B-148339, APR. 19, 1962

B-148339, APR. 19, 1962

TO THE ILLINOIS CENTRAL RAILROAD:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 27, 1961, FILE G-WQ 15719- BG, AND SUBSEQUENT CORRESPONDENCE, WHICH IN EFFECT REQUEST REVIEW OF THE DISALLOWANCE OF YOUR CLAIM AS SUCCESSOR IN INTEREST TO THE YAZOO AND MISSISSIPPI RAILROAD COMPANY, PER BILL WQ-15719-A, FOR$136.26, IN ADDITION TO THE AMOUNTS PREVIOUSLY ALLOWED FOR THE TRANSPORTATION OF FOUR SHIPMENTS, TWO FROM BATON ROUGE, LOUISIANA, TO WESTWEGO, LOUISIANA, UNDER BILLS OF LADING NOS. WV-8475763 AND WV 8475751, IN APRIL 1945, AND TWO FROM FORT WORTH, TEXAS, TO NEW ORLEANS, LOUISIANA, UNDER BILLS OF LADING NOS. WT-6868350 AND WT 6866802, IN APRIL AND MARCH, 1945. ALL FOUR BILLS OF LADING SHOW THE CONSIGNEE AS THE PORT TRANSPORTATION OFFICER, NEW ORLEANS PORT OF EMBARKATION, AND THAT THE SHIPMENTS THEREON WERE DESTINED FOR EXPORT. THE BILLS OF LADING SHOW, FURTHER, THAT THE TWO SHIPMENTS TO WESTWEGO WERE DELIVERED AT THIS POINT BY THE NEW ORLEANS, TEXAS AND MEXICO RAILROAD COMPANY, AND THAT THE TWO DESTINED TO NEW ORLEANS WERE DELIVERED BY THE SAME CARRIER THROUGH NOPB SWITCHING.

FOR THE TRANSPORTATION OF THESE SHIPMENTS, THE YAZOO AND MISSISSIPPI RAILROAD COMPANY, TO WHICH THE DESTINATION CARRIER ASSIGNED ITS RIGHT TO PAYMENT OF TRANSPORTATION CHARGES, CLAIMED AND WAS PAID CHARGES COMPUTED ON THE BASIS OF TARIFF RATES, PLUS CERTAIN CHARGES FOR HANDLING OF THE SHIPMENTS IN NEW ORLEANS. IN THE AUDIT OF THE PAYMENT FOR THIS TRANSPORTATION, YOU WERE NOTIFIED THAT THE HANDLING CHARGES WERE ELIMINATED AS "THE RECORD DOES NOT SHOW THAT THE CARRIER PERFORMED THIS SERVICE" AND YOU WERE REQUESTED TO REFUND THE AMOUNT, $136.26, WHICH HAD BEEN INCLUDED IN THE AMOUNT PREVIOUSLY PAID YOUR PREDECESSOR IN INTEREST FOR THE TRANSPORTATION OF THESE SHIPMENTS. UPON YOUR FAILURE TO REFUND THE AMOUNT OF $136.26, THIS AMOUNT WAS RECOVERED BY DEDUCTION IN MAKING PAYMENT OF OTHER BILLS PRESENTED BY YOU AND YOUR CLAIM FOR REFUND OF SUCH AMOUNT WAS DISALLOWED.

