B-143422, JAN. 25, 1961

B-143422, JAN. 25, 1961

TO TRANSCON LINES:

FURTHER REFERENCE IS MADE TO YOUR REQUESTS FOR REVIEW OF NINE (9) OF OUR SETTLEMENT CERTIFICATES WHICH DISALLOWED YOUR CLAIMS FOR ADDITIONAL FREIGHT CHARGES ON VARIOUS SHIPMENTS OF GOVERNMENT PROPERTY ALLEGEDLY ACCORDED EXCLUSIVE USE OF VEHICLE SERVICE.

ON THE BASIS OF OUR REVIEW WE HAVE INSTRUCTED OUR TRANSPORTATION DIVISION TO RECOMPUTE THE CHARGES IN ACCORDANCE WITH THE APPLICABLE EXCLUSIVE USE TARIFF PROVISIONS AND NOTICES OF THE REVISED SETTLEMENTS WILL REACH YOU IN DUE COURSE ON FOUR CLAIMS AS FOLLOWS:

TABLE

YOUR CLAIM NO. OUR CLAIM NO. AMOUNT

14368 TK-680008 $ 599.25

13928 TK-680012 1,267.04

13265 TK-6800291,173.95

14115 TK-680122 1,198.50

YOUR CLAIM NO. 14129, OUR TK-680108, WILL BE ALLOWED IN PART AND OUR NOTICE OF REVISED SETTLEMENT WILL ISSUE IN THE NEAR FUTURE. CLAIM NO. TK- 680108 COVERS A SHIPMENT OF THREE (3) INTERNAL COMBUSTION JET PROPULSION TYPE AIRCRAFT ENGINES MOUNTED ON TRAILERS, MOVING UNDER GOVERNMENT BILL OF LADING AF-5303799, DATED JANUARY 10, 1957. THE BILL OF LADING INDICATES THAT TWO 35-FOOT VANS WERE USED; THEY WERE SEALED AT ORIGIN AND THERE IS NO INDICATION THAT THE SEALS WERE BROKEN. HEADQUARTERS, CENTRAL TRAFFIC REGION, MILITARY TRAFFIC MANAGEMENT AGENCY, INFORMS US THAT TWO ENGINES WERE LOADED IN VAN 6405 AND ONE ENGINE WAS LOADED ON VAN 6460. THE TWO ENGINES SO LOADED OCCUPIED THE SPACE IN VAN 6405 AND A THIRD ENGINE COULD NOT BE LOADED THEREIN. THE INTERSTATE COMMERCE COMMISSION HELD IN CURTIS LIGHTING, INC. V. MID STATES FREIGHT LINES, 303 I.C.C. 576, 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-- AND THEREFORE THE TARIFF PROVISION AUTHORIZING PREMIUM CHARGES FOR EXCLUSIVE USE OF VEHICLE SERVICE WOULD BE INAPPLICABLE, APART FROM ANY QUESTION OF REASONABLENESS. IN SUCH A CASE THE APPLICABLE CHARGES WOULD BE THOSE DERIVED BY USE OF THE TRUCKLOAD RATE AND MINIMUM WEIGHT. SINCE IT APPEARS, HOWEVER, THAT THE SECOND VAN WHICH CONTAINED ONE ENGINE (OCCUPYING LESS THAN THE FULL CAPACITY OF THE VAN), WAS GIVEN EXCLUSIVE USE SERVICE, THE CHARGES FOR THAT PART OF THE SHIPMENT ARE ALLOWABLE ON AN EXCLUSIVE USE BASIS.

