B-155717, JUN. 18, 1965, 44 COMP. GEN. 799

B-155717: Jun 18, 1965

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THE RATE ALLOWABLE ON THE SHIPMENTS TRANSPORTED BY THE CARRIER IS THE LOWER TRUCKLOAD CHARGE AND. THE BEST EVIDENCE OF ACTUAL PERFORMANCE OF AUTHORIZED EXCLUSIVE USE SERVICES IS A SHOWING OF A CLEAR SEAL RECORD ON THE BILL OF LADING BY PROVING THE SHIPMENT WAS SEALED AT ORIGIN AND THAT THE SEALS WERE NOT BROKEN UPON ARRIVAL AT DESTINATION. SUCH DOCUMENTARY EVIDENCE AS WILL REASONABLY ESTABLISH THE FURNISHING OF EXCLUSIVE USE OF VEHICLE SERVICE WILL BE CONSIDERED TO DETERMINE THE ENTITLEMENT OF A CARRIER TO THE PREMIUM SERVICE RATE. IN THE ABSENCE OF A CLEAR SEAL RECORD TO ESTABLISH THAT AUTHORIZED EXCLUSIVE USE SERVICE ON GOVERNMENT SHIPMENTS WAS PERFORMED. THE PRIMARY DOCUMENTARY EVIDENCE THAT WILL BE CONSIDERED REASONABLE TO ESTABLISH THE FURNISHING OF PREMIUM SERVICE IS A CERTIFICATION ON THE BILL OF LADING IN ACCORDANCE WITH ADMINISTRATIVE REGULATIONS ISSUED BY THE SHIPPING AGENCY.

B-155717, JUN. 18, 1965, 44 COMP. GEN. 799

TRANSPORTATION - RATES - EXCLUSIVE USE OF VEHICLE - PROOF OF PREMIUM SERVICE. TRANSPORTATION - RATES - EXCLUSIVE USE OF VEHICLE - EVIDENCE WHERE A MOTOR CARRIER CLAIMING PREMIUM SERVICES RATES HAS NOT MET THE TWO CONDITIONS REQUIRED BY THE APPROPRIATE TARIFF--- A NOTATION ON THE BILL OF LADING INDICATING THE SHIPPER REQUESTED EXCLUSIVE USE OF VEHICLE SERVICE AND EVIDENCE THAT THE CARRIER PERFORMED THE SERVICE--- THE CARRIER HAVING FAILED TO ESTABLISH PERFORMANCE OF PREMIUM SERVICE FROM ORIGIN TO DESTINATION, THE RATE ALLOWABLE ON THE SHIPMENTS TRANSPORTED BY THE CARRIER IS THE LOWER TRUCKLOAD CHARGE AND, ALTHOUGH, THE BEST EVIDENCE OF ACTUAL PERFORMANCE OF AUTHORIZED EXCLUSIVE USE SERVICES IS A SHOWING OF A CLEAR SEAL RECORD ON THE BILL OF LADING BY PROVING THE SHIPMENT WAS SEALED AT ORIGIN AND THAT THE SEALS WERE NOT BROKEN UPON ARRIVAL AT DESTINATION, ABSENT A CLEAR SEAL RECORD, SUCH DOCUMENTARY EVIDENCE AS WILL REASONABLY ESTABLISH THE FURNISHING OF EXCLUSIVE USE OF VEHICLE SERVICE WILL BE CONSIDERED TO DETERMINE THE ENTITLEMENT OF A CARRIER TO THE PREMIUM SERVICE RATE. IN THE ABSENCE OF A CLEAR SEAL RECORD TO ESTABLISH THAT AUTHORIZED EXCLUSIVE USE SERVICE ON GOVERNMENT SHIPMENTS WAS PERFORMED, THE PRIMARY DOCUMENTARY EVIDENCE THAT WILL BE CONSIDERED REASONABLE TO ESTABLISH THE FURNISHING OF PREMIUM SERVICE IS A CERTIFICATION ON THE BILL OF LADING IN ACCORDANCE WITH ADMINISTRATIVE REGULATIONS ISSUED BY THE SHIPPING AGENCY, AND COPIES OF CARRIER'S RECORDS MADE CONTEMPORANEOUSLY WITH THE SHIPMENT SHOWING NO OTHER FREIGHT WAS TRANSPORTED ON THE TRUCK OR TRAILER IN WHICH THE SHIPMENT MOVED, OR RECORDS PREPARED BY CARRIERS IN THEIR NORMAL BUSINESS--- RECORD MANIFESTS, TRIP TICKETS AND REPORTS, DISPATCH SHEETS, AND OTHER DOCUMENTS DESCRIBING THE CARGO CARRIED ON THE TRUCK OR TRAILER OVER THE ENTIRE ROUTE OF MOVEMENT--- AND LACKING PRIMARY EVIDENCE, SECONDARY EVIDENCE, STATEMENTS BY PERSONS HAVING PERSONAL KNOWLEDGE OF THE FACTS OF A PARTICULAR SHIPMENT, WILL BE CONSIDERED.

