B-153093, MAR. 16, 1964

TO M.R. AND R. TRUCKING COMPANY:

YOUR LETTER OF DECEMBER 11, 1963, REQUESTS OUR REVIEW OF THE SETTLEMENT DATED JANUARY 4, 1963, WHICH DISALLOWED YOUR CLAIM, PER LETTER OF MAY 30, 1962, FOR $45.02 ADDITIONAL CHARGES FOR THE TRANSPORTATION OF A SHIPMENT CONSISTING OF A TRUCK AND TRACTOR COMBINED, PLATFORM OR WAREHOUSE, NOI (4,000-LB. DRAWBAR PULL 6 WHEELS), WEIGHING 5,490 POUNDS, THAT MOVED UNDER BILL OF LADING NO. A 1312424, DATED SEPTEMBER 28, 1960. THE SHIPMENT, WHICH IS SHOWN TO HAVE MOVED FROM FORREST CITY, ARKANSAS, TO MOSSY HEAD, FLORIDA (EGLIN AIR FORCE BASE), WAS TENDERED TO BURNETT TRUCK LINE AT ORIGIN AND ALLEGEDLY MOVED BEYOND THAT LINE VIA LOOMAC FREIGHT LINES AND RYDER TRUCK LINES TO YOUR COMPANY WHICH DELIVERED IT AT DESTINATION ON OCTOBER 10, 1960.

FOR THIS SERVICE YOU CLAIMED AND WERE PAID $213.01 BY VOUCHER NO. 29623 IN THE DECEMBER 1060 ACCOUNTS OF A. G. PERRY, BASED ON A COMBINATION OF RATES MADE OVER MEMPHIS, TENNESSEE. THE CHARGES WERE COMPUTED ON THE BASIS OF A CLASS 85 RATE OF $1.10 PER 100 POUNDS ON THE ACTUAL WEIGHT OF THE SHIPMENT TO MEMPHIS, PER ITEM 190440 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-5, MF-I.C.C. NO. 3, AS PUBLISHED IN SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 505-A, MF-I.C.C. NO. 843; AND FROM MEMPHIS TO DESTINATION THE CHARGES WERE COMPUTED ON THE BASIS OF A CLASS 85 RATE OF $2.78 PER 100 POUNDS ON THE ACTUAL WEIGHT, AS PROVIDED IN SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 505-A, MF-I.C.C. NO. 1092. SUBSEQUENTLY, IN OUR AUDIT WE STATED AN EXCESS CHARGE BASED UPON THE CLASS 85 JOINT THROUGH RATE OF $3.06 PER 100 POUNDS ON THE ACTUAL WEIGHT OF THE SHIPMENT, AS PUBLISHED IN SMCRC TARIFF NO. 505-A, APPLICABLE VIA A ROUTE OVER WHICH THE SHIPMENT COULD HAVE BEEN FORWARDED, THAT IS, BURNETT TRUCK LINES TO MEMPHIS, TENNESSEE, HERRIN TRANSPORTATION COMPANY TO CRESTVIEW, FLORIDA, AND THENCE TO DESTINATION BY YOUR COMPANY.

WE NOTIFIED YOU OF THE EXCESS CHARGE OF $45.02 BY GENERAL ACCOUNTING OFFICE FORM NO. 1003, DATED JANUARY 10, 1962. UPON YOUR FAILURE TO REFUND THE AMOUNT OF THE EXCESS CHARGE WE EFFECTED COLLECTION THROUGH DEDUCTION FROM MONIES OTHERWISE DUE, AND UPON FILING OF YOUR CLAIM FOR REPAYMENT OF THE EXCESS CHARGE WE DISALLOWED THE CLAIM BY THE SETTLEMENT OF JANUARY 4, 1963.

