B-148611, OCT. 18, 1962

B-148611, OCT. 18, 1962

TO HOOVER MOTOR EXPRESS COMPANY, INC.:

WE HAVE CONSIDERED YOUR LETTER OF APRIL 4, 1962, FILE 610.01, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT CERTIFICATE DATED MARCH 7, 1962 (CLAIM NO. TK-655357) RELATIVE TO TRANSPORTATION FURNISHED THE UNITED STATES ON GOVERNMENT BILL OF LADING NO. B-0521505. IT WAS DETERMINED THAT YOUR COMPANY HAS BEEN OVERPAID FOR THIS SERVICE, AND YOU WERE REQUESTED TO REFUND THE OVERCHARGE OF $45.96.

BILL OF LADING B-0521505 WAS ISSUED FEBRUARY 9, 1961, TO COVER A MIXED TRUCKLOAD OF MACHINERY, MACHINE PARTS, AND PRINTED MATTER WEIGHING 11,923 POUNDS, TRANSPORTED FROM MARION, OHIO, TO MEMPHIS, TENNESSEE, VIA DUFF TRUCK LINES, INC., AND HOOVER MOTOR EXPRESS. YOU APPARENTLY COMPUTED THE CHARGES THEREON AT TARIFF RATES, BUT SUBSEQUENTLY DECIDED THAT THEY SHOULD HAVE BEEN COMPUTED AT THE RATE AND MINIMUM WEIGHT PROVIDED IN YOUR I.C.C. TENDER NO. 105, ISSUED UNDER AUTHORITY OF SECTION 22 OF THE INTERSTATE COMMERCE ACT, AS AMENDED, 49 U.S.C. 22, AND SUBMITTED YOUR BILL NO. 22096 CLAIMING $60.42. THEN, HAVING DISCOVERED THAT YOU HAD NOT SUBMITTED A BILL FOR THE ORIGINAL CHARGES AT TARIFF RATES, YOU SUBMITTED BILL NO. 22096-B, PROPERLY SUPPORTED BY THE ACCOMPLISHED BILL OF LADING FOR THE TOTAL CHARGES, $405, COMPUTED AT THE RATE PROVIDED IN TENDER NO. 105, PLACING ON THE FACE OF BILL NO. 22096-B, A NOTATION INSTRUCTING THE PAYING OFFICE TO DISREGARD THE PRIOR BILL, NO. 22096-A/22096), AND TO MAKE PAYMENT IN FULL ON BILL NO. 22096-B. THE CHARGES OF $405 WERE PAID BY THE ARMY. MEANWHILE, YOUR BILL NO. 22096, WHICH APPEARED ON ITS FACE TO BE A SUPPLEMENTAL BILL FOR ADDITIONAL CHARGES, HAD BEEN PROCESSED FOR SETTLEMENT AND WAS DISALLOWED IN THE ABOVE SETTLEMENT CERTIFICATE DATED MARCH 7, 1962. SINCE THE AMOUNT CLAIMED WAS INCLUDED IN THE ORIGINAL PAYMENT, MADE ON VOUCHER 29152 DATED MAY 5, 1961, CONSIDERATION OF THIS BILL REQUIRED THE EXAMINATION OF THE CHARGES PAID FOR THE TRANSPORTATION ON BILL OF LADING NO. B-0521505, AND IT WAS DETERMINED THAT YOU OVERCHARGED THE GOVERNMENT $45.96, AS THE APPLICABLE TARIFF BASIS RESULTED IN A LOWER TOTAL CHARGE THAN THE BASIS PROVIDED IN YOUR TENDER NO. 105.

THE ISSUE TO BE RESOLVED IN THIS CONTROVERSY IS WHETHER A CARRIER'S RATE TENDER, AUTHORIZED UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22, BUT PRODUCING A HIGHER CHARGE THAN THE DULY APPLICABLE TARIFF RATE TAKES PRECEDENCE OVER THE LOWER TARIFF RATE IN THE ASSESSMENT OF CHARGES FOR THE TRANSPORTATION SERVICE. IN YOUR LETTER OF APRIL 4, 1962, YOU STATE THAT THE GOVERNMENT MAY NOT ALTERNATE THE RATE AND MINIMUM WEIGHT OFFERED UNDER YOUR TENDER NO. 105 WITH THE PUBLISHED TARIFF CHARGES DERIVED FROM CENTRAL AND SOUTHERN MOTOR FREIGHT TARIFF 100-B (IN WHICH YOU ARE A PARTICIPATING CARRIER) TO PRODUCE A CHEAPER CHARGE.