TO MR. G. H. POSTELL, JUNE 18, 1965:

IN YOUR LETTER OF DECEMBER 2, 1964, YOU QUESTION THE DETERMINATION BY OUR TRANSPORTATION DIVISION AS TO OVERCHARGES COLLECTED BY TERMINAL TRANSPORT COMPANY, INC., ON 7 SHIPMENTS OF GOVERNMENT PROPERTY TRANSPORTED ON GOVERNMENT BILLS OF LADING FROM LUKE AIR FORCE BASE, ARIZONA, TO OPA-LOCKA AIR FORCE STATION, FLORIDA (5 SHIPMENTS), AND HOMESTEAD AIR FORCE BASE, FLORIDA (2 SHIPMENTS), DURING OCTOBER AND NOVEMBER 1962. THE FREIGHT CHARGES WERE PAID TO TERMINAL TRANSPORT ON ITS BILL NO. 675, OUR FILE TK- 77528 (3 SHIPMENTS), AND BILL NO. 621, OUR FILE DOV 323960-12/62-A-621 (4 SHIPMENTS). THE CARRIER'S BILLS WERE PAID UPON PRESENTATION, PRIOR TO AUDIT, PURSUANT TO SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C.A. 66.

THE GOVERNMENT BILL OF LADING PREPARED FOR EACH SHIPMENT IS ROUTED "HOPPER/TRANSCON AND NEC CONN" OR "WESTWOOD/T.I.M.E. AND NEC CONN AND CONTAINS THE NOTATIONS "EXCLUSIVE USE OF VEHICLE REQUESTED" AND "HI SPEED TRANSPORTATION REQUESTED.' THE BILLS OF LADING DO NOT SHOW ANY INFORMATION TO THE EFFECT THAT THE SHIPPER OBTAINED THE EXCLUSIVE USE OF THE TRAILERS FROM LUKE AIR FORCE BASE TO DESTINATION.

FOR EACH SHIPMENT THE CARRIER BILLED AND COLLECTED THE MINIMUM CHARGE FOR THE EXCLUSIVE USE OF A VEHICLE ($2,224.20), SET FORTH IN ITEM NO. 940 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU TRANSCONTINENTAL TERRITORIAL DIRECTORY NO. 20-D, MF-I.C.C. 132. AMONG OTHER THINGS, ITEM NO. 940 REQUIRES ON THE BILL OF LADING A NOTATION INDICATING THAT THE SHIPPER REQUESTS EXCLUSIVE USE OF A VEHICLE; IT ALSO STATES THAT THE CARRIER WILL FURNISH A VEHICLE WHICH WILL BE ASSIGNED TO AND EXCLUSIVELY USED BY THE CARRIER FOR THE TRANSPORTATION OF A SHIPMENT.

