[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]
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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.
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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.
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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