IN REQUESTING REVIEW OF THE SETTLEMENT, YOU INITIALLY QUESTION OUR AUTHORITY TO MAKE THE DEDUCTION; SECONDLY, YOU ASSERT THAT, SHOULD WE POSSESS THIS AUTHORITY, THE DEDUCTION SHOULD BE MADE FROM THE ORIGIN CARRIER OR OTHER CARRIER RESPONSIBLE FOR THE MISROUTING; AND FINALLY, YOU CONTEND THAT THE LOWER-RATED ROUTE URGED FOR APPLICATION BY US IN SO CIRCUITOUS IN COMPARISON WITH THE ROUTE USED AS TO BE UNREASONABLE.

OUR AUDIT ACTION IS PREDICATED UPON THE RIGHT OF A SHIPPER BY MOTOR CARRIER TO HAVE HIS UNROUTED SHIPMENT TRANSPORTED OVER THE CHEAPEST AVAILABLE ROUTE. MURRAY COMPANY OF TEXAS, INC. V. MORROW, INC. 54 M.C.C. 442, 444; METZNER STOVE REPAIR COMPANY V. RANFT, 47 M.C.C. 151, 154; GREAT ATLANTIC AND PACIFIC TEA COMPANY V. ONTARIO FREIGHT LINES, 46 M.C.C. 237, 238-239; HAUSMAN STEEL COMPANY V. SEABOARD FREIGHT LINES, 32 M.C.C. 31. FAILURE BY THE CARRIERS TO TRANSPORT THE UNROUTED SHIPMENT OVER SUCH CHEAPEST AVAILABLE ROUTE IS MISROUTING, AND SUBJECTS THE CARRIER TO LIABILITY FOR THE DIFFERENCE BETWEEN THE RATE APPLICABLE OVER THE ROUTE OF MOVEMENT AND THE RATE OVER THE LOWER AVAILABLE ROUTE OVER WHICH THE SHIPMENT SHOULD HAVE MOVED. ALABAMA ROCK ASPHALT, INC. V. ABILENE AND SOUTHERN RAILWAY COMPANY, 206 I.C.C. 510; SUNDERLAND BROTHERS COMPANY V. LOUISVILLE AND NASHVILLE RAILROAD COMPANY, 168 I.C.C. 446; FERGUSON, ASSIGNEE V. LOUISVILLE AND ARKANSAS RAILWAY COMPANY, 196 I.C.C. 369.

WHILE IT IS TRUE THAT THE CARRIER IS NOT COMPELLED TO USE THE LOWER RATED ROUTE IF IT WOULD BE UNREASONABLE, NORTHERN PACIFIC R.CO. V. SOLUM, 247 U.S. 477; JOHNSON MACHINE WORKS, INC. V. CHICAGO, B. AND Q.R.CO., 297 F. 2D 793 (8TH CIR.); GREAT ATLANTIC AND PACIFIC TEA CO. V. ONTARIO FREIGHT LINES, SUPRA, THE BURDEN IS UPON HIM TO REBUT THE PRESUMPTION OF MISROUTING BY SHOWING JUSTIFICATION. MURRAY COMPANY OF TEXAS, INC. V. MORROW, INC. SUPRA; METZNER STOVE REPAIR CO. V. RANFT, SUPRA. YOUR ASSERTION OF JUSTIFICATION IS THAT THE LOWER-RATED ROUTE OUTLINED IN OUR AUDIT IS CIRCUITOUS AND THUS UNREASONABLE FOR YOU TO USE.

