B-128556, MAR. 5, 1947

B-128556, MAR. 5, 1947

TO WOOLEYHAN TRANSPORT CO.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1956, REQUESTING REVIEW OF OUR SETTLEMENT OF JUNE 11, 1956, WHICH DISALLOWED YOUR CLAIM, PER BILL NO. 4128-A, FOR $28.52, ALLEGED TO BE THE BALANCE DUE ON YOUR BILL NO. 4128 IN CONNECTION WITH A SHIPMENT OF 143 BOXES OF "BOOSTER, EXPLOSIVE," WEIGHING 15,444 POUNDS, TRANSPORTED FROM DEFENSE, TEXAS, TO PERDICKTON, NEW JERSEY (PEDRICKTOWN), ON NOVEMBER 10, 1952, UNDER GOVERNMENT BILL OF LADING WY- 1450448.

IT IS YOUR POSITION THAT THE ROUTING USED BY OUR TRANSPORTATION DIVISION IN THE SETTLEMENT OF JUNE 11, 1956, IS PURELY "MYTHICAL,"SINCE THE SHIPMENT DID NOT MOVE VIA THIS ROUTE BUT DID MOVE ,AS IS CLEARLY INDICATED ON OUR BALANCE DUE STATEMENT BILL VIA "EAST TEXAS MOTOR LINES--- HAYES FREIGHT LINES--- HUGHES TRANSPORTATION COMPANY AND WOOLEYHAN TRANSPORT CO.'" YOU INDICATE THAT THE PROPER RATE TO APPLY ON THIS SHIPMENT IS $5.13 PER HUNDRED POUNDS, 16,000 POUNDS PER TRUCKLOAD MINIMUM WEIGHT, PROVIDED BY TENDER NO. 182 ISSUED BY EAST TEXAS MOTOR FREIGHT LINES ON NOVEMBER 3, 1952, FOR THE ACCOUNT OF THE CARRIERS NAMED ABOVE, PURSUANT TO SECTION 22 OF THE INTERSTATE COMMERCE ACT.

THE BILL OF LADING COVERING THIS SHIPMENT SHOWS ROUTING ONLY VIA THE INITIAL CARRIER, EAST TEXAS MOTOR FREIGHT LINES. IN THESE CIRCUMSTANCES, THE SHIPMENT BEING TENDERED TO THE INITIAL CARRIER UNROUTED, IT WAS THE DUTY OF THAT CARRIER TO FORWARD THIS UNROUTED SHIPMENT OVER THE LOWEST RATED ROUTE. MURRAY COMPANY OF TEXAS, INC. V. MORROR, INC., 54 M.C.C. 442, 444-445; GREAT ATLANTIC AND PACIFIC TEA CO. V. ONTARIO FREIGHT LINES, 46 M.C.C. 237, 239; MAUSMAN STEEL COMPANY. V SEABOARD FREIGHT LINES, INC., 32 M.C.C. 31, 36. THE TRANSPORTATION DIVISION OF OUR OFFICE HAS ADVISED THAT A ROUTING VIA EAST TEXAS MOTOR FREIGHT LINES TO ST. LOUIS, MISSOURI, THENCE RISS AND COMPANY, INCORPORATED, TO PHILADELPHIA, PENNSYLVANIA, AND WOOLEYHAN TRANSPORT COMPANY TO FINAL DESTINATION IS ALSO AVAILABLE AND IS PREFERABLE TO THE ROUTING USED IN OUR SETTLEMENT CERTIFICATE OF JUNE 11, 1956. ON THE BASIS OF THE ABOVE ROUTING VIA RISS AND WOOLEYHAN, A FIRST-CLASS RATE OF $5.13 PER HUNDRED POUNDS, PUBLISHED IN EASTERN CENTRAL MOTOR CARRIERS ASSOCIATION TARIFF NO. 20-B, MF-I.C.C. NO. A 55, VOLUME MINIMUM WEIGHT OF 10,000 POUNDS (PER ITEM 1540-D. PUBLISHED IN SUPPLEMENT NO. 71), WAS APPLICABLE.

THE SPECIAL RATE TENDER NO. 182, CITED BY YOU AS PROVIDING THE APPLICABLE RATE FOR THIS SHIPMENT, APPEARS TO BE MERELY A CONTINUING OFFER ON THE PART OF THE CARRIERS TO PERFORM SERVICES FOR THE UNITED STATES PURSUANT TO ITS TERMS. SECTION 217 (B), PART II OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 317 (B), PROVIDES THAT "NO COMMON CARRIER BY MOTOR VEHICLE SHALL CHARGE OR DEMAND OR COLLECT OR RECEIVE A GREATER OR LESS OR DIFFERENCE COMPENSATION FOR TRANSPORTATION * * * BETWEEN THE POINTS ENUMERATED IN SUCH TARIFF THAN THE RATES, FARES, AND CHARGES SPECIFIED IN THE TARIFFS IN EFFECT AT THE TIME; * * * PROVIDED, THAT THE PROVISIONS OF SECTION 1 (7) AND 22 OF THIS TITLE SHALL APPLY TO COMMON CARRIERS BY MOTOR VEHICLES SUBJECT TO THIS CHAPTER.' SECTION 22 OF THE ACT, 49 U.S.C. 22, PROVIDES THAT "NOTHING IN THIS CHAPTER SHALL PREVENT THE CARRIAGE, STORAGE, OR HANDLING OF PROPERTY FREE OR AT REDUCED RATES FOR THE UNITED STATES * * *," BUT NO AUTHORITY IS CONTAINED IN SECTION 22 OR ELSEWHERE IN THE INTERSTATE COMMERCE ACT WHEREBY CARRIERS MAY CONTRACT TO FURNISH SERVICES FOR THE UNITED STATES AT RATES OR CHARGES HIGHER THAN THOSE PROVIDED FOR THE SAME SERVICES IN TARIFFS LAWFULLY ON FILE WITH THE INTERSTATE COMMERCE COMMISSION. IT IS WELL SETTLED THAT GOVERNMENT AGENTS ARE WITHOUT AUTHORITY TO CONTRACT FOR TRANSPORTATION SERVICES ON THE BASIS OF HIGHER CHARGES THAN THOSE AVAILABLE TO THE PUBLIC UNDER PUBLISHED AND FILED TARIFFS FOR LIKE SERVICES UNDER LIKE CONDITIONS. MISSOURI PACIFIC RAILROAD CO. V. UNITED STATES, 71 C.CLS. 650, 661; ILLINOIS CENTRAL RAILROAD CO. V. UNITED STATES, 58 C.CLS. 182; 35 COMP. GEN. 681; 22 ID. 22, 26; 15 ID. 303.

IN VIEW OF THE ABOVE, THE MAXIMUM TRANSPORTATION CHARGE PAYABLE ON THIS SHIPMENT APPEARS TO BE $792.28, COMPUTED BY THE USE OF A FIRST CLASS RATE OF $5.13 PER HUNDRED POUNDS AT THE ACTUAL WEIGHT OF THE SHIPMENT. THIS IS THE AMOUNT ORIGINALLY PAID ON YOUR BILL NO. 4128. ACCORDINGLY, THE SETTLEMENT IS SUSTAINED.