B-129725, FEB. 15, 1957

B-129725: Feb 15, 1957

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TO COLE'S EXPRESS: REFERENCE IS MADE TO YOUR LETTERS OF NOVEMBER 5 AND 6. YOU ASSERT THAT THE ROUTING SHOWN BY US IN CONNECTION WITH THE LOWER RATES EMPLOYED IN OUR SETTLEMENTS WAS IMPOSSIBLE OF PERFORMANCE. IT IS STATED THAT COOPER-JARRETT. IS AUTHORIZED TO SERVICE CLEVELAND. WERE TENDERED TO THE MODERN MOTOR EXPRESS. PAYMENT WAS MADE AS BILLED ON VOUCHERS 346410 AND 342038 OF THE MAY 1952 ACCOUNTS OF ARMY DISBURSING OFFICER S. IN THE AUDIT OF THOSE PAYMENTS IN OUR OFFICE IT WAS DETERMINED THAT A COMBINATION OF RATES OVER PORTLAND. NOTICES OF OVERPAYMENTS WERE ISSUED TO COLE'S EXPRESS. THE RATES USED IN COMPUTING THESE OVERPAYMENTS ARE PUBLISHED IN EASTERN CENTRAL MOTOR CARRIERS ASSOCIATION TARIFF 10-A.

B-129725, FEB. 15, 1957

TO COLE'S EXPRESS:

REFERENCE IS MADE TO YOUR LETTERS OF NOVEMBER 5 AND 6, 1956, FILE REFERENCES O-163 AND O-162, RESPECTIVELY, REQUESTING REVIEW OF SETTLEMENT CERTIFICATES DATED MAY 14 AND OCTOBER 25, 1956, WHICH DISALLOWED YOUR CLAIMS FOR ADDITIONAL FREIGHT CHARGES ON TWO SHIPMENTS MOVING BETWEEN SHELBY, OHIO, AND LIMESTONE, MAINE.

IN YOUR LETTERS, YOU ASSERT THAT THE ROUTING SHOWN BY US IN CONNECTION WITH THE LOWER RATES EMPLOYED IN OUR SETTLEMENTS WAS IMPOSSIBLE OF PERFORMANCE, DUE TO THE LACK OF OPERATING AUTHORITY BY COOPER-JARRETT, INCORPORATED, TO TRANSPORT THE SHIPMENTS FROM CLEVELAND, OHIO, TO JERSEY CITY, NEW JERSEY. HOWEVER, IN THE THIRD PARAGRAPH OF THE LETTER DATED AUGUST 13, 1956, FROM COOPER-JARRETT, INCORPORATED, FORWARDED WITH YOUR REQUEST FOR REVIEW, IT IS STATED THAT COOPER-JARRETT, INCORPORATED, IS AUTHORIZED TO SERVICE CLEVELAND, OHIO, AS AN OFF-ROUTE POINT FROM AND TO THE NEW YORK, NEW YORK, COMMERCIAL ZONE. THE STATEMENT THUS MADE, WOULD APPEAR TO DEFEAT THE CONTENTIONS ADVANCED BY YOU AND TO LEND CREDENCE TO THE THEORETICAL ROUTE, NAMING COOPER-JARRETT, INCORPORATED, EMPLOYED IN THE SETTLEMENTS.

THE RECORD SHOWS THAT BOTH SHIPMENTS, MADE UNDER GOVERNMENT BILLS OF LADING AF-852266 (APRIL 1, 1952) AND AF-842978 (MARCH 19, 1952), WERE TENDERED TO THE MODERN MOTOR EXPRESS, INCORPORATED, AT SHELBY, OHIO, WITH INSTRUCTIONS TO ROUTE VIA ITS LINE AND THE NECESSARY CONNECTIONS TO LIMESTONE, MAINE. THE DELIVERING CARRIER ASSESSED FREIGHT CHARGES COMPUTED BY THE USE OF A COMBINATION OF RATES OVER BOSTON, MASSACHUSETTS, AND PAYMENT WAS MADE AS BILLED ON VOUCHERS 346410 AND 342038 OF THE MAY 1952 ACCOUNTS OF ARMY DISBURSING OFFICER S. E. BIGNELL. IN THE AUDIT OF THOSE PAYMENTS IN OUR OFFICE IT WAS DETERMINED THAT A COMBINATION OF RATES OVER PORTLAND, MAINE, PRODUCED LOWER FREIGHT CHARGES, AND NOTICES OF OVERPAYMENTS WERE ISSUED TO COLE'S EXPRESS, AS THE PAYEE CARRIER, REQUESTING REFUNDS OF $27.66 AND $76.11. THE RATES USED IN COMPUTING THESE OVERPAYMENTS ARE PUBLISHED IN EASTERN CENTRAL MOTOR CARRIERS ASSOCIATION TARIFF 10-A, MF-I.C.C. A 38 (SUPPLEMENT 155), MASTER TARIFF 4 (TABLE B), AND MAINE MOTOR RATE BUREAU TARIFF M-6-A, MF-I.C.C. A-47 (COLUMN A). UPON YOUR FAILURE TO REFUND THE OVERPAYMENTS, COLLECTION WAS AFFECTED BY THE WITHHOLDING OF THE AMOUNTS FROM THE PAYMENT DUE ON YOUR BILL 2100, PAID ON VOUCHER 415208 OF THE JUNE 1955 ACCOUNTS OF DISBURSING OFFICER S. GADDIS.

