B-153093, JUNE 5, 1964, 43 COMP. GEN. 772

B-153093, JUNE 5, 1964, 43 COMP. GEN. 772

TRANSPORTATION - ROUTES - MISROUTED SHIPMENTS - LIABILITY FOR EXCESS CHARGES - JURISDICTION. TRANSPORTATION - ROUTES - MISROUTED SHIPMENTS LIABILITY FOR EXCESS CHARGES - COMMON LAW RULE. TRANSPORTATION - ROUTES - MISROUTED SHIPMENTS - LIABILITY FOR EXCESS CHARGES - JURISDICTION. TRANSPORTATION - ROUTES - MISROUTED SHIPMENTS - LIABILITY FOR EXCESS CHARGES - SET-OFF PROPRIETY. TRANSPORTATION - ROUTES - MISROUTED SHIPMENTS - LIABILITY FOR EXCESS CHARGES - DESTINATION CARRIER AN ACTION FOR THE RECOVERY OF EXCESS TRANSPORTATION CHARGES FROM A DESTINATION MOTOR CARRIER FOR THE MISROUTING OF AN UNROUTED GOVERNMENT SHIPMENT OVER OTHER THAN THE LOWEST RATED ROUTE AS PROVIDED IN A REGULARLY PUBLISHED AND FILED TARIFF IS NOT AN ACTION RELATING TO THE DETERMINATION OF THE REASONABLENESS OR UNREASONABLENESS OF MOTOR CARRIER PRACTICES WHICH IS A MATTER WITHIN THE PRIMARY JURISDICTION OF THE INTERSTATE COMMERCE COMMISSION BUT IS IN VIEW OF THE HOLDING IN HEWITT-ROBINS, INC. V. EASTERN FREIGHT-WAYS, INC., 371 U.S. 84 (1962), TO THE EFFECT THAT A COMMON LAW ACTION FOR MISROUTING AGAINST A CARRIER SURVIVED THE PASSAGE OF THE MOTOR CARRIER ACT, AN ACTION WITHIN THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT, 1921, 31 U.S.C. 71, WHICH IS REQUIRED IN THE SETTLEMENT OF CLAIMS TO CONSIDER SUBSTANTIVE DEFENSES OF LAW. ALTHOUGH THE COMMON LAW RULE THAT ACTION BY A MOTOR CARRIER CHALLENGING IN POST-SHIPMENT LITIGATION THE REASONABLENESS OF THE CARRIER'S CHARGES HAS BEEN HELD NOT TO SURVIVE THE PASSAGE OF MOTOR CARRIER ACT ON THE BASIS THAT SUCH RULE IS INCONSISTENT WITH STATUTORY REGULATION (T.I.M.E., INC. V. UNITED STATES, 359 U.S. 464), THE COMMON LAW RULE THAT ACTION BY THE SHIPPER FOR MISROUTING AN UNROUTED SHIPMENT OVER OTHER THAN CHEAPEST AVAILABLE ROUTE SURVIVED PASSAGE OF MOTOR CARRIER ACT (HEWITT-ROBINS, INC. V. EASTERN FREIGHT-WAYS, INC., 371 U.S. 84 (1962) ). WHEN A MOTOR CARRIER CLAIMS OR IS PAID FREIGHT CHARGES ON AN UNROUTED GOVERNMENT SHIPMENT FORWARDED OVER A ROUTE PRODUCING CHARGES IN EXCESS OF THOSE OVER A LOWER RATED ROUTE AS PROVIDED BY TARIFF THERE IS A PRESUMPTION OF THE PARTIAL INVALIDITY OF THE HIGHER CHARGES CLAIMED OR PAID AND FOR THE GENERAL ACCOUNTING OFFICE IN THE SETTLEMENT OF TRANSPORTATION ACCOUNTS TO SANCTION THE USE OF PUBLIC FUNDS FOR THE PAYMENT OF SUCH HIGHER FREIGHT CHARGES WOULD VIOLATE THE DUTY IMPOSED UPON THE GENERAL ACCOUNTING OFFICE TO REJECT CLAIMS OF DOUBTFUL VALIDITY. WHEN IN CONNECTION WITH THE ROUTING OF AN UNROUTED GOVERNMENT SHIPMENT OVER A ROUTE PRODUCING FREIGHT CHARGES IN EXCESS OF THOSE OVER A LOWER RATED ROUTE AS PROVIDED BY TARIFF, THE VALIDITY OF THE CHARGES IS QUESTIONED BY THE GENERAL ACCOUNTING OFFICE AND THE CARRIER IS REQUESTED TO REFUND THE DIFFERENCE, SUCH A DIFFERENCE REPRESENTS PRESUMPTIVE MISROUTING DAMAGES AND, EVEN THOUGH SUCH MISROUTING DAMAGES ARE NOT OVERCHARGES AS DEFINED IN SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66, FOR COLLECTION BY SET-OFF UNDER THAT SECTION, THEY ARE FOR RECOVERY BY ADMINISTRATIVE DEDUCTION FROM AMOUNTS DUE THE CARRIER BY THE GENERAL ACCOUNTING OFFICE UNDER THE COMMON LAW SET-OFF RIGHT OF THE UNITED STATES. ALTHOUGH THE DELIVERING CARRIER IN A MULTIPLE CARRIER MOVEMENT OF AN UNROUTED SHIPMENT WAS NOT RESPONSIBLE FOR MISROUTING THE SHIPMENT OVER OTHER THAN THE LOWEST RATED ROUTE PROVIDED BY THE TARIFF, SUCH CARRIER WHEN IT CLAIMED AND RECEIVED PAYMENT FOR THE SERVICES HAD IN ITS POSSESSION THE GOVERNMENT BILL OF LADING WHICH EVIDENCED THE UNROUTED SHIPMENT AND THE MISROUTING AND IN SUCH CASE THE GOVERNMENT IS NOT REQUIRED TO BECOME INVOLVED IN THE CIRCUITY OF ACTION ENTAILED BY THE COLLECTION OF EXCESS CHARGES FROM ONE CARRIER AND REFUND OF THE SAME CHARGES BY ANOTHER; THEREFORE, ADMINISTRATIVE DEDUCTION FROM AMOUNTS DUE THE DELIVERING CARRIER IS PROPER.

