B-144924, MAY 25, 1961

B-144924, MAY 25, 1961

TO GARRETT FREIGHT LINES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 20, 1961, REQUESTING REVIEW OF SETTLEMENT DATED JANUARY 3, 1961, WHICH DISALLOWED YOUR CLAIM PER SUPPLEMENTAL BILL NO. 5370-B FOR $170.40 ADDITIONAL TRANSPORTATION CHARGES ON A SHIPMENT OF "MILITARY IMPEDIMENTA" FROM THE NAVAL AUXILIARY AIR STATION, FALLON, NEVADA, TO THE NAVAL AIR STATION, MOFFETT FIELD, CALIFORNIA, UNDER GOVERNMENT BILL OF LADING N 34056480, DATED MAY 22, 1959.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID $375.18. YOU LATER SUBMITTED A SUPPLEMENTAL BILL FOR $191.22 ADDITIONAL TRANSPORTATION CHARGES CONTENDING THAT THE AMOUNT PROPERLY PAYABLE FOR THIS SHIPMENT WAS $566.40, THE MINIMUM CHARGES SET FORTH IN ITEM 898 OF INTERSTATE FREIGHT CARRIERS CONFERENCE TARIFF NO. 7-A, MF-I.C.C. NO. A-7, FOR EXCLUSIVE USE OF VEHICLE SERVICE COMPUTED ON A MINIMUM WEIGHT OF 24,000 POUNDS AT THE CLASS 70 RATE OF $2.36 PER 100 POUNDS. THE BILL OF LADING IN QUESTION WAS NOT ANNOTATED IN ACCORDANCE WITH THE CITED TARIFF REQUIREMENTS AND IT WAS THEREFORE FOUND THAT YOU WERE NOT ENTITLED TO SPECIAL CHARGES FOR EXCLUSIVE-USE SERVICE. IT WAS DETERMINED, HOWEVER, THAT THE CORRECT CHARGES WERE $396 COMPUTED IN ACCORDANCE WITH ITEM 555 OF INTERSTATE FREIGHT CARRIERS CONFERENCE QUOTATION I.C.C. NO. 2, AT THE RATE OF $1.65 PER 100 POUNDS ON A MINIMUM WEIGHT OF 24,000 POUNDS. THE DIFFERENCE OF $20.82 BETWEEN THE AMOUNT YOU ORIGINALLY BILLED AND THE AMOUNT DETERMINED TO BE DUE WAS ALLOWED ON FEBRUARY 25, 1960. SUBSEQUENTLY, ON MARCH 23, 1960, YOU PROTESTED OUR SETTLEMENT ACTION AND REITERATED YOUR CLAIM FOR EXCLUSIVE USE OF VEHICLE SERVICE. THIS CLAIM IN THE AMOUNT OF $170.40 WAS DISALLOWED BY OUR SETTLEMENT OF JANUARY 3, 1961.

IT HAS BEEN HELD THAT BEFORE MOTOR CARRIERS FURNISHING TRANSPORTATION SERVICES UNDER GOVERNMENT BILLS OF LADING ARE ENTITLED TO PREMIUM CHARGES FOR EXCLUSIVE USE OF VEHICLES, TWO CONDITIONS MUST BE SHOWN BY THE CARRIERS TO HAVE BEEN SATISFIED: FIRST, THERE MUST BE SUBSTANTIAL COMPLIANCE WITH THE EXCLUSIVE USE OF VEHICLE TARIFF OR QUOTATION REQUIREMENTS CONCERNING THE ANNOTATION ON THE BILL OF LADING, AND SECOND, THERE MUST BE EVIDENCE THAT THE EXCLUSIVE USE OF VEHICLE SERVICE WAS, IN FACT, PERFORMED. 39 COMP. GEN. 755.

IT IS SPECIFICALLY PROVIDED IN NOTE 2 OF THE ABOVE-MENTIONED ITEM 898, PERTAINING TO EXCLUSIVE USE OF VEHICLE SERVICE, THAT---

"SHIPPER SHALL ENDORSE ON THE BILL OF LADING: "EXCLUSIVE USE OF VEHICLE REQUESTED.'"

