In docket Nos. 36394 and 36399, complainant was charged at the applicable class 30 rate of 224 cents and a surcharge of 2 1/2 percent, on two shipments and seven shipments, respectively, from Columbus, Ohio, to Amarillo. The sought rate is 125 cents, which applied at the time of the movements in the reverse direction. GSA seeks reparations, in docket No. 36394, of $2,807.85 and, in docket No. 36399, of $9,346.48.

In docket No. 36395, complainant was charged at the applicable aggregate rate of $48.64 NT, subject to a surcharge of 2 1/2-percent, on three shipments which moved from Columbus to Corpus Christi, Tex. The sought rate is 136 cents, which was determined from the 125-cent rate contemporaneously maintained northbound from Amarillo to Columbus. (Cf. docket Nos. 36394 and 36399, above). The sought rate is actually higher than the Amarillo to Columbus rate; it apparently reflects the fact that the short-line distance from Corpus Christi to Columbus is longer than that from Amarillo to Columbus. The 125-cent compared rate is 16.7 percent of the 747cent class 100 rate between Amarillo and Columbus. The 136-cent sought rate is 16.7 percent of the 812-cent class 100 rate between Corpus Christi and Columbus. GSA seeks reparations of $4,422.55. In docket No. 36398, complainant was charged at an allegedly excessive rate of 244 cents and a surcharge of 2 1/2 percent, on the first seven shipments, and charged at the legally applicable aggregate rate of $48.64 NT plus a surcharge of 2 1/2 percent, on the last 7 shipments. The total 14 shipments moved from Columbus to Corpus Christi. As in docket No. 36395, discussed above, the sought rate is 136 cents, calculated to reflect the 125-cent rate contemporaneously maintained northbound from Amarillo to Columbus. GSA seeks reparations on all 14 shipments of $20,502.96. In the alternative, GSA seeks overcharges on the first seven shipments of $72.53, alleging that a lower combination basis of rates is applicable.

In docket Nos. 36407 and 36409, complainant was charged at a rate of $33.84 NT and a surcharge of 2 1/2 percent on those shipments which moved prior to October 23, 1972, and a rate of $34.86 NT on those which moved thereafter. Fifty-eight carload shipments are involved in the two proceedings; 33 in docket No. 36407 moved from Granite City, Ill., to Corpus Christi, and 25 in docket No. 36409 moved from Granite City to Amarillo. In docket No. 36407, the sought rate is that which applied at the time of movement in the reverse direction, $16.94 NT plus the 2 1/2 percent surcharge prior to October 23, 1972, and $17.45 NT plus 2 1/2

percent surcharge thereafter. In docket No. 36409, the sought rate is that which applied at the time of movement in the reverse direction from Amarillo to East St. Louis, Ill., (Granite City is in the E. St. Louis switching district), 66 cents plus 2 1/2-percent surcharge prior to October 23, 1972, and 68 cents plus 2 1/2 percent thereafter. In docket No. 36409, GSA seeks reparations on all 25 carloads of $26,389.58. In docket No. 36407, GSA seeks reparation of $21,425.73 on 18 carloads, or, in the alternative, overcharges of $5,701.22 on 25 carloads based on a lower combination rate over Blackwell, Okla. It should be noted that on March 25, 1975, GSA presented to Missouri Pacific Railroad Company a claim in writing for overcharges on 25 shipments, now at issue in docket No. 36407, and on June 19, 1975, the railroad notified GSA of disallowance of this claim.

The Administrative Law Judge found that all claims based on unlawfulness were barred by the 2-year statute of limitations set forth in section 16(3)(b), of the Interstate Commerce Act, that all claims for overcharges except those in docket No. 36407 were barred by the statute of limitations set forth in section 16(3)(c) of the act, and that the overcharge claims in docket No. 36407 were precluded by the shipper's specified rail routing.

The initial decision further found that none of the shipments involved moved as Government shipments on Government bills of lading, but only as commercial shipments; that the actual assignment of said shipper's rights to the General Services Administrator cannot have the effect of assigning to the United States Government any greater legal right than those given the commerical shipper by the statute, that the rights of a party to institute an action to recover damages can only be determined by the terms of the contract of affreightment as evidenced by the bill of lading covering the

movement.

In regard to docket No. 36407, the initial decision found that the complainant's rights were not barred by the statute of limitation, but that the combination rate basis sought over Blackwell, Okla., could not be physically accomplished under the rail routing "MP-TPFWD" specifically provided by the shipper and therefore was not applicable.

For all the above reasons, the initial decision ordered, the complaints dismissed.

In its exceptions, complainant alleges that the Administrative Law Judge erroneously relied exclusively on section 22 quotation rates and failed to consider commodity rates going in the similar or

reverse direction. Furthermore, complainant primarily excepts to the Administrative Law Judge's finding that complainant's claims were barred by the 2-year statute of limitations of section 16(3)(b) of the act. Complainant contends that the conclusions concerning the assignment of rights by ASARCO to GSA are irrelevant to the determination of complainant's rights in these proceedings, because GSA bore the assailed charges, and is, therefore, the real party in interest, citing Bunge Corp. v. Chicago, M., St. P. & P. R. Co., 289 I.C.C. 495, 497-498 (1953). Complainant further contends that the Administrative Law Judge erred in his interpretation of section. 16(3)(i) of the act insofar as he stated that the 3-year statutory period is intended to be computed from the date the Government itself paid the charges for the transportation in a "direct transaction" with the carriers. Complainant maintains that the limitation period should actually be calculated from the date of payment on behalf of the Government, and that no direct payment by the Government is necessary. Moreover, complainant asserts that the Administrative Law Judge erred in concluding that complainant's right to recover damages can only be determined by the terms of the contract of affreightment as evidenced by the bill of lading. Complainant maintains that the Commission has in many proceedings considered evidence other than the transportation contract to determine the party who actually bore the excessive charges and incurred damages.