THERE IS NO AUTHORITY GRANTED IN THE INTERSTATE COMMERCE ACT, OR ELSEWHERE, WHEREBY A CARRIER MAY CONTRACT TO FURNISH SERVICES FOR THE UNITED STATES AT RATES AND CHARGES HIGHER THAN THOSE PROVIDED IN TARIFFS LAWFULLY ON FILE WITH THE INTERSTATE COMMERCE COMMISSION. BY SECTION 217 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 317, A COMMON CARRIER BY MOTOR VEHICLE IS REQUIRED TO PUBLISH AND FILE WITH THE INTERSTATE COMMERCE COMMISSION TARIFFS NAMING RATES AND CHARGES FOR SERVICES OFFERED AND IS PROHIBITED BY SECTION 217 (B), 49 U.S.C. 317 (B), FROM CHARGING, DEMANDING, OR COLLECTING, OR RECEIVING A GREATER OR LESSER, OR DIFFERENT COMPENSATION FOR SUCH TRANSPORTATION, EXCEPT THAT UNDER THE ABOVE- MENTIONED SECTION 22, A CARRIER MAY TRANSPORT GOVERNMENT PROPERTY AT FREE OR REDUCED RATES. THE SUPREME COURT OF THE UNITED STATES IN NASHVILLE, C. AND ST.L.RY. V. STATE OF TENNESSEE, 262 U.S. 318, 323, IN CONSTRUING THE PROVISIONS OF SECTION 22 STATED:

"* * * THE OBJECT OF THE SECTION WAS TO SETTLE, BEYOND DOUBT, THAT THE PREFERENTIAL TREATMENT OF CERTAIN CLASSES OF SHIPPERS AND TRAVELERS, IN THE MATTERS THEREIN RECITED IS NOT NECESSARILY PROHIBITED. AND IN THIS RESPECT ITS PROVISIONS ARE ILLUSTRATIVE, NOT EXCLUSIVE. IT LIMITS, OR DEFINES, THE REQUIREMENT OF EQUALITY IN TREATMENT WHICH IS IMPOSED IN OTHER SECTIONS OF THE ACT. BY SO DOING, IT PRESERVES THE RIGHT OF THE CARRIER THERETOFORE ENJOYED OF GRANTING, IN ITS DISCRETION, PREFERENTIAL TREATMENT TO PARTICULAR CLASSES IN CERTAIN CASES. ONLY IN THIS SENSE CAN IT BE SAID THAT THE SECTION IS PERMISSIVE. IT CONFERS NO RIGHT UPON ANY SHIPPER OR TRAVELER. NOR DOES IT CONFER ANY NEW RIGHT UPON THE CARRIER.'

IN OTHER WORDS, YOUR TENDER NO. 105, OFFERS, AS A MAXIMUM CHARGE, A RATE OF $1.35 PER 100 POUNDS ON 30,000 POUNDS OF FREIGHT. OBVIOUSLY, A CARRIER BY ITS FILING OF A SO-CALLED SECTION 22 TENDER WITH A GOVERNMENT AGENCY, MAY OFFER THE GOVERNMENT ITS SERVICES ONLY AT A LOWER, NOT A HIGHER, RATE THAN WOULD NORMALLY BE AVAILABLE TO THE GOVERNMENT UNDER THE APPLICABLE TARIFFS ON FILE WITH THE INTERSTATE COMMERCE COMMISSION.

SINCE THE TARIFF CHARGES FOR THE SERVICE PERFORMED ARE $358.54, THE SETTLEMENT AND AUDIT ACTION ARE SUSTAINED, AND THE OVERCHARGE OF $45.96 IS PROPERLY STATED. THAT SUM SHOULD BE PROMPTLY REFUNDED.