TO M.R. AND R. TRUCKING COMPANY, JUNE 5, 1964:

REFERENCE IS MADE TO YOUR LETTERS OF MARCH 26 AND APRIL 28, 1964, REQUESTING RECONSIDERATION OF OUR DECISION, B-153093, DATED MARCH 16, 1964, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR $45.02 ADDITIONAL TRANSPORTATION CHARGES ON A GOVERNMENT SHIPMENT TRANSPORTED FROM FORREST CITY, ARKANSAS, TO MOSSY HEAD, FLORIDA (EGLIN AIR FORCE BASE), ON BILL OF LADING A-1312424 DATED SEPTEMBER 28, 1960, WHICH SHIPMENT WAS MISROUTED BY ONE OF THE CARRIERS PARTICIPATING IN THE MOVEMENT.

THE FACTS AND CIRCUMSTANCES GIVING RISE TO YOUR CLAIM AND THE BASIS FOR OUR ACTION WERE FULLY SET FORTH IN OUR DECISION OF MARCH 16, 1964. YOUR LETTER OF MARCH 26, 1964, YOU REITERATE YOUR POSITION PREVIOUSLY TAKEN IN CONNECTION WITH THE SO-CALLED "MISROUTE BY CARRIER" OR "UNROUTED" QUESTION, NAMELY (1) THAT THE GENERAL ACCOUNTING OFFICE HAS NO AUTHORITY TO DETERMINE WHETHER THE PRACTICE FOLLOWED BY THE CARRIER WAS UNREASONABLE, SUCH AUTHORITY BEING VESTED IN THE INTERSTATE COMMERCE COMMISSION; (2) THAT MISROUTING DAMAGES ARE NOT OVERCHARGES WITHIN THE PURVIEW OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED BY THE ACT OF AUGUST 26, 1958, 49 U.S.C. 66, AND DEFINED IN THE INTERSTATE COMMERCE ACT AND, CONSEQUENTLY, ARE NOT DEDUCTIBLE UNDERAUTHORITY OF THOSE ACTS; AND (3) THAT CHARGING A MISROUTING CLAIM TO THE M.R. AND R. IN THIS INSTANCE IS IMPROPER BECAUSE THE M.R. AND R. DID NOT MISROUTE THE SHIPMENT AND IS AN INNOCENT PARTY. ALL OF THESE POINTS WERE DISCUSSED IN OUR DECISION OF MARCH 16, 1964.

