[Federal Register Volume 60, Number 109 (Wednesday, June 7, 1995)]
[Notices]
[Pages 30100-30102]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13934]



=======================================================================
-----------------------------------------------------------------------

INTERSTATE COMMERCE COMMISSION

[No. 41573\1\]

    \1\This notice embraces docket Nos. 41561, 41567, 41574, and 
41575, which involve separately filed petitions seeking declaratory 
relief from undercharges sought by Churchill Truck Lines, Inc., so 
that the parties in those proceedings may be served with a copy of 
this notice. Those proceedings are not consolidated with this one, 
but parties to those proceedings may request that their proceedings 
be held in abeyance pending resolution of this proceeding. In No. 
41561, a procedural schedule was established by decision served 
April 18, 1995; in No. 41567, a procedural schedule was established 
by decision served April 28, 1995; and in Nos. 41574 and 41575, 
procedural schedules will be established unless the parties request 
otherwise.
---------------------------------------------------------------------------


Anacomp, Inc.; Crest Manufacturing Incorporated; Godfrey Marine; 
Harrison International Incorporated; Health and Personal Care 
Distribution Conference, Inc.; National Small Shipments Traffic 
Conference, Inc.; and Truckpro Parts & Service, Inc.--Petition for 
Declaratory Order--Certain Rates and Practices of Churchill Truck 
Lines, Inc. (Trans-Allied Audit Company, Inc.)

AGENCY: Interstate Commerce Commission.

ACTION: Institution of declaratory order proceeding.

-----------------------------------------------------------------------

SUMMARY: The Commission is instituting a proceeding under 49 U.S.C. 
10321 and 5 U.S.C. 554(e) to determine whether the collection of 
undercharges by or on behalf of Churchill Truck Lines, Inc. (Churchill) 
or Trans-Allied Audit Company, Inc. (Trans-Allied), based on 
recharacterization of the service provided by Churchill as regular 
route instead of irregular route, constitutes an unreasonable practice 
under 49 U.S.C. 10701(a).

DATES: Comments by or on behalf of Churchill or Trans-Allied and any 
person desiring to submit comments in support of their position are due 
June 27, 1995. Petitioners' replies and any comments from all other 
interested persons are due July 7, 1995.

ADDRESSES: The original and 10 copies of comments and replies, which 
should refer to No. 41573, must be sent to: Office of the Secretary, 
Case Control Branch, Interstate Commerce Commission, 1201 Constitution 
Avenue, N.W., Washington, DC 20423. One copy of comments by or on 
behalf of Churchill or Trans-Allied must be served simultaneously on 
petitioners' representatives: Richard H. Streeter, 1401 Eye Street, 
N.W., Suite 500, Washington, DC 20005; and Daniel J. Sweeney, 1750 
Pennsylvania Ave., NW., Washington, DC 20006.

[[Page 30101]] FOR FURTHER INFORMATION CONTACT: Marty Schwimmer, (202) 
927-6289. [TDD for the hearing impaired: (202) 927-5721.]

