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B-135365, AUGUST 27, 1958, 38 COMP. GEN. 164

B-135365 Aug 27, 1958
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THE MERE CANCELLATION OF A CARRIER'S PARTICIPATION IN A JOINT RATE DOES NOT CLOSE THE ROUTES OVER WHICH THE JOINT RATE IS FOR APPLICATION UNLESS SHIPPERS ARE PLACED ON NOTICE THAT THE ROUTE IS CLOSED. 1958: REFERENCE IS MADE TO YOUR SEVERAL LETTERS ADDRESSED TO OUR TRANSPORTATION DIVISION CONCERNING OUR CLAIMS FOR REFUND OF OVERPAYMENTS OF TRANSPORTATION CHARGES MADE TO KENOSHA AUTO TRANSPORT CORPORATION. THE OVERPAYMENTS WERE MADE ON SHIPMENTS OF GOVERNMENT VEHICLES TRANSPORTED IN TRUCK AWAY SERVICE FROM ORIGINS IN CALIFORNIA TO DESTINATIONS IN NORTH CAROLINA AND LOUISIANA. THE SHIPMENTS WERE COVERED BY BILLS OF LADING M-1417428. WERE ROUTED KENOSHA-CENTRAL TRUCK AWAY OR KENOSHA AND CONNECTING LINES.

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B-135365, AUGUST 27, 1958, 38 COMP. GEN. 164

TRANSPORTATION - ROUTES - MOTOR VEHICLE SHIPMENTS - JOINT RATE TARIFF - CANCELLATION A THROUGH ROUTE OVER A COMMON INTERCHANGE POINT USED IN THE COMPUTATION OF FREIGHT CHARGES ON A GOVERNMENT SHIPMENT OF MOTOR VEHICLES HANDLED BY CARRIERS PARTICIPATING IN A TARIFF WHICH PUBLISHES JOINT RATES ON THE SHIPMENTS REMAINS IN EFFECT EVEN THOUGH ONE OF THE CARRIERS NO LONGER PARTICIPATES IN THE JOINT RATE, AND THE MERE CANCELLATION OF A CARRIER'S PARTICIPATION IN A JOINT RATE DOES NOT CLOSE THE ROUTES OVER WHICH THE JOINT RATE IS FOR APPLICATION UNLESS SHIPPERS ARE PLACED ON NOTICE THAT THE ROUTE IS CLOSED. MODIFIED BY 38 COMP. GEN. 677 ON THE BASIS OF ADDITIONAL INFORMATION.

TO THE KENOSHA AUTO TRANSPORT CORPORATION, AUGUST 27, 1958:

REFERENCE IS MADE TO YOUR SEVERAL LETTERS ADDRESSED TO OUR TRANSPORTATION DIVISION CONCERNING OUR CLAIMS FOR REFUND OF OVERPAYMENTS OF TRANSPORTATION CHARGES MADE TO KENOSHA AUTO TRANSPORT CORPORATION. THE OVERPAYMENTS WERE MADE ON SHIPMENTS OF GOVERNMENT VEHICLES TRANSPORTED IN TRUCK AWAY SERVICE FROM ORIGINS IN CALIFORNIA TO DESTINATIONS IN NORTH CAROLINA AND LOUISIANA, IN 1954 AND 1955. THE SHIPMENTS WERE COVERED BY BILLS OF LADING M-1417428, M-1417429, M 1417162, AND N-30602433, AND WERE ROUTED KENOSHA-CENTRAL TRUCK AWAY OR KENOSHA AND CONNECTING LINES, NO JUNCTION POINTS BEING SPECIFIED.

