B-139257, OCT. 26, 1959

B-139257, OCT. 26, 1959

TO UNION PACIFIC RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 28, 1959, AND EARLIER LETTER, FILE GW 285317, IN WHICH YOU REQUEST REVIEW OF OUR ACTION RESULTING IN RECOVERY OF $556.84 IN OVERPAID TRANSPORTATION CHARGES ARISING OUT OF THE MOVEMENT OF TWO SHIPMENTS OF SUPERPHOSPHATE FROM NICHOLS, FLORIDA, TO SMITHFIELD, UTAH, ON GOVERNMENT BILLS OF LADING A 3157398 AND A-3157399, DATED NOVEMBER 16, 1943.

WE DETERMINED IN OUR REAUDIT THAT THE GOVERNMENT HAD OVERPAID A TOTAL OF $556.84 FOR THE SERVICES INVOLVED. SINCE THE UTAH-IDAHO CENTRAL RAILROAD CORPORATION--- WHICH AS THE DESTINATION AND BILLING CARRIER RECEIVED THE OVERPAYMENT--- HAD BEEN ABANDONED PURSUANT TO AN ORDER OF THE INTERSTATE COMMERCE COMMISSION AND ITS PROPERTIES LIQUIDATED THROUGH RECEIVERSHIP PROCEEDINGS BEFORE THE OVERPAYMENT WAS DISCOVERED, WE LOOKED TO SETTLEMENT FROM YOUR COMPANY, AS A CONNECTING LINE-HAUL CARRIER. UPON YOUR FAILURE TO REFUND THE OVERPAYMENT WE DEDUCTED THE AMOUNT FROM YOUR BILL NO. 285317.

YOU CONTEND THAT YOU ARE NOT LIABLE FOR THE OVERPAYMENT BECAUSE (1) YOU RECEIVED NO PORTION OF THE EXCESS CHARGES PAID TO THE UTAH-IDAHO CENTRAL, (2) YOU AND THE REMAINING PARTICIPATING CARRIERS NOW HAVE NO OPPORTUNITY TO RECOVER FROM THE UTAH-IDAHO CENTRAL THE AMOUNT DEDUCTED BY THE GOVERNMENT, AND (3) THE CONSEQUENCES OF THE FAILURE OF THE GOVERNMENT TO FILE A TIMELY CLAIM AGAINST THE UTAH-IDAHO CENTRAL IN RECEIVERSHIP PROCEEDINGS SHOULD NOT BE BORNE BY THE REMAINING INTERESTED CARRIERS.

IN ILLINOIS POWDER MFG. CO. V. CHICAGO, P. AND ST. L.R. CO., 160 I.C.C. 570, AFFIRMED 165 I.C.C. 127, A SHIPPER FILED A COMPLAINT WITH THE INTERSTATE COMMERCE COMMISSION ALLEGING THAT THE PARTICIPATING RAIL CARRIERS, THROUGH ERROR IN EXTENSION, HAD OVERCHARGED FOR THE TRANSPORTATION SERVICES PERFORMED. THE CHARGES WERE COLLECTED BY THE ORIGIN CARRIER, THE CHICAGO, PEORIA AND ST. LOUIS RAILROAD, AND THE DESTINATION CARRIER, THE LOUISVILLE AND NASHVILLE RAILROAD, THROUGH A MISTAKE, WAS PAID MORE THAN ITS APPLICABLE PORTION. THE DESTINATION CARRIER, HOWEVER, RETURNED TO THE ORIGIN CARRIER THE EXCESS CHARGES RECEIVED. THE ORIGIN CARRIER WAS IN RECEIVERSHIP WHEN REPARATIONS WERE AWARDED TO THE SHIPPER. THE COMMISSION'S ORIGINAL DECISION, IN PERTINENT PART, IS AS FOLLOWS:

"THE LOUISVILLE AND NASHVILLE CONTENDS THAT INASMUCH AS IT HAS RETAINED ONLY THE PROPER AMOUNT OF MONEY DUE IT FOR THE TRANSPORTATION OF THE SHIPMENT FROM EAST ST. LOUIS TO MILAN, IT IS NOT RESPONSIBLE FOR THE EXCESSIVE AMOUNT COLLECTED FROM THE COMPLAINANT, THE CONCLUSION BEING THAT NO ORDER FOR REPARATION SHOULD BE ENTERED AGAINST IT. VIOLATIONS OF THE INTERSTATE COMMERCE ACT ARE TORTS, FOR WHICH THE CARRIERS ARE SEVERALLY, AS WELL AS JOINTLY, LIABLE. THE RIGHT OF THE SHIPPER TO RECOVER IN FULL FROM ONE OR MORE OF THE CARRIERS PARTICIPATING IN THE MOVEMENT DOES NOT DEPEND UPON THE AMOUNTS RETAINED BY A CARRIER PURSUANT TO AGREED DIVISIONS. L. AND N.R.R. V. SLOSS-SHEFFIELD CO., 269 U.S. 217, 231; NEW SYNDICATE CO. V. N.Y.C.R.R., 275 U.S. 179. NO COGNIZANCE IS TAKEN IN MAKING AN AWARD OF REPARATION OF INTERLINE SETTLEMENTS OF TRANSPORTATION ACCOUNTS, NOR IS AN ATTEMPT MADE TO DETERMINE THE PRO RATA SHARE OF AN AWARD TO BE PAID BY EACH DEPENDENT CARRIER PARTICIPATING IN THE TRANSPORTATION. AWARDS OF REPARATION ARE FOR A GROSS SUM, AND RUN AGAINST ALL THE CARRIERS NAMED PARTIES DEFENDANT IN THE COMPLAINT WHO PARTICIPATED IN THE TRANSPORTATION. NEITHER THE FACT THAT THE FREIGHT CHARGES ON THE SHIPMENT HERE CONCERNED WERE PREPAID INSTEAD OF BEING PAID AT DESTINATION, NOR THE FACT THAT ONE OR MORE OF THE CARRIERS ARE INSOLVENT, AFFECTS THE SHIPPER'S RIGHT TO REPARATION. OUR ORDERS FOR REPARATION DO NOT DEPEND UPON THE SOLVENCY OF THE DEFENDANT CARRIERS. RIVERSIDE MILLS V. A. AND S. STEAMBOAT CO., 40 I.C.C. 501; UNITED PAPERBOARD CO. V. S. RY. CO., 62 I.C.C. 60.'

MOREOVER, CARRIERS PARTICIPATING IN A JOINT HAUL WHICH ARE IN EXISTENCE OR SOLVENT AT THE TIME OF THE AWARD OF REPARATIONS, ARE REQUIRED TO REIMBURSE THE CLAIMANT EVEN THOUGH THEY HAVE NO RECOURSE AGAINST AN INSOLVENT PARTICIPATING CARRIER, AND EVEN THOUGH THE CLAIMANT DID NOT ELECT TO INSTITUTE ACTION AGAINST THE OVERCHARGING CARRIER BEFORE ITS EXISTENCE WAS TERMINATED THROUGH RECEIVERSHIP PROCEEDINGS. RIVERSIDE MILLS V. AUGUSTA AND S. STEAMBOAT CO., 40 I.C.C. 501; UNITED PAPERBOARD CO. V. SOUTHERN RY. CO., 62 I.C.C. 60; YELLOW PINE CO. V. DIRECTOR GENERAL, 104 I.C.C. 371; MOBILE CHAMBER OF COMMERCE V. MUSCLE SHOALS, B. AND P. RY. CO., 129 I.C.C. 419; AND SNIDER PACKING CORP. V. N.Y.C.R. CO., 206 I.C.C. 51.