B-144448, APR. 5, 1961

B-144448, APR. 5, 1961

TO ILLINOIS-CALIFORNIA EXPRESS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 22, 1961, FILE DD- 18, IN WHICH YOU REQUEST RECONSIDERATION OF OUR DECISION B-144448, DATED FEBRUARY 13, 1961, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR $211.50 ON SUPPLEMENTAL BILL NO. 2541-SUPP. YOUR CLAIM REPRESENTS ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE FOR EXCLUSIVE USE OF VEHICLE SERVICE ON A SHIPMENT OF INTERNAL COMBUSTION ENGINES WHICH MOVED FROM PLANSHAVE, CALIFORNIA, TO WALKER AIR FORCE BASE, ROSEWELL, NEW MEXICO, UNDER GOVERNMENT BILL OF LADING NO. AF-4990791, DATED NOVEMBER 9, 1956. OUR DECISION SUSTAINING THE DISALLOWANCE OF YOUR CLAIM WAS BASED ON THE FACT THAT ON THE RECORD AVAILABLE HERE IT WAS NOT ESTABLISHED THAT EXCLUSIVE USE SERVICE WAS ACTUALLY PERFORMED AND, THAT IN THE ABSENCE OF EVIDENCE TO SHOW THAT SUCH SERVICE WAS PROVIDED WE HAVE NO AUTHORITY TO AUTHORIZE THE PAYMENT OF PREMIUM CHARGES.

YOU CALL OUR ATTENTION TO SECTION 3065.10 OF OUR POLICY AND PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES (5 GAO 3065.10) WHICH PROVIDES, IN PERTINENT PART,"WHERE ACCESSORIAL OR SPECIFIC SERVICES ARE SHOWN AS ORDERED BUT WERE NOT FURNISHED, THE BILL OF LADING SHALL BE SO ANNOTATED.' YOU CONTEND, THEREFORE, THAT IF THE SHIPPER REQUESTED EXCLUSIVE USE SERVICE, BUT SUCH SERVICE WAS NOT FURNISHED, IT WAS THE DUTY OF THE CONSIGNEE TO MAKE AN ANNOTATION TO THIS EFFECT IN THE PLACE PROVIDED ON THE BILL OF LADING, AS HE WOULD IN THE EVENT OF LOSS OR DAMAGE.

SECTION 3065.10 TO WHICH YOU REFER, WAS INCORPORATED INTO OUR POLICY AND PROCEDURES MANUAL BY TRANSMITTAL SHEET NO. 5-4, AND THE SECTIONS ACCOMPANYING TRANSMITTAL SHEET NO. 5-4, INCLUDING SECTION 3065.10, WERE NOT APPLICABLE BEFORE THE DATE OF THE TRANSMITTAL SHEET, NAMELY OCTOBER 12, 1959. THE SHIPMENT HERE CONSIDERED MOVED IN 1956, WELL BEFORE TRANSMITTAL SHEET NO. 5-4 BECAME EFFECTIVE. THE PROVISIONS OF SECTION 3065, FACTUAL SUPPORT OF CHARGES BILLED, WHICH WERE APPLICABLE IN 1956, CONTAINED NO LANGUAGE SUCH AS THE QUOTE ABOVE AND IN YOUR LETTER OF FEBRUARY 22, 1961. AS YOU HAVE NOTED, THE GOVERNMENT BILLS OF LADING NOW IN USE GIVE EFFECT TO THE REQUIREMENT OF AN ANNOTATION WHEN ACCESSORIAL OR SPECIAL SERVICES ARE SHOWN AS ORDERED BUT NOT FURNISHED, BY INSTRUCTION NO. 7 APPEARING ON THE REVERSE SIDE OF THE BILL OF LADING. BILLS OF LADING FORMERLY IN USE, SUCH AS THE ONE UNDER WHICH THE SUBJECT SHIPMENT MOVE, DID NOT INCORPORATE SUCH AN INSTRUCTION NOR DID THEY PROVIDE A SPACE FOR ANNOTATIONS RELATING TO THE ORDERING OF SPECIAL SERVICES AS IS NOW FOUND ON THE REVERSE SIDE OF THE NEWER BILLS.

YOUR SUGGESTION THAT THE CARRIER IS NOT THE CLAIMANT IN THIS MATTER IS APPARENTLY MADE WITH THE VIEW THAT THE GOVERNMENT MUST ESTABLISH THE VALIDITY OF THE DEDUCTION ACTION, AND THAT THE CARRIER NEED NOT SUPPORT ITS CLAIM WITH PROPER PROOF TO RECOVER THE AMOUNT DEDUCTED. THE FACT IS, HOWEVER, THAT THE BURDEN IS AT ALL TIMES ON THE CARRIER TO ESTABLISH THAT IT IS LAWFULLY ENTITLED TO THE CHARGES CLAIMED IN ITS ORIGINAL BILL, WHICH WAS PAID UPON PRESENTATION, AND BEFORE AUDIT, PURSUANT TO THE PROVISIONS OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 54 STAT. 955, 49 U.S.C. 66. IN UNITED STATES V. NEW YORK, NEW HAVEN AND HARTFORD R.CO. 355 U.S. 253 (1957), THE CARRIER SUED TO RECOVER MONEYS DEDUCTED IN 1950 BY THE UNITED STATES, UNDER AUTHORITY OF THE ABOVE-CITED SECTION 322, FOR OVERPAYMENTS IN BILLS PRESENTED AND PAID, PRIOR TO AUDIT, IN 1944. THE QUESTION THE SUPREME COURT HAD BEFORE IT WAS WHETHER THE CARRIER HAD THE BURDEN OF PROVING THE VALIDITY OF ITS CLAIM OR WHETHER THE UNITED STATES HAD THE BURDEN OF PROVING THAT IS WAS OVERCHARGED. THE COURT, AFTER DISCUSSING THE EFFECT OF THE PRACTICE OF PAYMENT OF FREIGHT CHARGES PRIOR TO AUDIT, SAID AT PAGE 263:

" * * * WE HOLD THAT THE RESPONDENT (CARRIER) IS ENTITLED TO RECOVER ONLY IF IT SATISFIES ITS BURDEN OF PROVING THAT ITS 1944 CHARGES WERE COMPUTED AT LAWFUL AND AUTHORIZED RATES.' THE MEANING OF THE ABOVE-CITED DECISION, IN RELATION TO YOUR CLAIM, IS THAT SINCE YOU CLAIMED AND WERE PAID CHARGES ON YOUR ORIGINAL BILL ON THE BASIS OF HAVING FURNISHED EXCLUSIVE USE SERVICE, THE BURDEN IS UPON YOU TO SHOW THAT SUCH SERVICE WAS IN FACT FURNISHED.

INASMUCH AS WE HAVE NO FURTHER EVIDENCE TO ESTABLISH THAT EXCLUSIVE USE OF VEHICLE SERVICE WAS PROVIDED FOR THE SHIPMENT THAT WAS TRANSPORTED UNDER GOVERNMENT BILL OF LADING NO. AF-4990791, OUR DECISION OF FEBRUARY 13, 1961, IS REAFFIRMED.