B-132017, JUL. 20, 1962

B-132017: Jul 20, 1962

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INC.: REFERENCE IS MADE TO YOUR REQUEST ON BEHALF OF DIXIE OHIO EXPRESS. THE CONTROVERSY IS A MIXED ONE OF FACT AND LAW CONCERNING THE EXACT DESCRIPTION OF THE ARTICLES SHIPPED. WE HAVE RELIED UPON THE ADMINISTRATIVE DETERMINATION THAT THE DESCRIPTION OF ALUMINUM FORGINGS WAS APPROPRIATE. IN YOUR LATEST CORRESPONDENCE YOU ASSERT THE CONTENTION THAT THE PRESENT CASE IS SUFFICIENTLY SIMILAR TO ONE OF OUR EARLIER DECISIONS (B-137624. SUCH IS NOT THE CASE HERE. OUR INVESTIGATIONS SHOWED THAT BOTH THE DEPARTMENT OF THE AIR FORCE AND THE CONSIGNEE WERE OF THE OPINION THAT THE PROPERTY CONSIDERED WAS PROPERLY DESCRIBED AS ALUMINUM ARTICLES RATHER THAN AIRCRAFT PARTS. IN SUCH SITUATIONS IT IS NECESSARILY THE PRACTICE OF GOVERNMENT ACCOUNTING OFFICERS TO ACCEPT THE VIEWS AND REPORTED FACTS OF ADMINISTRATIVE PERSONNEL UNTIL SUCH TIME AS THE CLAIMANT CONCERNED CAN PRESENT CLEAR AND CONVINCING PROOF TO THE CONTRARY.

B-132017, JUL. 20, 1962

TO DIXIE OHIO EXPRESS, INC.:

REFERENCE IS MADE TO YOUR REQUEST ON BEHALF OF DIXIE OHIO EXPRESS, INC., FOR FURTHER CONSIDERATION OF DECISIONS DATED SEPTEMBER 11, 1957, AND NOVEMBER 26, 1958, B-132017, RELATIVE TO YOUR CLAIMS FOR ADDITIONAL FREIGHT CHARGES ON VARIOUS SHIPMENTS OF GOVERNMENT PROPERTY ON COMMERCIAL BILLS OF LADING CONNECTED TO GOVERNMENT BILLS OF LADING AT DESTINATION, LOCKHEED AIRCRAFT CORPORATION AT MARIETTA, GEORGIA. THE CONTROVERSY IS A MIXED ONE OF FACT AND LAW CONCERNING THE EXACT DESCRIPTION OF THE ARTICLES SHIPPED, AND THE APPLICABLE MOTOR FREIGHT CLASSIFICATION RATING.

THE CARRIER CONTENDS THE SHIPMENTS CONSIST OF AIRPLANE PARTS, N.O.I., AND SHOULD BE SO RATED FOR THE PURPOSE OF ASSESSING TRANSPORTATION CHARGES. ON THE OTHER HAND, WE HAVE RELIED UPON THE ADMINISTRATIVE DETERMINATION THAT THE DESCRIPTION OF ALUMINUM FORGINGS WAS APPROPRIATE, AND THAT THE RATING FOR ALUMINUM ARTICLES CONSTITUTED THE PROPER BASIS FOR ASSESSMENT OF CHARGES. WE UPHELD THE APPLICATION OF THE LOWER RATING APPLICABLE TO ALUMINUM ARTICLES IN THE DECISIONS OF SEPTEMBER 11, 1957, AND NOVEMBER 26, 1958.

