Division 2 denied the petition for declaratory order as unnecessary. Instead, the division issued an interpretive order November 18, 1977, in which they found:

To the extent the defendant railroads have increased their rates on export-import traffic moving by all-rail or water-rail between points in Canada and Eastern Territory of the United States in excess of the 12 percent increases authorized under Ex Parte No. 267, they have overcharged shippers and the 3-year statute of limitations contained in section 16(3)(c) of the Interstate Commerce Act controls.

On December 8, 1977, the Canadian railroads and some of the eastern railroads3 separately filed petitions for leave to intervene. Additionally, the Canadian railroads filed a petition for administrative review and the eastern railroads filed an appeal from the interpretive order. The railroads were granted leave to intervene February 13, 1978. The accompanying statements were accepted. H. J. Baker was given 20 days from the date of service to respond. By letter of March 2, 1978, petitioner informed the Commission that it would rely on its original petition.

DISCUSSION AND CONCLUSIONS

We find that the claims for recovery of payments in excess of those authorized are overcharges and subject to the 3-year statute of limitations. The tariffs were not lawfully on file. The carriers filed the tariffs in direct contravention of Commission orders. A tariff filed in violation of our orders is not lawful.

Overcharges are "charges for transportation services in excess of those applicable thereto under the tariffs lawfully on file with the Commission." (Section 16(3)(g).) Since the tariffs which stated charges in excess of those authorized were not lawfully on file, the charges in question were overcharges of the lawfully filed tariffs. Second, the tariffs were unlawful because they were filed on lessthan-statutory notice. The district court in Canadian Nat. Ry. Co. v. United States, supra at 299, concluded that:

*** the Master Tariff 14 percent increases taken pursuant to Ex Parte No. 267, which this Court has found were in excess of the level authorized therein for exportimport traffic, were published on less than statutory notice and were unlawful. The individual commodity tariffs published thereafter, having satisfied the publication

'The railroads appearing in this proceeding are The Baltimore & Ohio Railroad Company, Boston and Maine Company, Consolidated Rail Corporation, Delaware and Hudson Railway Company, Detroit, Toledo & Ironton Railroad Company, Grand Trunk Western Railroad Company, Norfolk and Western Railway Company, Pittsburgh and Lake Erie Railroad, and Western Maryland Railway.

requirements of Section 6 became the legal applicable rates which shippers were required to pay. However, this process did not, under the circumstances herein, make them "new" rates.

The court, in finding the tariff unlawful adopted the rationale of Chicago M., St. P. & P.R. Co. v. Alouette Peat Products, 253 F.2d 449 (9th Cir. 1958). The Alouette case involved a challenge to individual tariff rates taken in excess of those authorized in a general revenue proceeding. The Commission dismissed the complaints, even though it found that the tariffs had been published on less-than-statutory notice and that no authorization for less-thanstatutory notice had been granted. The court reversed the Commission holding that the excessive rates had not been lawfully established because they had been published on less-than-statutory notice and that such a rate "[could] not be the valid, lawful rate even though it [became] the applicable rate by virtue of being on file with the Commission." (Page 445.) Specifically the court in Alouette said at pages 456-7:

Filing does not constitute publication, or cure a defective publication.

*

No change having been legally made in the rate which existed before Ex Parte 162, that rate was the only existing, legally established rate and the Court was bound to apply it.

Be that as it may, however, it is apparent that both the Commission and the railroad appellants erroneously regard appellees' claim herein as one for damages rather than one for overcharge. That there is a distinct difference under the Act between a claim for damages and a claim for overcharge is made manisfest by the provisions of Section 16, Paragraph 3 of the Act, which provides in one paragraph a statute of limitations for the recovery of damages, and in a separate paragraph a statute of limitations for the recovery of overcharges. Furthermore, Section 16, Paragraph 3, subparagraph (g) of the Act defines overcharges as follows:

The term "overcharges" as used in this section shall be deemed to mean charges for transportation services in excess of those applicable thereto under the tariffs lawfully on file with the commission.

There can be no doubt from what has been previously said that this action by the appellees is to recover charges for transportation services in excess of those due under the tariffs lawfully on file with the Commission.

The situation at hand is substantially the same, since the railroads published on less-than-statutory notice. Thus, here, as in Alouette the tariffs were not lawfully filed.

Third, the railroads did not give proper notice to the public.

Whenever carriers update or change a tariff in any way, they are required to use symbols or some other notation to fairly give notice as to the nature of the tariff update or change. In filing their individual tariffs, the Eastern railroads indicated by use of improper symbols that the rate was unchanged rather than that the rate had increased. Further, the railroads used special permission procedures normally used only when individual commodity tariffs are merely republishing increases already in effect. It is thus not surprising that neither the Commission nor the shipping public challenged the new rate which was published without customary and proper notice as to the nature of the rate. See Canadian Nat. Ry. Co. v. United States, supra at 299.

