B-150543, JUN. 27, 1963

B-150543: Jun 27, 1963

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BURLINGTON AND QUINCY RAILROAD COMPANY: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 26. CONTEND THE FINDINGS IN THE DECIDED CASES ARE NOT APPLICABLE ON ALL SHIPMENTS WHICH INVOLVE SIMILAR DISPARITIES IN THE RATINGS. ALTHOUGH THE FINDINGS ON TWO OF THE DOCKETS INVOLVED IN THE VOLKER DECISION WAS STAYED BY ORDER DATED OCTOBER 23. WE HAVE BEEN ADVISED THAT ORIGINAL ORDER WAS REINSTATED ON JANUARY 3. REGARDING YOUR CONTENTION THAT CHARGES BASED ON THE EXCEPTIONS RATINGS ARE FOR PAYMENT IN THE ABSENCE OF A SPECIFIC FINDING BY THE COMMISSION AS TO EACH SHIPMENT. YOUR ATTENTION IS INVITED TO UNITED STATES V. THE TRANSPORTATION WAS COMPLETED PRIOR TO THE EFFECTIVE DATE OF PUBLIC LAW 85-762 APPROVED AUGUST 26.

B-150543, JUN. 27, 1963

TO CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 26, 1962, ACKNOWLEDGED JANUARY 4, 1963, REQUESTING REVIEW OF THE SETTLEMENTS WHICH DISALLOWED YOUR CLAIMS TOTALING $225.88 ON BILLS NOS. 465231-A, 465655-A, 466151 A, 466607-A AND 468836-A.

IN URGING PAYMENT OF THESE CLAIMS YOU ADMIT THAT THE INTERSTATE COMMERCE COMMISSION HAS AWARDED REPARATION IN SEVERAL CASES IN WHICH THE CHARGES BASED ON THE EXCEPTIONS RATINGS EXCEEDED THE CHARGES BASED ON THE RATINGS NAMED IN THE UNIFORM FREIGHT CLASSIFICATION, BUT CONTEND THE FINDINGS IN THE DECIDED CASES ARE NOT APPLICABLE ON ALL SHIPMENTS WHICH INVOLVE SIMILAR DISPARITIES IN THE RATINGS. YOU ALSO INVITE OUR ATTENTION TO THE REQUEST MADE FOR RECONSIDERATION IN WILLIAM VOLKER AND COMPANY OF TEXAS, INC., ET AL. V. ATCHISON, T. AND S.F.RY.CO., ET AL., DOCKET NO. 33199, 318 I.C.C. 249, AND OTHER DOCKETS EMBRACED WITHIN THE REPORT, AND INDICATE THAT SUCH DECISION THUS MAY NOT BE CONSIDERED FINAL.

ALTHOUGH THE FINDINGS ON TWO OF THE DOCKETS INVOLVED IN THE VOLKER DECISION WAS STAYED BY ORDER DATED OCTOBER 23, 1962, WE HAVE BEEN ADVISED THAT ORIGINAL ORDER WAS REINSTATED ON JANUARY 3, 1963, WITHOUT CHANGE OF THE REQUIREMENTS OF THE SAID ORDER. IN THAT CASE THE COMMISSION HAD UNDER CONSIDERATION SEVERAL SHIPMENTS OF STEEL STORAGE CABINETS AND STEEL DESKS WHICH MOVED FROM POINTS IN OFFICIAL TERRITORY TO DENVER, COLORADO, AND OTHER POINTS IN THE SOUTHWEST, AND AWARDED REPARATION ON SUCH SHIPMENTS.

AFTER STATING SEVERAL TIMES THAT THE CARRIERS SHOULD BE ALLOWED A REASONABLE LENGTH OF TIME TO ELIMINATE ANY DISPARITIES RESULTING FROM THE ADVENT OF THE DOCKET 28300 SCALE OF RATES, THE INTERSTATE COMMERCE COMMISSION TOOK COGNIZANCE OF THE SLOW PROGRESS BEING MADE IN RIDDING THE TARIFFS OF THE NUMEROUS EXCEPTIONS AND COMPLEXITIES, AND IN ENDICOTT- JOHNSON CORP. V. AKRON, C. AND Y.R.CO., 300 I.C.C. 373 (DECIDED MAY 1, 1957), STATED THAT EXCEPT IN EXTRAORDINARY CIRCUMSTANCES A FIVE-YEAR PERIOD (ENDING ON MAY 30, 1957) WOULD BE THE MAXIMUM TIME THAT WOULD BE REGARDED AS REASONABLE FOR MAKING THE NECESSARY TARIFF CHANGES TO REMOVE THE ABNORMALITIES OF THE EXCEPTIONS RATINGS EXCEEDING THE UNIFORM CLASSIFICATION SCALE OF RATES. THEREAFTER IN MANNINGTON MILLS, INC. V. ABILENE AND S.RY.CO., 301 I.C.C. 275, FRICK-GALLAGHER MANUFACTURING CO. V. BALTIMORE AND O.R.CO., 305 I.C.C. 689, AND GATES RUBBER CO. V. ATCHISON, T. AND S.F.RY.CO., 310 I.C.C. 655, THE COMMISSION FOUND THE HIGHER CHARGES BASED ON THE EXCEPTION RATINGS TO BE UNREASONABLE AND AWARDED REPARATION.

THE INTERSTATE COMMERCE COMMISSION THUS ESTABLISHED MAY 30, 1957, AS THE END OF ITS MORATORIUM AND HAS AWARDED REPARATIONS ON NUMEROUS SHIPMENTS MOVING SUBSEQUENT TO THAT DATE IN WHICH THE CHARGES EXCEEDED THOSE COMPUTED UNDER THE UNIFORM FREIGHT CLASSIFICATION. REGARDING YOUR CONTENTION THAT CHARGES BASED ON THE EXCEPTIONS RATINGS ARE FOR PAYMENT IN THE ABSENCE OF A SPECIFIC FINDING BY THE COMMISSION AS TO EACH SHIPMENT, YOUR ATTENTION IS INVITED TO UNITED STATES V. WESTERN P.R.CO., 352 U.S. 59, WHERE ON PAGE 74, THE SUPREME COURT IN COMMENTING ON THE CONTENTION THAT THE GOVERNMENT SHOULD SEEK RELIEF BY FILING A CLAIM FOR REPARATIONS, THE COURT STATED:

"BUT CONGRESS HAS RELIEVED THE GOVERNMENT FROM FILING SUCH ANTICIPATORY SUITS BY EXPRESSLY AUTHORIZING THE GENERAL ACCOUNTING OFFICE TO DEDUCT OVERPAYMENTS FROM SUBSEQUENT BILLS OF THE CARRIER IF, ON POST-AUDIT, IT FINDS THAT THE UNITED STATES HAS BEEN OVERCHARGED.'

SINCE THESE SHIPMENTS MOVED IN TRANSPORTATION SUBSEQUENT TO MAY 30, 1957, AND THE TRANSPORTATION WAS COMPLETED PRIOR TO THE EFFECTIVE DATE OF PUBLIC LAW 85-762 APPROVED AUGUST 26, 1958, 72 STAT. 859, THE SETTLEMENTS APPEAR TO BE PROPER AND ARE SUSTAINED.