THE GIST OF YOUR PRESENT ARGUMENT SEEMS TO BE THAT THE GOVERNMENT CAN RECOVER MISROUTING DAMAGES ONLY BY FILING A SUIT WITH AN APPROPRIATE DISTRICT COURT, AN AVENUE OF RELIEF RECENTLY APPROVED BY THE UNITED STATES SUPREME COURT IN HEWITT-ROBINS, INC., V. EASTERN FREIGHT-WAYS, NC., 371 U.S. 84 (1962). AFTER CAREFUL CONSIDERATION OF THE ARGUMENT AND MATERIALS PRESENTED IN YOUR LETTERS, WE HAVE CONCLUDED THAT THE GOVERNMENT CAN COLLECT ITS CLAIM FOR MISROUTING DAMAGES BY ADMINISTRATIVE DEDUCTION, THOUGH NOT NECESSARILY UNDER SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AND THAT WHETHER A SINGLE CARRIER OR A MULTIPLE CARRIER HAUL IS INVOLVED, IF THE MISROUTING RESULTS FROM FORWARDING THE UNROUTED SHIPMENT OVER A ROUTE PRODUCING CHARGES IN EXCESS OF THOSE OVER A LOWER RATED AVAILABLE ROUTE PROVIDED BY TARIFF, THE AMOUNT OF THE DAMAGE IS COLLECTIBLE BY DEDUCTION FROM REVENUES OTHERWISE DUE THE DESTINATION CARRIER.

IN T.I.M.E., INC. V. UNITED STATES, 359 U.S. 464 (1959), THE UNITED STATES SUPREME COURT HELD THAT A SHIPPER OF GOODS BY A CERTIFICATED MOTOR CARRIER COULD NOT CHALLENGE IN POST-SHIPMENT LITIGATION THE REASONABLENESS OF THE CARRIER'S CHARGES WHICH WERE MADE IN ACCORDANCE WITH THE TARIFF GOVERNING THE SHIPMENT. THE COURT FOUND NO STATUTORY BASIS FOR SUCH A CHALLENGE AND RULED THAT THE SIMILAR COMMON LAW ACTION DID NOT SURVIVE THE PASSAGE OF THE MOTOR CARRIER ACT, 49 U.S.C. 301, SINCE IT WAS INCONSISTENT WITH THE SCHEME OF REGULATION PROVIDED BY THE CONGRESS. IN THE HEWITT- ROBINS CASE, THE COURT SPECIFICALLY DISTINGUISHED THE T.I.M.E. CASE AND HELD THAT A DISTRICT COURT HAS JURISDICTION OF AN ACTION BY A SHIPPER BASED ON THE SHIPPER'S CONTENTION THAT THE CARRIER, WITHOUT ADEQUATE JUSTIFICATION, VIOLATED ITS DUTY TO TRANSPORT AN UNROUTED SHIPMENT OVER THE CHEAPEST AVAILABLE ROUTE. THE COURT FOUND THAT THE COMMON LAW ACTION FOR MISROUTING SURVIVED THE PASSAGE OF THE MOTOR CARRIER ACT.

