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bring about a measure of uniformity of condition and uniformity of application of the law, as against the provisions of the bill which merely provide uniformity of language. Respectfully,

GILES MORROW, General Counsel.

STATEMENT BY LEE J. QUASEY, COMMERCE COUNCIL, NATIONAL LIVE STOCK Pro

DUCERS ASSOCIATION, CHICAGO, ILL., SUBMITTED ON BEHALF OF THE NATIONAL COUNCIL OF FARMER COOPERATIVES TO THE SENATE INTERSTATE AND FOREIGN COMMERCE COMMITTEE, IN SUPPORT OF UNIFORM STATUTE OF LIMITATIONS FOR ALL TYPES OF CARRIERS SUBJECT TO REGULATIONS UNDER THE INTERSTATE COMMERCE ACT

The National Council of Farmer Coperatives, hereinafter called the "council,” is a conference body representing about 4,600 farmer cooperative associations organized under Federal and State statutes, who are engaged in marketing the products and the purchasing of farm production supplies for approximately 2,300,000 farmer members.

Direct membership of the council consists of 113 associations which by virtue of their activities are classified in the following divisions : Ctrus and subtropical fruits

Nut Cotton

Potato Dairy

Poultry Deciduous fruits

Processed fruits and vegetables General service

Purchasing Grain and seed

State councils Livestock

Tobacco Miscellaneous

Wool Miscellaneous fruits and vegetables In order to better promote the interest in transportation matters of farmer coperative business organizations and their farmer members, the council has sponsored and established as a standing committee, the National Agricultural Cooperative Transportation Committee. This committee is composed of transportation representatives of farmer cooperative associations throughout the country. The transportation committee has given careful consideration to the matter of uniform statutes of limitations for various types of common carriers under the Interstate Commerce Act.

We support the enactment of S. 1194 which proposes to amend the Interstate Commerce Act by providing a 2-year statute of limitations for the filing of claims for overcharges, undercharges, and other damages in connection with shipments by common carriers by motor vehicles, by water and by freight forwarders, all of which are under the jurisdiction of the Interstate Commerce Commission under parts II, III, and IV, respectively, of the Interstate Commerce Act. At present the 2-year statute of limitations applies only in connection with shipments by common carriers by railroad under part I of the act and the enactment of the proposed bill would make the period of limitations the same for all four types of carriers under the act. It should also be observed that claims for overcharges against water carriers must be filed within 3 years, but that there is no limitation as to the time water carriers can file undercharge claims against shippers.

Uniformity in limitations is highly desirable and necessary to provide equal protection in connection with shipments via all types of carriers and avoid the confusion which prevails, because in the absence of Federal legislation the limitations of the various State statutes apply. The limitations of the State statutes vary from 3 to about 10 years. Obviously such a situation is very undesirable and confusing and should be corrected in the public interest.

We believe that 2-year statute of limitations for the filing of claims for overcharges and undercharges and other damages (reparation), as now apply to rail carriers under part I of the act, are reasonable and fair to both shippers and carriers, and that the same limitations should be made to apply to carriers under parts II, III, and IV.

The proposed bill S. 1194 provides, first, a 2-year period for the filing of undercharge claims by carriers against shippers and a 2-year period within which shippers may file overcharges against carriers, and, second, it gives the Interstate Cominerce Commission the authority to award reparation upon a finding of violation of the act and allows the recovery of damages from 2 years prior to the date of the filing of the complaint with the Commission.

It appears that motor carriers and freight forwarders have objected to the provision under which the Interstate Commerce Commission would be authorized to award reparation upon a finding of violation of the act. Whatever may be their theory for this opposition we submit that it is not well founded because the Commission can now make a finding of violation of the act, but it cannot enforce it by an order against the other types of carriers like it can against the rail carriers.

In the case of a finding of damages by the Commission against any carriers other than railroads, the shipper must resort to court action, which is cumbersome, complex, and expensive. This condition militates strongly against shippers, especially where the amounts are relatively small compared to the costs involved.

As a matter of fact, at present, recovery of damages by way of a reparation award can only be undertaken by large shipper organizations who have traffic department personnel and services of attorneys to handle such matters, and both the high cost of recovery, or the absence of adequate personnel prevents many shippers from obtaining redress they are entitled to in many cases, from violations of the Interstate Commerce Act. Furthermore, at present, much confusion exists as to procedure. It is a question if a shipper has to file a suit in court as a condition precedent to filing a complaint before the Commission in order to obviate the risk of presenting a moot issue.

