B-144448, FEB. 13, 1961

B-144448, FEB. 13, 1961

TO ILLINOIS-CALIFORNIA EXPRESS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 10, 1960, FILE DD- 372, WHEREIN YOU REQUESTED A REVIEW OF OUR SETTLEMENT CERTIFICATE DATED APRIL 13, 1959 (TK-664445), DISALLOWING YOUR CLAIM FOR $211.50 UNDER SUPPLEMENTAL BILL NO. 2541-SUPP. THE CLAIM YOU ASSERT REPRESENTS ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE FOR EXCLUSIVE USE OF VEHICLE SERVICES ON A SHIPMENT OF INTERNAL COMBUSTION ENGINES WHICH MOVED FROM PLANEHAVEN, CALIFORNIA, TO WALKER AIR FORCE BASE, ROSWELL, NEW MEXICO, UNDER GOVERNMENT BILL OF LADING NO. AF-4990791, DATED NOVEMBER 9, 1956.

IN YOUR LETTER OF NOVEMBER 10, 1960, YOU NOTE OUR PRIOR REFERENCE TO THE CASE OF BRODERICK AND BASCOM ROPE CO. V. HALL FREIGHT LINES, INC., ET AL., 302 I.C.C. 347, WHEREIN THE INTERSTATE COMMERCE COMMISSION CONSIDERED A SITUATION IN WHICH THE SHIPPER REQUESTED AND WAS ACCORDED EXCLUSIVE USE OF THE VEHICLE ON A SHIPMENT OF STEEL WIRE ROPE. THE COMMISSION FOUND THAT THE APPLICABLE CHARGES WERE THOSE BASED ON EXCLUSIVE-USE-OF-VEHICLE SERVICE, THAT THE APPLICABLE CHARGES WERE UNJUST AND UNREASONABLE TO THE EXTENT THAT THEY EXCEEDED THOSE BASED ON THE TRUCKLOAD RATE AT THE TRUCKLOAD MINIMUM WEIGHT. THE COMMISSION WAS OF THE VIEW THAT, GENERALLY SPEAKING, CHARGES ON A LESS THAN TRUCKLOAD SHIPMENT, ACCORDED EXCLUSIVE- USE-OF-VEHICLE SERVICE, SHOULD NOT EXCEED THE CHARGES APPLICABLE ON A TRUCKLOAD SHIPMENT OF THE SAME COMMODITY AT THE APPLICABLE TRUCKLOAD RATE AND MINIMUM WEIGHT.

YOU ALSO REFER TO THE DECISION OF THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF I.M.E., INC. V. UNITED STATES, 359 U.S. 464, WHERE THE COURT CONCLUDED THAT A SHIPPER OF FREIGHT BY INTERSTATE MOTOR COMMON CARRIER CANNOT CHALLENGE IN POST-SHIPMENT LITIGATION THE REASONABLENESS OF THE CARRIER'S CHARGES AS STATED IN ACCORDANCE WITH THE APPLICABLE TARIFFS. IT IS NOT DISPUTED THAT IN EFFECT, THE T.I.M.E. CASE OVERRULED THE BRODERICK AND BASCOM ROPE CO. CASE. ALTHOUGH THE RULE OF THE T.I.M.E. CASE HAS THE EFFECT OF REMOVING THE ISSUE OF UNREASONABLENESS FROM YOUR CLAIM, THE RECORD STILL DOES NOT SUPPORT THE ALLOWANCE OF YOUR CLAIM, SINCE IN THE SITUATION HERE INVOLVED THE APPLICABILITY OF THE TARIFF PROVISION ON WHICH YOU RELY IS QUESTIONABLE.

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. IN THIS CASE WE ARE SATISFIED THAT THE ANNOTATION WHICH APPEARS ON THE FACE OF GOVERNMENT BILL OF LADING NO. AF 4990791,"EXCLUSIVE USE OF VEHICLE," SUBSTANTIALLY COMPLIES WITH THE TARIFF REQUIREMENT AS TO A REQUEST BY THE SHIPPER FOR EXCLUSIVE USE SERVICE. SECOND, 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. ON THE RECORD AVAILABLE HERE THERE IS NO CONCLUSIVE EVIDENCE THAT THE REQUESTED SERVICE WAS PERFORMED, AND IN THE ABSENCE OF SUCH EVIDENCE WE HAVE NO AUTHORITY TO AUTHORIZE THE PAYMENT OF PREMIUM CHARGES. SEE CHARLES V. UNITED STATES, 19 CT.CL. 316; LONGWILL V. UNITED STATES, 17 CT. CL. 288; UNITED STATES V. NEW YORK, NEW HAVEN AND HARTFORD R. CO., 355 U.S. 253.

YOU MAY NOTE THAT IN ARRIVING AT OUR CONCLUSION REGARDING PERFORMANCE OF THE SERVICE WE HAVE GIVEN DUE REGARD TO THE FACT THAT THE BILL OF LADING INVOLVED BEARS THE ANNOTATIONS "EMERGENCY SHIPMENT" AND "EXPEDITE-HIGH PRIORITY FREIGHT.' IT MAY BE THAT A DESIRE FOR EXPEDITED TRANSPORTATION IS THE REASON BEHIND A REQUEST FOR EXCLUSIVE USE, BUT THE EXCLUSIVE-USE-OF -VEHICLE TARIFF PROVISIONS CONSIDERED IN THIS INSTANCE CONTAIN NO REFERENCE TO THE APPLICABILITY OF THE CHARGE BASIS PRESCRIBED THEREIN TO A CASE WHERE EXPEDITED SERVICE IS UNDERTAKEN. THERE IS, THEREFORE, NO TARIFF AUTHORITY FOR PAYING PREMIUM CHARGES ON THIS BASIS ALONE. ALSO, THE BILL OF LADING IS FURTHER ANNOTATED "DEADLINE DATE AT DESTINATION 0900 11 NOV 56," BUT THE CONSIGNEE'S CERTIFICATE OF DELIVERY IN THE BILL OF LADING INDICATES THAT THE SHIPMENT WAS DELIVERED ON NOVEMBER 12, 1956. THAT EXTENT THERE WAS A FAILURE ON THE PART OF THE CARRIERS CONCERNED TO PROVIDE THE TRANSPORTATION REQUIRED UNDER THE BILL OF LADING CONTRACT. SEALS ARE SHOWN ON THE BILL OF LADING AS HAVING BEEN APPLIED SO AS TO PRECLUDE THE LOADING OF ADDITIONAL FREIGHT BY THE CARRIERS.

THIS RECORD DOES NOT ESTABLISH THAT EXCLUSIVE-USE-OF-VEHICLE SERVICE WAS PROVIDED FOR THE SHIPMENT THAT WAS TRANSPORTED UNDER GOVERNMENT BILL OF LADING NO. AF-4990791, AND THE DISALLOWANCE OF YOUR CLAIM FOR $211.50 ON SUPPLEMENTAL BILL NO. 2541-SUPP. IS SUSTAINED. ..END :