WE FIND NOTHING IN THE HEWITT-ROBINS CASE WHICH PRECLUDES OR INHIBITS OUR STATUTORY DUTY TO SETTLE AND ADJUST CLAIMS AND ACCOUNTS INVOLVING THE UNITED STATES. THAT DUTY IS SET FORTH IN SECTION 305 OF THE BUDGET AND ACCOUNTING ACT, 1921, 31, U.S.C. 71, WHICH PROVIDES:

ALL CLAIMS AND DEMANDS WHATEVER BY THE GOVERNMENT OF THE UNITED STATES OR AGAINST IT, AND ALL ACCOUNTS WHATEVER IN WHICH THE GOVERNMENT OF THE UNITED STATES IS CONCERNED, EITHER AS DEBTOR OR CREDITOR, SHALL BE SETTLED AND ADJUSTED IN THE GENERAL ACCOUNTING OFFICE.

THE UNITED STATES GENERAL ACCOUNTING OFFICE, IN THE DISCHARGE OF THAT DUTY, IS GOVERNED IN THE AUDIT OF TRANSPORTATION ACCOUNTS BY THE RATES AND ROUTES, WHERE APPLICABLE, IN THE PUBLISHED TARIFFS DULY FILED WITH THE APPROPRIATE REGULATORY BODIES. WE DO NOT AND CANNOT MAKE DETERMINATIONS OF THE REASONABLENESS OR UNREASONABLENESS OF MOTOR CARRIER ROUTING PRACTICES, THAT BEING A DETERMINATION WITHIN THE PRIMARY JURISDICTION OF THE INTERSTATE COMMERCE COMMISSION. NORTHERN PACIFIC RAILWAY CO. V. SOLUM, 247 U.S. 477 (1918). HOWEVER, IN CONNECTION WITH THE ROUTING OF A MOTOR CARRIER SHIPMENT, AND IN VIEW OF THE SURVIVAL OF A COMMON LAW COURT ACTION FOR MISROUTING, WE DO, AND WE MUST, QUESTION THE VALIDITY OF FREIGHT CHARGES EITHER CLAIMED OR PAID ON SHIPMENTS WHERE THE INITIAL OR AN INTERMEDIATE CARRIER DOES NOT FORWARD AN UNROUTED SHIPMENT OVER THE LINES OF THE CONNECTING CARRIERS VIA WHICH THE LOWEST TOTAL TARIFF CHARGES APPLY. IN EACH INSTANCE, AND ON THE BASIS OF NUMEROUS CASES DECIDED BY THE INTERSTATE COMMERCE COMMISSION (MURRAY CO. OF TEXAS, INC. V. MORROW, INC., 54 M.C.C. 442, 444 (1952); METZNER STOVE REPAIR CO. V. RANFT, 47 M.C.C. 151, 154 (1947); GREAT ATLANTIC AND PACIFIC TEA CO. V. ONTARIO FREIGHT LINES, 46 M.C.C. 237 (1946) (, THERE IS AT LEAST A PRESUMPTION OF THE PARTIAL INVALIDITY OF THE HIGHER CHARGES EITHER PAID OR CLAIMED. SANCTION THE USE OF PUBLIC FUNDS FOR PAYMENT OF THE HIGHER CHARGES CLAIMED OR PAID IN THOSE SITUATIONS WOULD APPEAR TO VIOLATE THE DUTY IMPOSED BY LAW UPON US TO CONSIDER, IN THE SETTLEMENT OF CLAIMS, SUBSTANTIVE DEFENSES IN LAW. AS WAS STATED IN LONGWILL AND JOHNSON'S CASES, 17 CT.CL. 288, 291 (1881):

THE ACCOUNTING OFFICERS OF THE TREASURY ARE IN DUTY BOUND TO SCRUTINIZE CLAIMS AND ACCOUNTS WITH GREAT CARE, AS IS THEIR CUSTOM; AND IT IS THE UNDOUBTED RIGHT AND DUTY OF THE COMPTROLLERS * * * WHO ALONE OF THE ACCOUNTING OFFICERS HAVE AUTHORITY TO DECIDE THEREON, TO REJECT, IN WHOLE OR IN PART, AS THEIR JUDGMENT DICTATES, ALL THOSE CLAIMS WHICH THEY HAVE REASONABLE CAUSE TO SUSPECT TO BE TAINTED WITH FRAUD, OR TO WHICH THEY BELIEVE THERE MAY BE SUBSTANTIAL DEFENSES IN LAW, OR AS TO THE VALIDITY OF WHICH THEY ARE IN DOUBT.

