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B-140131, FEB. 20, 1961

B-140131 Feb 20, 1961
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YOUR CLAIMS FOR REFUND OF THE AMOUNTS DEDUCTED ARE BASED ON THE THEORY THAT ALL OF THE INVOLVED SHIPMENTS ARE PROPERLY RATEABLE UNDER ITEM 145 OF YOUR TARIFF. ITEM 145 PROVIDES THAT "WHERE EQUIPMENT OTHER THAN LOWBOY EQUIPMENT IS OBTAINED. " THE SHIPMENT IS TO BE CHARGED AT "* * * ACTUAL WEIGHT. YOUR PRESENT REQUEST IS APPARENTLY BASED ON A THOUGHT THAT WE MAY HAVE REVISED OUR POSITION IN REGARD TO "EXCLUSIVE USE OF VEHICLE" CLAIMS. WAS SEALED AT ORIGIN AND THAT THE SEALS WERE INTACT AT DESTINATION. SINCE THE SHIPMENTS WERE OUTSIZED SO THAT THEY COULD NOT BE LOADED IN A CLOSED VEHICLE THERE COULD BE NO EVIDENCE OF SEALS IN THIS CASE. THERE IS NO EVIDENCE THAT THE GOVERNMENT RECEIVED EXCLUSIVE USE OF THE VEHICLES FURNISHED FOR THE TRANSPORTATION INVOLVED.

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B-140131, FEB. 20, 1961

TO BELL TRANSPORTATION COMPANY:

YOUR LETTER OF SEPTEMBER 2, 1960, IN EFFECT, REQUESTS RECONSIDERATION OF OUR DECISION OF MARCH 28, 1960, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES ON A SHIPMENT OF ONE POWER TRIP HAMMER MOVING UNDER GOVERNMENT BILL OF LADING AF-8212142. YOU ALSO INCLUDE A LIST OF OTHER OVERCHARGE CLAIMS INVOLVING THE "EXCLUSIVE USE" ITEM (ITEM 145) OF YOUR TARIFF NO. 4, MF-I.C.C. NO. 54.

YOUR CLAIMS FOR REFUND OF THE AMOUNTS DEDUCTED ARE BASED ON THE THEORY THAT ALL OF THE INVOLVED SHIPMENTS ARE PROPERLY RATEABLE UNDER ITEM 145 OF YOUR TARIFF, SINCE ALL SHIPMENTS REQUIRED SPECIAL PERMITS BEFORE THEY COULD BE MOVED, DUE TO THE SIZE OF THE LADING. ADDITIONALLY, THESE PERMITS ISSUED BY STATE REGULATORY BODIES RESTRICTED THE MOVEMENT TO WEEK DAYS AND DURING DAYLIGHT HOURS ONLY. ITEM 145 PROVIDES THAT "WHERE EQUIPMENT OTHER THAN LOWBOY EQUIPMENT IS OBTAINED," THE SHIPMENT IS TO BE CHARGED AT "* * * ACTUAL WEIGHT, SUBJECT * * * TO MINIMUM WEIGHT OF 14,000 POUNDS PER TRUCK USED.' THE ITEM ALSO REQUIRES THAT EACH BILL OF LADING BE MARKED OR AMPED,"EXCLUSIVE USE OF VEHICLE ORDERED BY SHIPPER," "EXCLUSIVE USE OF VEHICLE ORDERED BY CONSIGNEE, OR EXCLUSIVE USE OF VEHICLE REQUIRED BY SPECIAL PERMIT, AS THE CASE MAY BE.' IN OUR DECISION OF MARCH 28, 1960, WE INFORMED YOU THAT IN THE ABSENCE OF STRICT COMPLIANCE WITH THE TARIFF ANNOTATION REQUIREMENTS, WE WOULD NOT BE WARRANTED IN ALLOWING YOUR CLAIM, IN VIEW OF THE PRINCIPLES LAID DOWN BY THE INTERSTATE COMMERCE COMMISSION PERTAINING TO CHARGES BASED ON EXCLUSIVE USE OF VEHICLE. YOUR PRESENT REQUEST IS APPARENTLY BASED ON A THOUGHT THAT WE MAY HAVE REVISED OUR POSITION IN REGARD TO "EXCLUSIVE USE OF VEHICLE" CLAIMS.

