B-156949, OCT. 8, 1965

B-156949, OCT. 8, 1965

TO RINGSBY TRUCK LINES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 3, 1965, REQUESTING REVIEW OF THE SETTLEMENT DATED OCTOBER 14, 1963 (FILE TK-759215), WHICH DISALLOWED YOUR CLAIM, PER BILL NO. 1045-62-A, FOR AN ADDITIONAL ALLOWANCE OF$1,186.60. THE AMOUNT YOU CLAIM REPRESENTS THE BALANCE OF THE CHARGES ALLEGEDLY DUE RINGSBY TRUCK LINES, INC; FOR SERVICES PERFORMED IN TRANSPORTING A SHIPMENT OF PROJECTILE PARTS FROM NEWARK, NEW JERSEY, TO HAWTHORNE, NEVADA, UNDER GOVERNMENT BILL OF LADING NO. A-3033868 DATED MAY 11, 1962, WHICH BORE THE HANDWRITTEN ANNOTATION "EXCLUSIVE USE OF TRAILER LK.'

THE SHIPMENT CONSISTED OF 500 STEEL CONTAINERS OF PROJECTILE PARTS, NOI I/S EMPTY, FURTHER FINISHED THAN ROUGH MACHINED, WEIGHING 20,000 POUNDS. FOR THIS SERVICE RINGSBY TRUCK LINES, INC; ORIGINALLY CLAIMED CHARGES COMPUTED AT THE CLASS 45 RATE AND TRUCKLOAD MINIMUM WEIGHT OF 24,000 POUNDS PUBLISHED IN ROCKY MOUNTAIN MOTOR TARIFF NO. 21-B, MF I.C.C. NO. 117, AND WAS PAID $1,257.60 BY VOUCHER NO. 203173 IN THE JULY 1962 ACCOUNTS OF J. L. BELL, JR.

THEREAFTER, BY SUPPLEMENTAL BILL NO. 1045-62-A, YOU CLAIMED AN ADDITIONAL AMOUNT OF $1,186.60, ALLEGING THAT THE CORRECT THROUGH CHARGE ON THE SHIPMENT WAS $2,444.20 ($1,257.60 PREVIOUSLY PAID PLUS $1,186.60, THE AMOUNT NOW CLAIMED). THE AMOUNT OF $2,444.20 IS THE MINIMUM CHARGE FOR EXCLUSIVE USE OF VEHICLE SERVICE ON THIS SHIPMENT AND IS BASED ON THE CLASS 100 RATE OF $11.11 PER 100 POUNDS AT A MINIMUM WEIGHT OF 22,000 POUNDS, IN ACCORDANCE WITH THE PROVISIONS OF ITEM 940 OF ROCKY MOUNTAIN MOTOR CARRIER TARIFF NO. 20-D, MF-I.C.C. NO. 132. THE CLAIM FOR AN ADDITIONAL ALLOWANCE WAS DISALLOWED BY THE SETTLEMENT CERTIFICATE OF OCTOBER 14, 1963, BECAUSE RINGSBY TRUCK LINES, INC., FAILED TO PROVIDE COMPETENT EVIDENCE OF THE REQUEST FOR, AND PERFORMANCE OF, EXCLUSIVE USE OF VEHICLE SERVICE.

IN YOUR REQUEST FOR REVIEW, YOU CONTEND THAT PROPER AND SUFFICIENT PROOF WAS PRESENTED, IN THAT THE GOVERNMENT BILL OF LADING CONTAINED AN ANNOTATION REQUESTING EXCLUSIVE USE, INITIALED BY THE SHIPPER, MR. L. TRIONDOLA; ALSO, THAT THE SHIPMENT WAS RECEIVED BY THE CONSIGNEE WITH THE ORIGINAL NAVY SEAL, WHICH WAS PLACED ON THE VEHICLE AT ORIGIN, STILL INTACT, EVIDENCING THAT EXCLUSIVE USE WAS ACCORDED THE SHIPMENT. YOU FURTHER ALLEGE THAT THE FREIGHT BILLS OF BOTH CARRIERS INVOLVED SHOW ACCEPTANCE OF THE SHIPMENT ON AN EXCLUSIVE USE BASIS, AND THAT THE ADDITIONAL SPACE ON THE VEHICLE WOULD HAVE BEEN USED BY THE CARRIERS HAD MR. TRIONDOLA NOT REQUESTED EXCLUSIVE USE. ALSO, YOU ALLEGE THAT ONE MONTH PRIOR TO THE MOVEMENT OF THIS SHIPMENT RINGSBY TRUCK LINES, INC; TRANSPORTED TWO PRIOR SHIPMENTS FROM THE SAME SUPPLIER, TO THE SAME DESTINATION, OF THE SAME COMMODITY, WHICH MOVED ON THE EXCLUSIVE USE BASIS AND THAT THIS WOULD SEEM TO JUSTIFY AN ASSUMPTION THAT THE EXCLUSIVE USE NOTATION IN THE GOVERNMENT BILL OF LADING ,MEANT WHAT IT SAID.'

