B-146081, JAN. 12, 1962

B-146081, JAN. 12, 1962

TO WESTERN TRUCK LINES, LTD.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 5, 1961, ACKNOWLEDGED JUNE 13, REQUESTING REVIEW OF THE DISALLOWANCE OF YOUR CLAIM, PER BILL G- 01636, FOR $493.20, AS A PART OF THE CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF A SHIPMENT OF MILITARY IMPEDIMENTS FROM EL TORO MARINE CORPS AIR STATION, EL TORO, CALIFORNIA, TO FALLON, NEVADA, ON BILL OF LADING NO. N-17167220, IN MAY 1956. THE BILL OF LADING IS ANNOTATED:--- "EXCLUSIVE USE 2 35 FOOT VEHICLES.'

FOR THE TRANSPORTATION OF THIS SHIPMENT YOU CLAIMED AND WERE PAID $1,866 COMPUTED ON THE BASIS OF THE COMBINATION OF A FIRST-CLASS RATE OF $1.64 PER 100 POUNDS FROM EL TORO MARINE CORPS AIR STATION, CALIFORNIA, TO LOS ANGELES, CALIFORNIA, AND $4.58 PER 100 POUNDS BEYOND TO FALLON, NEVADA, SUBJECT TO A MINIMUM CHARGE COMPUTED ON A WEIGHT OF 15,000 POUNDS PER VEHICLE. THIS BASIS OF CHARGES IS PRESCRIBED IN ITEM 898 OF INTERSTATE FREIGHT CARRIERS CONFERENCE TARIFF NO. 7-A, MF-I.C.C. NO. A-7 WHERE THE BILL OF LADING IS ANNOTATED "EXCLUSIVE USE OF VEHICLE REQUESTED" BY THE SHIPPER AND SUCH SERVICE IS FURNISHED. IN THE AUDIT OF THIS PAYMENT, SINCE THERE WAS NOTHING ON THE BILL OF LADING SHOWING THAT EXCLUSIVE USE OF THE VEHICLES WAS REQUESTED BY, OR FURNISHED TO, THE UNITED STATES, THE CHARGES WERE RECOMPUTED AS FOR A NORMAL SHIPMENT. IT WAS DETERMINED THAT THE PROPER CHARGES FOR THE TRANSPORTATION FURNISHED WAS $1,372.80 COMPUTED ON THE BASIS OF THE TRUCKLOAD RATES OF $0.34 PER 100 POUNDS TO LOS ANGELES AND $2.52 BEYOND, BOTH SUBJECT TO A TRUCKLOAD MINIMUM WEIGHT OF 24,000 POUNDS. UPON YOUR FAILURE TO REFUND THE OVERPAYMENT, WHEN NOTIFIED, THE AMOUNT OF $493.20 WAS COLLECTED BY SETOFF IN MAKING PAYMENT OF AMOUNTS OTHERWISE DUE YOU. THEREAFTER, YOU RECLAIMED THE AMOUNT DEDUCTED AND YOUR CLAIM WAS DISALLOWED ON THE THEORY THAT THE VEHICLES WERE LOADED TO CAPACITY AND THAT WHEN SO LOADED, CHARGES FOR EXCLUSIVE USE OF THE VEHICLES, WHICH CHARGES ARE DESIGNED TO ACCORD TRUCKLOAD SERVICE TO LESS- THAN-TRUCKLOAD SHIPMENTS, ARE INAPPLICABLE. SEE CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576.

YOU NOW URGE THAT THE OVERPAYMENT WAS DEDUCTED FROM YOUR ACCOUNT UNLAWFULLY; THAT THE ONLY LAWFUL CHARGE APPLICABLE TO A SHIPMENT MOVING UNDER "EXCLUSIVE USE" RULES IS THE CHARGE PUBLISHED IN THE LEGAL TARIFFS, AND THAT THE COLLECTION OF ANY OTHER CHARGE WOULD BE IN VIOLATION OF THE INTERSTATE COMMERCE ACT. FURTHER, THAT WHERE GOODS ARE TENDERED TO THE CARRIER IN A GIVEN MANNER THE FREIGHT CHARGES MUST BE ASSESSED ACCORDINGLY, EVEN THOUGH LOWER CHARGES WOULD HAVE BEEN APPLICABLE HAD THE GOODS BEEN TENDERED FOR TRANSPORTATION IN A DIFFERENT MANNER.

