Many parties devote their pleadings to whether or not there should be joint and several liability of carriers which are parties to a joint through rate. This is not the issue. It is well established that rail carriers are jointly and severally liable as joint tortfessors which have exacted unlawful charges. American Houses, Inc., v. Pennsylvania R. Co., 266 I.C.C. 491, 492-493. Gaylord Container Corp. v. Atlanta & W. P. R. Co., 278 I.C.C. 474, 475. Charlottesville Woolen Mills v. Chesapeake & O. Ry. Co., 222 I.C.C. 99. Armour & Co. v. Baltimore & O. R. Co., 289 I.C.C. 122, 123. As the U.S. Supreme Court explained in Louisville & N.R. Co. v. Sloss-Shiffield S. & I. Co., 46 S. Ct. 73, 78, 269 U.S. 217, 234, 70 L. Ed. 242:

The cause of action sued on is of statutory origin. It rests primarily upon section 8 (Comp. St. § 8572) which declares that if "any common carrier *** shall do, cause to be done, any act, matter, or thing in this act prohibited or declared to be unlawful *** such common carrier shall be liable *** for the full amount of damages sustained in consequence of any such violation of the provisions of this act. ***" The Commission held early, and has consistently held since, that carriers who by means of a joint through rate make excessive charges are liable jointly and severally for all damages sustained. It is true that participation in joint rates does not make connecting carriers partners and that each does not become liable like a partner for every tort of any of the others engaged in the common enterprise. Central R.R. Co. v. United States, 233, 257 U.S. 247, 259, 42 S. Ct. 80, 66 L. Ed. 217. Each connecting carrier is liable only for its own act. But the establishment of a joint rate by the concurrence of connecting carriers is necessarily the act of each, because the establishment of the rate is done by their joint agreement.

Part II of the act does not contain a provision comparable to that contained in section 8 of part I. We, therefore, find it unnecessary to reach a conclusion as to the joint and several liability of motor carriers.

Parties also have tended to identify shippers who are owed overcharges by a bankrupt carrier with other creditors of the bankrupt and ask why these shippers should be placed in a better position with respect to debt collection than other creditors. Petitioner responds that it is not seeking to be placed in a better position than other creditors of the bankrupt. A movement solely by a bankrupt carrier is not in question in this proceeding, it alleges. The question is the extent of the duty of the solvent carriers participating in the routing to assume liability for the overcharge. Petitioner points to rules 2-A, 85, and 97 of Railway Accounting Rules of the Association of American Railroads (AAR) which provide that claims are to be handled by either the initial or destination carrier, that the amount of the claim shall be

apportioned among the participating carriers, and that an uncollectible amount due from an insolvent carrier shall be assumed by all other carriers transporting the shipment. Thus, petitioner claims, it is not asking for something more than most creditors receive, but rather it is looking to its other debtors for payment.

We find the petitioner's argument persuasive. The carriers' own rules provide that an overcharge is handled and investigated by only one carrier. If the investigating carrier determines that the claim is valid, it notifies the other carriers which are jointly liable. These carriers then make their own investigation if necessary. The rules provide for the assumption of an insolvent carrier's portion by other liable carriers. The American Trucking Association's (ATA) Motor Carrier Freight Claim Rule Book promulgates rules which are almost identical to those of the AAR. The railroads recognizing their joint and several liability for overcharge claims for a joint through movement have designed a mechanism which will facilitate the settling of claims as to insolvent carriers. As we stated, part II of the act does not have a provision comparable to section 8. However, the ATA's rules in general, particularly rule 129 (solvent carriers apportion an insolvent carrier's share of the claim) imply a recognition of the joint and several liability for overcharge claims by all the carriers involved in the concerned movement. Thus, the petitioner is not asking for a special privilege with regard to the bankrupt's estate, it is only asking whether it may look to its other debtors-the carriers who are jointly and severally liable-for satisfaction.

