B-125352, FEB. 28, 1958

B-125352: Feb 28, 1958

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INC.: REFERENCE IS MADE TO YOUR SEVERAL LETTERS PERTAINING TO YOUR CLAIMS 2052- 4. THESE FILES COVER SHIPMENTS FOR WHICH THROUGH RATES ARE PUBLISHED WHICH ARE IN EXCESS OF THE CONTEMPORANEOUS AGGREGATES OF INTERMEDIATE RATES. THE INTERSTATE COMMERCE COMMISSION HAS CONSISTENTLY HELD THAT SUCH THROUGH RATES ARE PRIMA FACIE UNREASONABLE TO THE EXTENT THEY EXCEED SUCH AGGREGATES OF INTERMEDIATE RATES. WE ARE UNABLE TO APPROVE PAYMENT OF PUBLIC FUNDS FOR FREIGHT CHARGES BASED ON RATES WHICH ARE PRESUMPTIVELY UNREASONABLE AND IT IS OUR PRACTICE TO SEEK COLLECTION OF THE DIFFERENCE BETWEEN THE THROUGH AND THE AGGREGATE OF THE INTERMEDIATE RATES. OUR POSITION WITH RESPECT TO SITUATIONS OF THIS KIND IS MORE FULLY EXPLAINED IN OUR DECISION B-109190 (COPY ENCLOSED FOR YOUR CONVENIENCE).

B-125352, FEB. 28, 1958

TO NAVAJO FREIGHT LINES, INC.:

REFERENCE IS MADE TO YOUR SEVERAL LETTERS PERTAINING TO YOUR CLAIMS 2052- 4, 1212-3, 1531-3, AND 1544-3, INVOLVING YOUR BILLS NUMBERED 28A 2-11, 28A -8-8, 28A-10-22, AND 28A-10-3, RESPECTIVELY. THESE FILES COVER SHIPMENTS FOR WHICH THROUGH RATES ARE PUBLISHED WHICH ARE IN EXCESS OF THE CONTEMPORANEOUS AGGREGATES OF INTERMEDIATE RATES. THE INTERSTATE COMMERCE COMMISSION HAS CONSISTENTLY HELD THAT SUCH THROUGH RATES ARE PRIMA FACIE UNREASONABLE TO THE EXTENT THEY EXCEED SUCH AGGREGATES OF INTERMEDIATE RATES. IN THESE CIRCUMSTANCES, WE ARE UNABLE TO APPROVE PAYMENT OF PUBLIC FUNDS FOR FREIGHT CHARGES BASED ON RATES WHICH ARE PRESUMPTIVELY UNREASONABLE AND IT IS OUR PRACTICE TO SEEK COLLECTION OF THE DIFFERENCE BETWEEN THE THROUGH AND THE AGGREGATE OF THE INTERMEDIATE RATES, LEAVING TO THE CARRIER THE EXERCISE OF ITS LEGAL REMEDIES IN INSTANCES WHERE IT BELIEVES THE PRESUMPTION OF UNREASONABLENESS CAN BE OVERCOME AND DESIRES AN ADMINISTRATIVE FINDING BY THE COMMISSION.

OUR POSITION WITH RESPECT TO SITUATIONS OF THIS KIND IS MORE FULLY EXPLAINED IN OUR DECISION B-109190 (COPY ENCLOSED FOR YOUR CONVENIENCE), REPORTED IN 32 COMP. GEN. 1. IN THAT CASE, THE CARRIER REFUNDED THE EXCESS AMOUNT AND FILED SUIT IN THE COURT OF CLAIMS TO RECOVER THE REFUND. THE COMMISSION'S FINDING OF UNREASONABLENESS OF THE THROUGH RATE INVOLVED IS REPORTED IN THE CASE OF UNITED STATES V. NEW YORK AND NEW BRUNSWICK AUTO EXPRESS CO., INC., 62 N.C.C. 767, AND THE COURT OF CLAIMS OPINION DENYING RECOVERY IS REPORTED AS NEW YORK AND NEW BRUNSWICK AUTO EXPRESS CO., INC. V. UNITED STATES, 126 F.SUPP. 215.

THE AMOUNTS DETERMINED TO HAVE BEEN OVERPAID FOR THE SUBJECT TRANSPORTATION SERVICES SHOULD BE REFUNDED PROMPTLY IN ORDER TO PRECLUDE COLLECTION BY SETOFF OR OTHER MEANS.