B-143065, DEC. 29, 1960

B-143065, DEC. 29, 1960

TO HERRIN TRANSPORTATION COMPANY:

BY LETTER OF OCTOBER 14, 1960, YOU REQUEST RECONSIDERATION OF OUR DECISION OF OCTOBER 3, 1960, B-143065, IN WHICH WE SUSTAINED THE DISALLOWANCE OF YOUR CLAIM PER BILL NO. 12549 CL 1, FOR ADDITIONAL FREIGHT CHARGES OF $192.20 ALLEGED TO BE DUE FOR THE TRANSPORTATION OF INTERNAL COMBUSTION ENGINES FROM LANGLEY AIR FORCE BASE, VIRGINIA, TO DALLAS, TEXAS, UNDER GOVERNMENT BILL OF LADING AF-6244178 DATED JULY 17, 1956.

FOR THE SERVICE PERFORMED YOU ORIGINALLY CLAIMED AND WERE PAID FREIGHT CHARGES COMPUTED ON THE BASIS OF THE MINIMUM CHARGES PROVIDED IN THE APPLICABLE TARIFF FOR EXCLUSIVE USE OF VEHICLE. UPON AUDIT IT WAS DETERMINED THAT ONLY THE TRUCKLOAD RATES WERE PROPERLY APPLICABLE AND THE SUM OF $192.20 WAS COLLECTED BY DEDUCTION. YOUR CLAIM FOR SUCH AMOUNT WAS DISALLOWED BY SETTLEMENT CERTIFICATE DATED MARCH 29, 1960, AND THE DISALLOWANCE WAS SUSTAINED BY OUR DECISION OF OCTOBER 3, 1960, FOR THE REASON THAT THE RECORD CONTAINED NO SATISFACTORY EVIDENCE TO ESTABLISH THAT EXCLUSIVE USE OF VEHICLE WAS ACCORDED THE SHIPMENT. WITH YOUR REQUEST FOR REVIEW YOU SUBMITTED AS ADDITIONAL EVIDENCE A PHOTOSTATIC COPY OF YOUR "DAILY DISPATCH," OF JULY 20, 1956, PURPORTED TO COVER THE SUBJECT SHIPMENT. THIS DOCUMENT, WITHOUT HEADING OR OTHER IDENTIFICATION, CONTAINS 17 LINES OF CODED INFORMATION. THE SIXTH LINE READING AS FOLLOWS: "841 BTC 128 DLS VIA SPORT POSCH 14000 230 PM TL ENGINES" IS INTERPRETED BY YOU TO MEAN "* * * THE TRACTOR NUMBER WAS 841, THE TRAILER NUMBER WAS BOWMAN TRANSPORTATION COMPANY NO. 128, DESTINATION DALLAS, TEXAS AND THE DRIVER WAS POSCH, AND WAS DISPATCHED TO SHREVEPORT, LA., AND THE WEIGHT ON THE TRAILER WAS 14,000 LBS., AND THE UNIT LEFT MEMPHIS, TENNESSEE TERMINAL AT 3:30 P.M., (SIC) AND THE LOAD CONSISTED OF A TRUCKLOAD OF ENGINES.' YOU CONTEND THAT "ACCORDING TO THE TARIFFS ON FILE WITH THE I.C.C. UNDER WHICH THIS SHIPMENT MOVED," YOU ARE NOT REQUIRED IN ANY WAY TO PROVE THAT EXCLUSIVE USE OF VEHICLE WAS ACCORDED THIS SHIPMENT. YOU ALLEGE, HOWEVER, THAT THE DISPATCH SHOWS "* * * THIS PARTICULAR EQUIPMENT HANDLED ONLY THESE ENGINES FROM MEMPHIS, TENNESSEE, TO DALLAS, TEXAS," AND STATE THAT THIS IS PROOF ENOUGH TO THE UNITED STATES THAT YOU DID IN FACT RENDER EXCLUSIVE USE OF VEHICLE SERVICE ON THIS PARTICULAR SHIPMENT.