CLAIM NO. TK-680041 INVOLVES BOMB FIN ASSEMBLIES MOVING ON BILLS OF LADING AF-6786338, AF-6786339, AND AF-6786340, FROM TINKER AIR FORCE BASE (MIDWEST CITY), OKLAHOMA, TO CHINA LAKE, CALIFORNIA. THE CHARGES ON BILL OF LADING AF-6786340 WILL BE RECOMPUTED ON AN EXCLUSIVE USE BASIS AND OUR NOTICE OF REVISED SETTLEMENT WILL ISSUE IN THE NEAR FUTURE. BILLS OF LADING AF-6786338 AND AF-6786339 EACH COVERED 12 CRATES OF BOMB FIN ASSEMBLIES WEIGHING 27,120 POUNDS. YOU BILLED AND WERE PAID $1,484 ON EACH BILL OF LADING, BASED ON THE EXCLUSIVE USE OF VEHICLE PROVISIONS IN ITEM 935 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU TRANSCONTINENTAL TERRITORIAL DIRECTORY NO. 20-A, MF-I.C.C. NO. 79. IN THE AUDIT OF THESE BILLS WE DETERMINED THE CORRECT CHARGES TO BE $1,228.54 PER LOAD BASED ON TRUCKLOAD RATE AND ACTUAL WEIGHT. THE OVERCHARGE OF $255.46 ON EACH SHIPMENT WAS DEDUCTED FROM AMOUNTS OTHERWISE DUE YOUR COMPANY AS AUTHORIZED IN 49 U.S.C. 66. HEADQUARTERS, CENTRAL TRAFFIC REGION, MILITARY TRAFFIC MANAGEMENT AGENCY, HAS INFORMED US THAT THE CRATES USED FOR THE PACKAGING OF THE BOMB FIN ASSEMBLIES COVERED BY BILLS OF LADING AF -6786338 AND AF 6786339 WERE 9 FEET 10 INCHES LONG, 3 FEET 11 INCHES WIDE, AND 3 FEET 6 INCHES HIGH; THAT THE 24 CRATES OF THE ASSEMBLIES HAD A TOTAL DISPLACEMENT OF 2,985.6 CUBIC FEET AND WEIGHED 54,240 POUNDS. IT WOULD SEEM, THEREFORE, THAT EACH TRUCK CARRIED 12 CRATES WEIGHING 27,120 POUNDS WHICH DISPLACED APPROXIMATELY 1,492.8 CUBIC FEET. IN EACH INSTANCE A 35- FOOT VAN WAS FURNISHED. THE MAJORITY OF VEHICLES OF THIS TYPE ARE UNDERSTOOD TO HAVE AN INTERIOR LOADING HEIGHT OF 8 FEET AND A WIDTH OF 7 FEET 8 INCHES, AND ONLY 12 CRATES OF THE REPORTED DIMENSIONS COULD BE LOADED IN A 35-FOOT VAN. SINCE THIS WOULD CONSTITUTE A CAPACITY LOAD UNDER THE ABOVE CURTIS LIGHTING CASE THE APPLICABLE CHARGES WERE COMPUTED ON THE BASIS OF THE TRUCKLOAD RATES AT ACTUAL WEIGHT, AND OUR SETTLEMENT DISALLOWING YOUR CLAIM IN THIS INSTANCE APPEARS CORRECT AND IS SUSTAINED.

CLAIM NO. TK-680044 COVERS A SHIPMENT OF 40 PACKAGES OF MISCELLANEOUS FREIGHT WEIGHING 7,132 POUNDS MOVING FROM GAIRD, ALABAMA, TO MIDWEST CITY, OKLAHOMA, UNDER GOVERNMENT BILL OF LADING NO. AF-6609107, DATED AUGUST 17, 1956. THE BILL OF LADING INDICATES THAT TWO VEHICLES WERE USED AND THAT BOTH WERE SEALED AT ORIGIN BY THE SHIPPER. THE ADMINISTRATIVE OFFICE FURNISHED US WITH COPIES OF PACKER'S WORKSHEETS IDENTIFYING EACH ITEM SHIPPED TOGETHER WITH COPIES OF YOUR FREIGHT BILLS. FREIGHT BILL NO. 06- 11299-A INDICATES THAT 39 PACKAGES WERE TRANSPORTED IN TRAILER NO. 152 AND FREIGHT BILL NO. 06 11299-B INDICATES THAT 1 PACKAGE, WEIGHING 1,365 POUNDS WAS SHIPPED IN TRAILER NO. 159. THERE IS AN ANNOTATION ON EACH FREIGHT BILL (PLACED THERE APPARENTLY BY THE ,CHECKER" AT DESTINATION) THAT THERE WAS "NO SEAL" ON EITHER OF THE VEHICLES USED WHEN THE SHIPMENTS WERE DELIVERED AT DESTINATION.

