B-125813, DECEMBER 13, 1955, 35 COMP. GEN. 358

B-125813, DECEMBER 13, 1955, 35 COMP. GEN. 358

TRANSPORTATION - ROUTES - MISROUTED SHIPMENTS - PAYMENT BASIS THE GOVERNMENT IS NOT LIABLE FOR THE PAYMENT OF ANY PART OF THE EXCESS TRANSPORTATION CHARGES ARISING FROM THE MISROUTING BY ONE OF THE CARRIERS IN THE ROUTE MOVEMENT OF A SHIPMENT TRANSPORTED UNDER AN UNROUTED GOVERNMENT BILL OF LADING.

TO TERMINAL TRANSPORT COMPANY, INC., DECEMBER 13, 1955:

REFERENCE IS MADE TO YOUR REQUEST FOR REVIEW OF THE SETTLEMENT (CLAIM TK- 516423) WHICH DISALLOWED YOUR CLAIM, PER BILL NO. 1779-B, FOR $64.35 ADDITIONAL TO THE CHARGES PAID TO THE JORDAN TRUCK LINE FOR SERVICES PERFORMED UNDER GOVERNMENT BILL OF LADING NO. WX-8929148, DATED FEBRUARY 13, 1952.

THE RECORD SHOWS THAT 2 BOXES OF INTERNAL COMBUSTION ENGINES, WEIGHING 4,438 POUNDS, WERE TENDERED TO THE ORANGE TRANSPORTATION COMPANY AT MOUNTAIN HOME AIR FORCE BASE, IDAHO, ON FEBRUARY 13, 1952, FOR TRANSPORTING TO BROOKLEY, ALABAMA, UNDER GOVERNMENT BILL OF LADING NO. WX- 8929148. THE BILL OF LADING WAS UNROUTED, EXCEPT AS TO THE INITIAL CARRIER, AND THE SHIPMENT WAS TRANSPORTED TO BROOKLEY, EITHER WHOLLY OR IN PART, OVER THE LINES OF THE ORANGE TRANSPORTATION COMPANY, THE TERMINAL TRANSPORT COMPANY, INC., AND THE JORDAN TRUCK LINE.

THE JORDAN TRUCK LINE, THE LAST CARRIER IN THE ROUTE OF MOVEMENT, CLAIMED AND WAS PAID ON ITS BILL NO. B-67407 TRANSPORTATION CHARGES IN THE AMOUNT OF $198.82. THESE CHARGES APPEAR TO HAVE BEEN THE LOWEST AVAILABLE BETWEEN THE ORIGIN AND THE DESTINATION OF THE SHIPMENT, AND WERE COMPUTED ON THE BASIS OF A RATE OF 22 CENTS PER 100 POUNDS FROM MOUNTAIN HOME AIR FORCE BASE, IDAHO, TO MOUNTAIN HOME, IDAHO, AND A JOINT THROUGH RATE OF $4.26 PER 100 POUNDS FROM MOUNTAIN HOME TO BROOKLEY, ALABAMA. HOWEVER, THE RECORD INDICATES THAT THE JORDAN TRUCK LINE, THE LAST CARRIER, WAS NOT NAMED AS A PARTICIPATING CARRIER IN THE TARIFF CONTAINING THE JOINT THROUGH RATE FROM MOUNTAIN HOME TO BROOKLEY. THUS, THE SHIPMENT WAS MISROUTED AND THE JOINT THROUGH RATE FROM MOUNTAIN HOME TO BROOKLEY WAS NOT APPLICABLE VIA THE ROUTE OF MOVEMENT. THE THROUGH TRANSPORTATION CHARGES APPLICABLE OVER THE ACTUAL ROUTE OF MOVEMENT ARE ALLEGED TO BE $64.35 MORE THAN THE CHARGES WHICH HAVE BEEN PAID, AND THE JORDAN TRUCK LINE APPARENTLY CHARGED THE EXCESS AMOUNT, WHICH ACCRUED BY REASON OF THE MISROUTING OF THE SHIPMENT, TO YOUR LINE, AN INTERMEDIATE CARRIER IN THE ROUTE OF MOVEMENT. YOU URGE, IN EFFECT THAT SINCE THE INITIAL CARRIER SHOULD HAVE ROUTED THE SHIPMENT BEYOND ITS LINE VIA CARRIERS FORMING A ROUTE OVER WHICH THE JOINT THROUGH RATE APPLIED, THE GOVERNMENT SHOULD PAY THE ADDITIONAL CHARGE OF $64.35 TO YOUR LINE AND THEN EFFECT RECOVERY OF THAT AMOUNT FROM THE INITIAL CARRIER.

