INVALIDITY WAS LATER ASSERTED. BY THE AMENDATORY LEGISLATION, SUPRA, CONGRESS PROVIDED IN EACH CLASS OF CASES THAT THE RATE SHOULD NOT BE CHARGED UNLESS PRIOR TO ITS INTRODUCTION THE COMMISSION HAD UPON SPECIAL APPLICATION GRANTED AUTHORITY THEREFOR, AND THE COURT HELD THAT IN A PROCEEDING FOR VIOLATION OF EITHER CLAUSE OF SECTION 4 THERE IS NO OCCASION TO CONSIDER EITHER THE PRESUMPTION OF UNREASONABLENESS OR THE EXISTENCE OF A JUSTIFICATION FOR MAKING THE THROUGH RATE HIGHER--- NEITHER IS RELEVANT, FOR IF THERE HAS BEEN AN ADEQUATE AND TIMELY APPLICATION, WHICH REMAINS UNDETERMINED, OR AN APPLICATION FILED AND GRANTED, THERE CAN BE NO VIOLATION OF THAT SECTION. IF THERE WAS NO SUCH APPLICATION FILED, THE SECTION IS VIOLATED BY THE HIGHER THROUGH RATE, EVEN IF CONDITIONS ARE SHOWN WHICH WOULD HAVE JUSTIFIED THE RATE AS AGAINST A CHARGE OF UNREASONABLENESS UNDER SECTION 1. THE COURT THEN HELD THAT IT HAD NO OCCASION TO CONSIDER THE QUESTION OF DAMAGES IN SAID CASE BECAUSE OF THE PENDENCY OF AN APPLICATION FOR RELIEF.

THE CASE OF DAVIS V. PORTLAND SEED CO., 264 U.S. 403, DECIDED APRIL 7, 1924, BY THE SUPREME COURT, WAS ON AN ACTION BROUGHT TO RECOVER ALLEGED OVERCHARGES ON FREIGHT SAID TO HAVE BEEN DEMANDED BY THE CARRIER IN VIOLATION OF THE LONG-AND-SHORT-HAUL CLAUSE OF THE FOURTH SECTION OF THE INTERSTATE COMMERCE ACT. IN THIS CAUSE THE CARRIER RECEIVED A CAR OF ALFALFA SEED AT ROSWELL, N.MEX., JANUARY 4, 1919, FOR TRANSPORTATION TO WALLA WALLA, WASH., BY WAY OF DENVER. FREIGHT CHARGES WERE PAID AT $2.44 PER HUNDREDWEIGHT, THE SCHEDULED RATE FROM ROSWELL, WHILE AT THE TIME OF SERVICE THE RATE FROM PECOS THROUGH ROSWELL AND DENVER TO WALLA WALLA WAS $1.515 PER HUNDREDWEIGHT. NO APPLICATION HAD BEEN MADE TO THE INTERSTATE COMMERCE COMMISSION FOR PERMISSION TO CHARGE LESS FOR THE LONGER THAN FOR THE SHORTER HAUL. THE SEED COMPANY DEMANDED JUDGMENT FOR THE EXCESS ABOVE THE PECOS RATE AS AN OVERCHARGE ILLEGALLY EXACTED, UPON THE GROUNDS THAT UNDER THE LONG-AND-SHORT-HAUL CLAUSE THE LOWER PUBLISHED RATE FROM PECOS BECAME THE MAXIMUM WHICH THE CARRIER COULD CHARGE FOR THE SHIPMENT FROM ROSWELL, NOTWITHSTANDING THE HIGHER PUBLISHED RATE THEREFOR AND THAT THE SUM CHARGED ABOVE THE PECOS RATE AMOUNTED TO AN ILLEGAL EXACTION RECOVERABLE WITHOUT OTHER PROOF OF ACTUAL DAMAGE AND WITHOUT REGARD TO THE INTRINSIC REASONABLENESS OF EITHER RATE. THE COURT HELD, AS STATED IN THE SYLLLABUS, THAT: THE LONG-AND-SHORT-HAUL PROVISION OF THE INTERSTATE COMMERCE ACT (SEC. 4) IS VIOLATED, AND THE CARRIER INCURS, PRIMA FACIE AT LEAST, THE PENALTIES PRESCRIBED BY SECTION 10, BY PUBLISHING, WITHOUT AUTHORITY FROM THE COMMISSION, A RATE FOR A LONGER HAUL LOWER THAN THAT SCHEDULED FOR A SHORTER HAUL OF THE SAME KIND OF PROPERTY OVER THE SAME LINE OR ROUTE IN THE SAME DIRECTION.

