B-134023, MARCH 4, 1958, 37 COMP. GEN. 560

B-134023, MARCH 4, 1958, 37 COMP. GEN. 560

TRANSPORTATION - RATES - EXPORT - BURDEN OF PROOF CARRIER CLAIMING ADDITIONAL FREIGHT CHARGES BASED ON DOMESTIC RATHER THAN EXPORT RATE FOR SHIPMENTS, WHICH WERE CONSIGNED TO ARMY DEPOT SAVANNAH, GEORGIA, DURING 1942-1945, UNDER GOVERNMENT BILL OF LADING INDICATING EXPORT, HAS BURDEN OF PROVING DOMESTIC RATE, NOTWITHSTANDING CONTENTION THAT GOVERNMENT DID NOT COMPLY WITH TARIFF REQUIREMENT THAT CARRIER BE GIVEN PROOF OF EXPORTATION, SINCE TARIFF DID NOT SPECIFY ANY PARTICULAR KIND OF NOTICE OR ANY TIME LIMIT FOR FURNISHING PROOF; AND, ON BASIS OF INVESTIGATION OF SIMILAR SHIPMENTS AT DEPOT DURING PERIOD INDICATING THAT ALL, OR SUBSTANTIALLY ALL, OF THE SHIPMENTS WERE EITHER ULTIMATELY EXPORTED OR WERE CONSIDERED FRUSTRATED SHIPMENTS UNDER TARIFF, WHICH SPECIFIED EXPORT RATE FOR SHIPMENTS THAT COULD NOT BE EXPORTED DUE TO PORT CONDITIONS, CARRIER'S CLAIMS MUST BE DISALLOWED.

TO THE CENTRAL OF GEORGIA RAILWAY COMPANY, MARCH 4, 1958:

REFERENCE IS MADE TO YOUR FILE N-11909-G-A, COVERING YOUR REQUEST FOR REVIEW OF OUR SETTLEMENTS WHICH DISALLOWED YOUR CLAIMS FOR ADDITIONAL FREIGHT CHARGES ON 34 SUPPLEMENTAL BILLS ITEMIZED ON A LIST ATTACHED TO YOUR LETTER AGGREGATING $24,133.37 FOR SHIPMENTS MOVING UNDER GOVERNMENT BILLS OF LADING.

AN EXAMINATION OF THE RECORD ASSEMBLED HERE SHOWS THAT EACH OF THE SHIPMENTS INVOLVED MOVED FROM VARIOUS POINTS OF ORIGIN TO SAVANNAH, GEORGIA, FOR CONSIGNMENT TO THE SAVANNAH ARMY SERVICE FORCES DEPOT DURING THE YEARS 1942, 1943, 1944, AND 1945. THE BILLS OF LADING BEAR NOTATIONS AND REMARKS WHICH SHOW THAT THE SHIPMENTS WERE PACKED AND INTENDED FOR EXPORT. THE SOLE ISSUE INVOLVED IN ALL OF THE CLAIMS IS THE QUESTION OF WHETHER THE EXPORT RATE OR THE DOMESTIC RATE IS PROPERLY APPLICABLE IN COMPUTING FREIGHT CHARGES ON THE SHIPMENTS.

AS THE DELIVERING CARRIER, YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES BASED ON THE DOMESTIC RATES, LESS AUTHORIZED LAND-GRANT DEDUCTIONS. OUR AUDIT OF THE PAID VOUCHERS, THE CHARGES WERE ADJUSTED ON THE BASIS OF THE LOWEST AVAILABLE EXPORT RATES, LESS LAND GRANT DEDUCTIONS. IN YOUR REQUEST FOR REVIEW OF THE SETTLEMENTS DISALLOWING YOUR CLAIMS YOU URGE THAT SINCE THE GOVERNMENT HAD NOT COMPLIED WITH THE TARIFF REQUIREMENT THAT PROOF OF EXPORTATION BE GIVEN THE CARRIER, IT WAS NOT ENTITLED TO THE EXPORT RATES ON THESE SHIPMENTS.

OUR AUDIT ACTION WAS BASED UPON THE AUTHORITY CONTAINED IN PROVISIONS PUBLISHED IN AGENT HATTENDORF'S EXPORT FREIGHT TARIFF NO. 1016-I, I.C.C. NO. 52, WHICH AUTHORIZED THE APPLICATION OF EXPORT RATES ON SHIPMENTS CONSIGNED TO THE U.S. GOVERNMENT AND HANDLED THROUGH NAVAL BASES, NAVY YARDS, OR ARMY BASES FOR EXPORT, PROVIDED PROOF OF EXPORTATION IS SUBSEQUENTLY GIVEN TO THE INBOUND LINE HAUL CARRIER. THE RULE WITH REGARD TO PROOF OF EXPORTATION DOES NOT SPECIFY ANY PARTICULAR KIND OF NOTICE OR ANY TIME LIMIT FOR FURNISHING SUCH PROOF. FURTHERMORE, FROM DECEMBER 28, 1942, THROUGHOUT THE PERIOD DURING WHICH ALL BUT THE FIRST TWO SHIPMENTS INVOLVED WERE MADE THERE WAS ON FILE WITH THE INTERSTATE COMMERCE COMMISSION A TARIFF DESIGNATED AS " FREIGHT TARIFF NO. F-1," OR THE REISSUE THEREOF," FREIGHT TARIFF NO. F 1-A," WHICH APPLIED ON SHIPMENTS RECEIVED AT A PORT INTENDED FOR EXPORT, BUT WHICH COULD NOT BE EXPORTED AT SUCH PORT BECAUSE OF CONDITIONS THEN EXISTING BEYOND THE CONTROL OF THE PARTIES, AND WHICH WERE SUBSEQUENTLY RESHIPPED BY RAIL TO: (A) ANOTHER PORT FOR EXPORT; OR (B) TO AN INTERIOR POINT FOR STORAGE THEREAT AND SUBSEQUENT RESHIPMENT TO THE SAME OR ANOTHER PORT FOR EXPORT; OR (C) TO AN INTERIOR POINT FOR DOMESTIC USE. IN SUCH CIRCUMSTANCES THE EXPORT RATE WAS APPLICABLE ON THE ORIGINAL MOVEMENT TO THE INITIAL PORT WHERE THE EXPORTATION OF THE SHIPMENT WAS FRUSTRATED.

