B-144474, JUL. 17, 1961

B-144474, JUL. 17, 1961

TO WESTERN TRUCK LINES, LTD:

REFERENCE IS MADE TO YOUR LETTERS OF NOVEMBER 14, 1960, AND MAY 18, 1961, REQUESTING REVIEW OF THE DISALLOWANCE OF YOUR CLAIM, PER BILL NO. G-01639, FOR THE AMOUNT OF $735.30 ALLEGED TO BE DUE FOR THE TRANSPORTATION OF PROPERTY DESCRIBED AS "MISC.SQD. MATERIAL" FROM FALLON, NEVADA, TO SAN DIEGO, CALIFORNIA, UNDER GOVERNMENT BILL OF LADING NO. N-8248116, DATED SEPTEMBER 27, 1956. THE BILL OF LADING SHOWS THAT THREE VEHICLES, TWO VANS AND A FLAT RACK WERE UTILIZED FOR THE TRANSPORTATION.

FOR THE SERVICE PERFORMED YOU ORIGINALLY CLAIMED AND WERE PAID $2,902.50, WHICH CONSTITUTES THE MINIMUM CHARGES SET FORTH IN THE APPLICABLE TARIFF FOR EXCLUSIVE USE OF VEHICLE SERVICE, COMPUTED ON THE BASIS OF A COMBINATION OF THE FIRST CLASS RATE OF $4.58 PER 100 POUNDS TO LOS ANGELES, CALIFORNIA, PLUS THE FIRST CLASS RATE OF $1.87 PER 100 POUNDS BEYOND, SUBJECT TO A MINIMUM WEIGHT OF 15,000 POUNDS PER VEHICLE. AUDIT OF THE PAYMENT VOUCHER IN OUR OFFICE THE APPLICABLE FREIGHT CHARGES WERE DETERMINED TO BE $2,167.20 COMPUTED ON THE BASIS OF A COMBINATION OF THE THIRD CLASS TRUCKLOAD RATE OF $2.52 PER 100 POUNDS TO LOS ANGELES, CALIFORNIA, PLUS THE THIRD CLASS RATE OF $0.49 PER 100 POUNDS BEYOND SUBJECT TO A MINIMUM TRUCKLOAD WEIGHT OF 24,000 POUNDS. THE RESULTING OVERPAYMENT OF $735.30 WAS SUBSEQUENTLY RECOVERED BY ADMINISTRATIVE DEDUCTION.

YOUR CLAIM PER BILL NO. G-01639 FOR REFUND OF THE DEDUCTION ON THE BASIS OF THE DECISION OF THE UNITED STATES SUPREME COURT IN THE T.I.M.E. AND DAVIDSON DECISION, 359 U.S. 464, WAS DISALLOWED BY SETTLEMENT CERTIFICATE OF OCTOBER 17, 1960, BASED UPON THE DECISION OF THE INTERSTATE COMMERCE COMMISSION IN CURTIS LIGHTING, INC. V. MID STATES FREIGHT LINES, 303 I.C.C. 576, TO THE EFFECT THAT ONCE A VEHICLE IS LOADED TO CAPACITY A SHIPPER DERIVES NO BENEFIT FROM EXCLUSIVE USE, WHICH IS DESIGNED TO ACCORD TRUCKLOAD SERVICE TO LESS THAN TRUCKLOAD SHIPMENTS. IN YOUR REQUEST FOR REVIEW YOU ARGUE, IN PERTINENT PART, THAT:

"THERE IS NO INDICATION THAT THE VEHICLES WERE ACTUALLY LOADED TO FULL PHYSICAL CAPACITY, OTHER THAN THE CUBIC DISPLACEMENT, WHICH IS INDICATED ON THIS BILL OF LADING AS 4,481 CUBIC FEET. THIS WOULD SEEM TO CONTRADICT ANY CONTENTION THAT THE VEHICLES WERE LOADED TO CAPACITY, SINCE THE MINIMUM CUBIC DISPLACEMENT OF THE CLOSED VANS FURNISHED, AMOUNTED TO APPROXIMATELY 2500 CUBIC FEET EACH.'

HOWEVER, ONLY TWO OF THE THREE VEHICLES FURNISHED WERE CLOSED VANS, BUT AS TO THESE VANS THERE DOES NOT APPEAR TO BE ANY GROUNDS FOR APPLICATION OF THE DECISION IN THE CURTIS LIGHTING CASE, SUPRA.

