B-135365, APRIL 7, 1959, 38 COMP. GEN. 677

B-135365, APRIL 7, 1959, 38 COMP. GEN. 677

TRANSPORTATION - ROUTES - ERRORS IN JOINT RATE TARIFF ALTHOUGH GENERALLY A CARRIER IS OBLIGATED AS THE RESULT OF ERRORS MADE BY A PUBLISHING AGENT IN A TARIFF WHICH LISTED THE CARRIER AS A JOINT-LINE PARTICIPANT WITH ANOTHER CARRIER IN A THROUGH ROUTE, WHEN THE CARRIER IMMEDIATELY DISCOVERS THE ERROR AND PROMPTLY HAS IT CORRECTED, THERE CAN BE NO PRESUMPTION OF A COMMON ARRANGEMENT BETWEEN THE CARRIERS WHERE NONE IN FACT EXISTED EXCEPT BY OPERATION OF LAW AS THE RESULT OF THE ERROR, AND NOTICES OF OVERPAYMENT OF FREIGHT CHARGES BASED ON THE ERRONEOUS JOINT RATE WILL BE CANCELED. 38 COMP. GEN. 164, MODIFIED ON THE BASIS OF ADDITIONAL INFORMATION.

TO THE KENOSHA AUTO TRANSPORT CORP., APRIL 7, 1959:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 8, 1958, REQUESTING RECONSIDERATION OF OUR DECISION OF AUGUST 27, 1958, B 135365, 38 COMP. GEN. 164. IN THAT DECISION, WE HELD, IN EFFECT, THAT KENOSHA'S PARTICIPATION IN NATIONAL AUTOMOBILE TRANSPORTERS ASSOCIATION TARIFF NO. 106-D, MF-1I.C.C. NO. 294, JOINTLY WITH OTHER CARRIERS PARTIES THERETO, EVIDENCED A COMMON ARRANGEMENT BETWEEN KENOSHA AND CENTRAL TRUCK AWAY FOR THE TRANSPORTATION OF PROPERTY FROM POINTS AUTHORIZED TO BE SERVED BY KENOSHA TO POINTS AUTHORIZED TO BE SERVED BY CENTRAL TRUCK AWAY VIA ROUTES TO AND FROM CAIRO, ILLINOIS. WE FURTHER HELD, BASED UPON WHAT WE CONSIDERED TO BE COMPETENT AUTHORITY, THAT THE CANCELLATION OF KENOSHA'S PARTICIPATION IN THE TARIFF DID NOT CLOSE THOSE ROUTES OR OTHERWISE ABROGATE SUCH COMMON ARRANGEMENT EXCEPT THAT THEREAFTER COMBINATION RATES WOULD APPLY VIA SUCH ROUTES INSTEAD OF THE JOINT RATES PREVIOUSLY AGREED UPON BY THE CARRIERS.

WHILE THE PRINCIPLE OF THE PREVIOUS RULING IS VALID ON THE BASIS OF THE FACTS AS THEN UNDERSTOOD, THE ADDITIONAL INFORMATION FURNISHED BY YOU SUPPORTS REVERSAL OF THE CONCLUSION THEN REACHED. UNTIL INFORMED BY YOU IN YOUR REQUEST FOR RECONSIDERATION, WE DID NOT KNOW, AND HAD NO WAY OF KNOWING BECAUSE THE MATTER WAS NOT PUBLIC KNOWLEDGE, THAT THE TARIFF LISTING OF KENOSHA AS A JOINT-LINE PARTICIPANT WAS DUE TO AN ERROR BY THE PUBLISHING AGENT AND THAT THERE WAS NEVER, IN FACT, ANY COMMON ARRANGEMENT BETWEEN KENOSHA AND THE OTHER CARRIERS PARTIES TO THIS TARIFF. WHILE CARRIER GENERALLY IS BOUND BY THE ERRORS OF ITS TARIFF PUBLISHING AGENT, AND KENOSHA UNDOUBTEDLY WOULD BE REQUIRED BY LAW TO OBSERVE ALL THE PROVISIONS OF THE TARIFF DURING THE PERIOD OF ITS ERRONEOUS PARTICIPATION THEREIN, IT IS OBVIOUS THAT AN ERROR OF THIS KIND, TIMELY DISCOVERED AND PROMPTLY RECTIFIED, CANNOT BE CONSIDERED AS CREATING, UNDER THE PRINCIPLES OF THE CASES PREVIOUSLY CITED, THE PRESUMPTION OF A COMMON ARRANGEMENT WHERE NONE EVER IN FACT EXISTED EXCEPT BY OPERATION OF LAW AS THE RESULT OF A PUBLISHING AGENT'S ERROR. OUR TRANSPORTATION DIVISION WILL BE INSTRUCTED TO REAUDIT THESE ACCOUNTS IN THE LIGHT OF THIS CONCLUSION, AND OUR NOTICES OF OVERPAYMENT WILL BE CANCELED OR AMENDED, AS MAY BE REQUIRED.