Complainant finally excepts to the conclusion of the Administrative Law Judge that, in docket No. 36407, the combination rate basis sought over Blackwell for alternative overcharge claims was not applicable because it could not physically be accomplished under the rail routing "MP-TP-FWD" specifically provided by the shipper. Complainant maintains that the route need not be capable of being accomplished, because there is a route published by which to apply the aggregate-of-the-intermediates rule in the tariff to determine the sought combination rate.

Replies to the exceptions were filed by the defendants. Defendants arguments were generally similar. Thus there is no need to discuss the individual replies.

In replying, defendants state that the initial decision correctly. found the bills of lading were commercial, not government documents, and that claims made thereunder against the carriers are governed by section 16(3)(b) and (c) of the act.

Defendants argue that the initial decision did not solely rely on the subsequently published section 22 rates, but also considered the

northbound commodity rate levels. Defendants further argue that the northbound commodity rates are not by themselves evidence of unreasonableness since this proceeding involves a regular northbound movement from Texas producing points which were covered by specific commodity rates, on the one hand, and a general class rate applicable to numerous commodities southbound from nonproducing points which had never before originated a shipment of this commodity, on the other hand. They insist that there is no presumption of unreasonableness attaching to a class rate simply because it is higher than a commodity rate. Furthermore, they argue that the subsequent establishment of the section 22 rate at the commodity rate level does not establish that the difference between the commodity rates and the applicable class rates constituted an unreasonable charge for the movements.

DISCUSSION AND CONCLUSIONS

As a preliminary matter, comment is required concerning a motion to strike or to obtain alternative relief, filed by The Baltimore and Ohio Railroad Co., et al. on December 13, 1976. It appears that the Administrative Law Judge denied the motion of defendants in docket Nos. 36394 and 36395 to strike certain evidence of a contract between GSA and ASARCO. The evidence was presented in complainant's reply statement. The Administrative Law Judge discussed the contract in the initial decision, although he apparently accorded it no weight. We concur that the denial of the motion to strike was warranted; however, we believe the contract is important evidence in the determination of whether the transportation at issue was for or on behalf of the Government and thus whether it was barred by the statute of limitations. In their opening statement, defendants themselves had raised and focused upon a new issue, the statute of limitations, which was perhaps dispositive since it could bar complainant's claims. In this type of circumstance, the admission of information concerning the contract between complainant and ASARCO to rebut defendant's new arguments was proper. See, e.g., Deepfreeze App. Div. Motor Products Corp. v. B. & O. R. Co., 300 I.C.C. 396, 398 (1957). Rule 47 of the Commission's General Rules of Practice provides that the complainant's reply statement shall be confined to rebuttal of the defendant's statement. Therefore, we are considering the evidence in complainant's reply statement only insofar as it is relevant to rebut defendant's opening statement. It shows the Government's interest in the transportation.

Furthermore, in its reply to complainant's exceptions, The Baltimore and Ohio Railroad Co., et al., move to strike certain statements in the exceptions regarding subsequent section 22 rate reductions, as new matter. Those statements are in the nature of argument and are treated solely as such. The motion is denied.

We disagree with the initial decision's finding that section 16(3)(b) bars the complainant's claim for reparations based on unlawful class

rates.

Section 16(3)(i) provides for a 3-year period of limitations, calculated, "from the dates of (A) payment of the charges for the transportation involved."

For the overcharge claims in docket No. 36407, the 3-year period is calculated by referring to section 16(3)(c), since section 16(3)(i) provides that, "The provisions of this paragraph (3) shall extend to and embrace all transportation of property or passenger for or on behalf of the United States." Section 16(3)(c) provides an exception that, if the complainant presented its claim for overcharges in writing to the carrier within the 3-year period of limitation, the period is extended to include an additional 6 months calculated from the date notice of disallowance of the claim was given by the carrier. The overcharge claims in docket No. 36407 fall within this exception and thus the Commission has jurisdiction to entertain such overcharge claims. The following table lists the dates of the shipments at issue and when complaints were filed with the Commission. Out of claims presented on 94 shipments, claims on 93 were filed within the statutory period, and as can be seen from inspection of the table, claims on 78 of them are for reparations and 'The statutes of limitation relevant to the discussion herein are sections 16(3)(b), (c), and (i):

(b) All complaints against carrier subject to this part for the recovery of damages not based on overcharges shall be filed with the Commission within two years from the time the cause of action accrues, and not after, subject to subdivision (d).

(c) For recovery of overcharges action at law shall be begun or complaint filed with the Commission against carriers subject to this part within three years from the time the cause of action accrues, and not after, subject to subdivision (d), except that if claim for the overcharge has been presented in writing to the carrier within the three-year period of limitation said period shall be extended to include six months from the time notice in writing is given by the carrier to the claimant of disallowance of the claim, or any part or parts thereof, specified in the notice.

(i) The provisions of this paragraph (3) shall extend to and embrace all transportation of property or passengers for or on behalf of the United States in connection with any action brought before the Commission or any court by or against carriers subject to this part: Provided, however, That with respect to such transportation of property or passengers for or on behalf of the United States, the periods of limitation herein provided shall be extended to include three years from the date of (A) payment of charges for the transportation involved. or (B) subsequent refund for overpayment of such charges, or (C) deduction made under section 322 of the Transportation Act of 1940 (49 U.S.C. 66), whichever is later.