THE COURT OF CLAIMS HELD, AT A VERY EARLY DATE, IN CHARLES V. UNITED STATES, 19 CT.CL. 316, 319, AND IN LONGWILL V. UNITED STATES, 17 CT.CL. 288, 291, PREVIOUSLY CITED TO YOU, THAT THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE THE RIGHT AND DUTY TO SCRUTINIZE CLAIMS AND ACCOUNTS WITH GREAT CARE AND TO REJECT ALL CLAIMS CONCERNING WHICH ANY DOUBTS EXIST. OUR OFFICE HAS ALWAYS HELD THAT THE BURDEN IS NOT ON US TO REFUTE CLAIMS PRESENTED HERE FOR SETTLEMENT OR THE ALLEGATIONS UPON WHICH SUCH CLAIMS ARE BASED, BUT THE BURDEN IS ON THE CLAIMANTS TO FURNISH EVIDENCE, EITHER TO OUR OFFICE OR TO THE COURT, IF THEY CHOOSE TO FILE SUIT, CLEARLY AND SATISFACTORILY ESTABLISHING THEIR CLAIMS AND ALL MATTERS INCIDENTAL THERETO IN ORDER TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES AND THEIR RIGHT TO RECEIVE PAYMENT. SEE 18 COMP. GEN. 199, 200; ID. 980; AND 31 COMP. GEN. 340. THESE RULINGS WERE RECENTLY CONFIRMED BY THE UNITED STATES SUPREME COURT IN UNITED STATES V. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD, 355 U.S. 253, IN WHICH IT WAS STATED THAT PRIOR TO THE ENACTMENT OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66, THE GOVERNMENT PROTECTED ITSELF AGAINST TRANSPORTATION OVERCHARGES BY NOT PAYING TRANSPORTATION BILLS UNTIL THE RESPONSIBLE GOVERNMENT OFFICERS AND, IN DOUBTFUL CASES, THE GENERAL ACCOUNTING OFFICE FIRST AUDITED THE BILLS AND FOUND THAT THE CHARGES WERE CORRECT. WHEN CHARGES WERE QUESTIONED THE CARRIER BORE THE BURDEN OF PRESENTING EVIDENCE JUSTIFYING ITS CLAIM. SECTION 322 CHANGED THE PROCEDURE TO REQUIRE PAYMENT OF SUCH BILLS UPON PRESENTATION AND PRIOR TO AUDIT OR SETTLEMENT BY THE GENERAL ACCOUNTING OFFICE, BUT THE COURT EXPRESSLY HELD THAT THE BURDEN OF THE CARRIERS TO ESTABLISH THE CORRECTNESS OF THEIR CHARGES WAS TO CONTINUE UNABRIDGED. THEREFORE, QUITE APART FROM THE PROVISIONS OF THE CARRIER'S TARIFF OR THE CONTRACT OF CARRIAGE, THE LAW PLACES UPON THE CLAIMANT THE BURDEN OF ESTABLISHING THE PROPRIETY OF HIS CLAIM BEFORE OUR OFFICE.

THE DOCUMENT PRESENTED BY YOU IN SUPPORT OF YOUR CLAIM DOES NOT ESTABLISH YOUR CLAIM CLEARLY AND SATISFACTORILY SINCE THERE IS NO EVIDENCE CONCERNING WHO SENT THE DISPATCH, TO WHOM IT WAS SENT, OR WHAT PURPOSE IT WAS INTENDED TO SERVE. IT IS NOT CERTIFIED TO BE A TRUE COPY OR TO HAVE BEEN PREPARED BY A PARTY HAVING PERSONAL KNOWLEDGE OF THE MATTER. NEITHER IS THE EXPLANATION THEREOF SET FORTH IN YOUR LETTER CERTIFIED TO BE A TRUE AND ACCURATE INTERPRETATION. WE HAVE NO KNOWLEDGE OF THE PROCEDURE UTILIZED BY YOU IN PREPARING THE "DISPATCH" AND ARE, THEREFORE, UNABLE TO DETERMINE WHETHER ALL OF THE PROPERTY LOADED ON THE TRAILER IS SHOWN ON THE "DISPATCH.' THE ,DISPATCH" SUBMITTED APPEARS TO COVER ONLY A SEGMENT OF THE LINE HAUL AND NO EVIDENCE HAS BEEN PRESENTED TO DISPEL THE POSSIBILITY THAT ADDITIONAL FREIGHT MIGHT HAVE BEEN LOADED IN THE TRAILER OR TRAILERS IN WHICH THE SHIPMENT WAS TRANSPORTED BETWEEN POINTS EN ROUTE BY PARTICIPATING CARRIERS. ACCORDINGLY, AND ON THE PRESENT RECORD, THE DISALLOWANCE OF YOUR CLAIM IS AGAIN SUSTAINED.