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WALKER: REFERENCE IS MADE TO YOUR LETTERS OF APRIL 10. YOUR RECENT LETTERS HAVE BEEN CAREFULLY EXAMINED AND THEY APPEAR TO CONTAIN MERE GENERAL DENIALS OF LIABILITY WHICH OFFER NO SPECIFIC EXCEPTION TO THE BASIS EMPLOYED BY OUR TRANSPORTATION DIVISION TO ANY PARTICULAR BILL. REGARDING YOUR GENERAL CONTENTION THAT ALL CLAIMS FILED BY THE GOVERNMENT SUBSEQUENT TO TWO YEARS FROM THE DATE THE CAUSE OF ACTION FIRST ACCRUED ARE BARRED UNDER SECTION 204A OF THE INTERSTATE COMMERCE ACT. IT IS NOTED THAT IN SUPPORT OF YOUR POSITION YOU RELY UPON AND QUOTE SEVERAL EXCERPTS FROM THE OPINION OF THE FIRST CIRCUIT COURT OF APPEALS IN THE CASE OF UNITED STATES V. WAS NOT CERTIFICATED BY THE INTERSTATE COMMERCE COMMISSION TO OPERATE AS A COMMON MOTOR CARRIER BETWEEN MANY OF THE POINTS ACTUALLY SERVED IN FURNISHING THE TRANSPORTATION IN QUESTION.

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B-128134, JUL. 1, 1957

TO MR. C. E. WALKER:

REFERENCE IS MADE TO YOUR LETTERS OF APRIL 10, 13, AND 20, 1957, REGARDING THE INDEBTEDNESS TO THE UNITED STATES OF THE WATKINS MOTOR LINES, INC., THOMASVILLE, GEORGIA. THIS INDEBTEDNESS, COVERING 169 BILLS PRESENTED BY THE INDEBTED CARRIER, REPRESENTS OVERPAYMENTS FOR THE TRANSPORTATION OF GOVERNMENT PROPERTY AND THE VALUE OF GOVERNMENT PROPERTY LOST OR DAMAGED IN TRANSIT.

THE CARRIER HAS BEEN FULLY ADVISED AS TO THE BASIS FOR COMPUTING THE EXCESS CHARGES, INCLUDING APPROPRIATE REFERENCE TO ITS BILLS, THE GOVERNMENT BILLS OF LADING INVOLVED AND THE TARIFF AUTHORITY FOR THE RATES USED. YOUR RECENT LETTERS HAVE BEEN CAREFULLY EXAMINED AND THEY APPEAR TO CONTAIN MERE GENERAL DENIALS OF LIABILITY WHICH OFFER NO SPECIFIC EXCEPTION TO THE BASIS EMPLOYED BY OUR TRANSPORTATION DIVISION TO ANY PARTICULAR BILL.

REGARDING YOUR GENERAL CONTENTION THAT ALL CLAIMS FILED BY THE GOVERNMENT SUBSEQUENT TO TWO YEARS FROM THE DATE THE CAUSE OF ACTION FIRST ACCRUED ARE BARRED UNDER SECTION 204A OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 304A, IT SHOULD BE NOTED THAT STATUTES OF LIMITATIONS DO NOT BIND THE UNITED STATES UNLESS THE CONGRESS HAS CLEARLY MANIFESTED SUCH AN INTENTION. SEE SEABOARD AIR LINE RAILROAD CO. V. UNITED STATES, 113 C.CLS. 437, CERTIORARI DENIED, 338 U.S. 848; UNITED STATES V. NASHVILLE, CHATTANOOGA AND ST. LOUIS RY. CO., 118 U.S. 120, 125; SOUTHERN PACIFIC CO. V. UNITED STATES, 62 C.CLS. 391, 402; GRAND TRUNK WESTERN RY. CO. V. UNITED STATES, 252 U.S. 112, 121.

IT IS NOTED THAT IN SUPPORT OF YOUR POSITION YOU RELY UPON AND QUOTE SEVERAL EXCERPTS FROM THE OPINION OF THE FIRST CIRCUIT COURT OF APPEALS IN THE CASE OF UNITED STATES V. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD CO., 236 F.2D 101. SINCE THE SUPREME COURT HAS GRANTED CERTIORARI IN THAT CASE, THE OPINION MAY NOT BE CONSIDERED AS HAVING ANY BINDING EFFECT ON THE INSTANT MATTER AT THIS TIME. SEE UNITED STATES V. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD CO., 352 U.S. 965.