THE CHARGES CLAIMED BY AND PAID TO KENOSHA FOR THESE SERVICES ARE THOSE COMPUTED ON THE BASIS OF A COMBINATION OF RATES TO AND FROM ST. LOUIS, MISSOURI, PUBLISHED IN KENOSHA AUTO TRANSPORT TARIFF ASSOCIATION TARIFF NO. 106-D, MF-I. C. C. NO. 294. IN THE AUDIT OF THESE ACCOUNTS, IT WAS DETERMINED THAT THE ALLOWABLE CHARGES FOR THESE SERVICES WERE THOSE COMPUTED ON THE BASIS OF A COMBINATION OF RATES TO AND FROM CAIRO, ILLINOIS, WHICH RATES ARE ALSO PUBLISHED IN THE CITED TARIFFS AND RESULT IN LOWER CHARGES THAN THE RATES TO AND FROM ST. LOUIS. NOTICES OF OVERPAYMENT, FORMS 1003, WERE ISSUED HERE REQUESTING REFUND OF THE DIFFERENCE BETWEEN THE CHARGES PAID AND THOSE DETERMINED TO BE ALLOWABLE.

THE RECORD SHOWS THAT THE SHIPMENTS WERE TRANSPORTED FROM ORIGIN TO DESTINATION IN EQUIPMENT OWNED BY KENOSHA AUTO TRANSPORT CORPORATION AND OPERATED BY ITS DRIVERS. IT IS YOUR CONTENTION, HOWEVER, THAT THE EQUIPMENT MOVED BEYOND ST. LOUIS, MISSOURI, UNDER CONTROL OF CENTRAL TRUCK AWAY SYSTEM, INC., BY VIRTUE OF LEASE AND INTERCHANGE ARRANGEMENTS WITH THAT CARRIER, AND THAT THE INTERCHANGE WAS EFFECTED AT ST. LOUIS BECAUSE BOTH CARRIERS MAINTAINED TERMINAL FACILITIES AT THAT POINT, SUCH FACILITIES BEING NECESSARY FOR PROPER COMPLIANCE WITH THE INTERSTATE COMMERCE COMMISSION'S RULES PERTAINING TO INTERCHANGE OF LEASED EQUIPMENT. YOU URGE THAT INTERCHANGE COULD NOT BE EFFECTED BETWEEN KENOSHA AND CENTRAL TRUCK AWAY AT CAIRO FOR THE PRACTICAL REASON THAT NEITHER CARRIER MAINTAINED TERMINAL FACILITIES AT THAT POINT.

IN YOUR LETTER OF DECEMBER 16, 1957, YOU CITE HAUSMAN STEEL CO. V. SEABOARD FREIGHT LINES, INC., 32 M.C.C. 31, AS AUTHORITY FOR THE VIEW THAT, UNDER PART OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 301, MOTOR COMMON CARRIERS OF PROPERTY ARE NOT REQUIRED TO ESTABLISH JOINT RATES OR THROUGH ROUTES AND THAT AN INITIAL MOTOR COMMON CARRIER OF PROPERTY IS NOT RESPONSIBLE FOR FAILURE TO FORWARD A SHIPMENT OVER THE LINES OF OTHER CARRIERS AFFORDING THE LOWEST RATES, IN THE ABSENCE OF JOINT RATES OR THROUGH ROUTES. IT IS CLEAR THAT THERE WERE NO JOINT RATES IN EFFECT TO COVER THIS TRAFFIC AND THIS CASE APPARENTLY TURNS ON THE QUESTION OF WHETHER THERE WERE IN EXISTENCE, AT THE TIME THESE SHIPMENTS MOVED, THROUGH ROUTES FROM ORIGINS TO DESTINATIONS VIA KENOSHA TO CAIRO AND CENTRAL TRUCK AWAY BEYOND. IF THERE WERE SUCH ROUTES, AND THE APPLICABLE CHARGES VIA SUCH ROUTES WERE LOWER THAN THOSE VIA ST. LOUIS, SEEMS CLEAR THAT THE DUTY RESTED ON KENOSHA TO FORWARD THE SHIPMENTS VIA THE LOWER- RATED ROUTES, REGARDLESS OF WHETHER TERMINAL FACILITIES WERE MAINTAINED AT CAIRO BY THE RESPECTIVE CARRIERS. MURRAY COMPANY OF TEXAS, INC. V. MORROW, INC., 54 M.C.C. 442, 445; METZNER STOVE REPAIR CO. V. RANFT, 47 M.C.C. 151, 154; GREAT A AND P TEA CO. V. ONTARIO FREIGHT LINES, 46 M.C.C. 237.