THE GENERAL ACCOUNTING OFFICE IS WITHOUT AUTHORITY TO DETERMINE THE REASONABLENESS OF RATES OR PRACTICES, AS THAT AUTHORITY LIES WITHIN THE PROVINCE OF THE INTERSTATE COMMERCE COMMISSION. WE MAY, HOWEVER, COMPARE THE FACTS AND CIRCUMSTANCES IN CONNECTION WITH A GIVEN CLAIM BEFORE US WITH THOSE INVOLVED IN CASES IN WHICH THE INTERSTATE COMMERCE COMMISSION HAS REACHED SUCH A DETERMINATION, AND APPLY THE COMMISSION'S PRINCIPLES TO OUR QUESTIONED CASE. SEE 37 COMP. GEN. 571, 573; 32 COMP. GEN. 1. THE COMMISSION HAS HELD THAT CIRCUITY OF THE LOWER-RATED ROUTE IS INSUFFICIENT JUSTIFICATION FOR MISROUTING. MURRAY COMPANY OF TEXAS, INC. V. MORROW, INC., SUPRA; HEWITT-ROBINS, INC. V. EASTERN FREIGHT-WAYS, INC., 302 I.C.C. 173, 178. IN THE MURRAY COMPANY CASE, THE CIRCUITY WAS AS MUCH AS 10 PERCENT, WHILE THIS CASE INVOLVES APPROXIMATELY 7 PERCENT; THEREFORE, YOUR JUSTIFICATION FOR MISROUTING IS INSUFFICIENT AS A MATTER OF LAW, AND YOU HAVE NOT MET YOUR BURDEN OF REBUTTING THE PRESUMPTION AGAINST YOU.

OUR BASIC AUTHORITY FOR ANY ACTION IN THIS CASE IS FOUND IN 31 U.S.C. 71, IMPOSING UPON US THE DUTY TO SETTLE AND ADJUST THE GOVERNMENT'S ACCOUNTS, WHICH, OF COURSE, INCLUDES FREIGHT BILLS FOR TRANSPORTATION OF GOVERNMENT FREIGHT.

WHILE THE UNITED STATES SUPREME COURT IN 1959 FORECLOSED THE RIGHT OF A SHIPPER BY CERTIFICATED MOTOR CARRIER TO QUESTION, IN POST SHIPMENT LITIGATION, THE REASONABLENESS OF THE CARRIER'S CHARGES MADE IN ACCORDANCE WITH THE TARIFF GOVERNING THE SHIPMENT, T.I.M.E., INC. V. UNITED STATES, 359 U.S. 464, THE COURT IN 1962 EXPLAINED THAT THE T.I.M.E. CASE DID NOT REFER TO MISROUTING CASES WHERE THE CHALLENGE IS NOT DIRECTED AT THE REASONABLENESS OF THE RATES BUT AT THE CARRIERS' ROUTING PRACTICE, AND REAFFIRMED THE SHIPPER'S RIGHT TO SUCH POST SHIPMENT LITIGATION OF THESE CASES. HEWITT-ROBINS, INC. V. EASTERN FREIGHT-WAYS, INC., 371 U.S. 84, 87.

YOUR CONTENTION THAT WE MAY NOT DEDUCT THIS AMOUNT UNDER SECTION 322 OF THE ACT, INASMUCH AS IT IS NOT AN OVERCHARGE, IS CORRECT AS FAR AS IT GOES; HOWEVER, THIS STATUTORY PROVISION DOES NOT ABROGATE OUR COMMON LAW RIGHT TO COLLECT MONEY DUE US UNDER THE "RIGHT "WHICH BELONGS TO EVERY CREDITOR," " INCLUDING THE GOVERNMENT," "TO APPLY THE UNAPPROPRIATED MONEYS OF HIS DEBTOR, IN HIS HANDS, IN EXTINGUISHMENT OF THE DEBTS DUE TO HIM.'" UNITED STATES V. MUNSEY TRUST CO., 332 U.S. 234, 239. ALSO, SEE BARRY V. UNITED STATES, 229 U.S. 47, 52, 53; MCKNIGHT V. UNITED STATES, 98 U.S. 179, 186; GRATIOT V. UNITED STATES, 15 PET. (40 U.S.) 336, 370; AND, AS APPLYING SPECIFICALLY TO COMMON CARRIERS, UNITED STATES V. NEW YORK, NEW HAVEN AND HARTFORD R.CO., 355 U.S. 253, 261.