THE RECORD SHOWS THAT ALL OF THE GOODS INVOLVED IN THE SHIPMENTS HERE UNDER CONSIDERATION WERE ORIGINALLY CONSIGNED TO THE ARMY SERVICE FORCES DEPOT AT SAVANNAH, GEORGIA, FOR EXPORT. IT HAS BEEN REPORTED THAT THE DEPOT MISSION OF THAT INSTALLATION DURING THE PERIOD WHEN THESE SHIPMENTS WERE MADE WAS TO SERVE AS A FILLER DEPOT TO RECEIVE AND STORE NONPERISHABLE SUBSISTENCE SUPPLIES FOR ISSUE AND SHIPMENT THROUGH THE CHARLESTON PORT OF EMBARKATION, OR AS DIRECTED BY THE QUARTERMASTER GENERAL. AN INVESTIGATION CONDUCTED IN CONNECTION WITH THE CASE OF CENTRAL OF GEORGIA RAILWAY COMPANY V. UNITED STATES, COURT OF CLAIMS NO. 135-52, INDICATED THAT A NUMBER OF SHIPMENTS, CONSIGNED AND MARKED IN THE SAME MANNER AS WERE THOSE HERE INVOLVED, WERE SWITCHED IN THE ORIGINAL CARS TO THE DOCKS IN SAVANNAH AND LOADED ABOARD OCEAN VESSELS BY A LOCAL SHIPPING COMPANY. OTHER SHIPMENTS LIKE THOSE HERE INVOLVED WERE UNLOADED AT THE ARMY SERVICE FORCES DEPOT AND THERE STOCKPILED FOR USE IN CONNECTION WITH FUTURE REQUISITIONS. THIS TYPE OF SHIPMENT WAS LATER LOADED INTO A FREIGHT CAR AT THE DEPOT AND SWITCHED A DISTANCE OF APPROXIMATELY FIVE MILES TO THE DOCKS FOR HANDLING BY THE SAME LOCAL SHIPPING COMPANY. OUR INVESTIGATION IN CONNECTION WITH THE CITED CASE INDICATED THAT SOME OF THE GOODS INVOLVED IN SIMILAR SHIPMENTS WERE FRUSTRATED WITHIN THE MEANING OF THE CITED "F-1" AND "F-1-A.' TARIFFS. IT IS NOTED THAT THE ABOVE COURT OF CLAIMS CASE WAS TERMINATED ON THE BASIS OF AN AGREEMENT BETWEEN THE PARTIES PROVIDING FOR THE PAYMENT TO THE PLAINTIFF OF ABOUT 29 PERCENT OF THE AMOUNT FOR WHICH SUIT WAS FILED. SIMILAR BASIS FOR SETTLEMENT HAS BEEN SUGGESTED IN THE PRESENT MATTER.

WITH REGARD TO YOUR REFERENCE TO A RULING OF THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, REPORTED AS UNITED STATES V. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD CO., 236 F.2D 101, REGARDING THE BURDEN OF PROOF QUESTION INSOFAR AS OUR AUDIT ACTION IS CONCERNED, YOUR ATTENTION IS INVITED TO THE DECISION IN UNITED STATES V. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD CO., SUPREME COURT OF THE UNITED STATES NO. 45, DECEMBER 16, 1957, WHICH REAFFIRMED THE PRINCIPLE THAT THE BURDEN OF PROOF AS TO TRANSPORTATION CHARGES PAID BY THE GOVERNMENT CONTINUED TO REMAIN WITH THE CARRIERS AFTER THE ENACTMENT OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66.

SINCE OUR INVESTIGATION MADE IN CONNECTION WITH THE ABOVE-CITED COURT OF CLAIMS CASE, NO. 130-52, INVOLVING SIMILAR SHIPMENTS, INDICATED THAT ALL, OR SUBSTANTIALLY ALL, OF THE SHIPMENTS ORIGINALLY CONSIGNED TO THE ARMY SERVICES FORCES DEPOT AT SAVANNAH, GEORGIA, FOR EXPORT DURING THE PERIOD OF THE OPERATION OF THAT DEPOT, WERE EITHER (1) EXPORTED AS ORIGINALLY INTENDED, OR (2) FRUSTRATED WITHIN THE MEANING OF THE CITED "F-1" AND "F-1 -A," TARIFFS, EXPORT RATES ARE FOUND TO BE APPLICABLE TO THESE SHIPMENTS. ACCORDINGLY, THE SETTLEMENTS DISALLOWING YOUR CLAIMS WERE PROPER, AND SUCH SETTLEMENTS ARE SUSTAINED.