Some carriers contend that petitioner is in effect requesting that the statute of limitations be extended. They argue that no extensions can be made by a declaratory order but that the act would have to be amended. Carriers also aver that the limitation provisions of the act are jurisdictional. They allege that, because the limitation contained is jurisdictional, neither a court nor the Commission can disregard, deviate from, or stretch its plain meaning for any reason whatsoever. We remind these parties that petitioner seeks an interpretation. We will give the petitioner an interpretation of the existing statute: we will not expand or amend it. Such an interpretation, however, shall be fully cognizant of current practice.

The AAR, Chessie System, and the Western Railroad Association jointly contend, as do others, that there is no language in section 16(3) (c) or elsewhere to support petitioner's proposed interpretation that the filing of an overcharge claim with any carrier participating in the joint through rate tolls the statute of limitations

They say that such an interpretation would be inconsistent with the provision extending the period for disallowances. They state:

Clearly, if the filing of an overcharge claim tolled the statute of limitations a 6-month extension of the true period for the filing of a complaint with the Commission, or to institute court action after written notice of disallowance would be superfluous. Nowhere in the long judicial and administrative history of section 16(3)(c) has any such aberrant construction been even hinted.

These parties do admit, however, that claims which are timely filed are "alive" until the shipper receives a notice of disallowance of the claim. If such notice is received after the limitations period has run, the shipper has an additional 6 months to file its complaint with either the Commission or the court.

The petitioner, on the other hand, argues that the filing of an overcharge claim tolls the statute of limitations. It cites two Commission decisions, Galion Iron Works & Mfg. Co. v. Louisville & N. R. Co., 155 I.C.C. 766, 767, and International Latex Corp. v. Pennsylvania R. Co., 299 I.C.C. 369, 370, which demonstrate that the limitations period does not bar the filing of a complaint with the court or the Commission until 6 months after shipper receives a notice of disallowance from the carrier. This, petitioner alleges, clearly establishes the fact that unless an overcharge claim is declined by the carrier, in writing, the statute of limitations never runs and a claim is not barred.

The law is clear. When a shipper has a claim for overcharges it files the claim with the carrier. That claim must be filed before the expiration of 3 years. (Section 16(3)(c).) If that claim is disallowed by the carrier, the shipper may file a complaint with this Commission or the courts (or only the courts in the case of a motor carrier) within the limitations period. The limitations period is extended for 6 months after notice of disallowance is received if such notice is made near the end of or after the statutory period. If, for example, notice of disallowance is not received by the shipper until 4 years after the movement, it has 6 additional months to file. Thus, in this example, the claim is not barred until the expiration of 4 1/2 years from the time the cause of action accrued. See Associate Grocers of Colorado, Inc., v. A., T. & S. F. Ry. Co., 300 I.C.C. 17; J. D. Pittman Tractor Co., Inc., v. Alabama G. S. R. Co., 286 I.C.C. 575, 576; Tractor and Equipment Co., Inc., v. Alabama G. S. R. Co., 298 I.C.C. 187, 188; William Kelly Milling Co. v. Atchison, T. & S. F. Ry. Co., 211 I.C.C. 53, 57, 58; Simon v. Chicago & N. W. Ry. Co., 279 I.C.C. 347; Galion Iron Works & Mfg. Co. v. Louisville & N. R.

Co., 155 I.C.C. 766, 767; Crucible Steel Co. of America v. Pennsylvania R. Co., 301 I.C.C. 611, 612; Allen Industries, Inc., v. Blue Line Transfer Co., Inc., 305 I.C.C. 698, 699. This Commission has consistently held that:

Claims for overcharges filed with the carriers within the statutory period and which have not been finally declined by them, as here, are not barred, even though the complaint was filed with us more than 6 months after the expiration of the 2-year statutory period. The complaint was seasonably filed as to all of the shipments embraced therein. Republic Carloading & Distributing Co., Inc., v. B. & O. R. Co., 284 I.C.C. 441, 443.

