B-131938, JUL. 2, 1957

B-131938: Jul 2, 1957

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YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES IS BASED UPON THE HIGHER CARLOAD MINIMUM WEIGHT SPECIFIED IN RULE 34 OF THE CONSOLIDATED FREIGHT CLASSIFICATION NO. 20 FOR THE LARGER-THAN-STANDARD-SIZE BOX CAR FURNISHED BY THE INITIAL CARRIER AND USED BY THE SHIPPER. THE BILL OF LADING FAILS TO SHOW THAT A LARGER-THAN-STANDARD CAR WAS ORDERED FOR THIS SHIPMENT. WHICH PROVIDE THAT THE MINIMUM CARLOAD WEIGHT FOR A CAR OF THE SIZE USED WILL BE APPLIED. THE PRACTICE IS WELL ESTABLISHED THAT AN ORDER PLACED FOR A CAR WITHOUT DESIGNATION AS TO SIZE INDICATES THAT A CAR OF STANDARD SIZE IS DESIRED AND. IF A LARGER CAR IS FURNISHED. STATED THAT: "* * * IT IS NOT EQUITABLE OR PROPER TO REQUIRE THE WOULD BE SHIPPER TO PAY ADDITIONAL TRANSPORTATION CHARGES FOR THE PRIVILEGE OF USING A CAR OF DIFFERENT DIMENSIONS OR CAPACITY FROM THAT WHICH WOULD SUIT HIS SHIPMENTS OR FOREGO ENTIRELY HIS DESIRE TO SHIP.'.

B-131938, JUL. 2, 1957

TO THE VIRGINIAN RAILWAY COMPANY:

CONSIDERATION HAS BEEN GIVEN YOUR REQUEST UNDER FILE REFERENCE 6055 IT, FOR REVIEW OF THE DISALLOWANCE OF YOUR CLAIM FOR $355.45 AS A PART OF THE CHARGES ALLEGED TO BE DUE FOR TRANSPORTING A SHIPMENT OF USED CONTRACTORS' EQUIPMENT FROM FLORAL, COLORADO, TO NORFOLK, VIRGINIA, FOR EXPORT, UNDER BILL OF LADING WW-9574957, IN MARCH 1951.

YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES IS BASED UPON THE HIGHER CARLOAD MINIMUM WEIGHT SPECIFIED IN RULE 34 OF THE CONSOLIDATED FREIGHT CLASSIFICATION NO. 20 FOR THE LARGER-THAN-STANDARD-SIZE BOX CAR FURNISHED BY THE INITIAL CARRIER AND USED BY THE SHIPPER. THE BILL OF LADING FAILS TO SHOW THAT A LARGER-THAN-STANDARD CAR WAS ORDERED FOR THIS SHIPMENT. SUPPORT OF YOUR CLAIM YOU CITE SECTIONS 4 AND 7 OF RULE 34, WHICH PROVIDE THAT THE MINIMUM CARLOAD WEIGHT FOR A CAR OF THE SIZE USED WILL BE APPLIED, IN THE ABSENCE OF AN ORDER BY THE SHIPPER FOR A CAR OF A PARTICULAR SIZE.

ON GOVERNMENT SHIPMENTS, HOWEVER, THE PRACTICE IS WELL ESTABLISHED THAT AN ORDER PLACED FOR A CAR WITHOUT DESIGNATION AS TO SIZE INDICATES THAT A CAR OF STANDARD SIZE IS DESIRED AND, IF A LARGER CAR IS FURNISHED, IT MUST BE REGARDED AS FURNISHED FOR THE CONVENIENCE OF THE CARRIER, UNLESS REQUIRED FOR THE SHIPMENT. SEE 24 COMP. DEC. 48 (7/21/17), AND 19 COMP. GEN. 730. REGARDING THE PUBLISHING OF GRADUATED MINIMUM WEIGHTS FOR CARS OF VARYING DIMENSIONS, THE INTERSTATE COMMERCE COMMISSION, IN RULE 66 (A) OF ITS TARIFF CIRCULAR NO. 20, STATED THAT:

"* * * IT IS NOT EQUITABLE OR PROPER TO REQUIRE THE WOULD BE SHIPPER TO PAY ADDITIONAL TRANSPORTATION CHARGES FOR THE PRIVILEGE OF USING A CAR OF DIFFERENT DIMENSIONS OR CAPACITY FROM THAT WHICH WOULD SUIT HIS SHIPMENTS OR FOREGO ENTIRELY HIS DESIRE TO SHIP.'

SEE ALSO BORDEN BRICK AND TILE CO. V. ATLANTIC COAST LINE R. CO. 198 I.C.C. 232.

THERE IS NO INDICATION IN THE RECORD OF THE SHIPMENT INVOLVED IN THIS CASE THAT THE SHIPMENT COULD NOT HAVE BEEN LOADED IN A CAR OF STANDARD SIZE. THE BURDEN IS ON THE CLAIMANT TO PROVE HIS CLAIM AND ALL MATTERS INCIDENTAL THERETO NECESSARY TO ESTABLISH THE CLEAR LIABILITY OF THE UNITED STATES. SEE 18 COMP. GEN. 980; 17 ID. 831. THE RECORD IN THIS CASE IS NOT SUFFICIENT TO PROVE THE LIABILITY OF THE UNITED STATES FOR THE ADDITIONAL FREIGHT CHARGES CLAIMED.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE DISALLOWANCE BY OUR TRANSPORTATION DIVISION OF YOUR CLAIM FOR THESE ADDITIONAL CHARGES IS SUSTAINED.