THE BILL OF LADING DOES NOT BEAR AN ENDORSEMENT AS REQUIRED BY THE TARIFF SHOWING THAT EXCLUSIVE USE OF THE VEHICLE WAS REQUESTED AND THERE IS NO INDICATION THAT THE SHIPMENT MOVED UNDER SEAL. THE BILL OF LADING SHOWS THAT THE SHIPMENT WAS TENDERED TO THE ORIGIN CARRIER, THE NEVADA TRUCK LINES, AT FALLON, NEVADA, ON MAY 22, 1959, AND THE CONSIGNEE'S CERTIFICATE OF DELIVERY WAS EXECUTED AT MOFFETT FIELD, CALIFORNIA, ON MAY 25, 1959. AFTER DELIVERY HAD BEEN MADE, C. R. WILLIAMSON, THE OFFICER WHO ISSUED THE ORIGINAL BILL OF LADING, EXECUTED A NAV.S. AND A. FORM 1076, DATED JUNE 5, 1959, PURPORTING TO CORRECT THE ORIGINAL BILL OF LADING BY ADDING THE NOTATION "EXCLUSIVE USE OF VEHICLE REQUESTED BY THE GOVERNMENT.' THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE BILL OF LADING WAS NOT AVAILABLE FOR ENDORSING AT THE TIME THE SHIPMENT WAS TENDERED TO THE ORIGIN CARRIER. MOREOVER, THERE IS NOTHING IN THE RECORD TO INDICATE THAT EXCLUSIVE USE SERVICE WAS, IN FACT, RENDERED.

THE INTERSTATE COMMERCE COMMISSION IN GUS BLASS COMPANY V. POWELL BROS. TRUCK LINE, 53 M.C.C. 603, AFTER REFERRING TO THE WELL ESTABLISHED PRINCIPLE THAT THE RULES IN A TARIFF CANNOT BE WAIVED (DAVIS V. HENDERSON, 266 U.S. 92; NATURAL PRODUCTS REFINING CO. V. CENTRAL RAILROAD CO. OF NEW JERSEY, 216 I.C.C. 105), HELD THAT THE OMISSION OF A REQUIRED BILL OF LADING ENDORSEMENT WAS A DEFECT FATAL TO THE APPLICATION OF TRANSPORTATION CHARGES BASED ON AN EXCLUSIVE USE OF VEHICLE RULE EVEN THOUGH EXCLUSIVE USE OF VEHICLE SERVICE ACTUALLY WAS REQUESTED AND FURNISHED. SEE ALSO TUMPSON AND COMPANY V. N. BRADDOCK MOTOR LINES, 8 FED. CARRIER CASES 479 AND SOUTHERN KNITWEAR MILLS, INC. V. ASSOCIATED TRANSPORT, INC., 9 FED. CARRIER CASES 710. IN THESE CIRCUMSTANCES, AND BECAUSE THE RECORD DOES NOT INDICATE THAT THE BILL OF LADING WAS UNAVAILABLE FOR ENDORSING AT THE TIME THE SHIPMENT WAS TENDERED TO THE ORIGIN CARRIER, THE OMISSION OF THE REQUIRED BILL OF LADING ANNOTATION, A DEFECT WHICH IS NOT CURED BY A LATER ATTEMPT--- AFTER THE MOVEMENT WAS ACCOMPLISHED--- TO CORRECT THE DOCUMENT, DEFEATS YOUR CLAIM FOR EXCLUSIVE-USE CHARGES. MOREOVER, AS STATED ABOVE, THERE IS NOTHING IN THE RECORD TO ESTABLISH THAT EXCLUSIVE-USE SERVICE WAS, IN FACT, RENDERED.

A CARRIER BEARS THE BURDEN OF JUSTIFYING ITS CHARGES (UNITED STATES V. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD CO., 355 U.S. 253), AND CLAIMANTS BEFORE THE GENERAL ACCOUNTING OFFICE MUST BEAR THE BURDEN OF PRESENTING EVIDENCE CLEARLY AND SATISFACTORILY PROVING THEIR CLAIMS AND ALL MATTERS INCIDENTAL THERETO REQUISITE TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES AND THE CLAIMANT'S RIGHT TO PAYMENT FROM APPROPRIATED FUNDS. 4 CFR 54.5; 17 COMP. GEN. 831; 18 ID. 980; 23 ID. 907; 31 ID. 340. ACCORDINGLY, ON THE PRESENT RECORD, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND IS SUSTAINED.