B-143065, DEC. 27, 1961

B-143065, DEC. 27, 1961

TO HERRIN TRANSPORTATION COMPANY:

IN ONE OF YOUR TWO LETTERS OF OCTOBER 23, 1961, YOU INQUIRE ABOUT PAYMENT OF THE $180.60 ON YOUR BILL NO. 14394 CL 1, YOUR FILE 110924 OC, CONCERNING FOUR SHIPMENTS UNDER GOVERNMENT BILLS OF LADING NOS. WY 5166885, WY-6305131, WY-2319868, AND N-30717299, OUR TK-685681. IN THE THIRD PARAGRAPH OF OUR LETTER OF OCTOBER 3, 1960, B-143065, TO YOU WE STATED,"WE ARE, THEREFORE, INSTRUCTING OUR TRANSPORTATION DIVISION TO CERTIFY FOR PAYMENT THE AMOUNTS DETERMINED TO BE DUE ON THESE SHIPMENTS UNDER THE EXCLUSIVE USE OF VEHICLE RULES, IF OTHERWISE CORRECT. SETTLEMENT SHOULD BE RECEIVED AS TO SUCH FOUR SHIPMENTS IN DUE COURSE.' OUR TRANSPORTATION DIVISION REPORTS THAT PAYMENT OF THE $180.60 WAS APPROVED UNDER STATEMENT OF SETTLEMENT OF CLAIM DATED JANUARY 26, 1961, AND CHECK NO. 849204 DATED FEBRUARY 23, 1961, DRAWN BY LT.COL. A. G. PERRY WAS ISSUED IN PAYMENT THEREOF. WE TRUST SUCH INFORMATION WILL ENABLE YOU TO ASCERTAIN THAT SUCH BILL HAS BEEN SETTLED. HOWEVER, IF YOUR RECORDS FAIL TO REVEAL RECEIPT AND NEGOTIATION OF THE CHECK AND YOU WILL SO ADVISE US, WE WILL LOOK INTO THE MATTER FURTHER.

IN THE OTHER LETTER OF OCTOBER 23, 1961, YOU REQUEST RECONSIDERATION OF OUR DECISION OF DECEMBER 29, 1960, B-143065, IN WHICH WE ADHERED TO OUR DECISION OF OCTOBER 3, 1960, B-143065, SUSTAINING THE DISALLOWANCE OF YOUR CLAIM PER BILL NO. 12549 CL 1, FOR ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE FOR EXCLUSIVE USE OF THE VEHICLE IN CONNECTION WITH THE TRANSPORTATION OF INTERNAL COMBUSTION ENGINES FROM LANGLEY AIR FORCE BASE, VIRGINIA, TO DALLAS, TEXAS, UNDER GOVERNMENT BILL OF LADING NO. AF-6244178 DATED JULY 17, 1956. THE DISALLOWANCE OF YOUR CLAIM WAS ORIGINALLY SUSTAINED BY OUR DECISION OF OCTOBER 3, 1960, FOR THE REASON THAT YOU FAILED TO SUPPLY EVIDENCE CLEARLY AND SATISFACTORILY ESTABLISHING THAT THE EXCLUSIVE-USE SERVICE WAS PERFORMED. THEREAFTER WITH YOUR LETTER OF OCTOBER 14, 1960, FILE 102502 OC, YOU SUBMITTED AS ADDITIONAL EVIDENCE A PHOTOSTATIC COPY OF A DOCUMENT WHICH YOU TERMED YOUR "DAILY DISPATCH.' THIS DOCUMENT PROVIDED IN PART AS FOLLOWS: "841 BTC 128 DLS VIA SPORT POSCH 14000 230 PM TL ENGINES.' YOU INTERPRETED THIS LANGUAGE 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, TENNESSE" TERMINAL AT 3:30 P.M. (SIC) AND THE LOAD CONSISTED OF A TRUCKLOAD OF ENGINES.' DISALLOWANCE OF YOUR CLAIM WAS AGAIN SUSTAINED BY OUR DECISION OF DECEMBER 29, 1960, B 143065, FOR THE LACK OF SUFFICIENT EVIDENCE TO SHOW EXCLUSIVE- USE SERVICE WAS ACTUALLY RENDERED. IN THE FINAL PARAGRAPH OF SUCH DECISION WE STATED:

"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.'

WITH YOUR PRESENT REQUEST FOR FURTHER CONSIDERATION YOU PRESENT NO NEW OR ADDITIONAL SUPPORT FOR YOUR CLAIM BUT PROTEST OUR OBJECTIONS TO THE EVIDENCE PRESENTED AND MAKE SEVERAL STATEMENTS THE SUM OF WHICH INDICATES CONFUSION CONCERNING THE KIND OR QUALITY OF EVIDENCE REQUIRED BY OUR OFFICE IN SUPPORT OF A CLAIM FOR EXCLUSIVE-USE CHARGES.

