B-148522, FEB. 13, 1963

B-148522, FEB. 13, 1963

TO WESTERN TRUCK LINES, LTD.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 29, 1962 (FILE G 02478), IN WHICH YOU REQUESTED RECONSIDERATION OF OUR DECISION OF JUNE 14, 1962, WHICH SUSTAINED DISALLOWANCE OF YOUR CLAIM FOR $548.87. THE CLAIM WAS PRESENTED TO RECOVER AN AMOUNT DEDUCTED IN JANUARY 1961 FROM MONIES OTHERWISE DUE YOU TO ADJUST THE CHARGES ORIGINALLY PAID ON A SHIPMENT COVERED BY BILL OF LADING N 34066099. THIS SHIPMENT MOVED FROM CORPUS CHRISTI, TEXAS, TO ALAMEDA, CALIFORNIA, IN SEPTEMBER 1959. YOU ORIGINALLY CLAIMED AND WERE PAID FREIGHT CHARGES IN THE AMOUNT OF $1,380.72, BUT IN OUR AUDIT IT WAS DETERMINED THAT THE ALLOWABLE CHARGES WERE $831.85, COMPUTED OVER A LOWER-RATED ROUTE THAN THE ONE INVOLVING THE THREE CARRIERS REPORTEDLY USED.

IN YOUR REQUEST FOR RECONSIDERATION, YOU STATE THAT, AS THE PAYEE CARRIER, YOU WERE NOT A PARTICIPANT IN THE RATE CLAIMED TO BE CORRECT, AND THAT THIS WOULD PRECLUDE YOUR BEING RESPONSIBLE FOR THE PROTECTION OF THE BASIS CLAIMED. IN SUPPORT OF THIS POSITION, YOU REFER TO THE OPINION EXPRESSED IN A LETTER DATED JUNE 19, 1962, FROM OUR TRANSPORTATION DIVISION, CONCERNING ANOTHER SHIPMENT. THE SITUATION REFERRED TO IN THAT LETTER INVOLVED THE RIGHTS AND DUTIES OF A PAYEE CARRIER PARTY TO A SECTION 22 QUOTATION AND THE OPINION EXPRESSED APPARENTLY WAS BASED ON THE VIEW THAT THE PAYEE CARRIER'S LIMITED PARTICIPATION IN THE QUOTATION, DID NOT GIVE IT CONSTRUCTIVE NOTICE OF THE RATES AND ROUTES OF OTHER PARTICIPANTS TO REQUIRE IT TO PROTECT LOWER-RATE ROUTES OF OTHER PARTICIPANTS.

IN THE INSTANT MATTER, HOWEVER, YOU WERE PARTY TO A JOINT TARIFF LAWFULLY ON FILE WITH THE INTERSTATE COMMERCE COMMISSION COVERING THE TRANSPORTATION IN QUESTION AND WERE CHARGED WITH CONSTRUCTIVE NOTICE OF THE RATES AND ROUTES OF YOUR CONNECTING LINES. THE ACCEPTANCE OF THIS SHIPMENT FROM YOUR CONNECTING LINES WITH KNOWLEDGE THAT YOUR HANDLING OF THE SHIPMENT WOULD RESULT IN ITS BEING TRANSPORTED OVER A HIGHER-RATED ROUTE THAN THAT OTHERWISE AVAILABLE IN THE TARIFF, WOULD SEEM TO CONSTITUTE AN UNREASONABLE PRACTICE IN VIOLATION OF SECTION 216 OF THE INTERSTATE COMMERCE ACT, AS AMENDED, 49 U.S.C. 316.

THE SETTLEMENT IN THIS CASE IS BASED ON THE APPLICABLE TARIFF CHARGES FOR SERVICE VIA THE AVAILABLE LOWER-RATED ROUTE AND, IN THE ABSENCE OF A CONTRARY DETERMINATION BY THE INTERSTATE COMMERCE COMMISSION, IS ALL THAT IS LAWFULLY DUE FOR THE SERVICE IN QUESTION. IT SHOULD BE NOTED, IN THIS CONNECTION, THAT THE PAYEE'S CERTIFICATE ON THE PUBLIC VOUCHER FOR TRANSPORTATION CHARGES, ON WHICH YOUR BILL NO. 49-9-24 WAS PRESENTED, CERTIFIES THAT THE RATES CHARGED ARE NOT IN EXCESS OF THE LOWEST NET RATES AVAILABLE FOR THE GOVERNMENT, BASED ON TARIFFS EFFECTIVE AT THE DATE OF SERVICE. SEE SHUTT V. UNITED STATES, 218 F.2D 10 (1954), CERT. DENIED 350 U.S. 822; UNITED STATES V. GARCIA AND DIAZ, INC., 291 F.2D 242 (1961), ACCORDINGLY, OUR DECISION OF JUNE 14, 1962, SUSTAINING THE SETTLEMENT IS AFFIRMED.

YOU HAVE INQUIRED WHETHER OUR OFFICE IS PREPARED TO WAIVE THE PROVISIONS OF SECTION 204A OF THE INTERSTATE COMMERCE ACT WITH RESPECT TO THIS CLAIM. WE HAVE NO AUTHORITY TO WAIVE THE PROVISIONS OF THE STATUTE IN QUESTION; HOWEVER, THE DEDUCTION IN THIS CASE WAS MADE IN JANUARY 1961, AND YOU WOULD HAVE THREE YEARS FROM THAT TIME IN WHICH TO ASSERT A CLAIM IN THE COURTS. IF SUCH ACTION WERE BROUGHT, HOWEVER, THE UNITED STATES WOULD DEFEND AGAINST RECOVERY BY ALLEGING DAMAGES IN THE AMOUNT OF THE DIFFERENCE BETWEEN THE CHARGES OVER THE HIGHER RATED ROUTE AND THOSE OVER THE AVAILABLE LOWER-RATED ROUTE. THE SUPREME COURT OF THE UNITED STATES HAS RECENTLY HELD, IN THE CASE OF HEWITT-ROBINS, INCORPORATED V. EASTERN FREIGHT-WAYS, INC., 371 U.S. 84, THAT A UNITED STATES DISTRICT COURT HAS JURISDICTION TO CONSIDER A COMPLAINT FOR DAMAGES RESULTING FROM AN UNREASONABLE MISROUTING PRACTICE.