B-148601, JUN. 26, 1962

B-148601, JUN. 26, 1962

TO DENVER CHICAGO TRUCKING COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 31, 1962, IN WHICH YOU REQUEST REVIEW OF OUR SETTLEMENT CERTIFICATE OF NOVEMBER 3, 1961, DISALLOWING YOUR CLAIM UNDER BILL NO. 6914-A FOR $1,030.86. THE CLAIM IS BASED ON EXCLUSIVE USE OF VEHICLE SERVICE IN THE TRANSPORTATION OF A SHIPMENT CONSISTING OF 5 REELS OF CABLE, ELECTRIC, COPPER, LEAD COVERED, FROM GENERAL CABLE CORPORATION, MONTICELLO, ILLINOIS, TO EDWARDS AIR FORCE BASE, CALIFORNIA, ON GOVERNMENT BILL OF LADING NO. AF-5138645, DATED FEBRUARY 27, 1957.

IN YOUR LETTER YOU STATE THAT THE BILL OF LADING IN QUESTION WAS NOT ANNOTATED BY THE CONSIGNEE AS PRESCRIBED BY THE CONDITIONS AND INSTRUCTIONS ON THE REVERSE SIDE THEREOF, REQUIRING THAT WHERE SPECIAL SERVICES ARE SHOWN AS ORDERED BUT NOT PERFORMED, THE BILL OF LADING SHOULD BE SO ANNOTATED. THE CLAUSE TO WHICH YOU REFER WAS NOT PRINTED ON THE BACK OF THE BILL ON WHICH THE INSTANT SHIPMENT MOVED IN 1957 AND THE ANNOTATION REFERRED TO WAS NOT REQUIRED AT THAT TIME. THIS CLAUSE DID NOT BECOME PART OF THE CONDITIONS AND INSTRUCTIONS APPEARING ON GOVERNMENT BILLS OF LADING UNTIL OCTOBER 23, 1959, WHEN A REVISED FORM OF BILL OF LADING BECAME EFFECTIVE. SEE 24 F.R. 8599.

THE POSITION OF OUR OFFICE REGARDING EXCLUSIVE USE OF VEHICLE SERVICE SINCE THE T.I.M.E. CASE; TO WHICH YOU REFER, 359 U.S. 464, IS THAT CERTAIN CONDITIONS MUST BE MET BY THE CARRIER BY WAY OF PROOF THAT THE SERVICE WAS ACTUALLY REQUESTED AND FURNISHED BEFORE ALLOWING CHARGES BASED ON THIS SERVICE. BRIEFLY, THESE CONDITIONS REQUIRE (1) SUBSTANTIAL COMPLIANCE WITH EXCLUSIVE USE OF VEHICLE TARIFF OR QUOTATION REQUIREMENTS AS TO BILL OF LADING ANNOTATIONS, AND (2) PROOF OF PERFORMANCE OF EXCLUSIVE USE OF VEHICLE SERVICE. THE PURPOSE OF INSISTING ON ADHERENCE TO SUCH CONDITIONS PRECEDENT TO THE ALLOWANCE OF THESE CHARGES IS TO SATISFY OURSELVES IN THE AUDIT THAT THE SERVICE WAS PROPERLY AUTHORIZED AND ORDERED AND THAT THE GOVERNMENT PAID ONLY FOR THE SERVICE ACTUALLY ORDERED AND FURNISHED. OUR POSITION THAT THE CARRIER HAS THE BURDEN OF PROVING ITS ENTITLEMENT TO FREIGHT CHARGES HAS ITS ORIGIN IN THE CASES OF LONGWILL V. UNITED STATES, 17 CT.CL. 288 (1881), AND CHARLES V. UNITED STATES, 19 CT.CL. 316 (1884). THE UNITED STATES SUPREME COURT RECOGNIZED THE VALIDITY OF THIS POSITION WHEN IT CITED THE CHARLES CASE IN UNITED STATES V. NEW YORK, N.H. AND H.R.CO., 355 U.S. 253, 262 (1957), AND HELD THAT THE BURDEN IS ON THE CARRIER TO ESTABLISH THE CORRECTNESS OF ITS CHARGES, WHEN THE CARRIER SEEKS TO RECOVER CHARGES ORIGINALLY PAID AND ADJUSTED PURSUANT TO THE PROVISIONS OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 54 STAT. 955, 49 U.S.C. 66.

IN THIS CASE SINCE THERE IS A NOTATION SUBSTANTIALLY THE EQUIVALENT OF THE FORM PRESCRIBED IN THE EXCLUSIVE USE PROVISION OF THE APPLICABLE TARIFF PLACED ON THE BILL OF LADING, WE AGREE THAT PREMIUM SERVICE WAS REQUESTED, BUT THE RECORD FAILS TO SHOW ANY EVIDENCE THAT EXCLUSIVE USE SERVICE WAS ACTUALLY PERFORMED. USUALLY, EITHER THE COMPLETION ON THE BILLS OF LADING OF THE CERTIFICATE OF SERVICE PRESCRIBED BY ADMINISTRATIVE OFFICE REGULATIONS, OR A SHOWING THAT THE SHIPMENT WAS SEALED AT ORIGIN AND ARRIVED AT DESTINATION WITH SEALS INTACT, IS SATISFACTORY EVIDENCE OF PERFORMANCE OF THE EXCLUSIVE USE SERVICE. ALSO TRUCK MANIFESTS, TRIP SHEETS, AND DRIVER'S LOGS ARE DOCUMENTS WHICH MIGHT SERVE TO ESTABLISH PROOF OF RENDITION OF EXCLUSIVE USE SERVICE. THIS SHIPMENT BORE NO SEALS, NO CERTIFICATION THAT THE SERVICE WAS PERFORMED IS AVAILABLE, NOR ARE THERE ANY DOCUMENTS WHICH MIGHT OTHERWISE ESTABLISH PROOF OF SERVICE. FURTHERMORE, THE FACT THAT THE ROUTING DIRECTIONS ON THE BILL OF LADING INDICATE THREE CARRIERS WERE TO PARTICIPATE IN THE PERFORMANCE OF THE TRANSPORTATION WOULD NECESSITATE PROOF THAT EXCLUSIVE USE SERVICE WAS ACTUALLY PERFORMED THROUGHOUT THE ROUTE OF MOVEMENT INCLUDING SUCH CARRIERS.

THEREFORE, IN THE ABSENCE OF ACCEPTABLE DOCUMENTARY PROOF THAT EXCLUSIVE USE PREMIUM SERVICE WAS ACTUALLY PERFORMED, THE SETTLEMENT OF NOVEMBER 13, 1961, IS SUSTAINED.