For instance, in Bell Potato Chip Co. V. Aberdeen Trust Line et al. (43 M. C. C. 337), decided April 4, 1944, the Commission found that it has jurisdiction to make an administrative determination of the lawfulness of charges on past shipments, under part II of the Interstate Commerce Act, and also found that certain rates that were charged and collected by the defendants on past shipments were unreasonable, but that it does not have authority to issue an order requiring the motor carrier to pay to the complainant the differenct between the higher rate charged and the lower rate found to be just and reasonable.

In the above situation, if the motor carrier is unwilling to pay, the shipper must file and prosecute a suit in court to enforce payment. But that is not all. In the Bell case above cited, the Commission indicated that in order to avoid the filing of frivolous or moot complaints, concerning charges on past shipments by motor carrier, that the shipper should first institute an action in court as a condition precedent to filing a complaint before the Commission.

As to the necessity of the determination' of damages for the exaction of an unreasonable rate under part II of the act, and in making observations as to the dual procedures now required, the Commission at page 313 of the Bell case above cited, stated in part:

"It is also to be noted that in proceedings presenting the issue of applicability of rates, it is a well-established doctrine that consideration by us prior to court action is essential where it is necessary to inquire into questions of fact or to construe terms in a tariff used in a special or technical sense (Great Northern Rye Co. v. Merchants Elevator Co., 259 U. S. 285, and cases therein cited).

"Granted this jurisdiction, the question remains when and in what circumstances it is to be exercised. The usual purpose of invoking our jurisdiction in adversary proceedings to find past unreasonableness, unjust discrimination, or undue prejudice in motor-carrier rates to lay the groundwork for a money judgment in a court action. Our determination of such issues in circumstances of this kind is not self-executing. Unless the carriers concerned are willing to be governed by our conclusions, our action becomes merely a step preliminary to a suit in court. Part II does not provide any limitation period for such a suit, and therefore resort would be necessary to the statute of limitations of the jurisdiction in which the suit is brought. Doubtless the period would be found to vary among the several States.

“In circumstances such as described, it is apparent that precautions should be taken to prevent the filing of frivolous or moot complaints. Without attempting at this time to devise a precise rule, we think it pertinent to point out that, generally speaking, adversary proceedings involving past unreasonableness, unjust discrimination or undue prejudice under part II should not be brought before us prior to the institution of a suit in court in which damages are sought predicated upon the unlawfulness alleged in the complaint. The complaint should show that such suit has been brought within the period allowed by the applicable statute of limitations. There may be other situations in which we should exercise this jurisdiction. In this connection, it may be noted that it is a recognized practice to hold in abeyance court proceedings pending the determination by the Commission of administrative questions” (Eastern-Central Motor Carriers Assn. v. United States, 321 U. S. 194; General American Tank Car Corp. v. El Dorado Term. Co., 308 U. S. 422; Mitchell Coal & Coke Co. v. Pennsylvania R. CO., 230 U. S. 304, 314; Southern Ry. Co. v. Tift, 206 U. S. 428, 434).

Later in Victory Granite Co. v. Central Truck Lines, et al. (44 M. C. C. 320), decided January 25, 1945, where a suit was not filed before the filing of a complaint before the Commission, it stated in part on page 321, that in the Bell case, “the Commission did not intend to, and did not, prescribe an inflexible rule requiring that in all proceedings such as this the complaint must show that a suit has been instituted in court before we may exercise our jurisdiction to make an administrative finding respecting the lawfulness of motor-carrier rates charged in past shipments. The Commission, in fact, was careful not to prescribe a precise rule. It merely pointed out, for the purpose of discouraging the filing of frivolous or moot complaints, that 'generally speaking proceedings of this type 'should' not be brought before it prior to the institution of a suit in court and that the complaint should show that action in court has been brought within the period allowed by the applicable statute of limitations. There is nothing in the report to bar consideration on the merits of such a complaint although no court action has been instituted, where the circumstances warrant such action. The complaint herein does not appear to be frivolous or moot and it was filed 4 months before the report in the cited proceeding was issued. Under the circumstances the complaint will be considered on its merits.”

This clearly shows how complex, expensive, and cumbersome the present situation is.

The enactment of S. 1194 would provide an urgently needed remedy. It would obviate the necessity of a shipper having to bring separate actions, in an involved series of procedures, first, by instituting a suit in court to show that his complaint was not frivolous or that it did not present a moot. question, and, second, by filing a complaint before the Commission and, finally, after a determination by the Commission, that he was entitled to damages, he would have to go back to the court to secure an order to enforce the findings of the damages he was entitled to under the decision of the Interstate Commerce Commission.