THE BURDEN OF PROOF IS UPON THE CARRIER TO ESTABLISH BY SATISFACTORY EVIDENCE THE CORRECTNESS OF ITS CLAIM AGAINST THE UNITED STATES. SEE UNITED STATES V. NEW YORK, N.H. AND H.R.CO., 355 U.S. 253; 20 COMP. DEC. 263; AND 18 C.G. 980. THE RECORD WITH RESPECT TO THIS SHIPMENT CONTAINS NO INDICATION OF ANY REQUIREMENT, OR DEMAND BY THE SHIPPER, FOR EXCLUSIVE USE OF THE EQUIPMENT USED FOR ITS TRANSPORTATION, NOR IS THERE ANY EVIDENCE OF ANY SPECIAL CONDITIONS WHICH WOULD PRODUCE A NEED FOR SUCH EXCLUSIVE USE. THE BILL OF LADING NOTATION "EXCLUSIVE USE 2 35 FOOT VEHICLES" IS NOT THE EQUIVALENT OF THE ENDORSEMENT BY THE SHIPPER REQUIRED BY ITEM 898 OF THE APPLICABLE TARIFF THAT "EXCLUSIVE USE OF VEHICLE REQUESTED.' WHERE TARIFF PROVISIONS REQUIRE THE MAKING OF A PARTICULAR NOTATION ON THE BILL OF LADING AS A CONDITION PRECEDENT TO THE USE OF A RATE, THE SHIPPER AND THE CARRIER ARE BOUND BY SUCH PROVISION. EMBASSY DISTRIBUTING CO., INC. V. WESTERN CARLOADING COMPANY, 280 I.C.C. 229, 234; CRANE LUMBER AND TIE CO. V. CHICAGO, B. AND O.R.CO., 289 I.C.C. 615, 617; AND DULIEN STEEL PRODUCTS, INC., OF ILLINOIS V. NEW YORK, N.H. AND H.R.CO., 287 I.C.C. 386, GUS BLASS CO. V. POWELL BROS. TRUCK LINES, 53 M.C.C. 503. IN THE ABSENCE OF THE REQUIRED NOTATION ON THE BILL OF LADING THERE IS NO AUTHORITY FOR THE ALLOWANCE OF THE EXCLUSIVE-USE CHARGES CLAIMED BY YOU, AND WE WERE REQUIRED IN CARRYING OUT OUR DUTIES TO EXERCISE THE RIGHT RESERVED TO THE GOVERNMENT BY SECTION 322 OF THE TRANSPORTATION ACT OF 1940 (49 U.S.C. 66) "TO DEDUCT THE AMOUNT OF ANY OVERCHARGES BY SUCH CARRIER FROM ANY AMOUNT SUBSEQUENTLY FOUND TO BE DUE SUCH CARRIER.' FURTHERMORE, THE BILL OF LADING SHOWS THAT THIS SHIPMENT WAS RECEIVED BY THE PACIFIC MOTOR TRUCKING COMPANY AT EL TORO, CALIFORNIA, ON MAY 10, 1956. THE DISTANCE FROM EL TORO, CALIFORNIA, TO FALLON, NEVADA, IS LESS THAN 600 MILES. THE CONSIGNEE'S CERTIFICATE OF DELIVERY ON THE FACE OF THE BILL OF LADING SHOWS THAT THE SHIPMENT WAS DELIVERED AT FALLON, NEVADA, ON MAY 28, 1956. THIS CERTIFICATION IS SIGNED BY J. M. DODSON FOR C. H. JENKINS, LCDR (SC) USN. THIS RECORD INDICATED CONSIDERABLE DOUBT THAT ANYTHING MORE THAN NORMAL TRUCK SERVICE WAS ACCORDED THIS SHIPMENT. FURTHERMORE, AS INDICATED IN THE DISALLOWANCE, A REPORT OF THE NAVY DEPARTMENT INDICATES THE TRUCKS WERE LOADED TO CAPACITY APPEARING TO MAKE INAPPLICABLE THERETO, CHARGES FOR EXCLUSIVE-USE SERVICE, WHICH IS DESIGNED TO ACCORD TRUCKLOAD SERVICE TO LESS-THAN-TRUCKLOAD SHIPMENTS.

AS STATED IN JOHN H. CHARLES V. UNITED STATES, 19 CT.CL. 316 AT 319, "WHEN, IN THE COURSE OF THE EXAMINATION OF ACCOUNTS IN THE DEPARTMENTS, SUSPICIONS ARE AROUSED OR DOUBTS ARE ENTERTAINED AS TO THE VALIDITY OF THE DEMANDS OF CLAIMANTS, THE PARTIES MAY BE SENT TO THIS COURT TO PROVE THEIR CASES UNDER THE RULES AND FORMS OF LAW, UPON LEGAL AND COMPETENT EVIDENCE, OR THEIR DEMANDS MAY BE REJECTED, ALTOGETHER, LEAVING THE CLAIMANTS TO PROSECUTE THEM HERE UPON THEIR OWN VOLUNTARY PETITIONS, IF THEY SO DESIRE. THAT IS THE MAIN PROTECTION WHICH THE ACCOUNTING OFFICERS CAN SECURE FOR THEMSELVES AND FOR THE GOVERNMENT IN THE CASE OF CLAIMS OF DOUBTFUL VALIDITY IN FACT OR IN LAW AND ESPECIALLY OF CLAIMS AS TO WHICH THERE IS A REASONABLE SUSPICION OF FRAUD, IRREGULARITY, OR ERROR.'