The three rail interests hereinabove named, jointly contend that there is a distinction between tolling the limitations period, and keeping the claim alive. Any distinction there is, is highly technical and of little consequence. We are interested in the intent of the statute. Whether the claim is merely “alive" or is "tolled," it is not barred.

The only issue, as we see it, is not when and how the statute of limitations in section 16(3)(c) is tolled, but whether notice to one carrier constitutes notice to all carriers, parties to a joint through movement. To answer this question, we must look to current practice in both the rail and motor carrier industries as well as policy considerations.

The AAR's Railway Accounting Rules (RA Rules), provide that an overcharge claim is to be presented to either the initial or destination carrier for handling. Any claim presented to an intermediate carrier shall be forwarded to the destination carrier for handling (rule 2). The ATA's Motor Carrier Freight Claim Rule 104 (MC Rules) is similar. Shippers are required to file a claim with only one carrier. At the time of the initial claim the shipper is not required to determine which carriers were involved in the total transportation.

RA Rule 27 and MC Rule 107 require the investigating carrier to communicate directly with agents or other proper representatives of interested carriers. The other carriers are directed to cooperate with the investigating carrier. It would indeed seem necessary to contact the other carriers if a proper investigation and determination is to be made. Although the rules provide for primary investigation and apportionment of the amount of the overcharge, both sets of rules provide for an independent investigation by the other carriers. RA Rule 94 even provides that no carrier shall be debited " *** unless the offices in charge of claims of the carrier

from which the amount is due has had an opportunity to check its records and develop the facts pertaining to liability ***." Therefore, it is possible a claim timely filed with the destination carrier will in the normal course of investigation be brought to the attention of other concerned carriers. It is also entirely possible, by the rules, and it is often the case, that a timely filed claim being processed with due dispatch may not come to the attention of another carrier until after the limitation period. This in no way affects the claim. The argument made by some parties hereto, that records are not kept beyond the limitations period, is without merit, as the rules provide for investigations into overcharge claims beyond the limitations period.

Moreover, this Commission has ruled that notice to carriers other than the carrier with which the claim was originally filed does not have to be given until a notice of disallowance is received. This principle has been upheld by the courts. See for example, MissouriKansas-Texas R. Co. v. Sinclair Prairie Oil Co., 112 F. 2d 553, 558, in which it is said:

In Baltimore & O.R. Co. v. Domestic Hardwoods, supra [62 App. D.C. 142, F. 2d 488] the complaint was not filed within the three-year period with the Commission but prior to expiration of six months from the rejection of the claim by the Canadian Pacific Railway Company, it having been filed (within) the three-year period with the railway company. The contention having been made that the filing of the claim with the Canadian Pacific was not such a filing as would bring into operation the six months' extension under 49 U.S.C.A. § 16(3), the court said [62 App. D.C. 142, 65 F. 2d 491]: "In view of this, we think it not going too far to say that notice to one of the carriers was notice to all. The act requires no other notice than that which was given." In Missouri, K. & T.R. Co. v. Ward, 244 U.S. 383, 37 S. Ct. 617, 619, 61 L. Ed. 1213, it is said: "For the purpose of fixing the liability, the several carriers must be treated, not as independent contracting parties, but as one system; and the connecting lines become in effect mere agents, whose duty it is to forward the goods under the terms of the contract made by their principal, the initial carrier. Altantic Coast Line R. Co. v. Riverside Mills, 219 U.S. 186, 206, 31 S. Ct. 164, 55 L. Ed. 167, 182, 31 L.R.A.(N.S.) 7; Galveston H. & S.A.R. Co. v. Wallace, 223 U.S. 481, 491, 32 S. Ct. 205, 56 L. Ed. 516, 523."

This case involving liability under a through bill of lading, the principle is analogous when considering shipments made under through rates over through routes.

These decisions are clearly correct. The purpose of a limitation period is to prevent stale actions from being commenced, and to prevent substantial prejudice to a defendant who may no longer be able to bring a good defense on the merits. In the hypothetical situation with which we are dealing neither of the two deterrent factors are present. By the carriers' own admission the actions are