B-132017, SEP. 11, 1957

B-132017, SEP. 11, 1957

TO DIXIE OHIO EXPRESS, INC.:

REFERENCE IS MADE TO YOUR REQUEST FOR REVIEW OF THE SETTLEMENT ACTION TAKEN BY OUR TRANSPORTATION DIVISION IN DISALLOWING YOUR CLAIMS FOR $72.08, $108.55, AND $69.13, BILLS NOS. 54, 55, AND 57 REPRESENTING DEDUCTIONS PREVIOUSLY MADE FROM AMOUNTS OTHERWISE DUE THE CARRIER TO RECOVER OVERPAYMENTS IN FREIGHT CHARGES ON GOVERNMENT BILLS OF LADING NOS. WV-1827534, DATED DECEMBER 4, 1952, AF-1871759, DATED MARCH 19, 1953, AND AF-1476873, DATED JUNE 15, 1953.

THE RECORDS SHOW THAT THE DETROIT KELLERING COMPANY, A SUBCONTRACTOR, MADE THREE SHIPMENTS ON COMMERCIAL BILLS OF LADING TO THE LOCKHEED AIRCRAFT CORPORATION, MARIETTA, GEORGIA. THE COMMODITIES SHIPPED WERE DESCRIBED ON THE BILLS OF LADING AS BOXED ALUMINUM BULKHEAD ASSEMBLIES- - AIRCRAFT PARTS. UPON ARRIVAL AT DESTINATION THE CONSIGNEE CONVERTED THE COMMERCIAL BILLS OF LADING TO GOVERNMENT BILLS OF LADING, AND DESCRIBED THE COMMODITIES ON TWO OF THE BILLS OF LADING AS AIRPLANE PARTS, NOIBN OR NOI, METAL, AND AS "AIRPLANE PARTS, NOI, OTHER THAN CLOTH, WOOD, OR METAL COMBINED" ON THE OTHER BILL OF LADING. FOR THE SERVICES PERFORMED, YOU ORIGINALLY CLAIMED AND WERE PAID FREIGHT CHARGES COMPUTED BY THE USE OF THE ONE AND ONE-HALF TIMES FIRST CLASS RATE APPLICABLE ON ALUMINUM AIRCRAFT PARTS. THEREAFTER, AND BEFORE THE AUDIT OF YOUR BILLS IN OUR OFFICE, THE LOCKHEED AIRCRAFT CORPORATION, BY A LETTER DATED MAY 21, 1954- -- A COPY OF WHICH WAS SENT TO YOU ON JANUARY 30, 1956, IN CONNECTION WITH YOUR BILL NO. 7774 -- ADVISED THE GOVERNMENT THAT THE COMMODITIES SHIPPED WERE NOT COMPLETE BULKHEAD ASSEMBLIES, BUT WERE ALUMINUM FORGINGS, MACHINED AND DRILLED TO PROPER TOLERANCES, WHICH ARE PROPERLY DESCRIBED AS "ALUMINUM ARTICLES NOIBN.' ON THE BASIS OF THIS EVIDENCE A STATEMENT OF OVERPAYMENT, FORM 1003, WAS ISSUED TO YOU FOR EACH OF THE THREE BILLS OF LADING, AND ON YOUR FAILURE TO MAKE A VOLUNTARY REFUND, THE AMOUNTS NOW CLAIMED WERE RECOVERED BY DEDUCTION FROM AMOUNTS OTHERWISE OWING TO YOU.

IN YOUR REQUEST FOR REVIEW YOU STATE THAT OUR OFFICE HAS NO AUTHORITY "TO DEDUCT PAYMENTS OF PROPERLY COMPUTED FREIGHT CHARGES BASED ON APPLICABLE LEGAL RATES, WHETHER OR NOT THE GENERAL ACCOUNTING OFFICE DEEMS THOSE RATES JUST AND REASONABLE.' IT DOES NOT APPEAR, HOWEVER, THAT ANY QUESTION HAS BEEN RAISED CONCERNING THE REASONABLENESS OF THE RATES CHARGED IN THIS CASE. AS INDICATED ABOVE, THESE DEDUCTIONS WERE MADE ON THE BASIS OF EVIDENCE THAT THE COMMODITIES ACTUALLY SHIPPED WERE NOT AS DESCRIBED ON THE BILLS OF LADING AND, THEREFORE, THAT THE RATES USED BY YOU WERE NOT THE APPLICABLE RATES. IN DETERMINING THE RATE APPLICABLE TO A SHIPMENT THE IMPORTANT FACT IS WHAT ACTUALLY MOVED, AND NOT THE DESCRIPTION OF THE COMMODITY ON THE BILL OF LADING. SEE EMBASSY DISTRIBUTING CO., INC. V. WESTERN CARLOADING CO., 280 I.C.C. 229; NORRIS STAMPING AND MFG. CO. V. PENNSYLVANIA R., 259 I.C.C. 593, 594, MODIFIED 264 I.C.C. 298; UNITED WELDING CO. V. BALTIMORE AND OHIO R., 196 I.C.C. 79, 80; SOUTHERN TRAFFIC AND AUDIT ASSOCIATION V. INTERNATIONAL-GREAT NORTHERN R., 160 I.C.C. 212, 214; AND FREIGHT TRANSPORTATION ENGINEERS, INC. V. SOUTHERN TIER TRUCK, 48 M.C.C. 372, 373.

IN THE PERFORMANCE OF THE DUTIES IMPOSED BY THE BUDGET AND ACCOUNTING ACT OF 1921, AS AMENDED, 31 U.S.C. 71, THE ACCOUNTING OFFICERS OF THE GOVERNMENT ARE BOUND TO SCRUTINIZE ALL CLAIMS AND ACCOUNTS WITH GREAT CARE, AND TO REJECT, IN WHOLE OR IN PART, ANY CLAIM AS TO WHICH A QUESTION EXISTS CONCERNING THE LEGAL LIABILITY OF THE UNITED STATES, OR, BY AUTHORITY OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66, TO RECOVER BY SETOFF ANY DOUBTFUL PAYMENT WHICH HAS BEEN MADE FOR TRANSPORTATION SERVICES, AND THE BURDEN IS UPON THE CLAIMANT TO PRESENT SUFFICIENT EVIDENCE TO SUPPORT HIS CLAIM. SEE CHARLES V. UNITED STATES, 19 C.CLS. 316; LONGWILL V. UNITED STATES, 17 C.CLS. 288; 18 COMP. GEN. 199, 200; 17 COMP. GEN. 865, 870; 15 COMP. GEN. 466, 470.

YOU HAVE PRESENTED NO EVIDENCE TO SHOW THAT THE COMMODITIES SHIPPED SHOULD BE RATED AS AIRPLANE PARTS. THE ONLY EVIDENCE PRESENTLY OF RECORD TENDS TO SHOW THAT THE COMMODITIES WERE PROPERLY IDENTIFIED AS ALUMINUM ARTICLES, AND TO SUPPORT THE SETTLEMENT ACTION OF OUR TRANSPORTATION DIVISION. ACCORDINGLY, IN THE ABSENCE OF EVIDENCE IN THE RECORD TO THE CONTRARY, IT APPEARS THAT THE DISALLOWANCE OF YOUR CLAIMS BY OUR TRANSPORTATION DIVISION WAS CORRECT, AND IT IS SUSTAINED.