OUR TRANSPORTATION DIVISION REPORTS THAT THE WATKINS MOTOR LINES, INC., WAS NOT CERTIFICATED BY THE INTERSTATE COMMERCE COMMISSION TO OPERATE AS A COMMON MOTOR CARRIER BETWEEN MANY OF THE POINTS ACTUALLY SERVED IN FURNISHING THE TRANSPORTATION IN QUESTION, NOR WAS IT A PARTICIPATING CARRIER IN THE TARIFFS PUBLISHING RATES BETWEEN THOSE POINTS WHICH HAD BEEN FILED WITH THE RESPECTIVE COMMISSIONS BY DULY CERTIFICATED CARRIERS. IT IS THE ESTABLISHED POLICY OF OUR OFFICE--- IN THE ABSENCE OF ADEQUATE REASON FOR ACTING OTHERWISE--- TO USE THE RATES OF DULY CERTIFICATED CARRIERS AS THE MEASURE OF THE CHARGES PAYABLE FROM PUBLIC FUNDS FOR SHIPMENTS HANDLED BY UNAUTHORIZED CARRIERS. YOU URGE THAT WHEN A CARRIER OPERATING IN INTERSTATE OR INTRASTATE COMMERCE DID NOT FILE RATES WITH THE PROPER REGULATORY BODY, NO COURT IS EMPOWERED TO ORDER SUCH CARRIER TO CHARGE THE FILED RATES OF THE DULY AUTHORIZED CARRIERS. IT MAY BE STATED IN THIS CONNECTION THAT THE CARRIER'S BILLS INVOLVED IN THIS CASE WERE CERTIFIED IN THE SAME MANNER AS THOSE IN THE CASE OF R. E. SHUTT V. UNITED STATES, 218 F.2D 10 (CERTIORARI DENIED, 350 U.S. 822), WHERE IT WAS HELD THAT THE CERTIFICATION ON THE FACE OF THE VOUCHER CONSTITUTED AN AGREEMENT TO ASSESS NO GREATER THAN TARIFF CHARGES AND THAT A FINDING BY THE INTERSTATE COMMERCE COMMISSION THAT CHARGES WERE UNREASONABLE WAS NOT A PREREQUISITE TO A JUDGMENT IN FAVOR OF THE UNITED STATES. UNDER THE PRINCIPLES OF THE SHUTT CASE OUR AUDIT ACTION APPEARS PROPER IN ALL INSTANCES WHERE THIS CARRIER DID NOT FILE RATES WITH THE PROPER REGULATORY BODY.

RESPECTING YOUR STATEMENT THAT THE WATKINS MOTOR LINES, INC., IS NOW UNABLE TO PRODUCE ALL THE EMERGENCY "W" TARIFFS BEARING NOS. MF-I.C.C. NO. W-1 THROUGH NO. W-60, YOU ARE ADVISED THAT THE INTERSTATE COMMERCE COMMISSION HAS FURNISHED US WITH COPIES OF THE VARIOUS TARIFFS FILED BY THIS CARRIER. IF YOU WILL IDENTIFY BY NUMBER THE PARTICULAR TARIFFS WHICH ARE NOT NOW AVAILABLE, COPIES THEREOF WILL BE FURNISHED UPON RECEIPT OF A REQUEST FROM YOU. IN THAT CONNECTION, THE INTERSTATE COMMERCE COMMISSION HAS REPORTED THAT THE FOLLOWING TARIFF NUMBERS WERE NOT USED, VIZ. : MF- I.C.C. NOS. W-1, W-3, W-10, W-12, W 13, W-14, AND W-15.

OUR TRANSPORTATION DIVISION REVIEWED THE BILLS INVOLVED IN THE LIGHT OF THESE EMERGENCY TARIFFS AND NOW REPORTS THAT THE TOTAL INDEBTEDNESS SHOULD BE $22,159.10, RATHER THAN $22,427.56 AS PREVIOUSLY REPORTED TO THE ATTORNEY GENERAL. A SUPPLEMENTAL TABULAR STATEMENT WILL BE PREPARED BY OUR TRANSPORTATION DIVISION FOR THE DEPARTMENT OF JUSTICE EXPLAINING IN DETAIL THE MANNER IN WHICH THE INDEBTEDNESS WAS ADJUSTED TO THE SUM OF $22,159.10, AND THE WATKINS MOTOR LINES, INC., WILL BE FURNISHED A SUPPLEMENTAL CERTIFICATE OF INDEBTEDNESS REFLECTING SUCH ADJUSTMENT.

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