IN YOUR LATEST CORRESPONDENCE YOU ASSERT THE CONTENTION THAT THE PRESENT CASE IS SUFFICIENTLY SIMILAR TO ONE OF OUR EARLIER DECISIONS (B-137624, MAY 18, 1960) TO WARRANT DISPOSITION IN THE SAME MANNER, FAVORABLE TO THE CARRIER, AS OCCURRED IN THE PRIOR DECISION. WE POINT OUT, HOWEVER, THAT THE CITED DECISION MODIFIED AN EARLIER CLAIM DISALLOWANCE DUE TO THE FACT THAT THE ADMINISTRATIVE OFFICE THERE INVOLVED CONCURRED IN YOUR CLIENT'S OPINION REGARDING THE DESCRIPTION OF THE PROPERTY SHIPPED. SUCH IS NOT THE CASE HERE. AS WE INFORMED THE CARRIER IN PREVIOUS CORRESPONDENCE, OUR INVESTIGATIONS SHOWED THAT BOTH THE DEPARTMENT OF THE AIR FORCE AND THE CONSIGNEE WERE OF THE OPINION THAT THE PROPERTY CONSIDERED WAS PROPERLY DESCRIBED AS ALUMINUM ARTICLES RATHER THAN AIRCRAFT PARTS. IN SUCH SITUATIONS IT IS NECESSARILY THE PRACTICE OF GOVERNMENT ACCOUNTING OFFICERS TO ACCEPT THE VIEWS AND REPORTED FACTS OF ADMINISTRATIVE PERSONNEL UNTIL SUCH TIME AS THE CLAIMANT CONCERNED CAN PRESENT CLEAR AND CONVINCING PROOF TO THE CONTRARY. SEE 36 COMP. GEN. 529 AT PAGE 530.

WE HAVE VERY CAREFULLY CONSIDERED THE CONTENTIONS PRESENTED BY YOU AND THE MOST FAVORABLE CONCLUSION THAT CAN BE REACHED IS THAT THERE MAY BE SOME ROOM FOR DISPUTE AS TO THE PROPER FREIGHT CLASSIFICATION OF THE ARTICLES IN ISSUE, BUT IT IS NOT AT ALL CLEAR AND CONVINCING THAT THE ADMINISTRATIVE OFFICE WAS IN ERROR IN ITS IDENTIFICATION OF THE ARTICLES. THE OPINIONS SET FORTH IN LETTERS SUBMITTED HERE DO NOT CONSTITUTE PROOF TO THE CONTRARY. THE OPINION ASSERTED BY THE INTERSTATE COMMERCE COMMISSION IN A LETTER DATED SEPTEMBER 18, 1956, WHILE FAVORING THE CARRIER'S VIEW, WAS BASED ON INFORMATION SUBMITTED BY THE CARRIER. THE NATIONAL CLASSIFICATION BOARD'S OPINION AS SET FORTH IN A LETTER DATED AUGUST 29, 1956, WAS NOT MADE ON THE ARTICLES IN ISSUE BUT UPON ARTICLES ALLEGED TO BE SIMILAR. FINALLY, WE NOTE THAT THE SOUTHERN MOTOR CARRIERS RATE CONFERENCE, BY A LETTER DATED APRIL 23, 1956, STATES THE VIEW THAT THE SUBJECT LADING WAS PROPERLY RATEABLE AS ALUMINUM ARTICLES RATHER THAN AIRPLANE PARTS. IN THIS CONNECTION WE FURTHER NOTE THAT THE OPINION SO EXPRESSED WAS BASED ON A PERSONAL INSPECTION OF THE COMMODITY BY A FIELD REPRESENTATIVE OF THE CONFERENCE.

IT APPEARS THAT EVEN WHEN THE RECORD IN THIS CASE IS CONSTRUED IN THE MANNER MOST FAVORABLE TO YOUR CLIENT THERE IS, AT BEST, SUBSTANTIAL DOUBT AS TO THE MERIT OF THE CONTENTION THAT THE AIRPLANE PARTS RATING SHOULD BE APPLIED. AS STATED, IN SUCH CASES WE ACCEPT THE VIEWS AND FACTS AS REPORTED BY THE ADMINISTRATIVE OFFICE, AND HERE, WITHOUT SUFFICIENT EVIDENCE TO THE CONTRARY, WE MUST ACCEPT AS FINAL THE ADMINISTRATIVE DETERMINATION THAT THE PROPERTY CONSIDERED WAS RATEABLE AS ALUMINUM ARTICLES. WE ACCORDINGLY AGAIN AFFIRM THE CONCLUSION REACHED IN OUR DECISIONS OF SEPTEMBER 11, 1957, AND NOVEMBER 26, 1958, SUSTAINING DISALLOWANCE OF THE CARRIER'S CLAIMS.