ENTITLEMENT TO PREMIUM CHARGES FOR EXCLUSIVE USE OF VEHICLE OF MOTOR CARRIERS IS DEPENDENT UPON TWO FACTORS: THERE MUST BE EVIDENCE OF A REQUEST FOR EXCLUSIVE USE BY THE SHIPPER, AND THERE MUST BE EVIDENCE OF PERFORMANCE OF THAT EXCLUSIVE USE SERVICE BY THE CARRIER. THE BURDEN OF PROVING ENTITLEMENT TO PREMIUM CHARGES FOR EXCLUSIVE USE SERVICE IS UPON THE CARRIER. IT IS THE CARRIER'S RESPONSIBILITY TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES TO PAY SUCH CHARGES. THIS BURDEN IS NOT AFFECTED BY THE FACT THAT PREVIOUSLY THE AMOUNT IN ISSUE MAY HAVE BEEN PAID CONDITIONALLY, SUBJECT TO LATER AUDIT AND COLLECTION ACTION BY THE GENERAL ACCOUNTING OFFICE PURSUANT TO SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66, AS AMENDED. SEE UNITED STATES V. NEW YORK, N.H. AND H. R.CO., 355 U.S. 253; NEW YORK, NEW HAVEN AND HARTFORD R.CO. V. UNITED STATES, 272 F.2D 333; BENJAMIN MOTOR EXPRESS V. UNITED STATES, 251 F.2D 547. IN OUR REVIEW OF THIS CLAIM (TK-680044) WE FIND THAT THERE IS EVIDENCE OF A REQUEST FOR EXCLUSIVE USE SERVICE OF AT LEAST ONE VEHICLE. A NOTATION TO THAT EFFECT ON BILL OF LADING NO. AF-6609107, WHILE NOT IN STRICT COMPLIANCE WITH THE PERTINENT TARIFF REQUIREMENTS, IS ACCEPTABLE AS SIGNIFYING A REQUEST FOR THE INDICATED SPECIAL SERVICE. WE NOTE THAT THE WORDS "FOR TWO VEHICLES," WHICH ARE A PART OF THE BILL OF LADING NOTATION, ARE TYPED WITH A DIFFERENT MACHINE, APPARENTLY AT A DIFFERENT TIME, AND FOLLOW THE COMPLETED SENTENCE "EXCLUSIVE VEHICLE SERVICE REQUESTED BY THE GOVERNMENT.' EVEN ADMITTING THAT THERE WAS A REQUEST FOR EXCLUSIVE USE SERVICE AS TO TWO VEHICLES, HOWEVER, YOU HAVE NOT DISCHARGED YOUR BURDEN OF PROVING THAT EXCLUSIVE USE SERVICE WAS FURNISHED, SINCE THE RELATED FREIGHT BILLS SHOW THAT NO SEALS WERE ON THE SHIPMENTS AT DESTINATION, AND THE SITUATION SUGGESTS THAT THE LADING WAS SHIFTED EN ROUTE BY THE CARRIERS INVOLVED. IN THESE CIRCUMSTANCES, THE LEGAL LIABILITY OF THE UNITED STATES FOR THE ADDITIONAL CHARGES CLAIMED ON BILL OF LADING AF- 6609107 HAS NOT BEEN ESTABLISHED, AND THE DISALLOWANCE OF YOUR CLAIMS FOR $546.99 ON YOUR SUPPLEMENTAL BILL NO. 7-C22 (9-6), IS SUSTAINED.

OUR CERTIFICATE OF SETTLEMENT IN CLAIM NO. TK-680040 WHICH DISALLOWED YOUR CLAIM OF $1,068, IS ALSO SUSTAINED. THE SHIPMENT CONSISTING OF 4 BOXES OF ENGINE PARTS WEIGHING 4,281 POUNDS MOVED ON A COMMERCIAL BILL OF LADING WHICH WAS CONVERTED TO GOVERNMENT BILL OF LADING AF-5251512 PRESUMABLY AT DESTINATION. THE COMMERCIAL BILL OF LADING IS NOT OF RECORD HERE AND THERE IS NO RECORD OF THE SHIPMENT BEING SEALED ON THE GOVERNMENT BILL OF LADING. IN THE ABSENCE OF SOME EVIDENCE ESTABLISHING THAT EXCLUSIVE USE SERVICE WAS ACTUALLY RENDERED WE WOULD NOT BE WARRANTED IN ALLOWING YOUR PRESENT CLAIM FOR PREMIUM CHARGES.

CLAIM NO. TK-680009 WILL BE PARTIALLY ALLOWED. THE CHARGES ON BILL OF LADING NO. N-30995537 WILL BE RECOMPUTED ON THE BASIS OF THE APPLICABLE EXCLUSIVE USE PROVISIONS, HOWEVER, IN THE ABSENCE OF EVIDENCE SUCH AS SEAL RECORDS, SHOWING THAT THE SAME SERVICE WAS RENDERED FOR THE SHIPMENT MOVING ON BILL OF LADING N-30997518, THE DISALLOWANCE OF YOUR CLAIM FOR PREMIUM CHARGES ON SUCH BILL OF LADING MUST BE SUSTAINED.

SETTLEMENTS IN ACCORDANCE WITH WHAT IS STATED ABOVE WILL ISSUE IN DUE COURSE.