The railroads, after concealing the nature of the published rates from the shippers, suggest that those injured shippers be precluded from filing claims for which they had not recieved proper notice. This Commission is unsympathetic to such a suggestion.

Finally, as a policy matter, we cannot allow the railroads to defy our orders and benefit thereby. In direct contravention of our orders, the railroads published rates in their tariffs exceeding the allowed maximum. If we should call claims for repayment reparations, which they clearly are not, the railroads would benefit. Our orders are not to be taken lightly. If the railroads choose to disregard them, they should suffer the consequences, not innocent shippers.

The tariffs on file, although unlawful, specified the applicable rate which the shippers were bound to pay, pursuant to the act. The act requires strict observance of the tariff regardless of the inherent unlawfulness of the rates specified. However, when and if the rates are shown to be unlawful for any reason, shippers are entitled to recover the difference between what they paid under the applicable tariff, and what is subsequently determined to be the lawful rate. Since the applicable rate cannot be deemed the lawful rate merely by virtue of being on file with the Commission, the argument of the Canadian railroads that the rates assessed were the lawful rates is without merit. See Davis v. Portland See Co., 264 U.S. 403, 425 (1924), and Alouette, supra at 455.

The eastern railroad's reliance on Burlington Northern Inc. v. United States, 462 F.2d 526 (Ct. Cl. 1972) to support its contention that overcharges are those exceeding the applicable tariff charge, is misplaced. At page 528, the court said:

*** an overcharge occurs only when a carrier submits a bill for services that is in excess of the amount properly due the carrier.

Rates and charges unlawfully established whether in the method of filing or contrary to specific Commission orders are not due the

carrier.

4

Both the Canadian railroads and the eastern railroads cite recent division and review board decisions in which reparations were awarded under similar factual circumstances as overcharges are sought in this proceeding. They assert that these decisions support their contention that reparations and not overcharges are the proper award in this situation. However, in none of these decisions. was there a discussion of reparations versus overcharges. Reparations were sought and awarded. Therefore, these decisions. cannot be taken to support the proposition that reparations and not overcharges are the correct award for the shippers in this proceeding.

The allegation of the eastern railroads that the Commission's notice that claims in respect to these shipments should be filed with the Commission as informal complaints implies that the claims are for reparations, is unfounded. The Commission's General Rules of Practice 22 and 23, 49 CFR 1100.22 and 1100.23 do not discuss reparations versus overcharges. All claims for damages can be filed informally. Further, section 16(d) provides that the statute of limitations for overcharges and/or reparations shall be tolled upon filing a complaint with the Commission.

The eastern railroads' reference to the Commission's staff rulings that the claims in question are subject to the 2-year statute of limitations is not persuasive. The staff cannot bind the Commission, Thompson v. Texas-Mexican Railroad Co., 328 U.S. 134, 146 (1946).

The Canadian railroads cite Chase & Co., Inc., v. Atlantic Coast Line R. Co., 220 I.C.C. 398 (1937); Bacon Bros. v. Alabama G. S. R. Co., 263 I.C.C. 587 (1945); National Erie Corp. v. New York Central R. Co., 237 I.C.C. 4 (1940); and other decisions, which hold, in essence, that once a carrier's tariff was properly filed in accordance with section 6 of the act, the encompassed rates were the applicable lawful rates; and, therefore, the 2-year statute of limitations applied, even though the railroads filed their rates in

'Ford Motor Company v. Canadian National Rys., 356 1.C.C. 857 (1977); No. 35952, Allied Chemical Corporation v. The Aroostock Valley Railroad Company et al., (not printed) decided October 20, 1975; No. 35828, Aluminum Company of Canada, Ltd. v. The Alma and Jonquiere Railway Company, et al., (not printed) decided July 22, 1974.

violation of previous Commission rate prescriptions or orders. The eastern railroads referred to Vinci v. Cleveland, C., C. & St. L. Ry. Co., 147 I.C.C. 250 (1928), and Sam Finley, Inc., v. Atlantic Coast Line R. Co., 306 I.C.C. 161 (1959), to support their position that overcharges are those charges which exceed those applicable under the tariff, regardless of the underlying lawfulness of the tariff itself. For the reasons we have discussed, these cases are not controlling in the circumstances presented here. Sound public policy dictates against allowing the carriers to benefit by an act which is in direct defiance of Commission orders. We therefore find that claims for recovery of payments in excess of those authorized are overcharges and subject to the 3-year statute of limitations as stated in section. 16(3)(c) of the act. To the extent that any former Commission decisions are not in agreement with this decision, they are overruled.

It is ordered:

The proceeding is discontinued.

357 I.C.C.