THE RULE CONCERNING THE PAYMENT OF EXCLUSIVE-USE CHARGES WAS SET FORTH IN OUR DECISION OF MAY 10, 1960, B-140838, PUBLISHED IN 39 COMP. GEN. 755, THAT BEFORE A CARRIER CAN BE CONSIDERED ENTITLED TO RECEIVE PREMIUM CHARGES FOR EXCLUSIVE USE OF VEHICLE, TWO CONDITIONS MUST BE SATISFIED. FIRST, THERE MUST BE SUBSTANTIAL COMPLIANCE WITH EXCLUSIVE USE OF VEHICLE TARIFF OR QUOTATION REQUIREMENTS CONCERNING ANNOTATION OF THE BILL OF LADING. AND SECOND, THERE MUST BE SOME EVIDENCE THAT EXCLUSIVE-USE-OF- VEHICLE SERVICE WAS, IN FACT, PERFORMED, SINCE THE BURDEN IS UPON CLAIMANTS TO PRESENT EVIDENCE SATISFACTORILY PROVING THEIR CLAIMS AND ALL MATTERS INCIDENTAL THERETO REQUISITE TO ESTABLISH A CLEAR LEGAL LIABILITY OF THE UNITED STATES AND THE CLAIMANT'S RIGHT TO PAYMENT UNDER THE APPROPRIATIONS INVOLVED.

ITEM NO. 898 OF THE INTERSTATE FREIGHT CARRIERS' CONFERENCE, INC., AGENTS, TARIFF NO. 7-A, MF-I.C.C. NO. A-7, APPLICABLE TO THIS SHIPMENT PROVIDES, CONCERNING EXCLUSIVE USE OF VEHICLE SERVICE, THAT THE SHIPPER SHALL ENDORSE ON THE BILL OF LADING "EXCLUSIVE USE OF VEHICLE UESTED.' SUBSTANTIAL COMPLIANCE WITH THAT PROVISION, THE BILL OF LADING WAS ANNOTATED:

"EXCLUSIVE USE OF THREE CLOSED VEHICLES AUTH UNDER R/O 1 2N-0966773

"NAVY SEALS APPLIED TO EQUIPMENT. DO NOT BREAK SEALS EXCEPT IN EMERGENCY OR WITH PRIOR APPROVAL OF THE NAVY DEPARTMENT. IF BROKEN, APPLY CARRIER SEALS IMMEDIATELY AND NOTIFY RECEIVING OFFICER, NAS MIRAMAR SAN DIEGO, CALIF.

"WTL VAN NOS. 551, SEAL NTL 1143, 44, 45 WTL VAN NO 515 SEAL 1163, 1149, 1177 NTL FLAT RACK NO 90"

AND BOTH VANS MOVED UNDER A CLEAR SEAL RECORD. ACCORDINGLY, ON THE TWO VANS IT APPEARS THAT CHARGES FOR EXCLUSIVE USE ARE JUSTIFIED, AND THE FILE IS BEING RETURNED TO OUR TRANSPORTATION DIVISION FOR ALLOWANCE IN THE AMOUNT FOUND PROPERLY DUE FOR THE EXCLUSIVE USE OF THOSE TWO VEHICLES.

CONCERNING THE "FLAT RACK" VEHICLE, HOWEVER, THERE IS NO EVIDENCE IN THE RECORD THAT EXCLUSIVE-USE SERVICE WAS GIVEN, AND IN THE ABSENCE OF THE EVIDENCE ESTABLISHING CONCLUSIVELY THAT NO OTHER FREIGHT WAS LOADED ON THE THIRD VEHICLE AT ANY TIME IN THE COURSE OF MOVEMENT, OUR OFFICE HAS NO AUTHORITY TO AUTHORIZE PAYMENT OF PREMIUM CHARGES. SEE CHARLES V. UNITED STATES, 19 CT.CL. 316, AND LONGWILL V. UNITED STATES, 17 CT.CL. 288, CITED IN 39 COMP. GEN. 755 AT PAGE 757. ACCORDINGLY, AND ON THE PRESENT RECORD, THE DISALLOWANCE OF YOUR CLAIM FOR EXCLUSIVE-USE CHARGES ON THE "FLAT RACK" VEHICLE IS SUSTAINED.