IT IS YOUR CONTENTION THAT, IN THE ABSENCE OF ANY PRIOR MOVEMENTS BY KENOSHA AND CENTRAL TRUCK AWAY VIA CAIRO, IT CANNOT BE STATED THAT A ROUTE HAD EVER BEEN FORMED THROUGH SUCH JUNCTION POINT, AND THAT IT IS PRESUMPTUOUS TO ASSUME THE EXISTENCE OF A THROUGH ROUTE VIA CAIRO BASED SOLELY ON THE INVOLVED TARIFFS WITHOUT REGARD TO THE OPERATING PRACTICES OF TRUCKING COMPANIES SPECIALIZING IN THE TRANSPORTATION OF MOTOR VEHICLES.

NATIONAL AUTOMOBILE TRANSPORTERS ASSOCIATION TARIFF NO. 106-D PUBLISHES RATES BETWEEN ALL POINTS IN THE UNITED STATES, AND MOST OF THE HIGHWAY COMMON CARRIERS OF MOTOR VEHICLES IN THIS COUNTRY PARTICIPATE IN IT. CENTRAL TRUCK AWAY WAS A PARTY TO THE TARIFF AT THE TIME THESE SHIPMENTS MOVED AND KENOSHA WAS A PARTY TO THE TARIFF LESS THAN A YEAR BEFORE THESE SHIPMENTS MOVED. AT THE TIME KENOSHA AND CENTRAL TRUCK AWAY WERE BOTH PARTICIPANTS, THE TARIFF PUBLISHED JOINT RATES BETWEEN THE ORIGINS AND DESTINATIONS HERE UNDER CONSIDERATION AND SUCH RATES APPLIED VIA ROUTES THROUGH BOTH ST. LOUIS AND CAIRO FOR ACCOUNT OF KENOSHA AND CENTRAL TRUCK AWAY.

SECTION 6 OF THE TARIFF, UNDER THE CAPTION " ROUTING INSTRUCTIONS" PROVIDES, IN PERTINENT PART:

EXCEPT AS OTHERWISE PROVIDED, EACH CARRIER NAMED PARTY TO THIS TARIFF WILL INTERCHANGE TRAFFIC AT ALL COMMON POINTS IN ALL STATES AND THE JOINT ROUTES MAY BE COMPOSED OF ANY COMBINATION OF PARTICIPATING CARRIERS HAVING APPROPRIATE AUTHORITY AS SHOWN IN ( NATIONAL AUTOMOBILE TRANSPORTERS ASSOCIATION'S CURRENT SCOPE OF OPERATIONS CIRCULAR) AND THE JOINT LINE MILEAGE COMMODITY RATES NAMED HEREIN WILL APPLY VIA SUCH ROUTE. ( ITALICS SUPPLIED.)

THUS, SINCE THERE ARE NO EXCEPTIONS TO THE ABOVE PROVISIONS FOR ACCOUNT OF KENOSHA OR CENTRAL TRUCK AWAY THAT WE HAVE BEEN ABLE TO FIND, IT SEEMS CLEAR THAT IN 1954, SHORTLY BEFORE THE CONSIDERED SHIPMENTS MOVED, THESE CARRIERS HELD OUT TO THE PUBLIC THAT THROUGH ROUTES EXISTED BETWEEN THE CONSIDERED ORIGINS AND DESTINATIONS VIA CAIRO, ILLINOIS, A POINT AS MUCH COMMON TO BOTH CARRIERS AS IS ST. LOUIS, MISSOURI.

