B-145138, JUL. 31, 1961

B-145138, JUL. 31, 1961

TO WESTERN TRUCK LINES, LTD., GILLETTE MOTOR TRANSPORT, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17, 1961, WHEREIN YOU REQUESTED A REVIEW OF OUR SETTLEMENT CERTIFICATE OF JANUARY 12, 1961 (TK-666063), WHICH DISALLOWED YOUR CLAIM FOR $752 ON BILL NO. G-01610. YOUR CLAIM REPRESENTS THE DIFFERENCE IN CHARGES OF $782, BASED ON A TRUCKLOAD RATE OF $3.52 PER 100 POUNDS APPLIED TO A MINIMUM WEIGHT OF 20,000 POUNDS, PLUS AN ARBITRARY OF 39 CENTS PER 100 POUNDS, AS ALLOWED IN OUR AUDIT, AND THE EXCLUSIVE-USE-OF-VEHICLE CHARGES AMOUNTING TO $1,534 BASED ON A FIRST CLASS LESS-THAN-TRUCKLOAD RATE OF $7.28 PER 100 POUNDS APPLIED TO A MINIMUM WEIGHT OF 20,000 POUNDS, PLUS AN ARBITRARY OF 39 CENTS PER 100 POUNDS, AS YOU CONTEND TO BE PROPERLY ASSESSABLE. THE PERTINENT GOVERNMENT BILL OF LADING, NO. AF 6641517, SHOWS THAT THE SHIPMENT CONSISTED OF ONE CAN CONTAINING AN INTERNAL COMBUSTION ENGINE AND ONE BOX CONTAINING AN EXHAUST, TRANSPORTED FROM KELLY AIR FORCE BASE, SAN ANTONIO, TEXAS, TO TRAVIS AIR FORCE BASE, CALIFORNIA, DURING JUNE 1956.

IN OUR SETTLEMENT CERTIFICATE OF JANUARY 12, 1961, YOU WERE ADVISED THAT THE DISALLOWANCE OF YOUR CLAIM WAS BASED ON THE FACT THAT THERE WAS NO INDICATION IN THE RECORD AVAILABLE HERE THAT EXCLUSIVE-USE SERVICE WAS FURNISHED. IT WAS INDICATED IN THE SETTLEMENT CERTIFICATE THAT UPON THE PRODUCTION OF SATISFACTORY EVIDENCE ESTABLISHING THAT THE VEHICLE WAS SEALED WITH SEALS INTACT UPON DELIVERY OR OTHER EVIDENCE SUPPORTING THE POSITION THAT NO OTHER GOODS WERE LOADED ON THE TRUCK AFTER DEPARTURE FROM POINT OF ORIGIN, THE MATTER WOULD BE GIVEN FURTHER CONSIDERATION. YOUR LETTER OF FEBRUARY 17, 1961, STATES THAT SINCE THE SHIPMENT WAS CARRIED ON OPEN TYPE EQUIPMENT THERE WAS NO SEAL RECORD, BUT THAT THE TRANSIT TIME INVOLVED WOULD INDICATE THAT THE SPECIAL SERVICE WAS PERFORMED. YOU THEN STATE THAT THE RECORD FAILS TO INDICATE THAT ANY OTHER FREIGHT WAS LOADED ON THE VEHICLE, AND THAT THE CONSIGNEE'S SIGNATURE ON THE BILL OF LADING CERTIFYING AS TO THE RECEIPT OF THESHIPMENT SHOULD BE SUFFICIENT PROOF OF THE PERFORMANCE OF EXCLUSIVE-USE SERVICE.

WHILE IT MAY BE THAT A DESIRE FOR EXPEDITED TRANSPORTATION IS OFTEN THE REASON BEHIND A REQUEST FOR EXCLUSIVE USE, THE EXCLUSIVE-USE-OF VEHICLE TARIFF PROVISIONS CONSIDERED IN THIS INSTANCE CONTAIN NO REFERENCE TO THE APPLICABILITY OF THE CHARGE BASIS PRESCRIBED THEREIN TO A CASE WHERE EXPEDITED SERVICE IS UNDERTAKEN. THERE IS, THEREFORE, NO TARIFF AUTHORITY FOR PAYING PREMIUM CHARGES ON THE BASIS OF TRANSIT TIME ALONE. EVEN THOUGH THE SHIPPER WHO REQUESTS THE EXCLUSIVE USE OF A VEHICLE MAY ANTICIPATE EXPEDITED SERVICE BY THE AVOIDANCE OF DELAYS CAUSED BY THE ADDING OR SHIFTING OF FREIGHT, THE PAYMENT OF PREMIUM CHARGES IS BASED SOLELY ON THE FACTS THAT THE SHIPPER REQUESTED AND WAS ACCORDED THE EXCLUSIVE USE OF THE VEHICLE UTILIZED. THE TIME THAT WAS SPENT IN TRANSPORTING A SHIPMENT IN OPEN TYPE EQUIPMENT DOES NOT NECESSARILY SERVE TO PROVE THE ALLEGATION THAT THE PARTICULAR LADING INVOLVED WAS THE ONLY PROPERTY LOADED AND TRANSPORTED ON THE VEHICLE.

IN ANSWER TO YOUR CONTENTION THAT THE CONSIGNEE'S SIGNATURE ON THE BILL OF LADING PROVIDES SUFFICIENT PROOF THAT EXCLUSIVE-USE SERVICE WAS PERFORMED, IT MAY BE NOTED THAT THE CERTIFICATION TO WHICH YOU REFER RECITES WHAT PROPERTY WAS RECEIVED AT DESTINATION, THE CONDITION OF SUCH PROPERTY, AND WHETHER DELIVERY WAS BY THE GOVERNMENT OR ITS AGENT. THERE IS NOTHING IN THE CERTIFICATE TO ESTABLISH THAT THE SHIPMENT WAS IN FACT ACCORDED EXCLUSIVE USE OF THE OPEN VEHICLE.

YOUR CONTENTION THAT THE RECORD IN YOUR POSSESSION FAILS TO INDICATE THAT ANY OTHER FREIGHT WAS LOADED ON THE VEHICLE MAY HAVE MERIT, BUT SUCH AN UNSUPPORTED STATEMENT ALONE DOES NOT JUSTIFY THE PAYMENT OF PREMIUM CHARGES APPLICABLE FOR EXCLUSIVE USE. YOU HAVE NOT FURNISHED US WITH COPIES OF ANY DOCUMENTS WHICH WOULD SERVE TO SUBSTANTIATE YOUR STATEMENT. IN THE ABSENCE OF SUCH EVIDENCE WE WOULD NOT BE WARRANTED IN AUTHORIZING THE PAYMENT OF PREMIUM CHARGES. SEE CHARLES V. UNITED STATES, 19 CT.CL. 316; LONGWILL V. UNITED STATES, 17 CT.CL. 288; UNITED STATES V. NEW YORK, NEW HAVEN AND HARTFORD R.CO., 355 U.S. 253. SINCE IT HAS NOT BEEN DEFINITELY PROVEN THAT THE SERVICE REQUESTED WAS PERFORMED, THE SETTLEMENT CERTIFICATE OF JANUARY 12, 1961, WHICH DISALLOWED YOUR CLAIM FOR $752, IS SUSTAINED.