B-148465, AUG. 27, 1962

B-148465: Aug 27, 1962

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WE HAVE REVIEWED THE PAYMENT RECORD PERTAINING TO THE SETTLEMENT ISSUED ON CLAIM TK-716406 WHICH DISALLOWED YOUR CLAIM FOR $61.22 IN ADDITIONAL FREIGHT CHARGES ON THE SHIPMENT MOVING FROM THE NAVAL AIR STATION AT CORPUS CHRISTI. THE RECORD SHOWS THAT THIS SHIPMENT WAS TENDERED TO BROWN EXPRESS AT THE POINT OF ORIGIN WITHOUT FURTHER ROUTING INSTRUCTIONS AND WAS RECEIVED FROM YOUR COMPANY AT FINAL DESTINATION. FOR THE SERVICES PERFORMED ON THIS SHIPMENT YOUR COMPANY ORIGINALLY BILLED AND WAS PAID CHARGES OF $546.88. IN THE AUDIT OF THE PAID CHARGES BY OUR OFFICE A NOTICE OF OVERCHARGE WAS ISSUED REQUESTING A REFUND OF $61.22. UPON THE FAILURE OF YOUR COMPANY TO RESPOND TO THE REQUESTED REFUND THE AMOUNT WAS COLLECTED BY DEDUCTION FROM OTHER MONIES PAYABLE TO YOUR COMPANY.

B-148465, AUG. 27, 1962

TO WESTERN TRUCK LINES, LTD.:

AS REQUESTED IN YOUR LETTER OF MARCH 16, 1962, FILE G-02475, WE HAVE REVIEWED THE PAYMENT RECORD PERTAINING TO THE SETTLEMENT ISSUED ON CLAIM TK-716406 WHICH DISALLOWED YOUR CLAIM FOR $61.22 IN ADDITIONAL FREIGHT CHARGES ON THE SHIPMENT MOVING FROM THE NAVAL AIR STATION AT CORPUS CHRISTI, TEXAS, TO THE NAVAL SUPPLY DEPOT AT SAN DIEGO, CALIFORNIA, UNDER BILL OF LADING N-34065512, DATED AUGUST 19, 1959.

THE RECORD SHOWS THAT THIS SHIPMENT WAS TENDERED TO BROWN EXPRESS AT THE POINT OF ORIGIN WITHOUT FURTHER ROUTING INSTRUCTIONS AND WAS RECEIVED FROM YOUR COMPANY AT FINAL DESTINATION. FOR THE SERVICES PERFORMED ON THIS SHIPMENT YOUR COMPANY ORIGINALLY BILLED AND WAS PAID CHARGES OF $546.88, BASED ON THE LESS-THAN-TRUCKLOAD RATES APPLICABLE ON THE SEVERAL COMMODITIES CONTAINED IN THE SHIPMENT. IN THE AUDIT OF THE PAID CHARGES BY OUR OFFICE A NOTICE OF OVERCHARGE WAS ISSUED REQUESTING A REFUND OF $61.22, AND UPON THE FAILURE OF YOUR COMPANY TO RESPOND TO THE REQUESTED REFUND THE AMOUNT WAS COLLECTED BY DEDUCTION FROM OTHER MONIES PAYABLE TO YOUR COMPANY. IN COMPUTING THE CHARGES PROPERLY ALLOWABLE, WE APPLIED THE LOWER CLASS 200 RATING PROVIDED ON INSULATING MATERIAL IN ITEM 300 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU TRANSCONTINENTAL CLASS TARIFF 21-B, MF- I.C.C. 117, WHICH APPLIES IN CONNECTION WITH ALL OTHER CARRIERS UNDER THE TARIFF EXCEPT YOUR COMPANY AND ONE OTHER CARRIER.

IN URGING PAYMENT VIA THE CARRIERS WHICH ACTUALLY PERFORMED THE TRANSPORTATION SERVICE, YOU INVITE ATTENTION TO THE ABSENCE OF ANY AUTHORITY FOR THE SHIPPER TO ROUTE MOTOR CARRIER SHIPMENTS AND TO THE FACT THAT THIS SHIPMENT WAS UNROUTED BEYOND THE ORIGINAL CARRIER. YOU FURTHER CONTEND THAT YOUR COMPANY IS NOT RESPONSIBLE FOR ANY ERRORS MADE BY THE ORIGIN CARRIER IN SELECTING THE ROUTE OF MOVEMENT, AND THAT ANY REFERENCE TO MISROUTING IS IN EFFECT A REFERENCE TO UNREASONABLENESS. APPARENTLY IT IS YOUR VIEW THAT MISROUTING INVOLVES A QUESTION OF REASONABLENESS FOR WHICH NO REMEDY EXISTS.

IT IS OUR VIEW, HOWEVER, THAT MISROUTING INVOLVES A BREACH OF DUTY ON THE PART OF THE CARRIERS WHERE HIGHER CHARGES RESULT THEREFROM,AND THAT GOVERNMENT AS A SHIPPER IS NOT OBLIGATED TO PAY GREATER CHARGES THAN THOSE APPLICABLE OVER THE ROUTE PRODUCING THE LOWEST CHARGES FOR THE TRANSPORTATION SERVICES. THE ISSUE OF WHETHER OR NOT MISROUTING IS AN "UNREASONABLE" PRACTICE IS NOT PENDING BEFORE THE SUPREME COURT OF THE UNITED STATES IN PROCEEDINGS TO REVIEW THE DECISION OF THE SECOND CIRCUIT IN THE CASE OF HEWITT-ROBINS, INC. V. EASTERN FREIGHTWAYS, INC., 293 F.2D 205, CERTIORARI GRANTED, 368 U.S. 951. UNTIL A FINAL DECISION IS ANNOUNCED IN THAT CASE A CHANGE IN OUR POSITION WOULD NOT APPEAR PROPER.

REGARDING THE CONTENTION THAT YOUR COMPANY SHOULD NOT BE HELD RESPONSIBLE FOR ERRORS IN ROUTING MADE BY THE ORIGIN CARRIER, IT MUST BE NOTED THAT THE GOVERNMENT EXERCISED NO CONTROL OVER THE ROUTING WHEREAS YOUR COMPANY ACCEPTED THE SHIPMENT FROM THE CONNECTING CARRIER AND WAS IN A POSITION TO PREVENT THE ACCRUAL OF THE EXCESS CHARGES. YOUR COMPANY BILLED AND RECEIVED PAYMENT OF THE THROUGH TRANSPORTATION CHARGES AND ANY NECESSARY ADJUSTMENT WITH THE ORIGIN CARRIER APPARENTLY SHOULD BE EFFECTED BY YOUR COMPANY, RATHER THAN BY THE GOVERNMENT.

ACCORDINGLY THE SETTLEMENT ISSUED ON FEBRUARY 26, 1962, IS AFFIRMED. HOWEVER, IF THE DECISION OF THE SUPREME COURT IN THE HEWITT ROBINS CASE IS ADVERSE TO THE GOVERNMENT'S POSITION HERE, AND YOU BELIEVE, BASED THEREON, THAT THE ADDITIONAL AMOUNT CLAIMED BY YOU IS DUE, WE WILL BE PLEASED TO CONSIDER THE MATTER FURTHER AT YOUR REQUEST.