B-144935, AUG. 14, 1961

B-144935, AUG. 14, 1961

TO BELL LINES, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 24, 1961, AND APRIL 25, 1961, REQUESTING A REVIEW OF THE SETTLEMENT OF AUGUST 11, 1960, TK 665299 (YOUR FILE 12516), WHICH ALLOWED $264.04 AND DISALLOWED $758.08 OF YOUR CLAIM NO. 12516 FOR $1,022.12. THIS CLAIM REPRESENTED ADDITIONAL FREIGHT CHARGES YOU ALLEGED TO BE DUE ON A SHIPMENT OF SIX GENERATORS AND ENGINES, COMBINED, FROM NELLIS AIR FORCE BASE, LAS VEGAS, NEVADA, TO SHAW AIR FORCE BASE, SUMTER, SOUTH CAROLINA, UNDER GOVERNMENT BILL OF LADING NO. AF 3017549, DATED MAY 17, 1955. THE SHIPMENT APPARENTLY MOVED ON TWO FLAT- RACK VEHICLES, AND YOU SAY THAT UPON RECHECK IT APPEARS TO YOU THAT, BASED UPON EXCLUSIVE-USE-OF VEHICLE CHARGES, THE CORRECT TOTAL CHARGE FOR THE SHIPMENT IN QUESTION SHOULD HAVE BEEN $4,428 ($2,214 FOR EACH VEHICLE), AND SINCE YOU HAVE BEEN ALLOWED $2,915.92 TO DATE THERE IS A BALANCE DUE YOU OF $1,512.08. THE SETTLEMENT OF AUGUST 11, 1960, ALLOWED CHARGES ON THE TRUCKLOAD BASIS OF RATES APPLICABLE ON THE COMMODITY TENDERED. THE QUESTION TO BE DECIDED IS WHETHER OR NOT THIS SHIPMENT IS SUBJECT TO THE EXCLUSIVE-USE BASIS OF CHARGES.

BEFORE A MOTOR CARRIER CAN BE CONSIDERED ENTITLED TO RECEIVE PREMIUM CHARGES FOR EXCLUSIVE USE OF VEHICLE, TWO CONDITIONS MUST BE SATISFIED. FIRST, THERE MUST BE COMPLIANCE WITH THE EXCLUSIVE-USE-OF VEHICLE TARIFF REQUIREMENT CONCERNING THE ANNOTATION OF THE BILL OF LADING. HERE, THE APPLICABLE EXCLUSIVE USE PROVISIONS ARE FOUND UNDER ITEM 935 OF ROCKY MOUNTAIN MOTOR TARIFF NO. 20, MF-I.C.C. NO. 66, AND NOTE 2 OF THAT ITEM REQUIRES THE SHIPPER TO ENDORSE ON THE BILL OF LADING,"EXCLUSIVE USE OF VEHICLE REQUESTED.' GOVERNMENT BILL OF LADING NO. AF 3017549 BEARS THE ANNOTATION,"REQUIRES THE EXCLUSIVE USE OF TWO (2) 35 FOOT FLAT RACKS AND TO BE MOVED AT CARRIER'S CONVENIENCE.' WHILE IT MAY BE REASONABLE TO CONSTRUE THIS ANNOTATION AS SUBSTANTIALLY IN COMPLIANCE WITH THE FORM REQUIRED BY TARIFF FOR A REQUEST FOR EXCLUSIVE USE WITHIN THE MEANING OF ITEM 935, IT WOULD SEEM THAT THE LANGUAGE MORE CORRECTLY STATES THAT THE SHIPMENT IN QUESTION REQUIRES TWO FLAT-RACK VEHICLES. THE WORDS "TO BE MOVED AT CARRIER'SCONVENIENCE" INDICATES THAT THE PREMIUM SERVICE ORDINARILY CONTEMPLATED UNDER EXCLUSIVE USE OF VEHICLE SERVICE WAS NEITHER REQUESTED OR REQUIRED.

MOREOVER, THE SECOND CONDITION PRECEDENT TO THE PAYMENT OF EXCLUSIVE USE CHARGES HAS NOT BEEN MET. IT IS REQUIRED THAT THE CARRIER SUBMIT SOME EVIDENCE THAT EXCLUSIVE-USE-OF-VEHICLE SERVICE WAS ACTUALLY PERFORMED, SINCE THE BURDEN IS UPON CLAIMANTS TO PRESENT SATISFACTORY PROOF OF THEIR CLAIMS AND ALL INCIDENTAL MATTERS WHICH ARE REQUISITE TO ESTABLISH THE LIABILITY OF THE GOVERNMENT AND THE CLAIMANT'S RIGHT TO PAYMENT. SEE 17 COMP. GEN. 831, 18 ID. 980, 39 ID. 755. HERE, APPARENTLY FIVE CARRIERS PARTICIPATED IN THE MOVEMENT, WHICH WAS DELIVERED TO THE ORIGIN CARRIER ON MAY 17, 1955, AND NOT DELIVERED AT DESTINATION UNTIL APPROXIMATELY THREE WEEKS LATER. ON THIS RECORD, THERE IS NOTHING THAT INDICATES THAT THIS SHIPMENT RECEIVED THE EXCLUSIVE USE SERVICE THAT WOULD ENTITLE YOU TO THE PAYMENT OF PREMIUM CHARGES AUTHORIZED IN ITEM 935. ACCORDINGLY, THE SETTLEMENT OF AUGUST 11, 1960, IS SUSTAINED.