Skip to main content

B-143065, OCT. 3, 1960

B-143065 Oct 03, 1960
Jump To:
Skip to Highlights

Highlights

TO HERRIN TRANSPORTATION COMPANY: REFERENCE IS MADE TO YOUR FIVE LETTERS OF MAY 30. WHILE UNDER DECISIONS OF THE INTERSTATE COMMERCE COMMISSION THESE ANNOTATIONS NOW MAY BE CONSTRUED AT INDICATING THAT THE SERVICES WERE ORDERED. ESTABLISH THAT SUCH SERVICES WERE ACTUALLY FURNISHED IN TRANSPORTING THE SHIPMENTS. IT IS INCUMBENT UPON THE BILLING CARRIER TO CLEARLY ESTABLISH ITS ENTITLEMENT TO PAYMENT AND THIS DESPITE THE FACT THAT THE AMOUNT MAY HAVE BEEN PREVIOUSLY PAID AND RECOVERED BY DEDUCTION IN THE AUDIT. WHICH SEEMS TO SUBSTANTIATE YOUR CONTENTION THAT EXCLUSIVE USE WAS ACCORDED THESE SHIPMENTS. WE ARE. NOR DOES IT CONTAIN ANY OTHER INFORMATION WHICH TENDS TO SUPPORT YOUR ALLEGATION THAT EXCLUSIVE USE WAS ACCORDED THE SHIPMENT.

View Decision

B-143065, OCT. 3, 1960

TO HERRIN TRANSPORTATION COMPANY:

REFERENCE IS MADE TO YOUR FIVE LETTERS OF MAY 30, 1960, YOUR FILE REFERENCES 102502-OC, 102675-OC, 107116-OC, 108516-OC AND 110924-OC, IN WHICH YOU REQUEST REVIEW OF THE SETTLEMENTS WHICH DISALLOWED YOUR CLAIMS FOR ADDITIONAL CHARGES ON THE SHIPMENTS TRANSPORTED UNDER BILLS OF LADING AF-6244178, WY-5166885, WY-6305131, WY-2319868 AND N 30717299.

IN REASSERTING YOUR CLAIMS FOR PAYMENT BASED ON CHARGES APPLICABLE TO "EXCLUSIVE USE" OF VEHICLE SERVICES, YOU CONTEND THAT THE WORDING USED IN THE BILL OF LADING ANNOTATIONS SUBSTANTIALLY COMPLIES WITH THE TARIFF REQUIREMENTS AND THAT IN ACCORDANCE WITH THE INTENTIONS CONVEYED BY SUCH NOTATIONS THE CARRIERS PERFORMED THE SERVICES ON THESE FREIGHT MOVEMENTS. WHILE UNDER DECISIONS OF THE INTERSTATE COMMERCE COMMISSION THESE ANNOTATIONS NOW MAY BE CONSTRUED AT INDICATING THAT THE SERVICES WERE ORDERED, THEY DO NOT, IN THE ABSENCE OF OTHER SUBSTANTIATING EVIDENCE, ESTABLISH THAT SUCH SERVICES WERE ACTUALLY FURNISHED IN TRANSPORTING THE SHIPMENTS. UNDER SECTION 322 OF THE TRANSPORTION ACT OF 1940, 49 U.S.C. 66, IT IS INCUMBENT UPON THE BILLING CARRIER TO CLEARLY ESTABLISH ITS ENTITLEMENT TO PAYMENT AND THIS DESPITE THE FACT THAT THE AMOUNT MAY HAVE BEEN PREVIOUSLY PAID AND RECOVERED BY DEDUCTION IN THE AUDIT. UNITED STATES V. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD CO., 355 U.S. 253; BENJAMIN MOTOR EXPRESS V. UNITED STATES, 147 F.SUPP. 15, AFFIRMED 251 F.2D 547.

THE BILLS OF LADING COVERING FOUR OF THE SHIPMENTS REFERRED TO IN YOUR LETTERS SHOW THAT THESE PARTICULAR SHIPMENTS MOVED THROUGH TO DESTINATION UNDER A CLEAR SEAL RECORD, WHICH SEEMS TO SUBSTANTIATE YOUR CONTENTION THAT EXCLUSIVE USE WAS ACCORDED THESE SHIPMENTS. WE ARE, THEREFORE, INSTRUCTING OUR TRANSPORTATION DIVISION TO CERTIFY FOR PAYMENT THE AMOUNTS DETERMINED TO BE DUE ON THESE SHIPMENTS UNDER THE EXCLUSIVE USE OF VEHICLE RULES, IF OTHERWISE CORRECT. SETTLEMENT SHOULD BE RECEIVED AS TO SUCH FOUR SHIPMENTS IN DUE COURSE.

THE RECORD PERTAINING TO THE SHIPMENT MADE UNDER BILL OF LADING AF 6244178, YOUR FILE REFERENCE 102502-OC (TK 685-676), HOWEVER, DOES NOT INDICATE THAT THE SHIPMENT MOVED UNDER SEAL, NOR DOES IT CONTAIN ANY OTHER INFORMATION WHICH TENDS TO SUPPORT YOUR ALLEGATION THAT EXCLUSIVE USE WAS ACCORDED THE SHIPMENT. IN THE ABSENCE OF SATISFACTORY EVIDENCE THAT SUCH SERVICE WAS ACTUALLY PERFORMED, WE HAVE NO RECOURSE BUT TO SUSTAIN THE DISALLOWANCE OF YOUR CLAIM. LONGWILL V. UNITED STATES, 17 CT.CL. 288, 291 -292; CHARLES V. UNITED STATES, 19 CT.CL. 316, 319. IF, HOWEVER, YOU ARE ABLE TO PRODUCE SATISFACTORY EVIDENCE TO ESTABLISH THAT NO OTHER FREIGHT WAS TRANSPORTED ON THE TRUCK SO THAT EXCLUSIVE USE OF VEHICLE WAS IN FACT FURNISHED ON THIS SHIPMENT, THE MATTER WILL BE GIVEN FURTHER CONSIDERATION.

GAO Contacts

Office of Public Affairs