In conclusion, we respectfully urge that the committee favorably report S. 1194 without amendments. Furthermore, it appears that S. 571 and S. 935 are before the committee for consideration. These bills propose to establish a limitation of 3 years for motor carriers and freight forwarders, and to increase from 2 to 3 years the statutory period for filing overcharge claims by shippers against railroads and undercharge claims by railroads against shippers. We appreciate the intent of the sponsors of these bills, but the council and its transportation committee have considered the matter and believe that the 2-year period provided in S. 1194 is reasonable and fair to both the shippers and carriers and affords ample time in which appropriate action may be brought by either of them.

With respect to H. R. 2759, we wish to say that it does not go far enough. It pertains to overcharges and undercharges only, and does not include the recovery of damages for violation of the act on past shipments. We, therefore, again urge the enactment of S. 1194, because it is more comprehensive in that it includes the general provisions in H. R. 2759, and it also includes reparation on past shipments, where charges of unreasonable rates have been determined by the Interstate Commerce Commission.

UNITED STATES MARITIME COMMISSION,

Il’ashington, December 12, 1947. Hon. WALLACE H. WHITE, Jr., Chairman, Committee on Interstate and Foreign Commerce,

United States Senate. MY DEAR SENATOR WHITE: On April 19, 1947, you requested the views of the United States Maritime Commission on S. 1194, a bill to amend the Interstate Commerce Act with respect to the liability of common carriers by motor vehicle, common carriers by water, and freight forwarders for payment of damages to persons injured by them through violations of such act.

The bill is designed to shorten the limitation periods in the Interstate Commerce Act on overcharge and other claims as well as to provide claimants with a remedy by direct suit in the Federal courts as an alternate procedure to the existing right to file claims with the Interstate Commerce Commission.

Although the bill relates only to carriers and forwarders subject to the jurisdiction of the Interstate Commerce Commission, that part of the bill (sec. 4) amending section 308 (f) of the Interstate Commerce Act does cover common carriers by water in interstate commerce. Many of these serve coastwise and intercoastal traffic and are, therefore, of concern to the Maritime Commission as being a part of the American merchant marine. The amendments proposed are apparently designed to provide for these carriers the same limitation of time within which claims can be filed by them or against them as is provided for the railroads. The period is also the same as that provided for carriers subject to the Shipping Act, 1916, and still subject to the jurisdiction of the Maritime Commission.

In view of the above considerations the Commission has no objections to the enactment of the bill.

The Director, Bureau of the Budget, advises that there would be no objection to the submission of this report to your committee. Sincerely yours,

W. W. SMITH, Chairman.

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COMPTROLLER GENERAL OF THE UNITED STATES,

Washington, March 18, 1948. Hon. WALLACE H. WHITE, Jr., Chairman, Committee on Interstate and Foreign Commerce,

United States Senate. MY DEAR MR. CHAIRMAN: Further reference is made to the letter dated January 15, 1948, from the clerk of your committee, requesting comment concerning H. R. 2759, entitled "A bill to amend the Interstate Commerce Act, as amended, so as to provide limitations on the time within which actions may be brought for the recovery of undercharges and overcharges by or against common carriers by motor vehicle, common carriers by water, and freight forwarders.”

This bill, which has been passed by the House of Representatives, provides, in substance, that for recovery of undercharges or overcharges actions at law by or against common carriers by motor vehicle, common carriers by water, and freight forwarders, subject to the Interstate Commerce Act, as amended, shall be begun within 2 years from the time the cause of action accrues, it being specified that for the purposes of such limitations in respect to shipments of property by carriers by motor vehicle and freight forwarders a cause of action shall be deemed to accrue upon delivery or tender of delivery by the carrier or forwarder. Certain extensions for periods of 6 months in some circumstances and 90 days in other circumstances are provided. The bill provides further, with respect to common carriers by water, that all complaints against carriers for the recovery of damages not based on overcharges shall be filed with the Interstate Commerce Commission within 2 years from the time the cause of action accrues and imposes a like limitation upon complaints filed with the Commission for the recovery of overcharges.

While, as explained below, it is believed the bill should be regarded at any time as distinctly not in the public interest so far as it may affect Government shipments, there is at this time a special situation arising out of the war (as explained in the attached memorandum) which would make the bill now doubly objectionable if it applies to the United States.