AS A PARTICIPANT IN THIS TRANSPORTATION YOU ARE CHARGED WITH THE KNOWLEDGE OF THE LEGALLY PUBLISHED TARIFF RATES AND CHARGES, AS WELL AS AVAILABLE ROUTES OF TRAVEL. SEE JOHNSON MACHINE WORKS, INC. V. CHICAGO, BURLINGTON AND QUINCY RAILWAY CO., SUPRA, AT PAGE 794; ATCHISON, T. AND S.F.RY.CO. V. SPRINGER, 172 F. 2D 346, 349 (7TH CIR.); KAHN MANUFACTURING CO. V. BOSTON AND R.CO., 276 I.C.C. 556, 559. THEREFORE, WHEN YOU TENDERED YOUR ORIGINAL BILL FOR CHARGES YOU WERE CHARGED WITH THE KNOWLEDGE OF THE EXISTENCE OF ANOTHER AVAILABLE ROUTE PRODUCING A LOWER RATE. ALSO, THE GOVERNMENT BILL OF LADING WAS SURRENDERED TO YOU--- THE DELIVERING CARRIER--- AND YOU USED THAT BILL OF LADING TO SUPPORT YOUR CLAIM FOR CHARGES. THUS, YOU HAD IN YOUR POSSESSION BEFORE PRESENTING YOUR BILL FOR CHARGES, THE EVIDENCE (UNROUTED BILL OF LADING) OF THE MISROUTING OF THE SHIPMENT AND THE RIGHT OF THE SHIPPER TO THE BENEFIT OF THE LOWEST AVAILABLE JOINT THROUGH RATE IN WHICH THE INITIAL CARRIER PARTICIPATED. 35 COMP. GEN. 569, 570. ALTHOUGH IT IS TRUE THAT THE DUTY OF PROPER ROUTING RESTS WITH THE INITIAL CARRIER, MURRAY COMPANY OF TEXAS, INC. V. MORROW, INC., SUPRA, OR INTERMEDIATE RESPONSIBLE CARRIER, THE GOVERNMENT IS NOT REQUIRED TO BECOME INVOLVED IN SUCH CIRCUITY OF ACTION AS WOULD BE ENTAILED BY THE COLLECTION OF EXCESS CHARGES FROM THE GOVERNMENT BY ONE CARRIER AND REFUND OF THE SAME CHARGES TO THE GOVERNMENT BY ANOTHER CARRIER AND PARTICIPATING IN THE TRANSPORTATION. SEE ENCLOSED COPY OF THE DECISION OF JULY 15, 1963, B-148465 AND B-148615, WHICH ANSWERS YOUR CONTENTION IN DETAIL. ALSO SEE 31 COMP. GEN. 605; GALVESTON, HOUSTON AND SAN ANTONIO RAILWAY COMPANY V. LYKES BROTHERS, 294 FED. 968; LANCASTER V. SCHREINER, 212 S.W. 19, AS TO THE CARRIER'S DUTY TO FORWARD A SHIPMENT OVER THE LOWEST AVAILABLE ROUTE AND THE AVOIDANCE OF CIRCUITY OF ACTION. WE HAVE THUS PROCEEDED AGAINST M.R. AND R. TRUCKING COMPANY, AS THE CARRIER TO WHOM PAYMENT WAS MADE PURSUANT TO CONDITION 1 OF THE GOVERNMENT BILL OF LADING NO. A-1312424 AND WHO CLAIMED AND RECEIVED PAYMENT OF THE EXCESS CHARGES WHILE HAVING IN ITS POSSESSION THE EVIDENCE OF THE SHIPPER'S LEGAL RIGHT TO THE BENEFIT OF THE LOWER CHARGE. SEE 35 COMP. GEN. 569, 570, WHICH IS ON ALL FOURS WITH THE PRESENT CASE AND IS DETERMINATIVE OF THE ISSUE HEREIN.