B-126728, JUNE 8, 1956, 35 COMP. GEN. 681

B-126728, JUNE 8, 1956, 35 COMP. GEN. 681

TRANSPORTATION - RATES - HIGHER THAN NORMAL TARIFF - MOTOR CARRIERS THE MAXIMUM FREIGHT RATES WHICH CAN BE DEMANDED FROM THE GOVERNMENT FOR TRANSPORTATION SERVICES FURNISHED BY MOTOR VEHICLE COMMON CARRIERS ARE THE RATES SPECIFIED IN THE CARRIERS' TARIFFS REGULARLY PUBLISHED AND FILED WITH THE INTERSTATE COMMERCE COMMISSION, AND SUCH RATES MUST PREVAIL OVER HIGHER RATES WHICH ARE SPECIFIED IN A SPECIAL QUOTATION OFFERED BY THE CARRIERS AND ACCEPTED BY THE GOVERNMENT.

TO EARL E. MILLER, JUNE 8, 1956:

REFERENCE IS MADE TO YOUR REQUEST FOR REVIEW OF OUR AUDIT ACTION RELATING TO TWO SHIPMENTS OF GOVERNMENT PROPERTY WHICH WERE DISCOVERED BY OUR TRANSPORTATION DIVISION, IN THE AUDIT OF YOUR BILL NO. 430277, ETC., TO HAVE BEEN OVERPAID.

THE RECORD HERE SHOWS THAT IN AUGUST AND SEPTEMBER 1952 YOU TRANSPORTED, JOINTLY WITH AMERICAN TRANSPORTATION, INC., TWO SHIPMENTS OF GOVERNMENT PROPERTY FROM THE COLUMBUS GENERAL DEPOT, COLUMBUS, OHIO, TO THE JEFFERSONVILLE Q.M. DEPOT, JEFFERSONVILLE, INDIANA. THESE SHIPMENTS, COVERED BY BILLS OF LADING NOS. WY-84680, DATED AUGUST 27, 1952, AND WY- 84738, DATED SEPTEMBER 3, 1952, CONSISTED OF VARIOUS COMMODITIES AND WEIGHED 26,890 AND 17,573 POUNDS, RESPECTIVELY. YOU CLAIMED AND WERE PAID FREIGHT CHARGES IN THE AMOUNTS OF $209.74 ON THE SHIPMENT COVERED BY BILL OF LADING WY-84680, AND $156 ON THAT COVERED BY BILL OF LADING WY-84738. THE CHARGES IN QUESTION WERE COMPUTED ON THE BASIS OF A RATE OF 78 CENTS PER 100 POUNDS, SUBJECT TO A MINIMUM WEIGHT OF 20,000 POUNDS, APPARENTLY UNDER THE PROVISIONS OF A SPECIAL QUOTATION MADE JOINTLY BY B B AND I MOTOR FREIGHT, INC., AND AMERICAN TRANSPORTATION, INC., DESIGNATED " JOINT U.S. GOVERNMENT QUOTATION NO. 1," ISSUED OCTOBER 20, 1951, AND EFFECTIVE OCTOBER 22, 1951.

IN OUR AUDIT OF THE CHARGES SO PAID, THE MAXIMUM ALLOWABLE CHARGES FOR THE SERVICES IN QUESTION WERE DETERMINED TO BE $168.40 AND $131.47 ON BILLS OF LADING WY-84680 AND WY-84738, RESPECTIVELY. THESE CHARGES WERE DETERMINED BY APPLYING THE APPLICABLE RATINGS PUBLISHED IN NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 11 ( EAST), MF-1I.C.C. NO. 1, ISSUED BY AMERICAN TRUCKING ASSOCIATION, INC., AGENT, AND THE EXCEPTIONS THERETO PUBLISHED IN MOTOR FREIGHT TARIFF NO. 205-D, MF 1I.C.C. NO. 580, ISSUED BY CENTRAL STATES MOTOR BUREAU, INC., AGENT. PARTICULARLY IMPORTANT IN THE DETERMINATION OF THESE CHARGES IS THE APPLICATION OF THE " MIXED TRUCKLOAD" RULE, PUBLISHED IN ITEM 140 OF THE LATTER ISSUE AS AN EXCEPTION TO RULE 13 OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 11 ( EAST). THE RATES APPLYING FROM COLUMBUS OHIO, TO JEFFERSONVILLE, INDIANA, ARE PUBLISHED IN MOTOR FREIGHT TARIFF NO. 224-B, MF-1I.C.C. NO. 194, ISSUED BY THE CENTRAL STATES FREIGHT BUREAU, INC., AGENT. THE DIFFERENCES BETWEEN THE CHARGES PAID ADMINISTRATIVELY AND THE MAXIMUM ALLOWABLE CHARGES REFERRED TO ABOVE, AMOUNTING TO $41.34 ($209.74 LESS $168.40) AND $24.53 ($156 LESS $131.47), TOTALING $65.87, WERE THE OVERPAYMENTS WHICH YOU WERE REQUESTED TO REFUND TO THE UNITED STATES. IN DECLINING TO MAKE THE REQUESTED REFUND, YOU ADVERT TO THE JOINT U.S. GOVERNMENT QUOTATION NO. 1, WHICH YOU STATE WAS ACKNOWLEDGED BY THE DEPARTMENT OF THE ARMY, OFFICE OF THE CHIEF OF TRANSPORTATION, UNDER DATE OF JANUARY 3, 1952, AND YOU URGE, IN EFFECT, THAT THIS TRAFFIC MOVED UNDER "A SPECIAL AGREED QUOTATION CONTRACT, ACCEPTED BY THE GOVERNMENT" AND THAT "WE BELIEVE THAT THE CONTRACT SHOULD STAND.'