IT IS FOR NOTING THAT EVEN IF AN ADDITIONAL CHARGE WAS PROPER FOR PAYMENT BY THE GOVERNMENT, THE TERMS OF THE BILL OF LADING WOULD PRECLUDE PAYMENT TO OTHER THAN THE JORDAN TRUCK LINE. CONDITION NO. 1 ON THE BACK OF THE ORIGINAL GOVERNMENT BILL OF LADING PROVIDED, IN SUBSTANCE, THAT UNLESS OTHERWISE SPECIFICALLY PROVIDED, THE TRANSPORTATION CHARGES WOULD BE PAID TO THE LAST CARRIER. SINCE THE JORDAN TRUCK LINE WAS THE LAST CARRIER IN THIS MOVEMENT, AND NO PROVISION FOR PAYMENT TO OTHER THAN THE LAST CARRIER WAS CONTAINED IN THE BILL OF LADING, THE PAYMENT TO THAT CARRIER WAS PROPER, AND ANY ADDITIONAL CHARGES THAT MIGHT BE DUE ON THE SHIPMENT SHOULD BE CLAIMED BY, AND PAID TO THAT CARRIER. THEREFORE, IN THE ABSENCE OF SPECIAL JUSTIFICATION, THE PAYMENT OF ANY CHARGES TO YOUR LINE, EVEN IF OWED BY THE GOVERNMENT, WOULD NOT BE PROPER.

THE BILL OF LADING INVOLVED IN THIS CASE WAS UNROUTED, EXCEPT AS TO THE INITIAL CARRIER, AND THE LATTER WAS CHARGED WITH THE DUTY OF FORWARDING THE SHIPMENT OVER THE LINES OF CONNECTING CARRIERS VIA WHICH THE LOWEST CHARGE APPLIED. THE FAILURE TO SO FORWARD THE SHIPMENT CONSTITUTED MISROUTING. MURRAY COMPANY OF TEXAS, INC. V. MORROW, INC., 54 M.C.C. 44; METZNER STOVE REPAIR COMPANY V. RANFT, 47 M.C.C. 14; GREAT ATLANTIC AND PACIFIC TEA COMPANY V. ONTARIO FREIGHT LINES, 46 M.C.C. 237; HAUSMAN STEEL COMPANY V. SEABOARD FREIGHT LINE, 32 M.C.C. 31, 34, 36. A CARRIER GUILTY OF MISROUTING IS LIABLE FOR THE DIFFERENCE BETWEEN THE APPLICABLE RATE OVER THE ROUTE OF MOVEMENT AND THE RATE APPLICABLE VIA THE ROUTE OVER WHICH THE SHIPMENT SHOULD HAVE MOVED. ALABAMA ROCK ASPHALT, INC. V. ABILENE AND SOUTHERN RAILWAY COMPANY, 206 I.C.C. 510; SUNDERLAND BROTHERS COMPANY V. LOUISVILLE AND N.R. CO., 168 I.C.C. 446; FERGUSON, ASSIGNEE, V. LOUISIANA AND A. RY. CO., 196 I.C.C. 369, 373. SINCE THE LIABILITY FOR THE EXCESS CHARGE RESTS UPON THE CARRIER GUILTY OF THE MISROUTING, NO PART OF SUCH EXCESS CHARGE IS PAYABLE BY THE GOVERNMENT.

IN THIS CASE, THE EXCESS CHARGE RESULTING FROM THE MISROUTING OF THE SHIPMENT BY ONE OF THE CARRIERS SEEMS TO BE SUSCEPTIBLE TO ADJUSTMENT BETWEEN THE INTERESTED CARRIERS. EVEN IF THE EXCESS CHARGE WAS CLAIMED BY THE CARRIER ENTITLED TO COLLECT THE TRANSPORTATION CHARGES UNDER THE PROVISIONS IN THE BILL OF LADING, THE GOVERNMENT WOULD NOT BE REQUIRED TO BECOME A PARTY TO SUCH CIRCUITY OF ACTION AS WOULD BE ENTAILED BY THE COLLECTION OF THE EXCESS CHARGES FROM THE GOVERNMENT BY ONE CARRIER AND THE REFUND OF THE SAME CHARGES TO THE GOVERNMENT BY ANOTHER CARRIER. SEE GALVESTON, HOUSTON AND SAN ANTONIO RAILWAY COMPANY V. LYKES BROS., 249 F. 968. THAT CASE INVOLVED A SITUATION IN WHICH THE INITIAL CARRIER ISSUED AN UNROUTED BILL OF LADING TO COVER A SHIPMENT OF CATTLE, AND THEN MISROUTED THE SHIPMENT. THE DESTINATION CARRIER COLLECTED CHARGES FROM THE CONSIGNEE WHICH WERE BASED ON AN ERRONEOUS RATE AND THEN SOUGHT TO RECOVER BY COURT ACTION THE RATE APPLICABLE VIA THE ACTUAL ROUTE OF MOVEMENT. THE COURT REFUSED TO ALLOW THE DESTINATION CARRIER TO COLLECT ANY CHARGES IN EXCESS OF THOSE APPLICABLE VIA THE LOWEST-RATED ROUTE--- THE ROUTE OVER WHICH THE INITIAL CARRIER SHOULD HAVE FORWARDED THE SHIPMENT. ANOTHER CASE VERY MUCH IN POINT IS LANCASTER V. SCHREINER, 212 S.W. 19. IN THAT CASE, THE INITIAL CARRIER MISROUTED THE SHIPMENT AND ON ARRIVAL AT THE BILLED DESTINATION THE DELIVERING CARRIER COLLECTED FROM THE CONSIGNEE THE CHARGES THAT WOULD HAVE BEEN PROPER HAD THE SHIPMENT NOT BEEN MISROUTED. THEREAFTER, THE DESTINATION CARRIER SUED THE SHIPPER FOR THE DIFFERENCE BETWEEN THE CHARGES COLLECTED AND THE CHARGES APPLICABLE VIA THE ACTUAL ROUTE OF MOVEMENT. THE COURT SAID:

