B-151092, JUL. 26, 1963

B-151092: Jul 26, 1963

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B. JAMES FREIGHT LINES: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 27. FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES OF $284 COMPUTED ON A COMBINATION OF RATES OF $1.42 PER 100 POUNDS ON A MINIMUM WEIGHT OF 20. IN OUR AUDIT OF THE PAYMENT VOUCHER IT WAS CONSIDERED THAT THE APPLICABLE CHARGES SHOULD BE $66.40 COMPUTED ON THE BASIS OF A RATE OF $1.66 PER 100 POUNDS ON A MINIMUM WEIGHT OF 4. WHICH AMOUNT WAS COLLECTED BY DEDUCTION FROM AMOUNTS OTHERWISE DUE YOUR COMPANY. IT IS YOUR CONTENTION THAT THE COMMODITY SHIPPED WAS . " NOT RUBBER FUEL CELLS AND THAT HCT TARIFF NO. 2 IS NOT APPLICABLE. THE BILL OF LADING DESCRIBES THE SHIPMENT AS "FUEL TANKS" AND OUR BASIS OF CHARGES IS PREDICATED UPON THE DESCRIPTION SHOWN IN CONSOLIDATED FREIGHT CLASSIFICATION NO. 17.

B-151092, JUL. 26, 1963

TO A. B. JAMES FREIGHT LINES:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 27, 1963, FILE N-460/48 UC- 144 153244 TK709480, WITH ENCLOSURES, REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE OF JULY 26, 1961, WHICH DISALLOWED YOUR CLAIM (OUR CLAIM TK709480) FOR $100.80 ADDITIONAL FREIGHT CHARGES ON A SHIPMENT OF GOVERNMENT PROPERTY. THE SHIPMENT CONSISTED OF 32 CRATES OF "FUEL TANKS" WEIGHING 3,360 POUNDS WHICH MOVED FROM NAVAL AIR STATION, ALAMEDA, CALIFORNIA, TO NAVAL AIR STATION, NORTH ISLAND, CALIFORNIA, UNDER GOVERNMENT BILL OF LADING N-22217169, DATED DECEMBER 3, 1947.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES OF $284 COMPUTED ON A COMBINATION OF RATES OF $1.42 PER 100 POUNDS ON A MINIMUM WEIGHT OF 20,000 POUNDS. IN OUR AUDIT OF THE PAYMENT VOUCHER IT WAS CONSIDERED THAT THE APPLICABLE CHARGES SHOULD BE $66.40 COMPUTED ON THE BASIS OF A RATE OF $1.66 PER 100 POUNDS ON A MINIMUM WEIGHT OF 4,000 POUNDS, SUCH BASIS BEING PROVIDED IN CALIFORNIA RAILROAD COMMISSION HIGHWAY CARRIERS' TARIFF NO. 2. THE APPLICATION OF THIS BASIS RESULTED IN AN OVERCHARGE OF $217.60, WHICH AMOUNT WAS COLLECTED BY DEDUCTION FROM AMOUNTS OTHERWISE DUE YOUR COMPANY. YOU RECLAIMED, BY SUPPLEMENTAL BILL NO. N-460/48 UC-144 153244, $100.80 OF THE AMOUNT DEDUCTED. IT IS YOUR CONTENTION THAT THE COMMODITY SHIPPED WAS ,TANKS, ALUMINUM," NOT RUBBER FUEL CELLS AND THAT HCT TARIFF NO. 2 IS NOT APPLICABLE, THE APPLICABLE RATE BEING PROVIDED IN YOUR TENDER DATED NOVEMBER 8, 1947.

THE BILL OF LADING DESCRIBES THE SHIPMENT AS "FUEL TANKS" AND OUR BASIS OF CHARGES IS PREDICATED UPON THE DESCRIPTION SHOWN IN CONSOLIDATED FREIGHT CLASSIFICATION NO. 17, I.C.C.-O.C. NO. 61 UNDER THE GENERIC HEADING (ITEM 41560) "TANKS" AND THE RATINGS IN ITEM 41638 FOR "FUEL OR OIL CELLS * * *.' MOREOVER, THERE IS EVIDENCE OF RECORD IN THE FORM OF A MEMORANDUM BEARING THE LETTERHEAD OF YOUR COMPANY AND WRITTEN IN CONNECTION WITH BILL OF LADING N-22217169 WHICH STATES ,THESE WERE RUBBER FUEL CELLS IN CRATES OF UNEVEN SIZES AND FILLED THE TRUCK TO THE LEGAL LIMIT.' IN VIEW OF THIS MEMORANDUM, APPARENTLY WRITTEN BY AN AGENT OF YOUR COMPANY AND SINCE YOU OFFER NO EVIDENCE TO SHOW THAT THE COMMODITY IS OTHER THAN AS DESCRIBED IN THIS MEMORANDUM AND AS SHOWN ON THE BILL OF LADING, IT APPEARS WE ARE JUSTIFIED IN RATING THE COMMODITY AS RUBBER FUEL CELLS. IN THIS CONNECTION, THE BURDEN IS UPON CLAIMANTS TO PRESENT EVIDENCE SATISFACTORILY PROVING THEIR CLAIMS AND ALL MATTERS INCIDENTAL THERETO REQUISITE TO ESTABLISH THE CLEAR LIABILITY OF THE UNITED STATES AND THE CLAIMANT'S RIGHT TO PAYMENT UNDER THE APPROPRIATIONS INVOLVED. UNITED STATES V. NEW YORK, N.H. AND H.R. CO., 355 U.S. 253 (1957), 17 COMP. GEN. 831, 18 ID. 980, 37 ID. 535.

IN CONNECTION WITH THE RATES APPLICABLE TO THE SUBJECT SHIPMENT, YOU CONTEND THAT RATES IN HCT TARIFF NO. 2 ARE NOT APPLICABLE. IN OUR DECISION OF DECEMBER 26, 1961, B-146612, B-146633, WHICH DECISION YOU HAVE CITED IN YOUR REQUEST FOR REVIEW, WE INDICATED THAT SHIPMENTS MOVING WHOLLY WITHIN THE STATE OF CALIFORNIA ON AND AFTER NOVEMBER 8, 1947, ARE PROPERLY RATED IN ACCORDANCE WITH YOUR TENDER OF THAT DATE RATHER THAN THE TENDER OF MAY 12, 1947. THE CHARGES PROVIDED IN YOUR QUOTATION OF NOVEMBER 8, 1947, WHICH YOU AGREE IS THE APPLICABLE QUOTATION, APPLYING FROM ALAMEDA, CALIFORNIA, TO NORTH ISLAND, CALIFORNIA, ARE DETERMINED BY CONSTRUCTING A COMBINATION OF RATES OVER SAN DIEGO, CALIFORNIA. THIS COMBINATION OF RATES IS $2.09 PER 100 POUNDS MADE USING THE FIRST CLASS RATES OF $1.66 PER 100 POUNDS TO SAN DIEGO AND 43 CENTS PER 100 POUNDS BEYOND TO NORTH ISLAND.

ACCORDINGLY, WE ARE AUTHORIZING OUR TRANSPORTATION DIVISION TO RECOMPUTE THE CHARGES FOR THIS SHIPMENT IN ACCORDANCE WITH THE FOREGOING. YOU WILL RECEIVE NOTICE OF SETTLEMENT MAKING AN APPROPRIATE ALLOWANCE IN DUE COURSE.