Upon that question-whether the bill would apply to Government shipmentsthe General Accounting Office reported to the House Committee on this bill that, under the usual rule, in the absence of specific provision or clear legislative intent to the contrary, the United States is not bound by any statute of limitations. In this connection, there were cited the cases of United States v. Nashville, Chattanooga & St. Louis Ry. Co. (118 U. S. 120), and Du Pont de Nemours v. Daris, Director General of Railroads, Agent (264 U. S. 456). Cf, also the recent decision in the case of United Mine Workers v. United States ((1947), 330 U. S. 258).

As indicated in House Report No. 208, Eightieth Congress, the principal effect of the proposed amendments is to provide for the establishment of a uniform period of limitations under the four parts of the Interstate Commerce Act, this to be accomplished by bringing the provisions of parts II, III, and IV of the act into conformity with the provisions of part I, where substantially similar limitations as now proposed are prescribed with respect to actions brought by or against common carriers by railroad. See 49 U. S. C. 16 (3). The cited statutory provision does not specifically name the United States as being subject to the limitations provided, nor is the United States named specifically in the somewhat

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parallel provisions of the pending bill. In the case of Du Pont de Nemours of Company v. Davis, Director General of Railroads, Agent, supra, there was inrolved the question as to whether the shipper could plead successfully that the bar of the statute of limitations as prescribed in section 424, Transportation Act, 1920 (41 Stat. 456, 491–492), should be viewed as operating to defeat the right of the Director General to recover demurrage charges accruing, while the railroads were under Federal control, at a time more than 3 years prior to the beginning of the action. In affiming the decision of the lower court the Supreme Court of the United States stated :

An action by the Director General to recover upon a liability arising out of such control is an action on behalf of the United States in its governmental capacity

[citing cases) and, therefore, is subject to no time limitation, in the absence of congressional enactment clearly imposing it. Statutes of limitation sought to be applied to bar rights of the Government, must receive a strict construction in favor of the Government.

So far as the language of the present bill itself was concerned, therefore, there appeared no reason to assume, in connection with the report to the House of Representatives, any intent on the part of Congress that the United States should be precluded, by the limitations therein proposed, from maintaining actions at law for the recovery of overcharges collected from it by carriers. Especially did this seem true in the light of the fact that the comparable provision with respect to actions at law against railroads, though in operation for a period of many years, does not appear to have been given effect as being applicable to suits by the United States.

The view that the courts would not apply, with respect to actions at law by the United States, the limitation provided in the present bill-in the absence of a clear indication of legislative intent to the contrary-seemed further supported by the case of Southern Pacific Co. v. United States (62 C. Cis. 391), where it was decided that the provisions of 49 United States Code 16 (3) were not effective as limiting the period within which carriers by railroad may bring action against the United States for recovery of their charges. It was there stated :

“The Government is one if not the carrier's largest patron. The innumerable transactions involving the transportation of Government property, accomplished uniformly by extending credit to the United States for the payment of freight charges, makes it indispensable to establish a system of rules and regulations of accounting and settlement, in some respects sui gencris, and inapplicable to the ordinary commercial transactions between the carriers and private shippers.

And further that: “Manifestly the intention here is to regulate and control the relationship between the interstate carriers and private individuals, natural and corporate. Congress was dealing with the ordinary commercial transportation. All doubt with respect to the fact is put at rest hr section 22 of the original Interstate Commerce Act, wherein it is provided : 'That nothing in this act shall prevent the carriage, storage, or handling of property free or at reduced rates for the United States, State or municipal governments. This same exception in favor of the Government was carried forward in the Transportation Act of 1920.

“The extension of credit to the United States, together with the right to secure and profit by rates other than the published tariffs, seems to clearly indicate that Congress was legislating in the adoption of this amendment, with reference to commercial transportation, to transportation furnished to private shippers and not the Government.

This Office was aware, however, that the Interstate Commerce Commission had declined to award reparation in a case originating under part I of the Interstate Commerce Act, involving transportation by railroads, where the complaint was filed by the United States after the expiration of the prescribed period of limitation and believing that as a matter of practical operation the observance of such a limitation with respect to efforts at recovery by the United States of excessive transportation charges collected by carriers would defeat in large measure any such recoveries, it was recommended that the proposed limitation be made specifically inapplicable to actions at law or other proceedings instituted by or on behalf of the United States for recovery of transportation charges paid common carriers or freight forwarders.

However, it is noted that Hon. Charles A. Wolverton, author of the pending bill and chairman of the Committee on Interstate and Foreign Commerce, of the House of Representatives, expressed in the course of debate on the bill the view that the limtations which the bill provides should and would apply to the United

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