DURING THE AUDIT OF THE PAID CHARGES, OUR TRANSPORTATION DIVISION RECOGNIZED THAT THE EXCLUSIVE USE NOTATION ON EACH BILL OF LADING COMPLIED WITH THAT REQUIRED BY ITEM NO. 940; HOWEVER, IN THE ABSENCE OF ANY EVIDENCE INDICATING THAT EACH TRAILER WAS EXCLUSIVELY USED BY THE CARRIERS FOR THE TRANSPORTATION OF EACH SHIPMENT FROM ORIGIN TO DESTINATION, EXCEPTION WAS TAKEN TO THE ASSESSMENT OF CHARGES ON THE BASIS OF PREMIUM SERVICE. IT WAS DETERMINED THAT LESS TRUCKLOAD CHARGES WERE APPLICABLE ON THE 7 SHIPMENTS AND THE CARRIER WAS NOTIFIED OF AN OVERCHARGE OF $3,184.44 ON BILL NO. 675, AND $5,080.80 ON BILL NO. 621. LATER, IN CONNECTION WITH THE 3 SHIPMENTS INCLUDED ON BILL NO. 675, IT WAS LEARNED FROM THE SHIPPER THAT EACH SHIPMENT MOVED IN A FULLY LOADED TRAILER. RELYING ON CURTIS LIGHTING CO., INC. V. MID-STATES FREIGHT LINES, INC., 305 I.C.C. 576 (1958), OUR TRANSPORTATION DIVISION DETERMINED THAT THE LOWER TRUCKLOAD CHARGE BASIS WAS APPLICABLE ON THE 3 SHIPMENTS AND NOTIFIED THE CARRIER OF AN ADDITIONAL OVERCHARGE OF $53.76.

IN THE ABSENCE OF REFUND THE OVERCHARGES ON BILL NOS. 675 AND 621 WERE COLLECTED BY DEDUCTION (49 U.S.C.A. 66), AND THE CARRIER'S SUBSEQUENT CLAIM FOR $3,184.44 (BILL NO. 675), WAS DISALLOWED IN OUR SETTLEMENT CERTIFICATE DATED NOVEMBER 18, 1964. BEFORE YOUR LETTER NO CLAIM WAS PRESENTED FOR $5,080.80, THE COLLECTED OVERCHARGE ON BILL NO. 621, AND THE CARRIER HAS NOT REFUNDED THE ADDITIONAL OVERCHARGE OF $53.76 ON BILL NO. 675.

IN YOUR LETTER YOU URGE IN SUBSTANCE THAT EXCLUSIVE USE OF VEHICLE CHARGES SHOULD NOT BE RENDERED INAPPLICABLE SOLELY BECAUSE THE SHIPMENT OCCUPIED THE FULL CAPACITY OF THE VEHICLE. SUBSEQUENT TO THE AUDIT ACTION TAKEN ON BILL NO. 675, WE ABANDONED THE POSITION THAT THE CURTIS LIGHTING CASE PRINCIPLE WAS APPLICABLE TO FULLY LOADED VEHICLES WHERE THE BILL OF LADING INDICATES THAT EXCLUSIVE USE OF VEHICLE WAS REQUESTED.

YOUR SECOND CONTENTION RELATES TO THE PROOF NECESSARY TO ESTABLISH THAT THE REQUESTED EXCLUSIVE USE OF VEHICLE SERVICE WAS FURNISHED. YOU STATE ON PAGE 6 OF YOUR LETTER THAT "IN THE SITUATION HERE INVOLVED, THE GOVERNMENT BILLS OF LADING SHOW THAT EXCLUSIVE USE WAS REQUESTED BY THE GOVERNMENT; THE FREIGHT BILLS SHOW THAT EXCLUSIVE USE WAS RENDERED; AND DELIVERY RECEIPTS SIGNED BY GOVERNMENT REPRESENTATIVES CLEARLY INDICATE THAT EXCLUSIVE USE WAS RENDERED IN THE TRANSPORTATION OF THIS TRAFFIC.'

AS INDICATED ABOVE, WE ARE SATISFIED THAT THE BILLS OF LADING SHOW THAT EXCLUSIVE USE WAS REQUESTED BY THE GOVERNMENT; HOWEVER, OUR RECORD CONTAINS NEITHER THE FREIGHT BILLS NOR THE DELIVERY RECEIPTS WHICH WE UNDERSTAND DO NOT NORMALLY EVIDENCE THE PERFORMANCE OF THE REQUESTED PREMIUM SERVICE FROM ORIGIN TO DESTINATION. IN THIS CONNECTION IT MAY BE SAID THAT THE CONSIGNEE, MERELY BY ACCEPTING THE SHIPMENT AT DESTINATION, HAS NO WAY OF KNOWING WHETHER OR NOT THE SHIPMENT WAS ACCORDED EXCLUSIVE USE OF THE VEHICLE WHILE EN ROUTE FROM ORIGIN TO DESTINATION.