AND IN CHARLES V. UNITED STATES, 19 CT.CL. 316, 319 (1884):

WHEN, IN THE COURSE OF THE EXAMINATION OF ACCOUNTS IN THE DEPARTMENTS, SUSPICIONS ARE AROUSED OR DOUBTS ARE ENTERTAINED AS TO THE VALIDITY OF THE DEMANDS OF CLAIMANTS, THE PARTIES MAY BE SENT TO THIS COURT TO PROVE THEIR CASES UNDER THE RULES AND FORMS OF LAW, UPON LEGAL AND COMPETENT EVIDENCE, OR THEIR DEMANDS MAY BE REJECTED ALTOGETHER, LEAVING THE CLAIMANTS TO PROSECUTE THEM HERE UPON THEIR OWN VOLUNTARY PETITIONS, IF THEY SO DESIRE. THAT IS THE MAIN PROTECTION WHICH THE ACCOUNTING OFFICERS CAN SECURE FOR THEMSELVES AND FOR THE GOVERNMENT IN THE CASE OF CLAIMS OF DOUBTFUL VALIDITY IN FACT OR IN LAW * * *.

COMPARE UNITED STATES V. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD CO., 355 U.S. 253 (1957); UNITED STATES V. WESTERN PACIFIC RAILROAD CO., 352 U.S. 59, 73-75 (1956); UNITED STATES, EX REL SKINNER AND EDDY CORP. V. MCCARL, 275 U.S. 1, FOOTNOTE, PAGES 4 AND 5 (1927); WISCONSIN CENTRAL R. CO. V. UNITED STATES, 164 U.S. 190, 211 (1896).

WHEN IN CONNECTION WITH THE ROUTING OF A SHIPMENT WE QUESTION THE VALIDITY OF THE FREIGHT CHARGES PAID THEREON, THE CARRIER INVOLVED IS REQUESTED TO REFUND THE DIFFERENCE BETWEEN THE TARIFF CHARGES COLLECTED AND THOSE APPLYING OVER THE LOWER RATED ROUTE. CF. ADJUSTMENT OF CLAIMS FOR DAMAGES--- MISROUTING, 319 I.C.C. 462 (1963). THIS DIFFERENCE REPRESENTS PRESUMPTIVE MISROUTING DAMAGES AND, IN THE ABSENCE OF REFUND, WE HAVE THE AUTHORITY AND THE DUTY TO COLLECT THEM BY ADMINISTRATIVE DEDUCTION. WE AGREE THAT IT COULD BE ARGUED THAT MISROUTING DAMAGES ARE NOT OVERCHARGES, AS DEFINED IN SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AND THEREFORE ARE NOT SUBJECT TO COLLECTION BY SETOFF UNDER THAT SECTION. BUT, AS STATED IN SEABOARD SURETY CO. V. UNITED STATES, 107 CT.CL. 34, 67 F.SUPP. 969, 971 (1946):

THE UNITED STATES POSSESSES THE GENERAL AS WELL AS THE STATUTORY RIGHT, R.S. SEC. 236, 31 U.S.C.A. SECS. 71, TO APPLY ANY SUM DUE BY IT TO THE EXTINGUISHMENT, IN WHOLE OR IN PART, OF ANY DEBT DUE TO THE UNITED STATES ON ANY OTHER ACCOUNT BY A PERSON TO WHOM THE UNITED STATES IS INDEBTED, BUT THIS IS ONLY THE EXERCISE OF THE COMMON RIGHT WHICH BELONGS TO EVERY CREDITOR TO APPLY THE UNAPPROPRIATED MONIES OF HIS DEBTOR, IN HIS HANDS, IN THE EXTINGUISHMENT OF THE DEBTS DUE TO HIM. GRATIOT V. UNITED STATES, 15 PET. 336, 10 L.ED. 759. THE RIGHT OF OFFSET DOES NOT GIVE THE GOVERNMENT A SUPERIOR LEGAL OR EQUITABLE CLAIM TO THE FUNDS IN ITS HANDS, NOR DOES SUCH RIGHT OF OFFSET GIVE THE ADMINISTRATIVE SETTLEMENT FINALITY, AND,"WHETHER THE AMOUNT SO (ADMINISTRATIVELY) FIXED IS DUE, IN LAW AND IN FACT, UNDOUBTEDLY REMAINS A QUESTION TO BE ADJUDICATED, IF PROPERLY RAISED IN JUDICIAL PROCEEDINGS, * * *.' ILLINOIS SURETY CO. V. UNITED STATES TO THE USE OF PEELER ET AL., 240 U.S. 214, 219, 36 S.CT. 321, 324, 60 L.ED. 609.