IN YOUR REQUEST FOR REVIEW OF THE DISALLOWANCE YOU STATE THAT CERTAIN EMPLOYEES OF OUR TRANSPORTATION DIVISION AGREED THAT THE GOVERNMENT WOULD DEVELOP WHETHER THE HANDLING AT CERTAIN NEW ORLEANS PORTS WAS DONE BY THE CARRIER OR THE GOVERNMENT AND THAT THE GOVERNMENT WOULD NOT ISSUE ANY STATEMENT OF OVERCHARGE UNLESS IT FURNISHED PROOF THAT THE HANDLING WAS ACTUALLY PERFORMED AT THE WHARVES THAT WERE LEASED OR OPERATED BY THE GOVERNMENT. YOU FURNISHED WITH YOUR REQUEST FOR REVIEW A COPY OF YOUR LETTER OF JULY 12, 1961, TO THE KANSAS CITY RECORDS CENTER, KANSAS CITY 24, MISSOURI, WHICH BEARS AN ENDORSEMENT INDICATING THAT THE SHIPMENTS TRANSPORTED ON BILLS OF LADING WT-6868350 AND WT-686602 WERE HANDLED AT CHALMETTE WHARF AND THOSE TRANSPORTED ON BILLS OF LADING WV-8475763 AND WV 8475751 WERE LOADED FROM BARGE 3154. YOU URGE THAT THE GENERAL ACCOUNTING OFFICE HAD NO AUTHORITY TO ELIMINATE THESE CHARGES AND REQUEST THAT THE AMOUNT DISALLOWED BE ALLOWED. THE SAME ISSUE HAS BEEN RAISED BY YOUR SEVERAL LETTERS TO OUR TRANSPORTATION DIVISION PROTESTING THE DISALLOWANCE OF YOUR CLAIMS FOR REFUND OF THE AMOUNTS DEDUCTED TO RECOVER THE HANDLING CHARGES ON YOUR BILLS NOS. 13400, 13861, 14636, 14637, 14748, 53754, 15399, 60136, 15485, AND 15702. SUCH PROTESTS ARE NOW UNDERSTOOD TO BE PENDING IN OUR TRANSPORTATION DIVISION.

CONCERNING THE DEVELOPMENT OF YOUR CLAIMS, THE PORT TRANSPORTATION OFFICER, NEW ORLEANS PORT OF EMBARKATION, AND T. SMITH AND SONS, INCORPORATED, WERE REQUESTED TO MAKE A REPORT ON THE HANDLING OF WORLD WAR II TRAFFIC AT THE NEW ORLEANS WHARVES INVOLVED IN CONNECTION WITH THE ABOVE CLAIMS. IN REPLY THERETO THE PORT TRANSPORTATION OFFICER AT NEW ORLEANS, BY LETTER DATED MARCH 15, 1961, STATES THAT:

"THERE ARE NO RECORDS AT THIS HEADQUARTERS THAT WILL SUBSTANTIATE WHETHER CAR UNLOADING OF WORLD WAR II TRAFFIC HANDLED AT WHARVES OTHER THAN ARMY WHARF WAS PERFORMED BY EITHER A PRIVATE CONTRACTOR PAID BY THE GOVERNMENT, OR THE TRUCK LINE CARRIERS SERVING NEW ORLEANS.

"PERSONNEL CONTACTED WHO WERE FAMILIAR WITH THE SERVICES IN QUESTION HAVE STATED THAT, TO THE BEST OF THEIR RECOLLECTION, ALL CAR UNLOADING WAS PERFORMED BY GOVERNMENT LABOR AT THE WHARVES LISTED IN PARAGRAPH 2 (WHARVES HERE INVOLVED) OF YOUR LETTER DURING THE PERIOD 1943-45, EXCEPT THOSE CARS THAT MOVED AT RATES THAT INCLUDED UNLOADING BY TRUCKLINE CARRIERS.'

T. SMITH AND SONS, INC., BY LETTER OF MAY 31, 1961, STATE THAT:

"RECORDS OF THESE TRANSACTIONS, AS NOTED BY YOU, ARE NOT AVAILABLE. SUGGESTED, WE HAVE CONFERRED WITH THOSE OF OUR PERSONNEL WHO WERE FAMILIAR WITH THIS WORK AND IT IS OUR RECOLLECTION THAT ALL PAYMENTS WERE MADE TO OUR COMPANY BY THE RAIL CARRIERS.'

