B-153093, MAY 3, 1965

B-153093, MAY 3, 1965

TO M. R. AND R. TRUCKING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 20, 1964, FILE BILL NO. 3914-60, OUR FILE NO. TK-741918, REQUESTING RECONSIDERATION OF OUR DECISIONS OF MARCH 16 AND JUNE 5, 1964, WHICH SUSTAINED THE DISALLOWANCE OF YOUR BILL NO. 3914-60 FOR $45.02. WE ALSO HAVE YOUR LETTER OF APRIL 15, 1965, PERTAINING TO THE MATTER.

THE SOLE ISSUE INVOLVED HERE IS THE SO-CALLED "MISROUTE BY CARRIER" OR "UNROUTED" QUESTION; THAT IS, THE GOVERNMENT BILL OF LADING COVERING THE SHIPMENT DID NOT SPECIFY ANY ROUTE OF MOVEMENT, OTHER THAN SHOWING THE ORIGIN CARRIER, OR NAME ANY CONNECTING LINE REQUIRED TO TRANSPORT THE SHIPMENT BEYOND THE LINES OF THE INITIAL CARRIER. THE INITIAL CARRIER FAILED TO FORWARD THE SHIPMENT BEYOND ITS LINE VIA THE LOWEST RATED ROUTE AVAILABLE TO IT, WITH THE RESULT THAT HIGHER CHARGES WERE PAID BY THE GOVERNMENT. UPON RECOVERY BY OUR OFFICE OF THE DIFFERENCE BETWEEN THE CHARGES BY THE LOWEST RATED ROUTE AND THE HIGHER CHARGES OVER THE ACTUAL ROUTE BY WHICH THE SHIPMENT MOVED, BY YOUR BILL NO. 3914-60, YOU RECLAIMED SUCH AMOUNT AND IN OUR PRIOR DECISIONS WE SUSTAINED THE DISALLOWANCE OF SUCH BILL.

IN YOUR PRESENT REQUEST FOR RECONSIDERATION, YOU REITERATE YOUR PRIOR POSITION IN THE MATTER. MOREOVER, YOU RAISE A QUESTION PERTAINING TO CERTAIN COMMENTS AND INFORMATION SET FORTH IN A LETTER, B-97532, B-108119, OF JULY 31, 1957, TO THE CHAIRMAN OF THE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, HOUSE OF REPRESENTATIVES, AND TO SUBSEQUENT TESTIMONY PRESENTED BY MR. EDWIN L. FISHER, OUR THEN GENERAL COUNSEL, BEFORE A HOUSE SUBCOMMITTEE, CONCERNING THE THEN PROPOSED AMENDMENT TO SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66, CONCERNING THE CHANGING THE WORD "OVERPAYMENT" TO "OVERCHARGE" AS DEFINED IN THE INTERSTATE COMMERCE ACT.

ON THE LAST PAGE OF YOUR LETTER OF NOVEMBER 20, 1964, YOU CONTEND THAT OUR PRESENT POSITION ON THE MISROUTE ISSUE IS AT "FOURSQUARE ODDS WITH YOUR (OUR) PRESENTATION TO THE HOUSE COMMITTEE.' AT THAT TIME, WE TOOK THE POSITION THAT TO CHANGE THE WORD "OVERPAYMENT" TO "OVERCHARGE" WOULD NULLIFY OUR RIGHT TO MAKE DEDUCTIONS BASED PRIMARILY ON UNREASONABLENESS AND WOULD PERMIT US RELIEF FROM EXCESS CHARGES NOT BASED ON "OVERCHARGE" ONLY THROUGH COMPLAINT TO THE INTERSTATE COMMERCE COMMISSION FOR A DETERMINATION OF THE LAWFULNESS OF THE EXCESS CHARGES PAID. HOWEVER, THE COMMENTS AND TESTIMONY TO WHICH YOU REFER ALL TOOK PLACE PRIOR TO THE RULING BY THE UNITED STATES SUPREME COURT IN HEWITT-ROBINS, INC. V. EASTERN FREIGHT-WAYS, INC., 371 U.S. 84 (1962), UPON WHICH WE NOW RELY FOR OUR PRESENT AUDIT POLICY IN CONNECTION WITH MISROUTES. THE SUPREME COURT IN THAT CASE HELD THAT THERE IS A RIGHT TO RECOVER CHARGES MADE BY A MOTOR CARRIER IN EXCESS OF THOSE OVER THE LOWER RATED ROUTE AND STATED "WE PUT NO SIGNIFICANCE IN WHETHER ONE TAGS THE CLAIM AS "OVERCHARGES" * * * OR WHETHER IT IS A PROCEEDING INVOLVING THE "REASONABLENESS OF ROUTING PRACTICES.'" IT SEEMS CLEAR FROM SUCH DECISION THAT THE SUPREME COURT IS OF THE VIEW THAT A SHIPPER'S COMMON LAW RIGHT TO RECOVER SUCH MISROUTING CLAIMS SURVIVED THE PASSAGE OF THE MOTOR CARRIER ACT AND THEREUNDER AND UNDER THAT COURT'S DECISION IN UNITED STATES V. NEW YORK, N.H. AND H.R. CO., 355 U.S. 253 (1957) IN CARRYING OUT OUR STATUTORY DUTIES, WE WERE REQUIRED TO RECOVER THE AMOUNTS CONSIDERED TO HAVE BEEN BILLED AND PAID IN EXCESS OF THE CHARGES OVER THE LOWER RATED ROUTE. ALSO, SUCH RECOVERY FROM THE CARRIER WHICH RECEIVED PAYMENT FROM THE GOVERNMENT SEEMS TO BE CONSISTENT WITH THE TERMS OF THE GOVERNMENT BILL OF LADING, THE CONTRACT UNDER WHICH THE SHIPMENT MOVED, WHICH PROVIDES FOR SETTLEMENT OF THE TRANSPORTATION CHARGES WITH THE LAST (DESTINATION) CARRIER.

THE OTHER MATTERS REFERRED TO IN YOUR LETTERS HAVE BEEN CAREFULLY CONSIDERED BUT IN OUR VIEW THEY WOULD NOT WARRANT ANY MODIFICATION OF THE CONCLUSION REACHED IN OUR DECISION OF MARCH 16 AND JUNE 5, 1964. ACCORDINGLY, THE CONCLUSION REACHED IN THOSE DECISIONS IS SUSTAINED.