B-126576, NOV. 21, 1956

B-126576, NOV. 21, 1956

TO H. CHARLES EPHRAIM, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTER, FILE RISS CLAIM 0C 8432 (FLAMINGO TRUCK LINES) T-SR-TK-170661-ESL, RELATIVE TO AN OVERCHARGE CLAIM PRESENTED BY OUR OFFICE TO YOUR CLIENT, RISS AND COMPANY, TO RECOVER EXCESS CHARGES RESULTING FROM THE MISROUTING OF A SHIPMENT OF GOVERNMENT PROPERTY CONSIGNED FROM DENVER, COLORADO, TO YUKON, FLORIDA, UNDER GOVERNMENT BILL OF LADING WQ-20232310, IN MAY 1944.

AS SET FORTH IN THE BILL OF LADING, THE SHIPMENT WAS TENDERED TO RISS AND COMPANY FOR MOVEMENT TO DESTINATION BY THAT CARRIER AND "NECESSARY CONNECTING LINES" AT THE "CHEAPEST RATE AND ROUTE.' CONTRARY TO THE TERMS OF THIS TENDER, THE PROPERTY WAS INTERCHANGED WITH FLAMINGO TRUCK LINES, A DELIVERING CARRIER MAINTAINING A FIRST CLASS RATE STOP ON SHIPMENTS DESTINED TO FLORIDA POINTS. AT THE TIME OF MOVEMENT, RISS AND COMPANY PARTICIPATED IN A TARIFF PUBLISHING A LOWER RATE APPLICABLE VIA RISS AND COMPANY TO ST. LOUIS, MISSOURI, SOUTHEASTERN MOTOR TRUCK LINES TO ATLANTA, GEORGIA, AND CENTRAL TRUCK LINES TO DESTINATION. THE FAILURE OF RISS AND COMPANY TO FORWARD THIS SHIPMENT VIA THIS LOWER-RATED ROUTE WAS CLEARLY A BREACH OF ITS CONTRACT OF CARRIAGE WITH THE UNITED STATES AND, PRIMA FACIE, AN UNREASONABLE PRACTICE IN VIOLATION OF SECTION 216 (B), OF THE INTERSTATE COMMERCE ACT, AS AMENDED, 49 U.S.C. 316 (B). IN THESE CIRCUMSTANCES, OUR OFFICE, IN THE DISCHARGE OF THE DUTY IMPOSED UPON IT BY THE BUDGET AND ACCOUNTING ACT, 31 U.S.C. 71, WOULD NOT BE JUSTIFIED IN AUTHORIZING SETTLEMENT OF THIS ACCOUNT AT THE HIGHER CHARGES RESULTING FROM THE CARRIER'S FAILURE TO FORWARD THE SHIPMENT VIA THE AVAILABLE LOWER -RATED ROUTE IN ACCORDANCE WITH THE BILL OF LADING CONTRACT.

WHILE IT IS TRUE THAT THE INTERSTATE COMMERCE COMMISSION IS WITHOUT POWER TO GRANT REPARATIONS UNDER PART II OF THE INTERSTATE COMMERCE ACT, WE CANNOT RECOGNIZE AS PROPER THE USE OF APPROPRIATED FUNDS FOR THE PAYMENT OF CHARGES DECLARED TO BE UNREASONABLE BY THE COMMISSION IN SIMILAR SITUATIONS. IN CASES OF THIS KIND, IT IS THE PRACTICE HERE TO ATTEMPT RECOVERY OF THE EXCESS CHARGES BY REFUND FROM THE CARRIER CONCERNED. REFUND IS REFUSED, SETOFF OF THE EXCESS CHARGE FROM AN AMOUNT OTHERWISE DUE THE CARRIER IS MADE IF FUNDS ARE AVAILABLE FOR SUCH SETOFF. THE EXERCISE OF THIS REMEDY DOES NOT FORECLOSE THE CARRIER FROM PURSUING ITS REMEDIES TO RECOVER THE AMOUNT SET OFF IN AN ACTION AT LAW. WHERE THE CARRIER CHOOSES TO BRING SUCH ACTION, IT MAY BE FOUND NECESSARY, FOR THE PROPER DISPOSITION OF THE SUIT, TO OBTAIN AN ADMINISTRATIVE FINDING. SEE UNITED STATES V. NEW YORK AND NEW BRUNSWICK AUTO EXPRESS CO., INC., 62 M.C.C. 767, AND NEW YORK AND NEW BRUNSWICK AUTO EXPRESS CO., INC. V. UNITED STATES, 126 F.SUPP. 215. HOWEVER, MISROUTE CASES, LIKE THAT HERE CONCERNED, ARE ALSO SETTLED WITHOUT RECOURSE TO THE COMMISSION. SEE ADLEY EXPRESS CO. V. UNITED STATES, 128 C.CLS. 776; GALVESTON, HOUSTON AND SAN ANTONIO RAILWAY CO. V. LYKES BROS. 294 F. 968, AND LANCASTER V. SCHREINER, 2012 S.W. 19.

WE MUST, THEREFORE, DECLINE TO WITHDRAW OUR REQUEST FOR REFUND AND IF THE REQUEST IS NOT COMPLIED WITH WITHIN A REASONABLE TIME, WE WILL BE REQUIRED TO EFFECT APPROPRIATE ADJUSTMENT OF THE ACCOUNT.