B-122853, SEP. 11, 1957

B-122853: Sep 11, 1957

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INC.: REFERENCE IS MADE TO YOUR LETTER OF APRIL 15. FOR THE SERVICES INVOLVED YOU BILLED AND WERE PAID ON THE MEASUREMENT TON BASIS. IS IN ERROR IN THAT WE DID NOT TAKE INTO ACCOUNT THE OVERAGE OF 10. ARE INSTRUCTING OUR TRANSPORTATION DIVISION TO ISSUE AN AMENDED NOTICE OF OVERPAYMENT WHICH WILL REFLECT THE CHARGES FOR THE ACTUAL WEIGHT FREIGHTED. WHICH WAS QUOTED IN LIEU OF A PUBLISHED TARIFF BY YOUR COMPANY. WHEN THERE IS A CONFLICT BETWEEN THE CONTENTIONS OF THE CLAIMANT AND THE REPORT OF THE ADMINISTRATIVE OFFICE CONCERNED. - AS THERE IS HERE. - THE NECESSARY RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT IS TO ACCEPT THE REPORT OF THE ADMINISTRATIVE OFFICE AS CORRECT. WE DO NOT CONSIDER THE STATEMENT OF THE RATE ON THE BILL OF LADING AS CONCLUSIVE EVIDENCE CONTRARY TO THE ADMINISTRATIVE REPORT SINCE THE WRONG UNIT BASIS COULD HAVE BEEN PLACED ON THE BILL OF LADING THROUGH CLERICAL ERROR.

B-122853, SEP. 11, 1957

TO ISBRANDTSEN COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 15, 1957, FILE TD/TDS-339, CONCERNING AN OVERPAYMENT STATED AGAINST YOUR COMPANY FOR $9,953.91, IN CONNECTION WITH A SHIPMENT OF FUEL OIL LOADED ABOARD THE S.S. FLYING ARROW, VOYAGE 8, AT NORFOLK, VIRGINIA, FOR TRANSPORTATION TO THE FORT OF PRAIA, TERCEIRA, AZORES, UNDER GOVERNMENT BILL OF LADING NO. N-14141082, DATED AUGUST 11, 1950. THIS OVERPAYMENT REPRESENTS THE DIFFERENCE BETWEEN THE FREIGHT COMPUTED AT $24 A MEASUREMENT TON, THE BASIS ASSERTED BY YOU AND SHOWN ON THE BILL OF LADING, AND THE FREIGHT COMPUTED AT $24 A LONG TON, THE BASIS ASSERTED BY THE GOVERNMENT.

FOR THE SERVICES INVOLVED YOU BILLED AND WERE PAID ON THE MEASUREMENT TON BASIS, WHICH PRODUCED CHARGES OF $28,168.20. IN OUR AUDIT WE FOUND THE APPLICABLE CHARGES TO BE $18,214.29, COMPUTED BY USE OF THE LONG-TON BASIS ON A WEIGHT OF 1,700,000 POUNDS. THIS FIGURE, HOWEVER, IS IN ERROR IN THAT WE DID NOT TAKE INTO ACCOUNT THE OVERAGE OF 10,200 POUNDS NOTED ON THE BILL OF LADING. WE, THEREFORE, ARE INSTRUCTING OUR TRANSPORTATION DIVISION TO ISSUE AN AMENDED NOTICE OF OVERPAYMENT WHICH WILL REFLECT THE CHARGES FOR THE ACTUAL WEIGHT FREIGHTED, 1,710,200 POUNDS.

YOU CONTEND THAT YOUR COMPANY AND THE MILITARY SEA TRANSPORTATION SERVICE CONTRACTED FOR A RATE OF $24 A MEASUREMENT TON, AS EVIDENCED BY THE BILL OF LADING. HOWEVER, THE COMMANDER, MILITARY SEA TRANSPORTATION SERVICE, WASHINGTON, D.C., STATED IN A LETTER ADDRESSED TO OUR OFFICE THAT THE INVOLVED CARGO MOVED AT A RATE OF $24 A LONG TON, IN ACCORDANCE WITH AMERICAN WEST AFRICAN EASTBOUND FREIGHT TARIFF NO. 3, APPENDIX A, WHICH WAS QUOTED IN LIEU OF A PUBLISHED TARIFF BY YOUR COMPANY. WHEN THERE IS A CONFLICT BETWEEN THE CONTENTIONS OF THE CLAIMANT AND THE REPORT OF THE ADMINISTRATIVE OFFICE CONCERNED--- AS THERE IS HERE--- THE NECESSARY RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT IS TO ACCEPT THE REPORT OF THE ADMINISTRATIVE OFFICE AS CORRECT, IN THE ABSENCE OF CONCLUSIVE EVIDENCE TO THE CONTRARY. WE DO NOT CONSIDER THE STATEMENT OF THE RATE ON THE BILL OF LADING AS CONCLUSIVE EVIDENCE CONTRARY TO THE ADMINISTRATIVE REPORT SINCE THE WRONG UNIT BASIS COULD HAVE BEEN PLACED ON THE BILL OF LADING THROUGH CLERICAL ERROR, AND A BILL OF LADING CONTAINING PROVISIONS DIFFERING FROM A PRIOR AGREEMENT AS TO FREIGHT DOES NOT ALTER THE PRIOR AGREEMENT UNLESS THE SHIPPER EXPRESSLY AGREES TO THE CHANGE.

ACCORDINGLY, WE COULD NOT JUSTIFIABLY RELINQUISH THE GOVERNMENT'S CLAIM SOLELY UPON THE BILL OF LADING RECORD. WE ARE, HOWEVER, AS ALWAYS, WILLING TO DISCUSS MATTERS OF THIS KIND. REPRESENTATIVES OF OUR OFFICE CAN BE MADE AVAILABLE FOR CONFERENCE ANY WORKDAY, MONDAY THROUGH FRIDAY, BETWEEN 9:00 A.M. AND 4:00 P.M., IF YOU NOTIFY US REASONABLY IN ADVANCE OF YOUR INTENDED ARRIVAL.