B-148615, AUG. 15, 1962

B-148615, AUG. 15, 1962

TO WESTERN TRUCK LINES, LTD.:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 2, 1962, IN WHICH YOU REQUEST REVIEW OF THE SETTLEMENT CERTIFICATE OF MARCH 21, 1962 (TK 656352), WHICH DISALLOWED YOUR SUPPLEMENTAL BILL NO. G-02559 OF JUNE 7, 1961, IN THE AMOUNT OF $1,847.36. SINCE YOU REFER TO ONLY TWO OF THE THREE BILLS INCLUDED IN THE ORIGINAL SETTLEMENT WE ASSUME THAT YOUR REQUEST FOR REVIEW APPLIES ONLY TO BILLS OF LADING NO. N-34513768 AND N-34513769, DATED AUGUST 25, 1959, AND SEPTEMBER 2, 1959, RESPECTIVELY, FOR THE TRANSPORTATION OF PROPELLANT EXPLOSIVES FROM MCGREGOR, TEXAS, TO CHINA LAKE, CALIFORNIA. THE AMOUNT CLAIMED AND DISALLOWED ON THESE TWO BILLS OF LADING TOTALS $1,776.98, AND WE WILL CONSIDER YOUR REQUEST FOR REVIEW AS RELATING TO THAT SUM.

THE RECORD SHOWS THAT BILLS OF LADING NO. N-34513768 AND N-34513769 WERE ISSUED TO CENTRAL FREIGHT LINES, INC., FOR THE TRANSPORTATION OF 128 POUNDS AND 174 POUNDS, RESPECTIVELY, OF CLASS B EXPLOSIVES, IN LESS-THAN- TRUCKLOAD (LTL) SERVICE. NEITHER BILL OF LADING WAS ROUTED BEYOND THE ORIGIN CARRIER, AND THE SHIPMENTS WERE MOVED BY THE CENTRAL FREIGHT LINES, THENCE THE WESTERN TRUCK LINES TO DESTINATION. THE CHARGES BILLED AND PAID ON EACH OF THE BILLS OF LADING WERE $906.75, BASED ON A 7,500 POUND MINIMUM WEIGHT AT A CLASS 150 RATE OF $12.09 PER 100 POUNDS, PUBLISHED IN TARIFF RMMTB 21-B, MF-I.C.C. NO. 117. THE MINIMUM WEIGHT OF 7,500 POUNDS WAS APPLIED BECAUSE OF THE ROUTING VIA THE WESTERN TRUCK LINES. THIS IS IN ACCORDANCE WITH A REQUIREMENT SET FORTH IN ITEM 932 OF TARIFF RMMTB 20- B, MF-I.C.C. NO. 101, WHICH READS---

"MINIMUM CHARGE OF SHIPMENTS OF CLASS A OR B EXPLOSIVES

"EXCEPT AS PROVIDED IN NOTES 1 AND 2, THE MINIMUM CHARGE ON ANY SHIPMENT CONTAINING CLASS A OR B EXPLOSIVES * * * MOVING UNDER RATES NAMED IN TARIFFS MADE SUBJECT TO THIS TARIFF WILL BE THE CHARGE FOR 7,500 POUNDS AT THE LTL OR AQ RATE APPLYING TO THE HIGHEST RATED CLASS A OR B EXPLOSIVE IN THE SHIPMENT.

"NOTE 2

"THE PROVISION OF THIS ITEM WILL NOT APPLY ON TRAFFIC WHICH MOVES FROM ORIGIN TO DESTINATION VIA ANY ONE OF THE CARRIERS SHOWN BELOW, OR VIA ANY COMBINATION OF CARRIERS SHOWN BELOW.'

(33 CARRIERS ARE LISTED--- INCLUDING CENTRAL FREIGHT LINES BUT NOT INCLUDING WESTERN TRUCK LINES.)

SINCE THE BILLS OF LADING WERE NOT ROUTED BEYOND THE ORIGIN CARRIER, OUR TRANSPORTATION DIVISION DETERMINED IN THEIR AUDIT THAT IF THE SHIPMENT HAD BEEN TENDERED BY CENTRAL FREIGHT LINES TO ANY OF THE VARIOUS CARRIERS LISTED IN ITEM 932 INSTEAD OF THE WESTERN TRUCK LINES, THERE WOULD HAVE BEEN FOR APPLICATION THE THROUGH RATE OF $12.09 PER 100 POUNDS AT THE ACTUAL WEIGHTS OF 128 AND 174 POUNDS, AND NOT AT THE 7,500 POUND MINIMUM WEIGHT AS BILLED. THE INDICATED OVERCHARGES OF $891.27 AND $885.71 (TOTALING $1,776.98) ON THE TWO BILLS OF LADING WERE SUBSEQUENTLY COLLECTED BY DEDUCTION FROM A BILL FOR SUBSEQUENT SERVICES.

IN YOUR PRESENT LETTER YOU CONTEND THAT MISROUTING HAS BEEN CLASSIFIED AS AN UNREASONABLE PRACTICE FOR WHICH SHIPPERS HAVE NO STATUTORY CAUSE OF ACTION FOR RECOVERY OF ALLEGEDLY UNREASONABLE PAST RATES, AND CITE T.I.M.E. V. UNITED STATES, 359 U.S. 464, AS AUTHORITY.

HOWEVER, IT IS OUR VIEW THAT MISROUTING IS NOT A SITUATION INVOLVING REASONABLENESS OF RATES AS WAS TRUE OF THE T.I.M.E. CASE, AND THAT THE GOVERNMENT AS A SHIPPER STILL RETAINS ITS COMMON LAW REMEDY, IF THE CARRIER BREACHES ITS DUTY TO CARRY SHIPMENTS VIA THE CHEAPEST AVAILABLE ROUTES. AT THIS TIME THE ISSUE OF WHETHER MISROUTING IS AN "UNREASONABLE" PRACTICE FROM WHICH NO RELIEF IS AVAILABLE UNDER THE HOLDING IN THE T.I.M.E. CASE, IS UNDER CONSIDERATION BY THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF HEWITT-ROBINS, INC. V. EASTERN FREIGHTWAYS, INC., 293 F.2D 205, CERTIORARI GRANTED, 368 U.S. 951. UNTIL THAT CASE IS FINALLY DISPOSED OF WE FEEL THAT WE SHOULD CONTINUE TO SETTLE OUR ACCOUNTS ACCORDING TO THE POSITION WE MAINTAIN GENERALLY AS TO MISROUTES.