THE PLAINTIFF HERE CONCEDES THAT IF DEFENDANT IS COMPELLED TO PAY THE EXCESS SUED FOR IN THIS CASE HE CAN RECOVER THE SAME AGAINST THE CARRIER OR CARRIERS GUILTY OF MISROUTING THIS SHIPMENT. ITS CONTENTION IS THAT, ON ACCOUNT OF THE RIGID CONDITIONS OF THE INTERSTATE COMMERCE ACT, THE PLAINTIFF MUST SUE FOR AND DEFENDANT MUST PAY THE AMOUNT OF THE COMBINED LOCAL RATES OF THE ROUTE OVER WHICH THE SHIPMENT WAS ACTUALLY SENT, THROUGH BY NO FAULT OF THE SHIPPER, AND THE SHIPPER MUST THEN IN TURN SUE FOR AND RECOVER THE EXCESS WHICH HE IS THUS FORCED TO PAY FROM THE OFFENDING CARRIER. WE SEE NO REASON, HOWEVER, WHY THE PLAINTIFF, IF IT HAS NOT RETAINED ITS OWN CHARGES IN FULL, AS TO WHICH WE ARE NOT ADVISED, SHOULD NOT ITSELF SUE SUCH OFFENDING CARRIER TO ADJUST SUCH DIFFERENCE. * * WHY SHOULD PLAINTIFF BE ALLOWED TO RECOVER FROM DEFENDANT FOR THE BENEFIT OF THE OFFENDING CARRIER THE VERY AMOUNT WHICH SUCH OFFENDING CARRIER MUST REFUND TO DEFENDANT? WE SEE NO REASON FOR TWO SUITS WHERE ONLY ONE, IF ANY, IS NEEDED. THE CASE IS THE SAME AS IF THE SHIPPER ON ASCERTAINING THE THROUGH RATE AND DESIGNATING THE PROPER ROUTE HAD PAID THE INITIAL CARRIER THE CORRECT AMOUNT OF CHARGES FOR THE THROUGH SHIPMENT. THE INITIAL CARRIER WOULD THEN BE RESPONSIBLE FOR THE THROUGH SHIPMENT, THOUGH PART OF THE ROUTE WAS OVER A CONNECTING CARRIER. THE CONNECTING CARRIER BECOMES IN A MEASURE AT LEAST THE AGENT OF THE INITIAL CARRIER TO COMPLETE THE SHIPMENT * * * AND THERE IS SUCH CONTRACTUAL RELATION BETWEEN THE TWO CARRIERS THAT THE CONNECTING CARRIER COULD HOLD THE INITIAL CARRIER FOR ITS LAWFUL SHARE OF FREIGHT CHARGES. * * * WE SEE NO REASON, THEREFORE, WHY PLAINTIFF, IF ANYTHING IS YET DUE, SHOULD NOT LOOK TO THE INITIAL OR PRECEDING CARRIER FOR ANY REDRESS DUE IT RATHER THAN TO SEEK TO COLLECT FROM DEFENDANT FOR THE BENEFIT OF THE OFFENDING CARRIER MONEY WHICH MUST BE AGAIN RETURNED TO THE DEFENDANT.

THE CASE OF ADLEY EXPRESS COMPANY V. THE UNITED STATES, COURT OF CLAIMS NO. 518-53 (128 C.1CLS. 776), TO WHICH YOU MAKE REFERENCE, IS NOT IN POINT. IN THAT CASE THE SHIPMENT WAS MISROUTED BY THE INITIAL CARRIER. ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, THE INITIAL CARRIER ADMITTED ITS LIABILITY FOR THE MISROUTING AND THE DEFENDANT CONSENTED TO JUDGMENT AGAINST IT. THE COURT THEN ENTERED JUDGMENT FOR PLAINTIFF AGAINST DEFENDANT AND JUDGMENT FOR DEFENDANT AGAINST THE INITIAL CARRIER, THE THIRD PARTY DEFENDANT.

ACCORDINGLY, FOR THE REASONS GIVEN ABOVE, NO LIABILITY RESTS UPON THE GOVERNMENT FOR THE PAYMENT OF ANY PART OF THE EXCESS CHARGE RESULTING FROM THE MISROUTE BY ONE OF THE CARRIERS IN THE ROUTE OF MOVEMENT AND, THEREFORE, THE SETTLEMENT IS SUSTAINED.