B-142649, DEC. 29, 1960
Highlights
INC: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 15. THE REASSERTING THAT YOUR COMPANY IS ENTITLED TO PAYMENT BASED ON THE EXCLUSIVE USE OF A VEHICLE. WHICH REQUIRES THE CARRIER TO INDICATE A SEAL RECORD OR OTHERWISE PROVE THAT EXCLUSIVE-USE SERVICE WAS FURNISHED. IT IS WELL ESTABLISHED. THAT A CARRIER IS ENTITLED TO NO GREATER CHARGES THAN THOSE FOR THE SERVICE PERFORMED. IT IS INCUMBENT UPON THE BILLING CARRIER CLEARLY TO ESTABLISH ENTITLEMENT TO THE AMOUNT CLAIMED AND THIS DESPITE THE FACT THAT SUCH AMOUNT MAY HAVE BEEN PREVIOUSLY PAID AND RECOVERED BY DEDUCTION IN THE AUDIT. AS TO YOUR STATEMENT THAT EXCLUSIVE USE WAS RENDERED BY YOUR COMPANY. OTHER DOCUMENTARY EVIDENCE IS NECESSARY TO ESTABLISH THAT EXCLUSIVE-USE SERVICE WAS ACTUALLY FURNISHED BY EACH OF THE CARRIERS PARTICIPATING IN THE FREIGHT MOVEMENT.
B-142649, DEC. 29, 1960
TO JONES TRUCK LINES, INC:
REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 15, 1960, FILE 2, IN EFFECT REQUESTING RECONSIDERATION OF OUR DECISION OF JUNE 30, 1960, B 142649, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL CHARGES ON THE SHIPMENT OF JET PROPULSION ENGINES WHICH MOVED FROM LANGLEY AIR FORCE BASE, VIRGINIA, TO TINKER AIR FORCE BASE, MIDWEST CITY, OKLAHOMA, UNDER GOVERNMENT BILL OF LADING AF-732729, DATED AUGUST 12, 1957.
THE REASSERTING THAT YOUR COMPANY IS ENTITLED TO PAYMENT BASED ON THE EXCLUSIVE USE OF A VEHICLE, YOU DIRECT ATTENTION TO THE ABSENCE OF ANY PROVISION IN ITEM 370 OF EASTERN CENTRAL MOTOR CARRIERS ASSOCIATION TARIFF 32, MF-I.C.C. A-139, WHICH REQUIRES THE CARRIER TO INDICATE A SEAL RECORD OR OTHERWISE PROVE THAT EXCLUSIVE-USE SERVICE WAS FURNISHED. IT IS WELL ESTABLISHED, HOWEVER, THAT A CARRIER IS ENTITLED TO NO GREATER CHARGES THAN THOSE FOR THE SERVICE PERFORMED. MOREOVER, UNDER SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66, IT IS INCUMBENT UPON THE BILLING CARRIER CLEARLY TO ESTABLISH ENTITLEMENT TO THE AMOUNT CLAIMED AND THIS DESPITE THE FACT THAT SUCH 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.
AS TO YOUR STATEMENT THAT EXCLUSIVE USE WAS RENDERED BY YOUR COMPANY, THE ROUTING DIRECTIONS ON THE BILL OF LADING INDICATE THAT THREE CARRIERS PARTICIPATED IN THE PERFORMANCE OF THE TRANSPORTATION. THUS IN THE ABSENCE OF AN INDICATION THAT THE SHIPMENT MOVED UNDER A CLEAR SEAL RECORD, OTHER DOCUMENTARY EVIDENCE IS NECESSARY TO ESTABLISH THAT EXCLUSIVE-USE SERVICE WAS ACTUALLY FURNISHED BY EACH OF THE CARRIERS PARTICIPATING IN THE FREIGHT MOVEMENT. OTHERWISE, WE WOULD NOT BE JUSTIFIED IN AUTHORIZING THE PAYMENT OF THE GREATER CHARGES APPLICABLE FOR EXCLUSIVE-USE SERVICES. 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 FURNISH SATISFACTORY EVIDENCE WHICH WILL ESTABLISH THAT NO OTHER FREIGHT WAS TRANSPORTED ON THE TRUCK OR TRUCKS ON WHICH THE SHIPMENT MOVED, AND THAT EXCLUSIVE USE OF A VEHICLE WAS IN FACT ACCORDED THE SHIPMENT BY ALL CARRIERS PARTICIPATING IN THE FREIGHT MOVEMENT, WE WILL GIVE THE MATTER FURTHER CONSIDERATION.