AS TO YOUR FIRST STATEMENT ABOUT THE BILL OF LADING SHOWING A REQUEST FOR EXCLUSIVE USE, IT IS NOTED THAT THE HANDWRITTEN NOTATION THEREON IS NOT PHRASED IN THE FORM OF A REQUEST, THAT IT APPEARS TO HAVE BEEN INSERTED SOMETIME AFTER THE BILL OF LADING WAS EXECUTED, AND THE INSPECTOR OF NAVAL MATERIAL, NEWARK, NEW JERSEY, IN A LETTER DATED SEPTEMBER 3, 1963, STATED THAT EXCLUSIVE USE WAS NOT REQUESTED FOR THIS SHIPMENT. THAT OFFICE ALSO STATED THAT FROM THE RECORD IT COULD NOT BE ASCERTAINED IF EXCLUSIVE USE OF THE VEHICLE SERVICE WAS ACTUALLY PERFORMED TO DESTINATION. REFERENCE IS MADE IN THE BILL OF LADING TO THE SEALING OF THE VEHICLE. THE UNAUTHENTICATED COPY OF A PURPORTED FREIGHT BILL IN THE RECORD MERELY REFERS TO U.S. NAVY SEAL 709826, BUT NOTHING IS SAID AS TO WHO APPLIED THE SEAL OR WHERE OR WHEN IT WAS APPLIED; NEITHER IS IT SHOWN WHETHER IT WAS INTACT AT DESTINATION. ALSO, THE REFERENCE TO EXCLUSIVE USE SERVICE IN THE UNAUTHENTICATED COPY OF THE FREIGHT BILL IS OF NO EVIDENTIARY VALUE; ESPECIALLY SO IN VIEW OF THE DENIAL BY THE ADMINISTRATIVE OFFICE OF A REQUEST FOR SUCH SERVICE AND THE UTTER LACK OF ANY AFFIRMATIVE EVIDENCE OF ITS RENDITION. AS TO THE INSUFFICIENCY OF THE BILL OF LADING NOTATION--- EVEN IF OTHERWISE PROPER--- TO PROVE THE PERFORMANCE OF EXCLUSIVE USE SERVICE, SEE PACIFIC INTERMOUNTAIN EXPRESS COMPANY V. UNITED STATES, CT.CL. NO. 216-61, DECIDED JULY 17, 1964.

IT IS THE LONG ESTABLISHED POLICY OF OUR OFFICE THAT IF THERE IS A DISPUTE BETWEEN AN ADMINISTRATIVE AGENCY AND A CLAIMANT INVOLVING A QUESTION OF FACT, SUCH AS HERE, THE ADMINISTRATIVE REPORT WILL BE ACCEPTED AS CORRECT, IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE TO THE CONTRARY. 40 COMP. GEN. 178, 180; 16 ID. 325; 14 ID. 927. BECAUSE THERE IS THIS DISPUTE AS TO WHETHER EXCLUSIVE USE WAS REQUESTED, THE STATEMENT BY THE INSPECTOR OF NAVAL MATERIAL IN THE NEGATIVE MUST BE ACCEPTED AS CONCLUSIVE, SINCE OTHER THAN BY THE ANNOTATION PENNED ON THE GOVERNMENT BILL OF LADING THE REQUEST IS UNSUBSTANTIATED BY ANY OTHER EVIDENCE. ALSO, THE RECORD IS DEVOID OF ANY COMPETENT AFFIRMATIVE EVIDENCE OF THE PERFORMANCE OF THE EXCLUSIVE USE OF VEHICLE SERVICE. THE BURDEN IS ON CLAIMENTS OF ALLEGING AND PROVING THE FACTS OF THE CLAIM NECESSARY TO SHOW THE CLEAR LEGAL LIABILITY OF THE GOVERNMENT, AND THE RIGHT OF THE CLAIMANT TO PAYMENT. UNITED STATES V. NEW YORK, N.H. AND H.R. CO; 355 U.S. 253 (1957); 18 COMP. GEN. 980.

ACCORDINGLY, SINCE THE CARRIER HAS FAILED TO FURNISH SATISFACTORY PROOF THAT EXCLUSIVE USE OF THE VEHICLE WAS REQUESTED BY AND FURNISHED FOR THE GOVERNMENT, THE SETTLEMENT IS SUSTAINED.