YOU FILED SUPPLEMENTAL BILLS TWICE ON EACH OF THESE SHIPMENTS, RECLAIMING THE AMOUNTS DEDUCTED, AND YOU SUPPORTED THE CLAIMS WITH COPIES OF LETTERS RECEIVED FROM HUNNEWELL TRUCKING, INCORPORATED, AND THE WILSON FREIGHT FORWARDING COMPANY. THE CLAIMS WERE CONSIDERED HERE AND THE LOWER RATES WERE FOUND PROPER EACH TIME. HOWEVER, THE ROUTING APPLICABLE IN CONNECTION WITH THE LOWER RATES WAS CORRECTED TO SHOW THE MODERN MOTOR EXPRESS, INCORPORATED, TO CLEVELAND, OHIO; COOPER JARRETT, INCORPORATED, TO JERSEY CITY, NEW JERSEY (RATHER THAN PHILADELPHIA, AS SHOWN IN THE FIRST INSTANCE); ROBERT'S EXPRESS, INCORPORATED, TO PORTLAND MAINE; AND COLE'S EXPRESS FROM THE COMBINATION POINT TO FINAL DESTINATION. AS THE AUTHORITY FOR THE ROUTING YOU WERE REFERRED TO EASTERN CENTRAL MOTOR CARRIERS ASSOCIATION TARIFF 26-E, MF-I.C.C. A-81, THE ROUTING GUIDE REFERRED TO BY ITEM 1000'S (SUPPLEMENT 176) OF EASTERN CENTRAL MOTOR CARRIERS ASSOCIATION TARIFF 10-A WHEREIN, ON THE DATE THESE SHIPMENTS MOVED, ITEM 13400 SHOWED MODERN MOTOR EXPRESS AS CONNECTING WITH ALL CARRIERS AT CLEVELAND, OHIO; ITEM 5080 SHOWED COOPER-JARRETT CONNECTING WITH ALL CARRIERS (EXCEPT MOTOR FREIGHT EXPRESS, INC.) AT CLEVELAND, OHIO, AND JERSEY CITY, NEW ERSEY; AND ITEM 16510 SHOWED ROBERT'S EXPRESS CONNECTING WITH ALL CARRIERS AT ALL POINTS.

FOLLOWING THE SECOND DISALLOWANCE OF YOUR CLAIMS, YOU FORWARDED A COPY OF A LETTER DATED AUGUST 21, 1956, FROM HUNNEWELL TRUCKING, INCORPORATED, IN WHICH IT WAS SAID THAT IT WAS THE VIEW OF THAT COMPANY THAT COOPER-JARRETT COULD SERVICE CLEVELAND, OHIO, ONLY ON SPECIFIC FARM PRODUCTS AND COULD NOT HANDLE GENERAL COMMODITIES IN OR OUT OF THAT CITY. IN REPLY TO THAT CONTENTION, BY LETTER DATED DECEMBER 5, 1956, YOU WERE REFERRED TO ITEM 3370 (TOP OF PAGE 451) WHICH IS PUBLISHED IN SECTION 2 OF MIDDLEWEST MOTOR FREIGHT BUREAU TARIFF 201 UNDER THE CAPTION "SCOPE OF OPERATIONS.' THIS ITEM IS PUBLISHED FOR ACCOUNT OF COOPER-JARRETT, INCORPORATED, AND PROVIDES, UNDER "REGULAR ROUTES," THAT FOR "GENERAL COMMODITIES" "BETWEEN CHICAGO, ILL., AND NEW YORK, N.Y., " "SERVICE IS AUTHORIZED TO AND FROM THE INTERMEDIATE AND OFF-ROUTE POINTS OF CLEVELAND, OHIO * * AND * * * THOSE IN THE NEW YORK, N.Y., COMMERCIAL ZONE.'

IN VIEW OF THE FOREGOING, THE LOWER CHARGES USED IN THE SETTLEMENTS APPEAR TO APPLY VIA THE AMENDED ROUTE SHOWN ABOVE. SINCE THE SHIPMENTS WERE UNROUTED BY THE SHIPPER EXCEPT AS TO THE INITIAL CARRIER, THE LATTER SHOULD HAVE ROUTED THE SHIPMENTS BEYOND ITS OWN LINE SO AS TO AFFORD THE SHIPPER THE BENEFIT OF THE LOWEST AVAILABLE CHARGE. MURRAY COMPANY OF TEXAS, INC. V. MORROW, INC., 54 N.C.C. 151, 154; GREAT ATLANTIC AND PACIFIC TEA COMPANY V. ONTARIO FREIGHT LINES, 46 R.C.C. 237; HAUSMAN STEEL CO. V. SEABOARD FREIGHT LINES, 32 N.C.C. 31, 36. WHILE IT APPEARS THAT YOUR COMPANY WAS NOT RESPONSIBLE FOR THE MISROUTING OF THE SHIPMENTS, THERE IS NO REASON WHY ANY LIABILITY SHOULD REST UPON THE GOVERNMENT FOR THE PAYMENT OF ANY EXCESS CHARGES RESULTING FROM THE MISROUTING OF THE SHIPMENTS BY ONE OF THE CARRIERS IN THE ROUTE OF MOVEMENT, OR WHY THE GOVERNMENT SHOULD PAY ADDITIONAL CHARGES TO ONE CARRIER AND THEN SEEK TO RECOVER THE SAME CHARGES FROM ANOTHER CARRIER. GALVESTON, HOUSTON AND SAN ANTONIO RAILWAY COMPANY V. LYKES BROS., 294 F. 968; LANCASTER V. SCHREINER, 212 S.W. 19.

ACCORDINGLY, THE SETTLEMENTS, WHICH ARE CONSISTENT WITH THE FOREGOING, ARE SUSTAINED.