WE THINK, THEREFORE, THAT THIS TARIFF CLEARLY DEMONSTRATES THE PRIOR EXISTENCE OF THROUGH ROUTES VIA CAIRO IN WHICH THESE CARRIERS JOINED, AND THE QUESTION ARISES WHETHER KENOSHA'S CANCELLATION OF ITS PARTICIPATION IN THIS TARIFF IN AUGUST 1954 EFFECTIVELY CLOSED THESE ROUTES. THE CANCELLATION NOTICE DOES NOT SO INDICATE, AND THE ACTUAL HANDLING OF THESE SHIPMENTS DEFINITELY ESTABLISHES THAT THE ROUTE VIA ST. LOUIS WAS NOT CLOSED. CONCERNING THIS QUESTION, THE DECISIONS OF THE INTERSTATE COMMERCE COMMISSION ARE CLEARLY TO THE EFFECT THAT THROUGH ROUTES, ONCE ESTABLISHED, REMAIN OPEN UNTIL SHIPPERS ARE PLACED ON NOTICE THAT THEY HAVE BEEN CLOSED, AND THE MERE CANCELLATION OF A CARRIER'S PARTICIPATION IN JOINT RATES DOES NOT CLOSE THE THROUGH ROUTES OVER WHICH THEY APPLIED. IN RESTRICTIONS, RISS AND CO., AND ELIMINATIONS, HI-WAY MOTOR, 46 M.C.C. 290, 292-293, IT WAS SAID:

UNDER SECTION 216 (C) OF THE ACT, WE MAY NOT REQUIRE MOTOR COMMON CARRIERS OF PROPERTY TO ESTABLISH THROUGH ROUTES AND JOINT RATES. NOT HAVING THE RIGHT TO REQUIRE THEIR ESTABLISHMENT IN THE FIRST INSTANCE, WE HAVE NO POWER TO REQUIRE THE CONTINUED MAINTENANCE OF THROUGH ROUTES AND JOINT RATES VOLUNTARILY ESTABLISHED. STRICKROOT V. DETROIT AND C. NAV. CO., 253, I.C.C. 535. ONCE THROUGH ROUTES HAVE BEEN ESTABLISHED, HOWEVER, THEY REMAIN OPEN UNTIL THE SHIPPERS AND OTHERS INTERESTED ARE PLACED ON NOTICE THAT THEY HAVE BEEN CLOSED. THE MERE CANCELLATION OF JOINT RATES DOES NOT CLOSE THE THROUGH ROUTES OVER WHICH THEY APPLIED.

SEE, ALSO, TO THE SAME EFFECT, ROCKY MOUNTAIN LINES, INC.--- ELIMINATION OF PARTICIPATION, 31 M.C.C. 320; EAST SOUTH JOINT RATES AND ROUTES, CANCELLATION, 44 M.C.C. 747, 751; RAYONS BETWEEN TRUNK LINE AND NEW ENGLAND TERRITORIES, 44 M.C.C. 280; AND CLOSING OF EXPRESS STATIONS IN THE SOUTHWEST AND WEST, 288 I.C.C. 185.

FOR THE REASONS SET FORTH ABOVE, IT SEEMS APPARENT THAT AT THE TIME THESE SHIPMENTS MOVED THE CAIRO ROUTES WERE OPEN AND THE CARRIER SHOULD HAVE FORWARDED THE SUBJECT SHIPMENTS VIA THOSE ROUTES. ACCORDINGLY, THE AMOUNTS STATED IN OUR FORMS 1003 AS HAVING BEEN OVERPAID APPEAR PROPER AND SHOULD BE PROMPTLY REFUNDED IN ORDER TO OBVIATE THE NECESSITY FOR COLLECTION BY SETOFF OR OTHER MEANS.

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