B-142112, MAR. 31, 1961

B-142112, MAR. 31, 1961

TO EAST TEXAS MOTOR FREIGHT:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 29, 1960, IN WHICH YOU REQUESTED RECONSIDERATION OF THAT PART OF OUR DECISION OF NOVEMBER 23, 1960, B-142112, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM, ON BILL NO. 7854-A (ETMF CLAIM TD58-0573), FOR $91.80.

YOUR CLAIM IS FOR ADDITIONAL FREIGHT CHARGES FOR EXCLUSIVE USE OF VEHICLE SERVICE ALLEGEDLY FURNISHED ON A SHIPMENT OF GOVERNMENT PROPERTY TRANSPORTED UNDER GOVERNMENT BILL OF LADING NO. WY-4250601 FROM FORT ATKINSON, WISCONSIN, TO THE LONE STAR ORDNANCE PLANT, DEFENSE, TEXAS, IN NOVEMBER 1954. APPROPRIATE ANNOTATIONS ON THE BILL OF LADING INDICATE THAT THE SHIPPER REQUESTED EXCLUSIVE USE SERVICE, THAT THE SHIPMENT WAS LOADED INTO "TRAILER NO. 1766," AND THAT AT ORIGIN SEAL NO. 1895936 WAS AFFIXED TO THE TRAILER. HOWEVER, THE DEPARTMENT OF THE ARMY HAD REPORTED, AMONG OTHER THINGS, THAT THE SHIPMENT ARRIVED AT DESTINATION WITH SECURITY CARTAGE SEAL NO. 40530 ON THE TRAILER; THUS, DESPITE THE FACT THAT THE BILL OF LADING CONTAINS EVIDENCE OF A REQUEST FOR THE EXCLUSIVE USE SERVICE, WHICH SUBSTANTIALLY COMPLIES WITH THE BILL OF LADING NOTATION REQUIREMENTS OF THE PERTINENT TARIFF EXCLUSIVE USE ITEM, WE SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR THE EXCLUSIVE USE CHARGES BECAUSE THE VARIANCE BETWEEN ORIGIN AND DESTINATION TRAILER SEALS SUGGESTS THAT THE CARRIERS DID NOT PERFORM THE REQUESTED SERVICE. AS WE STATED IN OUR DECISION OF NOVEMBER 23, 1960, PROOF OF THE PERFORMANCE OF EXCLUSIVE USE SERVICE IS ONE OF THE TWO FACTORS NECESSARY IN THESE CASES TO ESTABLISH THE LEGAL LIABILITY OF THE UNITED STATES FOR THE PAYMENT OF EXCLUSIVE USE CHARGES.

YOU NOW ASSERT THAT THE INITIAL SEAL (NO. 1895936) ON TRAILER NO. 1766 WAS INTACT AT THE TIME OF THE DELIVERY OF THE SHIPMENT COVERED BY GOVERNMENT BILL OF LADING NO. WY-4250601. AS PROOF, YOU ENCLOSED WITH YOUR LETTER A COPY OF THE FREIGHT BILL COVERING THE SHIPMENT AND A COPY OF A CARRIER MEMORANDUM AND COPIES OF CORRESPONDENCE BETWEEN THE CARRIER AND THE DEPARTMENT OF THE ARMY RELATING TO REFUNDS OF EXCLUSIVE USE CHARGES TO THAT DEPARTMENT BECAUSE OF DIFFERENCE IN THE SEAL RECORDS AT ORIGIN AND DESTINATION ON A SERIES OF SIMILAR SHIPMENTS, SOME OF WHICH WERE TRANSPORTED FROM FORT ATKINSON TO DEFENSE IN NOVEMBER 1954. THE CARRIER ADMITTED THAT THE REQUESTED EXCLUSIVE USE SERVICE WAS NOT FURNISHED AS TO THOSE SHIPMENTS.

