B-148969, SEP. 18, 1962

B-148969, SEP. 18, 1962

TO ALLIED VAN LINES, INC:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 16, 1962, REQUESTING THAT WE DELAY DEDUCTION ACTION TO RECOVER OVERCHARGES STATED AGAINST YOUR COMPANY ARISING OUT OF THE TRANSPORTATION OF CERTAIN HOUSEHOLD GOODS SHIPMENTS, PENDING THE FINAL OUTCOME OF THE INTERSTATE COMMERCE COMMISSION'S DECISION IN APPLICABILITY OF RATES ON HOUSEHOLD GOODS, 315 I.C.C. 537 (FEBRUARY 7, 1962), WHICH WAS ADVERSE TO THE INTEREST OF HOUSEHOLD GOODS CARRIERS. IN CONSIDERATION OF THE REQUESTED RELIEF, YOU PROPOSE TO EXECUTE IN FAVOR OF THE UNITED STATES A "WAIVER OF THE STATUTE OF LIMITATIONS" PROVIDED IN 49 U.S.C. 66 AND 304A (7), WHICH IMPOSE ON THE UNITED STATES A LIMIT OF THREE YEARS FROM SPECIFIED EVENTS WITHIN WHICH TO RECOVER OVERCHARGES.

IN THE APPLICABILITY OF RATES ON HOUSEHOLD GOODS CASE, THE COMMISSION--- AFTER AN INVESTIGATION INSTITUTED ON ITS OWN INITIATIVE- - HELD THAT CERTAIN MOTOR CARRIERS OF HOUSEHOLD GOODS HAD CHARGED FOR THE TRANSPORTATION OF SHIPMENTS MOVING FROM AND TO VARIOUS POINTS AT DISTANCES OVER 500 MILES DURING PERIODS BETWEEN FEBRUARY 1959 AND SEPTEMBER 1960 RATES WHICH, IN SOME INSTANCES, WERE HIGHER THAN THOSE APPLICABLE UNDER THEIR GOVERNING TARIFFS, IN VIOLATION OF SECTION 217 (B) OF THE INTERSTATE COMMERCE ACT. UNDER AUTHORITY OF THIS DECISION, WE RE-EXAMINED TRANSPORTATION ACCOUNTS INVOLVING SIMILAR GOVERNMENT SHIPMENTS WITH A VIEW TOWARD THE RECOVERY OF POTENTIAL OVERCHARGES. FOR THE PERIOD OF ACCOUNTS FROM DECEMBER 1959 TO AUGUST 1960, WE HAVE DISCOVERED OVERCHARGES, IN THE CATEGORY INVOLVED, TOTALING APPROXIMATELY $37,500 PAID TO YOUR COMPANY, AND PRESUMABLE DISTRIBUTED TO YOUR AGENTS. AT THE PRESENT TIME, THERE IS NO INDICATION THAT THERE WILL BE ANY SUBSTANTIAL INCREASE IN THIS FIGURE.

AS JUSTIFICATION FOR THE RELIEF SOUGHT, YOU POINT OUT THAT ALLIED VAN LINES DOES NOT UTILIZE CENTRALIZED BILLING BUT PERMITS ITS ACCREDITED AGENTS (WHO OWN THE COMPANY) TO BILL IN ITS NAME. YOU SAY THAT BECAUSE OF THIS CORPORATE STRUCTURE, ALLIED WOULD SUFFER SPECIAL DAMAGE IF WE WERE TO DEDUCT THE CLAIMED OVERCHARGES SINCE IT WOULD BE ONEROUS, IF NOT IMPOSSIBLE, TO IDENTIFY THE CURRENT BILLINGS AND ADMINISTER THE ACCOUNTS OF ALL THE PARTIES CONCERNED.

WHILE WE APPRECIATE THE DIFFICULTY OF YOUR POSITION IN THIS MATTER, WE FEEL, HOWEVER, THAT THE INTERESTS OF THE UNITED STATES WOULD BEST BE PROTECTED BY THE CONTINUATION OF OUR RECOVERY EFFORTS. THE COURTS HAVE HELD THAT STATUTE OF LIMITATIONS OF THE TYPE HERE INVOLVED ARE JURISDICTIONAL IN NATURE; FAILURE TO TAKE ACTION WITHIN THE STATUTORY PERIOD DOES NOT MERELY BAR THE REMEDY BUT EXTINGUISHES THE RIGHT AS WELL AND, THEREFORE, THE STATUTE CANNOT BE WAIVED OR EXTENDED BY AN EXPRESS AGREEMENT BETWEEN THE CARRIER AND THE SHIPPER. A. J. PHILLIPS CO. V. GRAND TRUNK WESTERN RY.CO., 236 U.S. 662 (1915); MIDSTATE HORTICULTURAL CO., INC. V. PENNSYLVANIA R.CO., 320 U.S. 356 (1943); AND CHICAGO R.I. AND P.RY.CO. V. BLACK, SIVALLS AND BRYSON, INC., 147 P.2D 455 (1944). ALTHOUGH THE CITED CASES INVOLVED AGREEMENTS BETWEEN CARRIERS AND PRIVATE SHIPPERS, WE BELIEVE THAT THEY WOULD BE EQUALLY CONTROLLING WHERE THE GOVERNMENT IS CONCERNED, SINCE CONGRESS, IN THE ACT OF AUGUST 26, 1958, 49 U.S.C. 66 AND 304A (7), MANIFESTED ITS INTENT TO PLACE THE UNITED STATES ON A PAR WITH CARRIERS AND OTHER SHIPPERS INSOFAR AS LIMITING THE TIME FOR THE RECOVERY OF CHARGES IS CONCERNED. IT MAY BE NOTED THAT EVEN PRIOR TO THE 1958 ACT, THE INTERSTATE COMMERCE COMMISSION WAS OF THE VIEW THAT THE LIMITATIONS IN SECTION 16 (3) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 16 (3), APPLIED TO THE UNITED STATES. UNITED STATES V. SOUTHERN RY.CO., 286 I.C.C. 203 (1952).

WE UNDERSTAND THAT THE CARRIER'S PETITION FOR REHEARING IN THE APPLICABILITY OF RATES ON HOUSEHOLD GOODS CASE WAS DENIED BY THE COMMISSION ON JUNE 12, 1962. IT IS PROBABLY THAT AN APPEAL OF THE COMMISSION'S DECISION TO THE COURTS, IF MADE, WOULD NOT BECOME THE SUBJECT OF A RULING UNTIL AFTER THE THREE-YEAR PERIOD OF LIMITATIONS HAD RUN AGAINST THE GOVERNMENT. IN ORDER TO AVOID THIS POSSIBILITY, WE HAVE NO RECOURSE BUT TO DENY YOUR REQUEST FOR DELAY OF THE DEDUCTION ACTION WHICH THE LAW REQUIRED UNDER THE PROVISIONS OF 49 U.S.C. 66.