B-145308, AUG. 14, 1961

B-145308, AUG. 14, 1961

TO GILLETTE MOTOR TRANSPORT, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 7, 1961, FILE GMT OC CLAIM G-0041, REQUESTING REVIEW OF THE SETTLEMENT CERTIFICATE OF FEBRUARY 6, 1961, WHICH DISALLOWED YOUR CLAIM FOR $282.63 ADDITIONAL CHARGES ON SUPPLEMENTAL BILL 91/5/7-A, AND OF THE UNITED STATES GENERAL ACCOUNTING OFFICE NOTICE OF OVERCHARGE, FORM 1003, FOR $496.50 ISSUED IN CONNECTION WITH THE INVOLVED SHIPMENT UNDER GOVERNMENT BILL OF LADING AF-7288198, DATED APRIL 18, 1957. THIS SHIPMENT CONSISTED OF ONE INTERNAL COMBUSTION ENGINE, JET PROPULSION TYPE, WEIGHT 8,365 POUNDS, TRANSPORTED FROM SAN DIEGO, CALIFORNIA, TO TINKER AIR FORCE BASE, OKLAHOMA CITY, OKLAHOMA. FOR SUCH TRANSPORTATION SERVICE, YOU BILLED ON THE BASIS OF EXCLUSIVE USE OF VEHICLE AND WERE PAID $1,308.83. SUBSEQUENTLY, $282.83 WAS RECOVERED BY DEDUCTION MAKING A NET PAYMENT TO YOU OF $1,026. SINCE THE CORRECT CHARGES COMPUTED ON A LESS-THAN-TRUCKLOAD RELEASED VALUATION RATE OF $6.33 PER 100 POUNDS ON THE ACTUAL WEIGHT OF 8,365 POUNDS AMOUNTED TO $529.50, A NOTICE OF OVERCHARGE WAS ISSUED FOR THE DIFFERENCE BETWEEN SUCH CHARGE AND THE NET AMOUNT PAID YOU OR $496.50.

YOU CONTEND THAT THE SIGNATURE OF THE RECEIVING OFFICER UPON THE BILL OF LADING AND YOUR FREIGHT BILL IS SUFFICIENT TO SHOW THAT EXCLUSIVE USE OF VEHICLE SERVICE WAS REQUESTED AND WAS RENDERED. TO SUPPORT YOUR POSITION YOU CALL ATTENTION TO OUR REGULATIONS (5 GAO 3065.10) WHICH PROVIDE, IN PART,"WHERE ACCESSORIAL OR SPECIAL SERVICES ARE SHOWN AS ORDERED BUT WERE NOT FURNISHED, THE BILL OF LADING SHALL BE SO ANNOTATED" AND CONTEND THAT THE ABSENCE OF SUCH NOTATION, ON THE BILL OF LADING, IS TANTAMOUNT TO AN ADMISSION THAT THE EXCLUSIVE USE OF VEHICLE SERVICE WAS RENDERED.

ALTHOUGH OUR RECORDS SHOW THAT EXCLUSIVE USE OF THE VEHICLE WAS REQUESTED, THERE IS NO EVIDENCE THAT EXCLUSIVE USE OF THE VEHICLE WAS FURNISHED. THE COURTS HAVE HELD THAT THE BURDEN IS AT ALL TIMES ON THE CARRIER TO ESTABLISH THAT IT IS LAWFULLY ENTITLED TO THE CHARGES CLAIMED IN ITS ORIGINAL BILL, WHICH WAS PAID UPON PRESENTATION, AND BEFORE AUDIT, PURSUANT TO THE PROVISIONS OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66. UNITED STATES V. NEW YORK, NEW HAVEN AND HARTFORD R.CO., 355 U.S. 253; BENJAMIN MOTOR EXPRESS INC. V. UNITED STATES, 251 F.2D 47; AND UNITED STATES V. MISSOURI PACIFIC R.CO., 250 F.2D 805, REHEARING DENIED 254 F.2D 598, CERTIORARI DENIED 358 U.S. 821. FURTHERMORE, SECTION 3065.10 OF OUR POLICY AND PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES (5 GAO 3065.10) TO WHICH YOU REFER, WAS INCORPORATED INTO OUR MANUAL BY TRANSMITTAL SHEET NO. 5-4 AND BECAME EFFECTIVE OCTOBER 12, 1959. SINCE THE CITED PROVISION WAS NOT APPLICABLE UNTIL A DATE APPROXIMATELY TWO AND ONE HALF YEARS AFTER THIS SHIPMENT WAS MOVED, IT DOES NOT AFFECT IN ANY WAY YOUR ENTITLEMENT TO THE EXCLUSIVE-USE CHARGES. ALSO, WHILE THE CERTIFICATE OF THE CONSIGNEE, ON YOUR DELIVERY RECEIPT AND ON THE BILL OF LADING THAT THE PUBLIC PROPERTY INVOLVED WAS RECEIVED IN GOOD ORDER ESTABLISHES THAT THE GOODS WERE TRANSPORTED, IT OBVIOUSLY DOES NOT SHOW THAT NO OTHER FREIGHT WAS LOADED INTO THE VEHICLE USED SO AS REASONABLY TO ESTABLISH THAT EXCLUSIVE-USE SERVICE WAS ACCORDED THE SHIPMENT. IN THIS CONNECTION, A REPORT OF THE DEPARTMENT OF THE ARMY IS TO THE EFFECT THAT "IT CANNOT DEFINITELY BE STATED WHETHER OR NOT EXCLUSIVE USE WAS FURNISHED.'

ACCORDINGLY, AND SINCE ON THE BASIS OF THE PRESENT RECORD THERE IS NO SATISFACTORY PROOF TO ESTABLISH THAT EXCLUSIVE USE OF THE VEHICLE WAS FURNISHED THE GOVERNMENT, WE MUST SUSTAIN TH DISALLOWANCE OF YOUR CLAIM AND REQUEST A REFUND OF $496.50. HOWEVER, IF YOU ARE ABLE TO FURNISH EVIDENCE--- IN THE FORM OF CERTIFIED COPIES OF THE CARRIER'S RECORDS MADE CONTEMPORANEOUSLY AT THE TIME OF SHIPMENT, OR OTHERWISE--- WHICH REASONABLY ESTABLISHES THAT EXCLUSIVE USE OF VEHICLE WAS FURNISHED FOR THE MOVEMENT, THAT IS, THAT NO OTHER FREIGHT WAS TRANSPORTED ON THE VEHICLE ON WHICH THE SHIPMENT MOVED, FROM POINT OF ORIGIN TO DESTINATION, WE WILL GIVE FURTHER CONSIDERATION TO YOUR CLAIM FOR ADDITIONAL CHARGES BASED ON THE FURNISHING OF THE EXCLUSIVE USE OF VEHICLE TO PERFORM THE TRANSPORTATION SERVICES. IF COPIES OF THE RECORD SUBMITTED ARE SUCH THAT AN EXPLANATION THEREOF IS NECESSARY TO ESTABLISH THAT EXCLUSIVE USE WAS FURNISHED FOR THE FULL DISTANCE FROM POINTS OF ORIGIN TO DESTINATION, SUCH EXPLANATION SHOULD ACCOMPANY THE DOCUMENTARY EVIDENCE RELIED UPON.