AND IN UNITED STATES V. MUNSEY TRUST CO., 332 U.S. 234, 239-240 (1947), THE SUPREME COURT STATED THAT, IN ADDITION---

* * * FEDERAL STATUTE GIVES JURISDICTION TO THE COURT OF CLAIMS TO HEAR AND DETERMINE "ALL SET-OFFS, COUNTERCLAIMS, CLAIMS FOR DAMAGES, WHETHER LIQUIDATED OR UNLIQUIDATED, OR OTHER DEMANDS WHATSOEVER ON THE PART OF THE GOVERNMENT OF THE UNITED STATES AGAINST ANY CLAIMANT AGAINST THE GOVERNMENT IN SAID COURT ...' JUDICIAL CODE SECS. 145, 28 U.S.C. SECS. 250 (2). THIS POWER GIVEN TO THE COURT OF CLAIMS TO STRIKE A BALANCE BETWEEN THE DEBTS AND CREDITS OF THE GOVERNMENT, BY LOGICAL IMPLICATION GIVES POWER TO THE COMPTROLLER GENERAL TO DO THE SAME, SUBJECT TO REVIEW BY THAT COURT.

FURTHER, IN THE CASE OF BARRY V. UNITED STATES, 229 U.S. 47, 53 (1913), INVOLVING OFFSET OF AN AMOUNT DUE UNDER A CONTRACT AGAINST THE CONTRACTOR'S INDEBTEDNESS ARISING UNDER ANOTHER CONTRACT, THE SUPREME COURT STATED:

THE LIABILITY MIGHT HAVE BEEN ASSERTED BY THE GOVERNMENT IN AN ACTION; BUT IT MIGHT, AS IT DID, CHARGE IT UP AS A SET-OFF AGAINST ITS OWN LIABILITY. IT WOULD BE FOLLY TO REQUIRE THE GOVERNMENT TO PAY UNDER THE ONE CONTRACT WHAT IT MUST EVENTUALLY RECOVER FOR A BREACH OF THE OTHER.

SEE ALSO CHERRY COTTON MILLS V. UNITED STATES, 327 U.S. 536 (1946); MCKNIGHT V. UNITED STATES, 98 U.S. 179 (1878); WISCONSIN CENTRAL RAILROAD COMPANY V. UNITED STATES, 164 U.S. 190, 211 (1896); FLYING TIGER LINE,INC. V. UNITED STATES, 145 CT.CL. 1, 170 F.SUPP. 422, 425 (1959); ATCHISON, T. AND S.F. RY. CO. V. UNITED STATES, 118 CT.CL. 194, 94 F.SUPP. 677, 679 (1951).

