B-148012, AUG. 9, 1962

B-148012, AUG. 9, 1962

TO SOUTHERN PLAZA EXPRESS, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 19, 1962, IN WHICH YOU REQUEST A REVIEW OF THE SETTLEMENT DATED DECEMBER 8, 1960, DISALLOWING YOUR SUPPLEMENTAL BILL FOR ADDITIONAL TRANSPORTATION CHARGES IN THE AMOUNT OF $728 FOR SERVICES RENDERED UNDER GOVERNMENT BILL OF LADING AF-6120234.

BILL OF LADING AF-6120234 COVERED A SHIPMENT OF METAL AIRPLANE PARTS, TRANSPORTED FROM SAN DIEGO, CALIFORNIA, TO SAN ANTONIO, TEXAS. THE BILL OF LADING BEARS THE LEGEND "EXCLUSIVE USE OF EQUIPMENT REQUESTED," BUT CONTAINS NO REFERENCE TO TRUCK SEALS, OR ANY OTHER INFORMATION SHOWING THAT THE REQUESTED SERVICE HAD IN FACT BEEN PERFORMED. THE SHIPMENT WEIGHING 6,731 POUNDS, WAS DELIVERED TO WESTERN TRUCK LINES AT SAN DIEGO ON MARCH 28, 1957, AND DELIVERED BY YOUR COMPANY AT SAN ANTONIO. FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID $1,456 ON THE BASIS THAT EXCLUSIVE USE OF VEHICLE SERVICE HAD BEEN FURNISHED. UPON AUDIT OF THE VOUCHER EVIDENCING SUCH PAYMENT OUR TRANSPORTATION DIVISION ISSUED A NOTICE OF OVERCHARGE IN THE AMOUNT OF $728, AND FOLLOWING YOUR FAILURE TO MAKE PROMPT REFUND THAT AMOUNT WAS DEDUCTED FROM AMOUNTS DUE ON A SUBSEQUENT BILL. THE DISALLOWANCE OF YOUR SUPPLEMENTAL BILL RECLAIMING THE AMOUNT DEDUCTED WAS PREMISED UPON THE DECISION OF THE INTERSTATE COMMERCE COMMISSION IN CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, 303 I.C.C. 576, AND A REPORT FROM THE ADMINISTRATIVE OFFICE STATING THAT THE VEHICLE WAS LOADED TO CAPACITY. UPON RECONSIDERATION OF THE MATTER, HOWEVER, THE ADMINISTRATIVE OFFICE NOW SUGGESTS THAT THE VEHICLE PROBABLY WAS NOT FULLY LOADED. WE THEREFORE DO NOT REGARD THE CURTIS LIGHTING CASE TO BE RELEVANT HERE.

AS PREVIOUSLY POINTED OUT, THE BILL OF LADING WAS NOTED TO SHOW THAT EXCLUSIVE USE OF VEHICLE SERVICE WAS REQUESTED; BUT IN ORDER TO BE ENTITLED TO PAYMENT OF THE EXCLUSIVE USE OF VEHICLE CHARGE, IT IS NECESSARY THAT CARRIERS MUST ALSO SHOW THAT THE SERVICE ACTUALLY WAS PERFORMED. ORDINARILY, THE NOTATION OF A SEAL RECORD ON THE BILL OF LADING, TOGETHER WITH THE PROPER COMPLETION OF THE CONSIGNEE'S CERTIFICATE OF DELIVERY AT DESTINATION, WITHOUT ANY INDICATION THAT THE ORIGINAL SEALS WERE BROKEN, OR THAT THE CARGO HAD BEEN TRANSFERRED TO ANOTHER TRAILER EN ROUTE, OR THAT OTHER IRREGULARITIES HAD OCCURRED, IS CONSIDERED TO BE SATISFACTORY EVIDENCE OF ACTUAL PERFORMANCE OF THE SERVICE. HOWEVER, THERE IS NO SUCH SEAL RECORD ON THE BILL OF LADING OR ELSEWHERE IN THE RECORD HERE INVOLVED. IN THE ABSENCE OF SUCH A RECORD, OUR OFFICE WILL ACCEPT SUCH OTHER DOCUMENTARY EVIDENCE AS YOU MAY BE ABLE TO FURNISH WHICH SHOWS THAT THE SERVICE ACTUALLY WAS PERFORMED, SUCH AS SEAL REFERENCES NOTED ON THE CARRIER WAYBILLS, DRIVER'S LOGS, TRIP SHEETS, CARGO MANIFESTS, OR OTHER PERTINENT DOCUMENTATION TO ESTABLISH THAT THE ONLY CARGO CARRIED IN THE TRAILER INVOLVED (TO BE IDENTIFIED BY NAME OF OWNING COMPANY, NUMBER AND CUBIC VOLUME) WAS THAT COVERED BY THE BILL OF LADING. SINCE BOTH WESTERN TRUCK LINES AND SOUTHERN PLAZA PARTICIPATED IN THE MOVEMENT, IT WILL BE NECESSARY THAT THE DOCUMENTS SHOW THAT EXCLUSIVE USE OF VEHICLE SERVICE ACTUALLY WAS PERFORMED BY BOTH CARRIERS.

ACCORDINGLY, IN THE ABSENCE OF ANY SATISFACTORY EVIDENCE IN THE PRESENT RECORD TO SHOW THAT EXCLUSIVE USE OF VEHICLE SERVICE ACTUALLY WAS PERFORMED, THE SETTLEMENT ACTION DISALLOWING YOUR ..END :