WE CONSTRUE THE QUESTION OF THE APPLICABILITY OF MOTOR CARRIER EXCLUSIVE USE CHARGES AS DEPENDENT, ORDINARILY, UPON TWO FACTORS: FIRST, THERE MUST BE EVIDENCE OF A REQUEST FOR EXCLUSIVE USE SERVICE BY THE SHIPPER, AND SECOND, THERE MUST BE EVIDENCE OF THE PERFORMANCE OF THE EXCLUSIVE USE SERVICE BY THE CARRIER. THE FIRST FACTOR MAY BE SATISFIED BY A SHOWING OF AT LEAST SUBSTANTIAL COMPLIANCE WITH THE BILL OF LADING NOTATION REQUIREMENT OF THE PERTINENT TARIFF'S EXCLUSIVE USE RULE; THE SECOND COULD BE SHOWN, FOR INSTANCE, BY A COMPLETION ON THE BILL OF LADING OF THE CERTIFICATE OF SERVICE PRESCRIBED BY ADMINISTRATIVE REGULATIONS PROMULGATED BY THE ARMED SERVICES, OR A SHOWING THAT THE SHIPMENT, IF IN A CLOSED VAN, WAS SEALED AT ORIGIN AND THAT THE SEALS WERE INTACT AT DESTINATION. OBVIOUSLY, SINCE THE SHIPMENTS WERE OUTSIZED SO THAT THEY COULD NOT BE LOADED IN A CLOSED VEHICLE THERE COULD BE NO EVIDENCE OF SEALS IN THIS CASE. HOWEVER, THERE IS NO EVIDENCE THAT THE GOVERNMENT RECEIVED EXCLUSIVE USE OF THE VEHICLES FURNISHED FOR THE TRANSPORTATION INVOLVED. AS TO THE FIRST FACTOR, YOU ADMIT THAT YOU HAVE SINCE AMENDED YOUR TARIFF REQUIREMENTS TO ELIMINATE THE NECESSITY OF AN ANNOTATION, BUT AT THE TIME OF THESE MOVEMENTS THE REQUIREMENT WAS IN EFFECT, AND YOU FAILED TO COMPLY WITH THE REQUIREMENTS PUBLISHED IN ITEM 145. MOREOVER, THE ADMINISTRATIVE OFFICE HAS INFORMED US THAT EXCLUSIVE USE OF THE VEHICLE WAS NOT REQUESTED BY THE SHIPPER AND, THEREFORE, IF IT WERE NECESSARY TO FURNISH EXCLUSIVE USE BECAUSE OF THE SIZE OF THE SHIPMENTS IT WAS INCUMBENT UPON YOU, AS THE CARRIER, TO SO INFORM THE SHIPPER. YOU ALLEGE THAT THE CARRIERS HAVE LITTLE OR NO CONTROL OVER THE GOVERNMENT BILLS OF LADING, BUT EVEN IF THAT WERE A FACT, IT IS TO BE ASSUMED THAT A CARRIER WILL KNOW AND COMPLY WITH ITS OWN TARIFF REQUIREMENTS.

THE COPIES OF THE PERMITS SUBMITTED WITH THE GOVERNMENT BILLS OF LADING DO NOT PROVE THAT EXCLUSIVE USE OF VEHICLE SERVICE WAS RENDERED, BUT THEY ARE NECESSARY TO SUPPORT YOUR CLAIM FOR THE CHARGES ADVANCED IN OBTAINING THESE PERMITS FOR THE SHIPMENT UNDER ITEM 85 OF YOUR TARIFF NO. 4.

THE BURDEN OF PROVING ENTITLEMENT TO PREMIUM CHARGES FOR EXCLUSIVE USE SERVICE IS UPON THE CARRIER, AND IT IS THE CARRIER'S RESPONSIBILITY TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES TO PAY SUCH CHARGES. THIS BURDEN IS NOT AFFECTED BY THE FACT THAT PREVIOUSLY THE AMOUNT IN DISPUTE MAY HAVE BEEN PAID CONDITIONALLY, SUBJECT TO LATER AUDIT AND COLLECTION ACTION BY THE GENERAL ACCOUNTING OFFICE, PURSUANT TO SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66, AS AMENDED. SEE UNITED STATES V. NEW YORK, N.H. AND H.R.CO., 355 U.S. 253; NEW YORK, NEW HAVEN AND H.R.CO. V. UNITED STATES, 272 F.2D 333; BENJAMIN MOTOR EXPRESS V. UNITED STATES, 25 F.2D 547.

ACCORDINGLY, OUR AUDIT ACTION ON THE OVERCHARGE CLAIMS LISTED IN YOUR LETTER IS SUSTAINED, AND OUR DECISION OF MARCH 28, 1960, IS AFFIRMED.

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