B-143784, MAR. 10, 1961

B-143784, MAR. 10, 1961

TO THE MASON AND DIXON LINES, INC.:

BY LETTER OF AUGUST 17, 1960, FILE GOV-T CARRIER BILL 10878, YOU REQUEST REVIEW OF THE DISALLOWANCE, BY OUR TRANSPORTATION DIVISION, OF YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES IN THE AMOUNT OF $244.50 ALLEGED TO BE DUE FOR THE TRANSPORTATION OF EMPTY ROCKET HEADS FROM CHARLOTTE, NORTH CAROLINA, TO LETTERKENNY ORDNANCE DEPOT, PENNSYLVANIA, UNDER GOVERNMENT BILL OF LADING NO. WY-8743641 DATED OCTOBER 21, 1958.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID $489 COMPUTED AT THE RATE OF $1.63 PER 100 POUNDS AT A MINIMUM TRUCKLOAD WEIGHT OF 15,000 POUNDS FOR EACH OF TWO TRUCKS, OR A TOTAL OF 30,000 POUNDS AS PROVIDED IN MASON AND DIXON LINES, INC. UNIFORM TENDER NO. I.C.C.NO. 44 EFFECTIVE AS OF APRIL 14, 1958. ON AUDIT OF THE PAYMENT VOUCHER BY OUR OFFICE IT WAS CONSIDERED THAT YOU HAD BEEN OVERPAID IN THE AMOUNT OF $198.60 COMPUTING THE APPLICABLE CHARGES AT A CLASS 45 TRUCKLOAD RATE OF $1.21 PER 100 POUNDS ON A TRUCKLOAD MINIMUM WEIGHT OF 24,000 POUNDS AS PROVIDED IN SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 504, MF-I.C.C. NO. 614, AND ITEM 4110 IN NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4, MF-I.C.C. NO. 1. UPON REFUSAL TO REFUND THE AMOUNT OF THE OVERPAYMENT ON THE GROUNDS THAT YOUR RECORDS SHOW THE USE OF TWO TRUCKS, WE REQUESTED A REPORT FROM THE ADMINISTRATIVE OFFICE, AND WERE ADVISED BY 1ST INDORSEMENT DATED NOVEMBER 20, 1959, FROM THE UNITED STATES ARMY ORDNANCE DISTRICT, PHILADELPHIA, PENNSYLVANIA, THAT: "1. SHIPMENT WAS LOADED ON ONE (1) TRAILER, TENDERED AS AN L.T.L., " AND "2. SIZE OR NUMBER OF TRAILER WAS NOT RECORDED BY THE CONTRACTOR.' A COPY OF THIS INDORSEMENT WAS FURNISHED TO YOU WITH OUR LETTER OF JUNE 1, 1960. HOWEVER, ON REEXAMINATION OF THE OVERPAYMENT, THE AMOUNT OF THE OVERPAYMENT WAS INCREASED TO $244.50, COMPUTING THE APPLICABLE CHARGES AT A RATE OF $1.63 PER 100 POUNDS AND AT A MINIMUM WEIGHT OF 15,000 POUNDS AS PROVIDED IN MASON AND DIXON UNIFORM TENDER NO. 44 FOR ONE TRUCKLOAD, AND AN AMENDED STATEMENT OF OVERPAYMENT, DATED JANUARY 29, 1960, WAS ISSUED. THIS AMOUNT WAS SUBSEQUENTLY RECOVERED BY ADMINISTRATIVE DEDUCTION FROM YOUR BILL NO. 12076.

YOUR CLAIM FOR REFUND IS BASED UPON THE ALLEGATION THAT YOUR RECORDS SHOW THE LOADING OF TWO TRUCKS TO CAPACITY. AND WITH YOUR REQUEST FOR REVIEW YOU SUBMITTED REPRODUCTIONS OF "* * * TWO FREIGHT BILLS ASSIGNED OUR (MASON AND DIXON LINES) PRO.NO. 26-13805, 10/21/58 * * *," WHICH BEAR THE NOTATION "GBL NO. WY 8743641," AND INDICATE THAT THE GOVERNMENT BILL OF LADING COVERED A SHIPMENT OF "6 MTL ROCKET HEADS EMPTY" LOADED AS FOLLOWS: "3 MTL ON TRAILER 2871. LOADED TO VISIBLE CAPACITY WT 6162 AS 15000" AND "3 MTL ON TRAILER 2865. LOADED TO VISIBLE CAPACITY WT 6159 AS 15000.' YOU ARGUE THAT THE MERE UNSUPPORTED STATEMENT OF THE ADMINISTRATIVE OFFICE OUGHT NOT TO CONTROL OVER ACTUAL CARRIER RECORDS IN THE ABSENCE OF OTHER SUBSTANTIATING EVIDENCE, AND THAT IT IS BELIEVED THAT THE TRANSPORTATION DIVISION HAS NOT FULFILLED ITS RESPONSIBILITY OF CAREFULLY SCRUTINIZING ALL CLAIMS WITH GREAT CARE.