EXAMINATION OF THESE DOCUMENTS SHOWS TWO REFERENCES TO THE SHIPMENT TRANSPORTED UNDER GOVERNMENT BILL OF LADING NO. WY-4250601. THE FIRST IS CONTAINED IN A LETTER DATED NOVEMBER 19, 1954, FROM R. L. BARTLETT, TERMINAL MANAGER, TO THE TRANSPORTATION OFFICER, LONE STAR ORDNANCE PLANT, DEFENSE, TEXAS, AND READS:

"OUR RECORDS INDICATE THAT SINCE THIS UNFORTUNATE INCIDENT, WE HAVE DELIVERED TO YOU TRAILER 5002 AND TRAILER 1766 WITH THE SEALS INTACT.'

THE SECOND REFERENCE IS CONTAINED IN WHAT APPEARS TO BE A CARRIER MEMORANDUM, ALSO DATED NOVEMBER 19, 1954, FROM MR. BARTLETT TO MR. O NEAL FULLER, DALLAS, TEXAS, AND READS:

"ON TRAILERS 1766 COVERED BY CHICAGO WAYBILL 61-157176 AND 5002 COVERED BY CHICAGO WAYBILL 61-159402 WERE BOTH DELIVERED WITH ORIGINAL SEALS INTACT, THEREFORE ENTITLING US TO ADDITIONAL CHARGES FOR EXCLUSIVE USE OF TRAILER ON THESE TWO BILLS.'

IT IS NOTED THAT THE SEAL NUMBER IS NOT MENTIONED IN EITHER INSTANCE AND ONLY IN THE SECOND INSTANCE IS REFERENCE MADE TO AN "ORIGINAL" SEAL. THE PERTINENT FREIGHT BILL, NO. 61-157176, DOES NOT CONTAIN ANY SEAL REFERENCE. WE DO NOT DISPUTE THE FACT THAT THE TRAILER INVOLVED ARRIVED AT DESTINATION WITH AN UNBROKEN SEAL, BUT WE HAVE NOT BEEN FURNISHED ANYTHING TO CONTRADICT THE EVIDENCE OF SUBSTITUTION OF ANOTHER SEAL FOR THE ORIGINAL SEAL SOMEWHERE BETWEEN ORIGIN AND DESTINATION. THE DEPARTMENT OF THE ARMY REPORT, SIGNED BY THE TRANSPORTATION OFFICER OF THE LONE STAR ORDNANCE PLANT, READS:

" SHIPMENT ARRIVED AT THIS PLANT WITH SECURITY CARTAGE SEAL NUMBER 40530 ON VAN. BILL OF LADING INDICATES THAT SEAL NUMBER 1895936 WAS APPLIED BY SHIPPER.'

OBVIOUSLY, THIS REPORT AND THE CARRIER MEMORANDUM CONFLICT.

IN CASES OF DISPUTES OVER THE QUESTIONS OF FACT INVOLVED IN A CLAIM, IT LONG HAS BEEN THE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT THE FACTUAL REPORT OF THE ADMINISTRATIVE OFFICE AS CORRECT, IN THE ABSENCE OF CONCLUSIVE CONTRARY EVIDENCE. 5 COMP. DEC. 273 (1898); 36 COMP. GEN. 529, 530 (1957). THE STATEMENTS QUOTED FROM THE CORRESPONDENCE SUBMITTED BY YOU DO NOT CONCLUSIVELY ESTABLISH THE INCORRECTNESS OF THE ADMINISTRATIVE OFFICE'S REPORT. THUS, ON THE BASIS OF THE PRESENT RECORD IN THIS CLAIM, YOU HAVE NOT MET THE BURDEN OF PROVING YOUR ENTITLEMENT TO THESE EXCLUSIVE USE CHARGES AND OF ESTABLISHING THE LEGAL LIABILITY OF THE UNITED STATES FOR THE PAYMENT OF THOSE CHARGES.

IN THESE CIRCUMSTANCES, THE CONCLUSION REACHED IN OUR DECISION OF NOVEMBER 23, 1960, SUSTAINING THE DISALLOWANCE OF YOUR CLAIM ON BILL NO. 7854-A IS REAFFIRMED.