THE GENERAL QUESTION AS TO WHETHER OR NOT A CARRIER MUST PROVE PERFORMANCE OF EXCLUSIVE USE WAS CONSIDERED IN PACIFIC INTERMOUNTAIN EXPRESS CO. V. UNITED STATES, COURT OF CLAIMS NO. 216-61, DECIDED JULY 17, 1964, 16 FEDERAL CARRIER CASES (CCH) 52, 214. IN THAT CASE THE COURT DENIED THE CARRIER'S CONTENTION THAT THE BILLS OF LADING, WITH THE NOTATION "EXCLUSIVE USE OF VEHICLE AUTHORIZED" AND COMPLETED WITH THE EXECUTION OF THE CONSIGNEE'S CERTIFICATE OF DELIVERY ON THE GOVERNMENT BILL OF LADING WITHOUT QUALIFICATION OR EXCEPTION BY THE GOVERNMENT'S AGENT, WAS SUFFICIENT TO ESTABLISH A PRIMA FACIE CLAIM TO EXCLUSIVE USE OF VEHICLE CHARGES. SEE, ALSO, IN THIS CONNECTION, GARRETT FREIGHT LINES, INC. V. UNITED STATES, 236 F.SUPP. 594, 596 (1964).

BEFORE WE CAN CONCLUDE THAT A CARRIER IS ENTITLED TO RECEIVE PREMIUM CHARGES FOR EXCLUSIVE USE OF A VEHICLE TWO CONDITIONS MUST BE SATISFIED. FIRST, THERE MUST BE SUBSTANTIAL COMPLIANCE WITH THE TARIFF OR RATE QUOTATION REQUIREMENTS CONCERNING ANNOTATION OF THE BILLS OF LADING. CAMPBELL "66" EXPRESS, INC. V. UNITED STATES, 302 F.2D 276 (1962). AND, SECOND, THERE MUST BE SOME EVIDENCE THAT EXCLUSIVE USE OF VEHICLE SERVICE WAS, IN FACT, PERFORMED. CONTRARY TO YOUR VIEW, THAT THE GOVERNMENT SHOULD BE REQUIRED TO SHOW THAT EXCLUSIVE USE WAS NOT IN FACT PERFORMED, THE BURDEN IS UPON CLAIMANTS TO PRESENT EVIDENCE SATISFACTORILY PROVING THEIR CLAIMS AND ALL MATTERS INCIDENTAL THERETO AND NECESSARY TO ESTABLISH THE CLEAR LEGAL 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); BENJAMIN MOTOR EXPRESS, INC. V. UNITED STATES, 251 F.2D 547 (1958); 37 COMP. GEN. 535 (1958). ABSENT SATISFACTORY EVIDENCE WE HAVE NO AUTHORITY TO AUTHORIZE PAYMENT OF THE PREMIUM CHARGES. SEE CHARLES V. UNITED STATES, 19 CT.CL. 316 (1884); LONGWILL V. UNITED STATES, 17 CT.CL. 288 (1881).

THE BEST EVIDENCE OF THE ACTUAL PERFORMANCE OF AUTHORIZED EXCLUSIVE USE SERVICES IS A SHOWING OF A CLEAR SEAL RECORD ON THE BILL OF LADING. THIS CAN BE DONE BY PROOF THAT A SHIPMENT WAS SEALED AT ORIGIN AND THAT THE SEALS WERE NOT BROKEN WHEN THE SHIPMENT ARRIVED AT DESTINATION. IN THE ABSENCE OF A CLEAR SEAL RECORD WE CONSIDER WHATEVER DOCUMENTARY EVIDENCE A CARRIER CARES TO SUBMIT WHICH REASONABLY ESTABLISHES THAT THE PREMIUM SERVICE WAS FURNISHED. FOR EXAMPLE, SATISFACTORY EVIDENCE MAY TAKE THE FORM OF A CERTIFICATION ON THE BILL OF LADING IN ACCORDANCE WITH ADMINISTRATIVE REGULATIONS ISSUED BY THE SHIPPING AGENCY, OR OF COPIES OF CARRIER'S RECORDS MADE CONTEMPORANEOUSLY WITH THE SHIPMENT SHOWING THAT NO OTHER FREIGHT WAS TRANSPORTED ON THE TRUCK OR TRAILER IN WHICH THE SHIPMENT MOVED. ALSO, VARIOUS OTHER RECORDS PREPARED BY CARRIERS IN THEIR NORMAL BUSINESS OPERATIONS MIGHT CONTAIN SUFFICIENT PERTINENT INFORMATION TO SATISFACTORILY ESTABLISH THE PERFORMANCE OF THE PREMIUM SERVICE. THESE RECORDS INCLUDE ROAD MANIFESTS, TRIP TICKETS AND REPORTS, DISPATCH SHEETS AND OTHER DOCUMENTS DESCRIBING THE CARGO CARRIED ON THE TRUCK OR TRAILER OVER THE ENTIRE ROUTE OF MOVEMENT.