THE COURT OF CLAIMS HELD, AT A VERY EARLY DATE, IN CHARLES V. UNITED STATES, 19 CT.CL. 316, 19; AND IN LONGWILL V. UNITED STATES, 14 CT.CL. 288, 291; THAT THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE THE RIGHT AND DUTY TO SCRUTINIZE CLAIMS AND ACCOUNTS WITH GREAT CARE AND TO REJECT ALL CLAIMS CONCERNING WHICH ANY DOUBTS EXIST. OUR OFFICE HAS ALWAYS HELD THAT THE BURDEN IS NOT ON US TO REFUTE CLAIMS PRESENTED HERE FOR SETTLEMENT OR THE ALLEGATIONS UPON WHICH SUCH CLAIMS ARE BASED, BUT THAT THE BURDEN IS ON THE CLAIMANTS TO FURNISH EVIDENCE, EITHER TO OUR OFFICE OR TO THE COURT, IF THEY CHOOSE TO FILE SUIT, CLEARLY AND SATISFACTORILY ESTABLISHING THEIR CLAIMS AND ALL MATTERS INCIDENTAL THERETO IN ORDER TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES AND THEIR RIGHT TO RECEIVE PAYMENT. SEE 18 COMP. GEN. 199, 200; ID. 980; AND 31 ID. 340. THESE RULINGS WERE RECENTLY CONFIRMED BY THE UNITED STATES SUPREME COURT IN UNITED STATES V. NEW YORK, NEW HAVEN AND HARTFORD R., 355 U.S. 253, IN WHICH THE COURT STATED THAT PRIOR TO THE ENACTMENT OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66, THE GOVERNMENT PROTECTED ITSELF AGAINST TRANSPORTATION OVERCHARGES BY NOT PAYING TRANSPORATION BILLS UNTIL THE RESPONSIBLE GOVERNMENT OFFICERS AND, IN DOUBTFUL CASES, THE GENERAL ACCOUNTING OFFICE FIRST AUDITED THE BILLS AND FOUND THAT THE CHARGES WERE CORRECT. WHEN CHARGES WERE QUESTIONED THE CARRIER BORE THE BURDEN OF PRESENTING EVIDENCE JUSTIFYING ITS CLAIM. SECTION 322 CHANGED THE PROCEDURE TO REQUIRE PAYMENT OF SUCH BILLS UPON PRESENTATION AND PRIOR TO AUDIT OR SETTLEMENT BY THE GENERAL ACCOUNTING OFFICE, BUT THE COURT EXPRESSLY HELD THAT THE BURDEN OF THE CARRIERS TO ESTABLISH THE CORRECTNESS OF THEIR CHARGES WAS TO CONTINUE UNABRIDGED, AND THAT THE RIGHT OF SETOFF GRANTED IN THAT SECTION WAS DESIGNED TO BE THE SUBSTANTIAL EQUIVALENT OF THE PREVIOUS RIGHT TO WITHHOLD PAYMENT ALTOGETHER UNTIL THE CLAIM WAS ESTABLISHED BY THE CARRIER.

IN RESPONSE TO YOUR REQUEST FOR REVIEW HOWEVER WE REQUESTED THE ADMINISTRATIVE OFFICE TO RECONSIDER ITS REPORT OF NOVEMBER 1959. BY 1ST INDORSEMENT DATED DECEMBER 16, 1960, SIGNED BY ONE C. J. MARINI WHO ALSO SINGED THE COVERING BILL OF LADING AS ISSUING OFFICER, THE ARMY CONFIRMED ITS PRIOR REPORT, STATING IN ADDITION:

"2. THE ROCKET HEADS WERE SHIPPED IN METAL CONTAINERS, DIMENSIONS OF WHICH (SIC) ARE 99.25 INCHES BY 54.25 INCHES BY 64 INCHES, AS INDICATED ON INSPECTOR'S REQUEST FOR GOVERNMENT BILL OF LADING, COPY ATTACHED.'

A COPY OF THIS 1ST INDORSEMENT AND ITS ATTACHMENT ARE ENCLOSED. LETTER OF JANUARY 20, 1961, FILE GOV-T CARRIER BILL 10878, YOU ADVISED THAT TRAILERS NOS. 2865 AND 2871 WERE IDENTICAL OPEN TOP 35-FOOT TRAILERS HAVING THE FOLLOWING INSIDE MEASUREMENTS:

DOOR WIDTH 89 - 3/4 INCHES

DOOR HEIGHT 78 INCHES

INSIDE WIDTH 90 - 3/4 INCHES

INSIDE HEIGHT 83 - 1/2 INCHES

INSIDE LENGTH 412 - 3/4 INCHES

IT APPEARS, THEREFORE, THAT FOUR ITEMS OF LOADED FLAT, COULD HAVE BEEN LOADED ON ONE VEHICLE SINGLE-TIER, THAT ALL SIX COULD HAVE BEEN LOADED DOUBLE TIER. ALSO, IF LOADED UPRIGHT, THE SIX ITEMS WOULD LOAD INTO ONE TRAILER.

PROTECTION OF THE GOVERNMENT'S INTEREST IN CASES INVOLVING DISPUTED QUESTIONS OF FACT REQUIRES THAT OUR OFFICE ACCEPT AS TRUE THE STATEMENT OF FACTS FURNISHED BY THE ADMINISTRATIVE OFFICE IN THE ABSENCE OF SUBSTANTIAL EVIDENCE TO THE CONTRARY. 16 COMP. GEN. 325 AND 14 ID. 927, 929. THE PRO NUMBERS SUBMITTED BY YOU WERE NOT A PART OF THE ORIGINAL RECORD, ARE UNSIGNED AND UNAUTHENTICATED. ON THE BASIS OF THE PRESENT RECORD THEREFORE THE EVIDENCE IS NOT CONVINCING THAT TWO TRUCKS WERE FILLED. THE CONTRARY THE DIMENSIONS OF THE TRAILERS AND OF THE LADING INDICATE THAT ONLY ONE TRAILER WAS NECESSARY.