B-129693, MAR. 29, 1957

B-129693: Mar 29, 1957

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ESQUIRE: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 31. THE LATTER BILL WAS FILED TO RECOVER AN ALLEGED UNDERCHARGE OF $134 ON A SHIPMENT OF INTERNAL COMBUSTION ENGINES TRANSPORTED FROM PLANEHAVEN. THE ALLOWABLE CHARGES FOR THE SERVICE WERE DETERMINED TO BE THOSE BASED ON THE AGGREGATE OF THE RATES TO AND FROM OMAHA. THE CHARGES SO DETERMINED WERE $131.60 LESS THAN THE CHARGES ALREADY PAID TO THE CARRIER AND AN APPROPRIATE REQUEST FOR REFUND. WAS ISSUED. WHEREIN THE EXAMINER HAS ISSUED A REPORT RECOMMENDING THAT THE COMMISSION FIND THAT IT IS WITHOUT JURISDICTION TO MAKE A DETERMINATION OF THE REASONABLENESS OF PAST MOTOR CARRIER RATES. THE QUESTION OF THE COMMISSION'S JURISDICTION WAS DISCUSSED AT GREAT LENGTH.

B-129693, MAR. 29, 1957

TO HOMER S. CARPENTER, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 31, 1956, REGARDING UNION FREIGHTWAYS BILL 5135 AND SUPPLEMENTAL BILL 5135A. THE LATTER BILL WAS FILED TO RECOVER AN ALLEGED UNDERCHARGE OF $134 ON A SHIPMENT OF INTERNAL COMBUSTION ENGINES TRANSPORTED FROM PLANEHAVEN, CALIFORNIA, TO SERGEANT BLUFF, IOWA, UNDER BILL OF LADING AF-3046922, IN DECEMBER 1954. IN THE SETTLEMENT HERE, THE ALLOWABLE CHARGES FOR THE SERVICE WERE DETERMINED TO BE THOSE BASED ON THE AGGREGATE OF THE RATES TO AND FROM OMAHA, NEBRASKA. THE CHARGES SO DETERMINED WERE $131.60 LESS THAN THE CHARGES ALREADY PAID TO THE CARRIER AND AN APPROPRIATE REQUEST FOR REFUND, FORM 1003, WAS ISSUED.

IN THE CITED LETTER, YOU REFER TO THE CASE OF DAVIDSON TRANSFER AND STORAGE CO. V. UNITED STATES, CIVIL ACTION NO. 637-55, PRESENTLY PENDING IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA, AND THE ANCILLARY PROCEEDING BEFORE THE INTERSTATE COMMERCE COMMISSION, DOCKETED AS NO. MC-C-1849, WHEREIN THE EXAMINER HAS ISSUED A REPORT RECOMMENDING THAT THE COMMISSION FIND THAT IT IS WITHOUT JURISDICTION TO MAKE A DETERMINATION OF THE REASONABLENESS OF PAST MOTOR CARRIER RATES. YOU ALLEGE THAT NEITHER THE INTERSTATE COMMERCE COMMISSION NOR THE GENERAL ACCOUNTING OFFICE HAS THE AUTHORITY TO REDUCE MOTOR CARRIER TRANSPORTATION CHARGES ON PAST SHIPMENTS BELOW AMOUNTS COMPUTED BY APPLICATION OF THE LEGALLY APPLICABLE RATES AND YOU REQUEST RECONSIDERATION OF THE DISALLOWANCE OF UNION FREIGHTWAYS' UNDERCHARGE CLAIM AND OF OUR OVERCHARGE CLAIM.

THE INTERSTATE COMMERCE COMMISSION, SUBSEQUENT TO THE ENACTMENT OF PART II OF THE INTERSTATE COMMERCE ACT, HAS EXERCISED JURISDICTION ON NUMEROUS OCCASIONS TO DETERMINE THE REASONABLENESS OF INTERSTATE MOTOR CARRIER RATES ON PAST SHIPMENTS. SEE, FOR EXAMPLE, W. A. BARROWS PORCELAIN ENAMEL CO. V. CUSHMAN M. DELIVERY, 11 M.C.C. 365; KOPPERS CO. V. LANGER TRANSPORT CORP., 12 M.C.C. 741; DIXIE MERCERIZING CO. V. ET AND WNC MOTOR TRANSP. CO., 21 M.C.C. 491; HILL-CLARKE MACHINERY CO. V. WEBBER CARTAGE LINE, INC., 26 M.C.C. 144; PATTEN BLINN LBR. CO. V. SOUTHERN ARIZONA FREIGHT LINES, 31 M.C.C. 716; KINGAN AND CO. V. OLSON TRANSP. CO., 32 M.C.C. 10; HAUSMAN STEEL CO. V. SEABOARD FREIGHT LINES, INC., 32 M.C.C. 31. IN BELL POTATO CHIP CO. V. ABERDEEN TRUCK LINE, 43 M.C.C. 337, THE QUESTION OF THE COMMISSION'S JURISDICTION WAS DISCUSSED AT GREAT LENGTH. SO FAR AS IS KNOWN HERE, THERE IS NO JUDICIAL DECISION CONTRARY TO THE POSITION TAKEN BY THE COMMISSION RESPECTING ITS JURISDICTION. THE PROPOSED REPORT OF THE EXAMINER IN THE DAVIDSON TRANSFER CO. CASE IS BASED PRIMARILY UPON THE HOLDING IN THE MONTANA-DAKOTA UTILITIES CO. CASE, CITED IN YOUR LETTER. SINCE THE LATTER CASE DID NOT INVOLVE THE INTERSTATE COMMERCE ACT, IT IS NOT, OF COURSE, DEFINITIVE OF THE QUESTION OF THE INTERSTATE COMMERCE COMMISSIONS' POWERS CONCERNING MOTOR CARRIER RATES ON PAST SHIPMENTS. FURTHERMORE, WHETHER THE EXAMINER'S VIEW IN THE DAVIDSON CASE WILL BE ADOPTED BY THE INTERSTATE COMMERCE COMMISSION AND BY THE UNITED STATES DISTRICT COURT IN THE PARENT PROCEEDING IS A MATTER OF CONJECTURE.

IN THE ABSENCE, THEREFORE, OF AN AUTHORITATIVE DECISION TO THE CONTRARY, WE MUST CONCLUDE, ON THE BASIS OF THE COMMISSION'S PAST DECISIONS AND ORDERS, THAT IT HAS JURISDICTION TO DETERMINE THE REASONABLENESS OF INTERSTATE MOTOR CARRIER RATES ON PAST SHIPMENTS.

THE CHARGES COLLECTED BY UNION FREIGHTWAYS ON THE SUBJECT SHIPMENT ARE PRIMA FACIE UNREASONABLE TO THE EXTENT THAT THEY EXCEED CHARGES BASED ON THE AGGREGATE OF THE INTERMEDIATE RATES CITED IN OUR SETTLEMENT. CONSEQUENTLY, WE MUST AGAIN REQUEST PAYMENT OF OUR OVERCHARGE CLAIM. FAILURE OF THE CARRIER TO REFUND WITHIN A REASONABLE TIME WILL REQUIRE US TO ATTEMPT COLLECTION BY SETOFF OR BY REFERRAL OF THE CLAIM TO THE DEPARTMENT OF JUSTICE FOR SUIT.