SUPPLEMENTARY INFORMATION: On May 11, 1995, Anacomp, Inc.; Crest 
Manufacturing Incorporated; Godfrey Marine; Harrison International 
Incorporated; Health and Personal Care Distribution Conference, Inc.; 
National Small Shipments Traffic Conference, Inc.; and Truckpro Parts & 
Service, Inc. (petitioners) jointly filed a petition for declaratory 
order pursuant to the provisions of 5 U.S.C. 554(e). Petitioners 
request that the Commission take expedited or emergency action in order 
to bring an immediate halt to what they characterize as an aggressive 
undercharge campaign being waged by Trans-Allied on behalf of Churchill 
against the petitioners and hundreds of other shippers.
    For many years, Churchill maintained discount tariffs applicable to 
services provided to points for which it held irregular route 
authority. Petitioners state that prior to ceasing operations in early 
1994, Churchill filed tariffs with this Commission [ICC CHTL 681, ICC 
CHTL 604 and ICC CHTL 627 series] that included a note providing that 
``* * * the discounts named herein apply only to and from irregular 
route points actually served direct by CHTL.''
    Beginning in January 1995, petitioners, who had previously used 
Churchill's services, began receiving dunning letters from Trans-Allied 
accompanied by ``balance due freight bills.'' Subsequently, further 
letters were received from Trans-Allied claiming: that the discounts 
provided to shippers by Churchill's Tariff ICC CHTL 682 contain an 
unambiguous provision that restricted their application to shipments 
moving to and/or from irregular route service points only; that legal 
effect must be given to every provision of a tariff; that the movements 
covered by the balance due bills were less-than-truckload shipments 
moving to points specified in Churchill's regular route certificate and 
to which Churchill provided a regular less-than-truckload service; that 
under the filed rate doctrine reaffirmed in Maislin Indus. v. Primary 
Steel, 497 U.S. 116 (1990), Churchill must seek payment of the 
undiscounted rates on shipments to regular route shipping points; and 
that shippers are not entitled to discounts off the applicable class 
rates.
    The facts as presented by petitioners suggest that the services 
involved could have been performed under either Churchill's regular 
route or its irregular route authority. Petitioners point out that, 
during its many years of service, Churchill never contended that the 
discounts did not apply to shipments moving to and from all points for 
which it held irregular route authority, regardless of whether or not 
they also happen to be points for which it held regular route 
authority. Only after Churchill ceased operations did its auditor 
assert that the published discounts were not applicable to shipments 
moving to irregular route points that were also named in Churchill's 
regular route certificates.
    Petitioners contend that Trans-Allied's theory of recovery is 
fatally flawed. They claim, that, under the Supreme Court's decision in 
Hewitt-Robins, Incorporated v. Eastern Freight-Ways, 371 U.S. 84 
(1962), if two routes are available (in that case, one interstate and 
the other intrastate), the carrier is legally obligated to use the 
lower-rated route. The Court, according to petitioners, specifically 
condemned the use of principles of misrouting to collect a higher 
tariff charge as being an unlawful practice under the Interstate 
Commerce Act and the common law. Petitioners argue that Churchill's 
shippers are entitled to the lowest published tariff rate between two 
points.
    Citing Hewitt-Robins, Inc. v. Eastern Freight-Ways, 302 I.C.C. 173, 
174 (1957), petitioners conclude that ``when no routing instructions 
are given, a motor carrier has a duty to select the least expensive 
route, unless it is an unreasonable one.'' 302 I.C.C. at 174. See also 
Great Atlantic & Pacific Tea Co. v. Ontario Frt. Lines, 46 M.C.C. 237, 
239, 242-243 (1946); Mentzner Stove Repairs Co. v. Ranft, 47 M.C.C. 
151, 154 (1947); Murray Co. of Texas, Inc. v. Marron, Inc., 54 M.C.C. 
442, 444 (1952). They urge that the application of the Hewitt-Robins 
principles to the Churchill situation leaves no room for Trans-Allied 
to argue that Churchill is entitled to a non-discounted rate because, 
if it handled shipments in regular route service, rather than its 
irregular route service, it did so without consulting the shipper. 
Petitioners, therefore, ask the Commission to declare that Churchill 
had an affirmative duty to route its shippers' movements in irregular 
route service in order to take advantage of its published tariff 
discounts, and that, if it routed them in non-discounted regular route 
service, Churchill engaged in an unreasonable practice.
    Petitioners also argue that Trans-Allied's position is not 
supported by the literal wording of the tariff note cited above. They 
contend that Trans-Allied's rationale must be rejected because it 
erroneously reads into the note the nonexistent words ``in irregular 
route service.'' They emphasize that there is no such qualification 
within the four corners of Churchill's tariff rule and that, as 
numerous courts have reasoned, tariff construction requires that ``the 
four corners of the instrument must be visualized and all the pertinent 
provisions considered together, giving effect so far as possible to 
every word, clause, and sentence therein contained.'' United States v. 
Missouri-Kansas-Texas R. Co., 194 F.2d 777, 778 (5th Cir. 1952).
    Petitioners contend that the shipper is entitled to the benefit of 
the doubt if the tariff is ambiguous, and that, because there are no 
such qualifying words to alert the potential shipper to the possibility 
that it would be forced to pay higher rates for shipments handled 
pursuant to Churchill's regular route certificates, rather than its 
irregular route certificate, Trans-Allied's construction must be 
rejected. ``[A]ny ambiguity or reasonable doubt as to their meaning 
must be resolved against the carriers.'' Id. at 778. Citing Carrier 
Service, Inc. v. Boise Cascade Corp., 795 F.2d 640, 642 (8th Cir. 
1986), petitioners argue that, to the extent that Churchill's tariffs 
``would lend themselves to misinterpretation by the ordinary users of 
such tariffs,'' they must be construed in favor of the shippers.
    Finally, petitioners submit copies of correspondence to shippers in 
which Churchill's representatives adopted an interpretation consistent 
with petitioners' position that the published discount ``applies only 
on shipments either originating at or destined to all of Churchill's 
direct interstate points.'' Petitioners argue that such representations 
clearly indicate that Churchill intended that shippers would receive 
the discount, and that without such competitive rates these shipments 
would have been shipped via other carriers.
    Because it appears that a controversy exists within the meaning of 
5 U.S.C. 554(e), the petition will be granted and a declaratory order 
proceeding instituted. Churchill and Trans-Allied will be directed to 
file comments on the issues presented, and the petitioners will be 
directed to file reply comments. All other interested persons may also 
file comments. The parties are specifically directed to address whether 
the collection of undercharges by or on behalf of Churchill Truck 
Lines, Inc. or Trans-Allied Audit Company, Inc., based on 
recharacterization of the service provided by Churchill, as regular 
route instead of irregular route, constitutes an unreasonable practice 
under 49 U.S.C. 10701(a). [[Page 30102]] 
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.
    It is ordered:
    1. A declaratory order proceeding is instituted to consider the 
issues raised in this proceeding.
    2. Comments by or on behalf of Churchill or Trans-Allied are due 
June 27, 1995.
    3. Petitioners' replies and any comments from all other interested 
persons are due July 7, 1995.
    4. A copy of this notice will be served on the parties in Nos. 
41561, 41567, 41574, and 41575.

    Decided: May 25, 1995.

    By the Commission, Chairman Morgan, Vice Chairman Owen, and 
Commissioners Simmons and McDonald.
Vernon A. Williams,
Secretary.
[FR Doc. 95-13934 Filed 6-6-95; 8:45 am]
BILLING CODE 7035-01-P