THE BEST INDICATION THAT EXCLUSIVE-USE SERVICES WERE ACTUALLY PERFORMED APPEARS TO BE PROVIDED BY A SHOWING OF A CLEAR SEAL RECORD ON THE BILL OF LADING, THAT IS, A SHOWING THAT THE SHIPMENT WAS SEALED AT ORIGIN WITH NO INDICATION THAT THE SEALS WERE NOT INTACT WHEN THE SHIPMENT ARRIVED AT DESTINATION. IN THE ABSENCE OF SUCH A CLEAR SEAL RECORD, AS IN THIS CASE, WE WILL CONSIDER WHATEVER DOCUMENTARY EVIDENCE YOU CARE TO SUBMIT WHICH REASONABLY ESTABLISHES THAT EXCLUSIVE USE-VEHICLE SERVICES WERE RENDERED. FOR EXAMPLE, SATISFACTORY EVIDENCE MAY TAKE THE FORM OF A CERTIFICATION ON THE BILL OF LADING IN ACCORDANCE WITH REGULATIONS ISSUED BY THE SHIPPING ADMINISTRATIVE AGENCY, OR CERTIFIED COPIES OF CARRIERS' RECORDS MADE CONTEMPORANEOUSLY AT THE TIME OF SHIPMENT EVIDENCING THAT NO OTHER FREIGHT WAS TRANSPORTED ON THE TRUCK OR TRUCKS ON WHICH THE SHIPMENT MOVED. IT IS UNDERSTOOD THAT THERE ARE VARIOUS TYPES OF RECORDS PREPARED BY CARRIERS IN THEIR NORMAL BUSINESS OPERATIONS, WHICH MAY CONTAIN SUFFICIENT PERTINENT INFORMATION TO SATISFACTORILY ESTABLISH THE PERFORMANCE OF EXCLUSIVE-USE SERVICES. SOME OF THESE ARE: ROAD MANIFESTS OR CONSISTS, TRIP TICKETS AND REPORTS, DISPATCH SHEETS AND OTHER DOCUMENTS WHICH DESCRIBE THE CARGO CARRIED ON THE VEHICLE WHILE EN ROUTE.

BY YOUR OWN INTERPRETATION THE "DAILY DISPATCH" PREVIOUSLY SUBMITTED SHOWS ONLY THAT PARTICULAR EQUIPMENT CARRYING A TRUCKLOAD OF ENGINES WAS DISPATCHED FROM MEMPHIS, TENNESSEE, AN INTERMEDIATE POINT, FOR SHREVEPORT, LA., ALSO AN INTERMEDIATE POINT. EVEN ASSUMING THAT THIS DOCUMENT ESTABLISHES THAT EXCLUSIVE-USE SERVICE WAS FURNISHED FROM MEMPHIS, TENNESSEE, TO SHREVEPORT, LA., IT DOES NOT SHOW, AND THERE IS NO OTHER EVIDENCE TO ESTABLISH, THAT EXCLUSIVE-USE SERVICE WAS ALSO FURNISHED FROM POINT OF ORIGIN, LANGLEY AIR FORCE, VIRGINIA, TO MEMPHIS, TENNESSEE, OR FROM SHREVEPORT, LA., TO THE DESTINATION DALLAS, TEXAS.

IF YOU ARE ABLE TO FURNISH CERTIFIED COPIES OF CARRIERS' RECORDS MADE IN THE COURSE OF THEIR BUSINESS AT THE TIME THE FREIGHT MOVED AND WHICH REASONABLY ESTABLISH THAT EXCLUSIVE USE OF A VEHICLE WAS FURNISHED FOR THE ENTIRE FREIGHT MOVEMENT FROM POINT OF ORIGIN TO DESTINATION, WE WILL GIVE FURTHER CONSIDERATION TO YOUR CLAIM FOR ADDITIONAL CHARGES BASED ON THE FURNISHINGS OF EXCLUSIVE USE OF THE VEHICLE TO PERFORM THE TRANSPORTATION SERVICE. IF THE COPIES OF RECORDS FURNISHED ARE SUCH, AS WITH YOUR "DAILY DISPATCH," THAT AN EXPLANATION THEREOF IS NECESSARY TO ESTABLISH THAT EXCLUSIVE USE WAS FURNISHED FOR THE FULL DISTANCE FROM POINT OF ORIGIN TO DESTINATION, SUCH INFORMATION SHOULD ACCOMPANY THE DOCUMENTARY EVIDENCE RELIED UPON.