THE CITED QUOTATION IS MERELY A CONTINUING OFFER ON THE PART OF THE CARRIERS TO PERFORM SERVICES FOR THE UNITED STATES PURSUANT TO ITS TERMS. HOWEVER, AS COMMON CARRIERS BY MOTOR VEHICLE IN INTERSTATE OR FOREIGN COMMERCE, THE CARRIERS WHO PARTICIPATED IN THE MOVEMENT OF THESE GOODS ARE REQUIRED BY THE TERMS OF SECTION 126 (B), PART II, OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 316 (B) "TO ESTABLISH, OBSERVE, AND ENFORCE JUST AND REASONABLE RATES, CHARGES, AND CLASSIFICATIONS, AND JUST AND REASONABLE REGULATIONS AND PRACTICES RELATING THERETO * * *: " BY SECTION 217 (A) 49 U.S.C. 317 (A) IT IS PROVIDED THAT TARIFFS MUST BE FILED WITH THE INTERSTATE COMMERCE COMMISSION SHOWING THE RATES, FARES, AND CHARGES FOR TRANSPORTATION AND SECTION 217 (B), 49 U.S.C. 317 (B) PROVIDES THAT " NO COMMON CARRIER BY MOTOR VEHICLE SHALL CHARGE OR DEMAND OR COLLECT OR RECEIVE A GREATER OR LESS OR DIFFERENT COMPENSATION FOR TRANSPORTATION * * * BETWEEN THE POINTS ENUMERATED IN SUCH TARIFF THAN THE RATES, FARES, AND CHARGES SPECIFIED IN THE TARIFFS IN EFFECT AT THE TIME; * * * PROVIDED, THAT THE PROVISIONS OF SECTION 1 (7) AND 22 OF THIS TITLE SHALL APPLY TO COMMON CARRIERS BY MOTOR VEHICLES SUBJECT TO THIS CHAPTER.' SECTION 22 OF THE ACT, 49 U.S.C. 22, PROVIDES " THAT NOTHING IN THIS CHAPTER SHALL PREVENT THE CARRIAGE, STORAGE, OR HANDLING OF PROPERTY FREE OR AT REDUCED RATES FOR THE UNITED STATES * * *" (EMPHASIS SUPPLIED), BUT NO AUTHORITY IS CONTAINED IN SECTION 22 OR ELSEWHERE IN THE INTERSTATE COMMERCE ACT WHEREBY CARRIERS MAY CONTRACT TO FURNISH SERVICES FOR THE UNITED STATES AT RATES OR CHARGES HIGHER THAN THOSE PROVIDED IN TARIFFS LAWFULLY ON FILE WITH THE INTERSTATE COMMERCE COMMISSION. FURTHERMORE, AS POINTED OUT IN THE LETTER OF JULY 28, 1955, FROM OUR TRANSPORTATION DIVISION, IT HAS LONG BEEN SETTLED THAT GOVERNMENT AGENTS ARE WITHOUT AUTHORITY TO CONTRACT FOR TRANSPORTATION SERVICES ON THE BASIS OF HIGHER CHARGES THAN THOSE AVAILABLE TO THE PUBLIC UNDER PUBLISHED AND FILED TARIFFS FOR LIKE SERVICES UNDER LIKE CONDITIONS. MISSOURI PACIFIC RAILROAD CO. V. UNITED STATES, 71 C.1CLS. 650, 661; ILLINOIS CENTRAL RAILROAD CO. V. UNITED STATES, 58 C.1CLS. 182; 22 COMP. GEN. 22, 26; 15 ID. 303.

IN THE PRESENT INSTANCE, FOR ALL THAT APPEARS IN THE RECORD, THE CHARGES FOUND ALLOWABLE BY OUR OFFICE ARE THOSE FOR WHICH THE SAME SERVICE ON IDENTICAL SHIPMENTS WAS AVAILABLE TO THE GENERAL PUBLIC UNDER THE CARRIERS' REGULARLY PUBLISHED AND FILED TARIFFS. IN THIS SITUATION, THE SHIPPING OFFICER WOULD HAVE BEEN WITHOUT AUTHORITY TO TENDER THESE SHIPMENTS TO THE CARRIER FOR TRANSPORTING UNDER THE PROVISIONS OF THE SUBJECT QUOTATION NO. 1, SINCE LOWER CHARGES ARE AVAILABLE TO THE PUBLIC UNDER PUBLISHED AND FILED TARIFFS FOR LIKE SERVICES UNDER LIKE CONDITIONS.

IN VIEW OF THE ABOVE, THE CHARGES NAMED IN THE CARRIERS' REGULARLY PUBLISHED AND FILED TARIFFS FOR THE SERVICE PERFORMED ARE THE MAXIMUM WHICH THE CARRIERS MAY DEMAND FROM THE GOVERNMENT. UNITED STATES V. ALABAMA AND VICKSBURG RY. CO; 40 I.C.C. 405. THE OVERPAYMENTS ON THESE TWO SHIPMENTS, AGGREGATING $65.87, AS DETAILED ON THE NOTICE OF OVERPAYMENT, UNITED STATES GENERAL ACCOUNTING OFFICE FORM 1003, DATED JUNE 14, 1955, SHOULD BE REFUNDED PROMPTLY TO OBVIATE COLLECTION BY SETOFF FROM AMOUNTS OTHERWISE DUE YOUR COMPANY, AS AUTHORIZED IN SECTION 322 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 66.