B-180733, AUG 5, 1974

B-180733, AUG 5, 1974

THE DISALLOWANCE OF THE CLAIMS OF A HEAVY AND SPECIALIZED COMMON CARRIER ARISING FROM WEEKEND AND HOLIDAY SHIPMENTS OF COMMODITIES WHICH BECAUSE OF SIZE REQUIRE SPECIAL PERMITS FOR TRANSPORTATION 22 MILES FROM NEW JERSEY TO NEW YORK IS SUSTAINED BECAUSE BURDEN IS ON CARRIER TO PROVE LEGALITY OF ITS CHARGES AND CARRIER PRESENTED CONTRADICTORY PROOF THAT SHIPMENTS WERE IN TRANSIT OVER WEEKEND.

ULTRA SPECIAL EXPRESS:

ULTRA SPECIAL EXPRESS (ULTRA), A DIVISION OF TAYLOR SERVICES, INC., REQUESTS REVIEW OF THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION (TCD) IN DISALLOWING 12 OF ITS CLAIMS ON 12 SETTLEMENT CERTIFICATES DATED JANUARY 14, 15, OR FEBRUARY 15, 1974. THE TCD CLAIM NUMBERS ARE TK- 967660, TK-967655, TK-967657, TK-967625, TK-967659, TK-968361, AND TK- 968362.

THE CLAIMS ARISE FROM 12 SHIPMENTS OF COMMODITIES WHICH BECAUSE OF THEIR SIZE REQUIRED SPECIAL PERMITS FROM VARIOUS STATES FOR TRANSPORTATION THROUGH THOSE STATES. THE SHIPMENTS WERE TRANSPORTED BY ULTRA UNDER GOVERNMENT BILL OF LADING (GBL) AND WERE IN TRANSIT DURING A SATURDAY, SUNDAY, OR A HOLIDAY.

THE TCD HAS BEEN INSTRUCTED TO REOPEN AND REEXAMINE THE SETTLEMENT CERTIFICATES ISSUED IN CLAIM NOS. TK-967660, TK-967655, TK-967657, TK 967625, AND TK-967659 AND TO ALLOW THE AMOUNTS CLAIMED, IF OTHERWISE CORRECT. ULTRA SHOULD GET NOTICE OF THE SETTLEMENTS IN DUE COURSE.

CLAIM NOS. TK-968361 AND TK-968362 INVOLVE SHIPMENTS ON GBLS NOS. F 9109968 AND F-9109971 MOVING UNDER PERMITS. THE SHIPMENTS WERE PICKED UP ON THURSDAY, DECEMBER 30, 1971, AND ULTRA ORIGINALLY COLLECTED WEEKEND AND HOLIDAY CHARGES FOR THE PERIOD JANUARY 1-2, 1972, AS DELIVERY WAS ACCOMPLISHED MONDAY, JANUARY 3, 1972. THE TCD DETERMINED THAT SINCE THE SHIPMENTS MOVED FROM BAYONNE, NEW JERSEY, TO FORT TILDEN, NEW YORK, A DISTANCE OF ONLY 22 MILES, THE MOVES COULD HAVE BEEN ACCOMPLISHED BY DECEMBER 31, 1971, AT THE LATEST, OBVIATING THE WEEKEND DELAY. OVERCHARGE NOTICES WERE ISSUED FOR $405 ON EACH SHIPMENT. THE OVERCHARGES ARE FOR THE ENTIRE HOLIDAY AND WEEKEND PENALTY CHARGES COLLECTED BY ULTRA FOR EACH SHIPMENT, UNDER ITEMS 1350, 1450, AND 1680 OF THE APPLICABLE TARIFF. ULTRA'S CLAIMS FOR $219.30 AND $220 ON THE TWO SHIPMENTS ARE FOR SERVICES PERFORMED ON DECEMBER 31, 1971, WHICH ULTRA CONTENDS WAS A HOLIDAY BECAUSE NEW YEAR'S DAY, 1972, FELL ON SATURDAY. THE CLAIMS REGARD BOTH FRIDAY, DECEMBER 31, AND SATURDAY, JANUARY 1, AS HOLIDAYS FOR RATING PURPOSES.

NEW JERSEY PERMITS T23156 AND T23157 SHOW THAT TRANSPORTATION OF THE SHIPMENTS WAS ALLOWED ON DECEMBER 29, 30, AND 31, 1971. THERE IS A CONFLICT BETWEEN THE PERMITS AND THE REGULATIONS IN THE NEW JERSEY REGISTER. THE REGULATIONS PROHIBIT THE ISSUANCE OF PERMITS FOR TRANSPORTATION ON FRIDAY, DECEMBER 31, 1971, BUT THE PERMITS SPECIFICALLY ALLOW SUCH TRANSPORTATION.

THIS UNDERSCORES THE FUNDAMENTAL INCONSISTENCY OF ULTRA'S ARGUMENT: SINCE THE NEW JERSEY PERMITS EXPIRED DECEMBER 31, 1971, ULTRA, IN CONTENDING THAT TRANSPORTATION WAS FORBIDDEN ON THAT DAY BY REGULATION, WOULD HAVE HAD TO MOVE THE SHIPMENTS OUT OF NEW JERSEY ON DECEMBER 30. BUT ULTRA CONTENDS THAT NEW YORK WOULD NOT ALLOW OPERATION ON EITHER DECEMBER 30 OR 31, THE LATTER ALLEGED TO BE A HOLIDAY AND THE FORMER THE DAY BEFORE THAT HOLIDAY. THE NEW YORK STATE PERMIT REGULATIONS INDICATE ONLY THAT "THE DAY PREVIOUS OR THE DAY FOLLOWING MEMORIAL DAY, INDEPENDENCE DAY AND LABOR DAY" ARE SO RESTRICTED WITH NO MENTION OF NEW YEAR'S DAY.

THE RECORD OF PERMITS AND REGULATIONS SUBMITTED BY ULTRA CONTAINS CONTRADICTORY EVIDENCE OF VEHICLE MOVEMENT. BASED ON THAT RECORD, WE CONCLUDE THAT THE SHIPMENTS COULD NOT HAVE MOVED LEGALLY ON THE DAYS CLAIMED BY ULTRA. FURTHERMORE, THERE IS NO EVIDENCE THAT THE SHIPMENTS ACTUALLY MOVED ON SPECIAL PERMITS IN NEW YORK STATE, AND THE APPLICATION OF ITEM 1450 HINGES ON THE FACT OF "BEING TRANSPORTED UNDER SPECIAL PERMITS," NOT THE DIMENSIONS OF THE SHIPMENT NOR THE SUPPOSED NEED FOR PERMITS. ULTRA HAS NEVER FURNISHED COPIES OF THE PERMITS.

THE BURDEN IS ON ULTRA TO PROVE THE LAWFULNESS OF ITS CHARGES. UNITED STATES V. NEW YORK, N.H. & H. R.R., 355 U.S. 253 (1955), AND ULTRA HAS NOT MET THAT BURDEN. THUS, BASED ON THE PRESENT RECORD, THE ACTION OF THE TCD IN ISSUING THE TWO NOTICES OF OVERCHARGE FOR $405 AND IN DISALLOWING THE CLAIMS FOR $219.30 AND $220 WAS PROPER AND IS SUSTAINED.