IN THE ABSENCE OF DOCUMENTARY EVIDENCE SWORN STATEMENTS OF PERSONS HAVING PERSONAL KNOWLEDGE OF THE FACTS WILL ALSO BE GIVEN CONSIDERATION, ALTHOUGH AS A GENERAL RULE AFFIDAVITS ARE WEAK EVIDENCE AND NOT CONCLUSIVE, SINCE THE VALUE AND WORTH OF THE STATEMENTS HAVE NOT BEEN SUBJECTED TO CROSS- EXAMINATION. CENTRAL OF GEORGIA RY. V. HOLMES, 134 SO. 875, 876-877, 32 C.J.S., EVIDENCE, SECTION 1032.

IN ADDITION, ON THE SECOND PAGE OF YOUR LETTER YOU STATE:

"IT WOULD SEEM TO ME THAT THE CONSIGNEE'S SIGNATURE ON THE BILL OF LADING CERTIFYING AS TO THE RECEIPT OF THE SHIPMENT PROVIDES SUFFICIENT PROOF THAT EXCLUSIVE USE SERVICE WAS PERFORMED BY THE CARRIER IN ACCORDANCE WITH THE BILL OF LADING CONTRACT.'

THE CERTIFICATION TO WHICH YOU REFER MERELY RECITES WHAT PROPERTY WAS RECEIVED AT DESTINATION, THE CONDITION OF SUCH PROPERTY AND WHETHER DELIVERY BY THE GOVERNMENT OR ITS AGENT. THIS CERTIFICATION DOES NOT INDICATE WHETHER EXCLUSIVE-USE SERVICES WERE OR WERE NOT ACCORDED THE SHIPMENT.

ALSO, IN THE LAST PARAGRAPH ON THE SAME PAGE YOU REFER TO AN ABSTRACT OF SECTION 3065.10 OF OUR POLICY AND PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES (5 GAO 3065.10), APPEARING IN A LETTER OF APRIL 8, 1960, FILE RA-3013, FROM THE SOUTHERN MOTOR CARRIER RATE CONFERENCE TO ITS MEMBERS, A COPY OF WHICH WAS ENCLOSED WITH YOUR LETTER.

SECTION 3065.10 PROVIDES IN PERTINENT PART,"WHERE ACCESSORIAL OR SPECIAL SERVICES ARE SHOWN AS ORDERED BUT WERE NOT FURNISHED THE BILL OF LADING SHALL BE SO ANNOTATED.' BECAUSE NO SUCH NOTATION APPEARS ON THE PRESENT BILL OF LADING YOU URGE THAT CHARGES FOR EXCLUSIVE USE ARE PROPERLY PAYABLE.

SECTION 3065.10 TO WHICH YOU REFER WAS INCORPORATED INTO OUR POLICY AND PROCEDURES MANUAL BY TRANSMITTAL SHEET NO. 5-4 AND THE SECTIONS ACCOMPANYING TRANSMITTAL SHEET NO. 5-4, INCLUDING SECTION 3065.10, WERE NOT APPLICABLE BEFORE THE DATE OF THE TRANSMITTAL SHEET, NAMELY, OCTOBER 12, 1959. THE SHIPMENT HERE CONSIDERED MOVED IN 1956, WELL BEFORE TRANSMITTAL SHEET 5-4 BECAME EFFECTIVE. THE PROVISIONS OF SECTION 3065 (FACTUAL SUPPORT OF CHARGES BILLED), WHICH WERE APPLICABLE IN 1956, CONTAINED NO LANGUAGE SUCH AS THAT QUOTED ABOVE AND REFERRED TO IN YOUR LETTER OF OCTOBER 23, 1961. THE GOVERNMENT BILLS OF LADING NOW IN USE GIVE EFFECT TO THE REQUIREMENT OF AN ANNOTATION WHEN ACCESSORIAL OR SPECIAL SERVICES ARE SHOWN AS ORDERED BUT NOT FURNISHED, BY INSTRUCTION NO. 7 APPEARING ON THE REVERSE SIDE OF THE BILL OF LADING. BILLS OF LADING FORMERLY IN USE, SUCH AS THE ONE UNDER WHICH THE SUBJECT SHIPMENT MOVED, DID NOT INCORPORATE SUCH INSTRUCTION NOR DID THEY PROVIDE A SPACE FOR ANNOTATIONS RELATING TO THE ORDERING OF SPECIAL SERVICES AS IS NOW FOUND ON THE REVERSE SIDE OF THE NEWER BILLS.

SINCE NOTHING ADDITIONAL HAS BEEN FURNISHED IN SUPPORT OF YOUR CLAIM, OUR PRIOR DECISION SUSTAINING THE DISALLOWANCE IS AFFIRMED.