IN THE ABSENCE OF PRIMARY DOCUMENTARY EVIDENCE WE WILL CONSIDER SUCH SECONDARY EVIDENCE AS STATEMENTS OF PERSONS HAVING PERSONAL KNOWLEDGE OF THE FACTS CONCERNING THE PARTICULAR SHIPMENTS.

AS EVIDENCE OF THE ACTUAL PERFORMANCE OF THE REQUESTED EXCLUSIVE USE SERVICE ON THE 3 SHIPMENTS COVERED BY CARRIER'S BILL NO. 675, TERMINAL TRANSPORT COMPANY SUBMITTED COPIES OF ITS ROAD MANIFESTS ON THE 3 SHIPMENTS SHOWING THAT NO OTHER CARGO WAS TRANSPORTED IN THE TRAILERS FROM TERMINAL TRANSPORT'S INTERCHANGE POINT, ATLANTA, GEORGIA, TO DESTINATION. THESE MANIFESTS ALSO SHOW THAT THE TRAILERS INTERCHANGED AT ATLANTA WERE THE SAME TRAILERS LOADED AT POINT OF ORIGIN. THE CARRIER ALSO FURNISHED COPIES OF INTEROFFICE CORRESPONDENCE CONCERNING THE ORIGIN AND CONNECTING CARRIERS WHICH INDICATES THAT NO OTHER CARGO WAS TRANSPORTED IN THE VEHICLES EN ROUTE TO ATLANTA. IN THESE CIRCUMSTANCES, WE HAVE CONCLUDED THAT THE CARRIER HAS REASONABLY ESTABLISHED THE PERFORMANCE OF EXCLUSIVE USE IN HANDLING THE SHIPMENTS IN QUESTION, AND THE CLAIM FOR $3,184.44 ON BILL NO. 675 WILL BE ALLOWED.

THE CARRIER HAS NOT SUBMITTED ANY EVIDENCE CONCERNING THE SHIPMENTS COVERED BY CARRIER'S BILL NO. 621, TO ESTABLISH THE PERFORMANCE OF EXCLUSIVE USE ON THE SHIPMENTS INCLUDED THEREIN. IF THE CARRIER IS ABLE TO FURNISH COPIES OF CARRIER'S RECORDS MADE IN THE COURSE OF BUSINESS AT THE TIME THE SHIPMENTS MOVED, OR OTHERWISE REASONABLY ESTABLISHES THAT EXCLUSIVE USE OF A VEHICLE WAS FURNISHED FOR THE ENTIRE FREIGHT MOVEMENT FROM POINT OF ORIGIN TO DESTINATION, WE WILL GIVE FURTHER CONSIDERATION TO THE CARRIER'S CLAIMS FOR ADDITIONAL CHARGES BASED ON THE FURNISHING OF EXCLUSIVE USE OF VEHICLE SERVICES ON THE SHIPMENTS COVERED BY BILL NO. 621.

IN THE CIRCUMSTANCES, WE ARE INSTRUCTING OUR TRANSPORTATION DIVISION TO DISALLOW THE CLAIM OF $5,080.80, ON THE 4 SHIPMENTS INCLUDED IN CARRIER'S BILL NO. 621, ON THE GROUND THAT THE RECORD CONTAINS NO EVIDENCE THAT EACH TRAILER WAS EXCLUSIVELY USED BY THE CARRIERS FOR THE TRANSPORTATION OF EACH SHIPMENT FROM ORIGIN TO DESTINATION. NOTICE OF SETTLEMENT WILL REACH THE CARRIER IN DUE COURSE.