B-138933, SEP. 10, 1959

B-138933, SEP. 10, 1959

TO A. B. JAMES FREIGHT LINES:

FURTHER REFERENCE IS MADE TO YOUR FILE NO. N-263/45 UC-12, REPRESENTING A REQUEST FOR REVIEW OF THE SETTLEMENT MADE OCTOBER 30, 1958 (CLAIM TK- 649129) WHICH DISALLOWED YOUR CLAIM FOR $178.60 IN CONNECTION WITH SERVICES FURNISHED ON GOVERNMENT BILL OF LADING N 6044717.

BILL OF LADING N-6044717, DATED JUNE 13, 1945, COVERED A SHIPMENT DESCRIBED THEREON AS 11 CRATES OF "TANKS, FUEL 7 FEET 6 INCHES BY 6 FEET 0 INCHES BY 4 FEET 2 INCHES," WEIGHING 3,725 POUNDS, AND MEASURING 1,884 CUBIC FEET, FROM THE NAVAL AIR STATION AT NORTH ISLAND, CALIFORNIA, TO THE NAVAL AIR STATION AT ALAMEDA, CALIFORNIA. BENEATH THE DESCRIPTION OF THE COMMODITY ON THE BILL OF LADING APPEARS THE FOLLOWING PROVISION CONCERNING APPLICABLE TARIFFS AND RATES:

"SUBJECT TO APPLICABLE TARIFF RATES LAWFULLY ON FILE WITH I.C.C. AND/OR C.R.C. OR C.R.C. HIGHWAY CARRIERS TARIFF (SIC) NUMBER 2 AS A MAXIMUM.' THE SPACE ON THE BILL OF LADING DESIGNATED "FOR USE OF DESTINATION CARRIER ONLY" IS A HANDWRITTEN STATEMENT THAT "THESE WERE MTY GAS TANKS INFLATED-- - NO WEIGHT BUT TOOK UP ENTIRE TRUCK AND TRAILER LOADED TO FULL LEGAL CAPACITY---," APPARENTLY PLACED THERE BY THE OFFICIAL OF THE CARRIER WHO COMPUTED THE CHARGES FOR BILLING PURPOSES.

FOR THE SERVICE FURNISHED, THE CARRIER ORIGINALLY BILLED AND COLLECTED CHARGES OF $227.40, COMPUTED ON THE BASIS OF 24,192 POUNDS, ARRIVED AT BY MULTIPLYING 3,024 CUBIC FEET BY A THEORETICAL WEIGHT OF 8 POUNDS PER CUBIC FOOT, AT A RATE OF 94 CENTS PER 100 POUNDS, MADE 11 CENTS TO SAN DIEGO AND 83 CENTS BEYOND TO ALAMEDA. IN THE AUDIT HERE, OUR TRANSPORTATION DIVISION DETERMINED THE PROPER CHARGES TO BE $48.80, COMPUTED AT A RATE OF $1.22 PER 100 POUNDS ON THE ACTUAL WEIGHT OF THE SHIPMENT, SUBJECT TO A MINIMUM WEIGHT OF 4,000 POUNDS, AS PROVIDED IN ITEM 500, CALIFORNIA RAILROAD COMMISSION TARIFF NO. 2, BASED UPON 575-600 MILES COMPUTED VIA CORONADO IN CALIFORNIA RAILROAD COMMISSION MILEAGE TARIFF NO. 3. UPON THE CARRIER'S FAILURE TO REFUND THE AMOUNT OVERPAID, $178.60, IT WAS DEDUCTED FROM AMOUNTS OTHERWISE DUE, AND THE CLAIM WHOSE DISALLOWANCE IS THE SUBJECT OF YOUR PRESENT LETTER FOLLOWED.

YOU ARGUE THAT CALIFORNIA RAILROAD COMMISSION TARIFF NO. 2 IS A TARIFF OF MINIMUM RATES WHICH YOU ARE NOT BOUND TO PROTECT, SUPPORTING YOUR POSITION WITH REFERENCE TO A CLAUSE IN ITEM 20A, 7TH REVISED PAGE 13 OF TARIFF NO. 2, WHICH PERMITS DEVIATION FROM THE MINIMA IN THE CASE OF SHIPMENTS FOR THE UNITED STATES ARMED FORCES, AND THAT OUR APPLICATION OF THE TARIFF NO. 2 RATES REPRESENTS A CONCLUSION UNSUPPORTED BY LEGAL AUTHORITY.

THE CHARACTERIZATION OF TARIFF NO. 2, STANDING ALONE, AS A MINIMUM RATE TARIFF, IS NOT GERMANE IN THESE CIRCUMSTANCES, SINCE THE ABOVE DESCRIBED PROVISION INSERTED IN THE BILL OF LADING INCORPORATED THEREIN BY REFERENCE AND MADE AN INTEGRAL PART OF THE CONTRACT OF CARRIAGE REPRESENTED THEREBY THE APPLICABLE RATE PUBLISHED IN TARIFF NO. 2 AS THE MAXIMUM THE GOVERNMENT COULD LEGALLY BE CALLED UPON TO PAY FOR THE SERVICE FURNISHED. ITEM 20A, 7TH REVISED PAGE 13 OF TARIFF NO. 2 WAS ADDED EFFECTIVE OCTOBER 4, 1948, MORE THAN 3 YEARS AFTER THE SHIPMENT MOVED; ITS IMPORT, MOREOVER, RATHER THAN SUPPORTING YOUR CONTENTION, IS TO PERMIT CARRIERS TO NEGOTIATE FOR MILITARY TRAFFIC BELOW THE FLOOR ESTABLISHED BY THE MINIMUM RATE TARIFF.

AS YOU ARE AWARE, CARRIERS HAVE THE BURDEN OF PROVING INITIALLY THE EXISTENCE OF A CLAIM, THE LIABILITY OF THE UNITED STATES FOR ITS PAYMENT, AND THE CORRECTNESS OF THE SUM CLAIMED. SEE UNITED STATES V. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, 355 U.S. 253. AS TO YOUR BILL N263/45, YOU HAVE PROVED NOTHING BUT THE PERFORMANCE OF THE TRANSPORTATION. IN SUPPORT OF THE CHARGES BILLED, YOU HAVE NOT SHOWN ANY TARIFF AUTHORITY, OR OFFERED ANY EVIDENCE OF A RATE QUOTATION OR NEGOTIATED RATE AGREEMENT WHICH WOULD OPERATE TO SUPERSEDE OR NEGATE THE PROVISION IN THE BILL OF LADING CONTRACT FOR OBSERVING CALIFORNIA RAILROAD COMMISSION TARIFF NO. 2 RATES AS MAXIMA.

IN THE CIRCUMSTANCES, THE RECORD BEFORE US REQUIRES A DETERMINATION THAT THE DISALLOWANCE OF YOUR CLAIM, IN THE SETTLEMENT OF OCTOBER 30, 1958, WAS CORRECT AND IT IS SUSTAINED.