THE UNITED STATES SUPREME COURT IN UNITED STATES V. NEW YORK, N.H. AND H.R. CO., 355 U.S. 253 (1957) CONSIDERED THE QUESTION OF WHETHER THE CARRIER HAS THE BURDEN OF PROVING THE CORRECTNESS OF ITS TRANSPORTATION BILLS OR THE GOVERNMENT THE BURDEN OF PROVING IT WAS OVERCHARGED. THE COURT HELD THAT BEFORE ENACTMENT OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66, THE GOVERNMENT PROTECTED ITSELF AGAINST TRANSPORTATION OVERCHARGES BY FIRST AUDITING THE BILLS AND WHERE CHARGES WERE QUESTIONED, THE CARRIER WAS REQUIRED TO JUSTIFY THEM. IT FURTHER HELD THAT WHILE SECTION 322 REQUIRED PAYMENT PRIOR TO AUDIT, THE FORMER MEANS OF THE GOVERNMENT'S PROTECTING ITSELF AGAINST OVERCHARGES--- BY NOT PAYING THE BILLS UNTIL THEIR CORRECTNESS WAS PROVED--- WAS REPLACED BY THE METHOD OF COLLECTING THEM FROM SUBSEQUENT BILLS. IT SPECIFICALLY HELD THAT "THE BURDEN OF THE CARRIER TO ESTABLISH THE LAWFULNESS OF ITS CHARGES IS THE SAME UNDER SEC. 322 AS IT WAS UNDER THE SUPERSEDED PRACTICE" AND THAT THE "RESPONDENT (CARRIER) IS ENTITLED TO RECOVER ONLY IF IT SATISFIED ITS BURDEN OF PROVING THAT ITS 1944 CHARGES WERE COMPUTED AT LAWFUL AND AUTHORIZED RATES.'

IT SEEMS CLEAR FROM SUCH DECISION THAT THE BURDEN OF PROVING THAT THE SERVICES FOR WHICH YOU SEEK TO RECOVER WERE RENDERED BY OR AT THE EXPENSE OF THE YAZOO AND MISSISSIPPI RAILROAD COMPANY OR THE DESTINATION CARRIER WHICH ASSIGNED TO THAT RAILROAD ITS RIGHTS RESTS WITH THE CARRIERS.

WHILE WE HAVE ATTEMPTED IN EVERY WAY TO ASSIST YOU IN DEVELOPING THE FACTS THE TWO QUOTED REPORTS CONTAIN ALL THE EVIDENCE WE HAVE BEEN ABLE TO DEVELOP. BOTH REPORTS INDICATE THE SOURCES CONTACTED HAD NO AVAILABLE RECORDS TO SUBSTANTIATE WHETHER UNLOADING AT THE WHARVES OTHER THAN THE ARMY WHARVES IN NEW ORLEANS WERE PERFORMED BY OR AT THE EXPENSE OF THE CARRIERS SERVING NEW ORLEANS. THE REPORT OF THE PORT TRANSPORTATION OFFICER IS TO THE EFFECT THAT COGNIZANT PERSONNEL CONTACTED HAVE STATED THAT TO THE BEST OF THEIR RECOLLECTION "ALL UNLOADING WAS PERFORMED BY GOVERNMENT LABOR" EXCEPT THOSE CARS THAT MOVED AT RATES INCLUDING UNLOADING BY TRUNK LINE RRIER.' THE REPORT OF W. T. SMITH AND SON, INC., IS TO THE EFFECT THAT "IT IS OUR RECOLLECTION THAT ALL PAYMENTS WERE MADE TO OUR COMPANY BY THE RAIL CARRIERS.' THE LATTER REPORT MADE UPON RECOLLECTION CONTRADICTED BY THE RECOLLECTION OF COGNIZANT PERSONNEL OF THE DEPARTMENT OF THE ARMY IS, IN OUR VIEW, INSUFFICIENT TO ESTABLISH THAT THE HANDLING SERVICES WERE PERFORMED BY OR AT THE EXPENSE OF YOUR PREDECESSOR IN INTEREST OR THAT OF THE DESTINATION CARRIER WHOSE RIGHTS WERE ASSIGNED TO IT. SEE CHARLES V. UNITED STATES, 19 CT. CL. 316, 319.

ACCORDINGLY, AND ON THE PRESENT RECORD, THE DISALLOWANCE OF YOUR CLAIM PER BILL WQ-15719-A IS SUSTAINED. OUR TRANSPORTATION DIVISION WILL ADVISE YOU AS TO ITS ACTION ON YOUR BILL 13400 AND OTHERS MENTIONED ABOVE.