GOVERNMENT BILL OF LADING A-1312424 COVERED A SHIPMENT WHICH WAS SUBJECT TO RATES AND ROUTES PROVIDED IN INTERSTATE TARIFFS REGULARLY PUBLISHED AND FILED WITH THE INTERSTATE COMMERCE COMMISSION, AND SHIPPERS AND CARRIERS ALIKE ARE CHARGED WITH KNOWLEDGE OF THE LEGALLY PUBLISHED TARIFF RATE OR CHARGE. JOHNSON MACHINE WORKS, INC. V. CHICAGO, BURLINGTON AND QUINCY RY. CO., 297 F.2D 793, 794 (1962); ATCHISON T. AND S.F. RY. CO. V. SPRINGER, 172 F.2D 346, 349 (1949); KAHN MFG. CO. V. BOSTON AND MAINE R.CO., 276 I.C.C. 556, 559 (1949). WHILE YOU WERE NOT THE INITIAL CARRIER, YOU HAD KNOWLEDGE THAT THE SHIPMENT HAD BEEN TENDERED TO THE INITIAL CARRIER UNROUTED BEFORE YOU CLAIMED AND COLLECTED THE HIGHER CHARGES, AND YOU WERE LEGALLY CHARGEABLE WITH KNOWLEDGE OF THE PUBLISHED TARIFF RATES. IN THIS SITUATION, THE GOVERNMENT IS NOT REQUIRED TO BECOME INVOLVED IN SUCH CIRCUITY OF ACTION AS WOULD BE ENTAILED BY THE COLLECTION OF THE EXCESS CHARGES FROM THE GOVERNMENT BY ONE CARRIER AND THE REFUND OF THE SAME CHARGES TO THE GOVERNMENT BY ANOTHER CARRIER PARTICIPATING IN THE TRANSPORTATION OF THE SHIPMENT. SEE GALVESTON, HOUSTON AND SAN ANTONIO RAILWAY COMPANY V. LYKES BROS. 294 FED. 968 (1923); LANCASTER V. SCHREINER, 212 S.W. 19 (1919).

WHICH OF THE CARRIERS IN THE ACTUAL ROUTE OF MOVEMENT WAS RESPONSIBLE FOR MISROUTING THE SHIPMENT COVERED BY GOVERNMENT BILL OF LADING A-1312424 ORDINARILY SEEMS TO BE IMMATERIAL TO THE SHIPPER. TRANSPORTATION CHARGES WERE CLAIMED BY, AND PAID TO, THE LAST CARRIER IN THE ACTUAL ROUTE OF MOVEMENT IN ACCORDANCE WITH THE PROVISIONS OF CONDITION NO. 1 ON THE BACK OF THE GOVERNMENT BILL OF LADING. THE GOVERNMENT BILL OF LADING WAS SURRENDERED TO THE DELIVERING CARRIER WHO USED IT TO SUPPORT ITS CLAIM FOR CHARGES. THUS, THE CARRIER CLAIMING AND RECEIVING PAYMENT OF THE TRANSPORTATION CHARGES HAD IN ITS POSSESSION THE EVIDENCE (UNROUTED BILL OF LADING) OF THE MISROUTING OF THE SHIPMENT AND OF THE RIGHT OF THE SHIPPER TO THE BENEFIT OF THE LOWEST AVAILABLE JOINT THROUGH RATE IN WHICH THE INITIAL CARRIER PARTICIPATED.

IN THE DISTRIBUTION OF THE THROUGH REVENUE AMONG THE INTERESTED CARRIERS, THE DELIVERING CARRIER HAD THE MEANS OF PROTECTING THE REVENUE OF THOSE CARRIERS INNOCENT OF MISROUTING THE SHIPMENT AND OF ASSESSING ANY SHORTAGE IN REVENUE AGAINST THE CARRIER GUILTY OF MISROUTING. SEE 35 COMP. GEN. 569 (1956). FURTHERMORE, ON THE PAYEE'S CERTIFICATE ON THE PUBLIC VOUCHER FOR TRANSPORTATION CHARGES, SF 1113, ON WHICH YOUR BILL NO. 3914-60 WAS PRESENTED, YOU CERTIFIED THAT THE RATES CHARGED WERE 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). THE CONTENTS OF YOUR LETTERS HAVE BEEN CAREFULLY CONSIDERED AND YOU HAVE NOT PRESENTED ANY FACTS OR EVIDENCE THAT WOULD WARRANT ANY MODIFICATION OF THE CONCLUSION REACHED IN OUR DECISION OF MARCH 16, 1964. ACCORDINGLY, THE CONCLUSION REACHED IN THAT DECISION MUST BE, AND IS, ADHERED TO. ..END :