B-155373, JUL. 15, 1965

B-155373, JUL. 15, 1965

TO MR. ALFRED D. FREIS:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 5, 1965, RELATIVE TO OUR SETTLEMENT CERTIFICATE OF OCTOBER 1, 1962, WHICH DISALLOWED A CLAIM OF YOUR CLIENT, INTERSTATE MOTOR LINES, INC., FOR TRANSPORTATION CHARGES OF $923.38.

YOU URGE THAT SINCE THE SHIPPING ORDER, THE CARRIER'S COPY OF THE BILL OF LADING, DOES NOT BEAR THE NOTATION--- "THE GOVERNMENT IS NOT RESPONSIBLE FOR TRANSPORTATION OR ANY OTHER CHARGES DUE THE CARRIER"--- THAT THERE IS AN INFERENCE THAT THE NOTATION ON THE COPY IN OUR POSSESSION MUST HAVE BEEN PLACED THEREON AFTER THE SHIPMENT WAS MADE. THE COPIES OF THE SHIPPING ORDER ENCLOSED WITH YOUR LETTERS OF JANUARY 13, 1964, AND JUNE 1, 1964, ARE SO DIM AND IMPERFECT THAT NO DETERMINATION CAN BE MADE AS TO WHETHER OR NOT THE ORIGINAL BORE THE NOTATION QUOTED ABOVE. THEREFORE, BEING BOTH UNCERTIFIED AND UNDECIPHERABLE, THE COPIES ARE OF NO EVIDENTIARY VALUE. MOREOVER, WE CAN NOT CONSIDER ANY SUCH INFERENCE AS YOU SUGGEST ABOVE BECAUSE, AS YOU ARE AWARE, IT IS INCUMBENT UPON CARRIERS CLAIMING AMOUNTS FROM THE UNITED STATES TO ESTABLISH THEIR CLEAR RIGHT TO PAYMENT. SEE UNITED STATES V. NEW YORK, N.H. AND H.R. CO., 355 U.S. 253 (1957). IN OTHER WORDS, THE BURDEN IS UPON CLAIMANTS TO PRESENT EVIDENCE SATISFACTORILY PROVING THEIR CLAIMS AND ALL MATTERS INCIDENTAL THERETO REQUISITE TO ESTABLISH CLEAR LEGAL LIABILITY OF THE UNITED STATES AND THE CLAIMANT'S RIGHT TO PAYMENT. OUR OFFICE, IN THE DISCHARGE OF THE DUTY IMPOSED UPON IT BY THE BUDGET AND ACCOUNTING ACT OF 1921, 31 U.S.C. 71, IS REQUIRED TO QUESTION AND RECOVER THAT PART OF A PAYMENT TO A CARRIER WHICH IT CONSIDERS REPRESENTS AN OVERCHARGE OR IS NOT SUPPORTED BY EVIDENCE ESTABLISHING A PROPER OBLIGATION OF THE UNITED STATES. ALSO, WHERE AN AMOUNT IS CLAIMED AND THERE IS SUBSTANTIAL REASON FOR BELIEVING THAT THE GOVERNMENT IS NOT LEGALLY OBLIGATED FOR ITS PAYMENT, IT IS OUR DUTY TO REJECT THE CLAIM, LEAVING THE CARRIER FREE TO PURSUE HIS REMEDY IN COURT TO ESTABLISH THE VALIDITY OF HIS DEMAND. SEE CHARLES V. UNITED STATES, 19 CT.CL. 316 (1884); LONGWILL V. UNITED STATES, 17 CT.CL. 288 (1881).

YOU ALSO URGE THAT THE FACT THAT THE BILL OF LADING IS MARKED "COLLECT" DOES NOT DISTURB THE GOVERNMENT'S LIABILITY, SINCE THE SO CALLED "NO- RECOURSE" CLAUSE PRESCRIBED BY SECTION 7 OF THE BILL OF LADING CONDITIONS WAS NOT SIGNED BY THE GOVERNMENT AS CONSIGNOR.