IN SUCH CASE A SHIPPER WHO IS CHARGED THE HIGHER RATE FOR THE SHORTER HAUL IS ENTITLED, UNDER SECTION 8, TO THE FULL AMOUNT OF HIS RESULTING DAMAGES, WITH REASONABLE COUNSEL FEES, BUT NOT TO COLLECT FROM THE CARRIER THE DIFFERENCE BETWEEN THE RATE PAID AND THE LOWER RATE PUBLISHED FOR THE LONGER HAUL UPON THE THEORY THAT THE LATTER WAS THE ONLY LEGAL RATE AND THE DIFFERENCE AN ILLEGAL EXACTION RECOVERABLE WITHOUT PROOF OF DAMAGES OR REGARD TO THE INTRINSIC REASONABLENESS OF THE RATE. PENNSYLVANIA R.R. CO. V. INTERNATIONAL COAL CO., 230 U.S. 184.

IN THE CASE OF THE PENNSYLVANIA RAILROAD CO. V. INTERNATIONAL COAL CO., 230 U.S. 184, THE INTERSTATE COMMERCE COMMISSION HELD THAT WHILE A CHARGE PRESCRIBED BY THE LONG-AND-SHORT-HAUL CLAUSE, SECTION 4, MAY SUBJECT THE CARRIER TO PROSECUTION BY THE GOVERNMENT, IT DOES NOT AFFORD ADEQUATE BASIS FOR REPARATION WHERE THERE IS NO OTHER PROOF OF PECUNIARY DAMAGE.

IN THE CASE OF THE UNITED STATES V. LOUISVILLE AND NASHVILLE R.R. CO., 235 U.S. 314, 322, 323, THE SUPREME COURT HELD THAT THE EXPRESSED OR IMPLIED STATUTORY RECOGNITION OF THE AUTHORITY ON THE PART OF CARRIERS TO PRIMARILY DETERMINE FOR THEMSELVES THE EXISTENCE OF SUBSTANTIALLY SIMILAR CIRCUMSTANCES AND CONDITIONS AS A BASIS OF CHARGING A HIGHER RATE FOR A SHORTER THAN FOR A LONGER DISTANCE UNDER SECTION 4 OF THE ACT TO REGULATE COMMERCE CEASED TO EXIST AFTER THE ADOPTION OF THE AMENDMENT TO SECTION 4 BY THE ACT OF JUNE 18, 1910, 36 STAT. 539, 547. FOR THE PURPOSE OF MAKING THE PROHIBITION EFFICACIOUS IT WAS ENACTED THAT AFTER A TIME FIXED NO EXISTING RATE OF THE CHARACTER PROVIDED FOR SHOULD CONTINUE IN FORCE UNLESS THE APPLICATION TO SANCTION IT HAD BEEN MADE AND GRANTED.

IN THE CASE OF PARSONS V. CHICAGO AND NORTH WESTERN RAILWAY, 167 U.S. 447, 460, IT WAS HELD, CONSTRUING SECTION 8 OF THE INTERSTATE COMMERCE ACT, THAT:

BEFORE ANY PARTY CAN RECOVER UNDER THE ACT HE MUST SHOW NOT MERELY THE WRONG OF THE CARRIER, BUT THAT THAT WRONG HAD IN FACT OPERATED TO HIS INJURY.

IN THE CASE OF THE SOUTHERN PACIFIC CO. V. DARNELL-TAENZER CO., 245 U.S. 531, THE SHIPPER HAVING PAID A PUBLISHED RATE WHICH THE COMMISSION AFTERWARDS FOUND TO BE UNREASONABLE, THE COURT HELD HE COULD RECOVER AS THE APPROXIMATE DAMAGE OF THE UNLAWFUL DEMAND THE EXCESS ABOVE THE RATE WHICH THE COMMISSION HAD DECLARED TO BE REASONABLE.

IT THEREFORE APPEARS TO BE CLEARLY ESTABLISHED THAT WHERE PAYMENT FOR TRANSPORTATION SERVICES IS MADE AT A RATE CLAIMED TO BE EXCESSIVE THE RECOVERY THEREFOR IS LIMITED TO THE AMOUNT OF THE DAMAGES SUFFERED BY THE PERSON PAYING THE ALLEGED EXCESSIVE RATE.

IN ACCORDANCE WITH THIS PRINCIPLE, THE INTERSTATE COMMERCE COMMISSION HAS DENIED REPARATION IN SOME CASES; HOWEVER, IN A NUMBER OF OTHER CASES REPARATION HAS BEEN GRANTED WHERE THE CLAIMANT HAS PAID CHARGES DETERMINED TO HAVE BEEN EXCESSIVE.

THE INTERSTATE COMMERCE COMMISSION HAS UNIFORMLY HELD THAT DEPARTURES FROM THE FOURTH SECTION OF THE INTERSTATE COMMERCE ACT, NOT PROTECTED BY APPROPRIATE APPLICATIONS OR OTHERWISE, ARE UNLAWFUL, AND THE BURDEN OF PROOF IS UPON THE CARRIER TO DEFEND THE REASONABLENESS OF SUCH A RATE. THE COMMISSION HAS AWARDED REPARATION IN MANY CASES WHERE THE RATE PAID EXCEEDED THE AGGREGATE OF THE CONTEMPORANEOUS INTERMEDIATE RATES, THE AMOUNT SO ALLOWED BEING THE DIFFERENCE BETWEEN THE CHARGES PAID AND THOSE WHICH WOULD HAVE ACCRUED AT RATES FOUND REASONABLE BASED ON THE AGGREGATE OF INTERMEDIATE RATES. AMONG RECENT CASES MAY BE MENTIONED 92 I.C.C. 68, 283, 326, 646, AND 101 I.C.C. 29. IT APPEARS TO BE ESTABLISHED THAT IN COMMERCIAL TRANSACTIONS PROOF OF DAMAGES IS NECESSARY TO ESTABLISH THE RIGHT TO REPARATION, BECAUSE IF THE PARTY HAS NOT BEEN DAMAGED BY THE PAYMENT OF THE HIGHER RATE HE HAS NO GROUNDS FOR REPARATION, THE REPARATION BEING LIMITED BY THE AMOUNT OF DAMAGES SUFFERED.

THE QUESTION IS QUITE DIFFERENT IN RELATION TO A SHIPMENT BY THE GOVERNMENT, WHICH DOES NOT COME IN COMPETITION WITH COMMERCIAL BUSINESS, AND THE MEASURE OF DAMAGES IN SUCH CASES MUST AT LEAST BE THE AMOUNT REQUIRED TO BE PAID BY THE GOVERNMENT IN EXCESS OF THAT WHICH THE LAW AUTHORIZES SHOULD BE PAID. THERE THEN APPEARS TO BE NO QUESTION BUT THAT THE GOVERNMENT IS ENTITLED TO REPARATION FOR ANY EXCESS PAID OVER A RATE ESTABLISHED AS REQUIRED BY LAW, NOTWITHSTANDING A HIGHER PUBLISHED RATE.

THE GOVERNMENT HAVING PAID IN THIS CASE AT THE PUBLISHED TARIFF RATE THE SUM OF $127.75, AS SET FORTH ABOVE, IN EXCESS OF THE PROPER CHARGES FOR THE SERVICE, APPEARS TO BE ENTITLED TO REPARATION IN SAID AMOUNT, AND IT BECOMES THE DUTY OF THIS OFFICE TO SECURE SAID REPARATION. AS $83.58 OF SAID EXCESS HAS ALREADY BEEN RECOVERED, THERE IS A BALANCE OF $44.17 DUE THE UNITED STATES, WHICH WILL BE DEDUCTED FROM AN AMOUNT OTHERWISE DUE THE NORFOLK SOUTHERN RAILROAD CO. ON SOME PENDING CLAIM UNLESS THE SAME IS PROMPTLY REFUNDED.