ORDINARILY, IN THE ABSENCE OF PROVISION OR STIPULATION TO THE CONTRARY, A CARRIER HAS THE RIGHT TO LOOK FOR ITS COMPENSATION FOR ITS SERVICES IN TRANSPORTING GOODS TO THE PERSON WHO DELIVERED THE GOODS TO THE CARRIER, AND THAT PERSON IS GENERALLY THE SHIPPER NAMED IN THE BILL OF LADING, OR THE CONSIGNOR. LOUISVILLE AND N.R. CO. V. CENTRAL IRON AND COAL CO., 265 U.S. 59 (1924); WABASH RY. CO. V. HORN, 40 F.2D 905 (1930); ATCHISON, T. AND S.F.R. CO. V. STANNARD, 162 P. 1176 (1917). HOWEVER, THE DELIVERY OF GOODS TO A CARRIER FOR TRANSPORTATION DOES NOT, UNDER THE INTERSTATE COMMERCE ACT, IMPOSE UPON THE CONSIGNOR AN ABSOLUTE OBLIGATION TO PAY THE FREIGHT CHARGES. LOUISVILLE AND N.R. CO. V. CENTRAL IRON AND COAL CO., CITED ABOVE, 13 AM.JR. 2D, CARRIERS SEC. 472. IN THE ABSENCE OF ANY STATUTORY PROHIBITION, A CONTRACT OF CARRIAGE MAY EMBODY A PROVISION THAT THE CONSIGNOR ASSUMES NO LIABILITY FOR THE PAYMENT OF FREIGHT CHARGES, AND THAT THE CARRIER IS TO LOOK FOR PAYMENT TO THE CONSIGNEE ALONE. SEE THE LOUISVILLE AND N.R. CO. V. CENTRAL IRON AND COAL CO., CASE ABOVE, AND PENNSYLVANIA R. CO. V. MARCELLETTI, 240 N.W. 4 (1932). THUS, WE SEE THAT AN INTERSTATE CARRIER AND SHIPPER ARE FREE TO CONTRACT REGARDING WHEN AND BY WHOM PAYMENT OF FREIGHT CHARGES IS TO BE MADE. NEW YORK CENTRAL R. CO. V. TRANSAMERICAN PETROLEUM CORP., 108 F.2D 994 (1940). AND THE SHIPPER MAY BY CONTRACT WITH THE CARRIER ABSOLVE HIMSELF FROM ANY LIABILITY FOR FREIGHT CHARGES. CHICAGO GREAT WESTERN RY. CO. V. HOPKINS, 48 F.SUPP. (1942).

THE RECORD SHOWS THAT THE PROPERTY PURCHASED BY V AND B AIRCRAFT SALES WAS SHIPPED ON A NON-NEGOTIABLE STRAIGHT BILL OF LADING ISSUED BY EASTERN EXPRESS, INC., DATED OCTOBER 2, 1959, WHICH SHOWS THE SHIPPER'S NO. AS "COLLECT 4889.' THE BILL OF LADING SHOWS THAT THE PROPERTY WAS CONSIGNED TO V AND B AIRCRAFT SALES AND THE DESTINATION AS 8619 W. 3RD STREET, LOS ANGELES 48, CALIFORNIA. BOTH THE ORIGINAL AND MEMORANDUM COPIES OF THE BILL OF LADING BEAR THE TYPED STATEMENT-- "FREIGHT COLLECT" AND THE STAMPED IMPRESSION--- "THE GOVERNMENT IS NOT RESPONSIBLE FOR TRANSPORTATION OR ANY OTHER CHARGES DUE THE CARRIER.' IN VIEW OF THE RUBBER STAMP NOTATION ON THE BILL OF LADING AS TO PAYMENT, ANY INFERENCE OF A SHIPPER'S PROMISE TO PAY FREIGHT CHARGES IS REBUTTED IN THIS INSTANCE BY THE NOTATION SHOWING THAT THE SHIPPER DID NOT ASSUME ANY LIABILITY WHATSOEVER. NEW YORK CENTRAL R. CO. V. BUCK, 41 P.2D 547, 549 (1935); SOUTHERN PACIFIC CO. V. UNITED STATES, 93 F.SUPP. 411, 413 (1950).

ACCORDINGLY, THE SETTLEMENT CERTIFICATE OF OCTOBER 1, 1962, DISALLOWING YOUR CLIENT'S CLAIM FOR $923.38 APPEARS CORRECT AND IS SUSTAINED.