B-147643, APR. 23, 1962

B-147643, APR. 23, 1962

TO THE HERRIN TRANSPORTATION COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 13, 1961, IN WHICH YOU REQUEST A REVIEW OF THE SETTLEMENT CERTIFICATE OF FEBRUARY 1, 1961, WHICH DISALLOWED YOUR CLAIM NO. 107984 OC FOR $114.80 BASED ON EXCLUSIVE USE OF VEHICLE SERVICE AS AN ADDITIONAL ALLOWANCE FOR THE TRANSPORTATION OF A SHIP TAILSHAFT FROM NORFOLK, VIRGINIA, TO BEAUMONT, TEXAS, UNDER GOVERNMENT BILL OF LADING NO. MG-1536775, DATED MARCH 14, 1957. YOUR REQUEST FOR REVIEW SUGGESTS THAT YOU DO NOT UNDERSTAND THE BASIS FOR THE DISALLOWANCE OF YOUR CLAIM.

THE POSITION OF OUR OFFICE REGARDING EXCLUSIVE USE OF VEHICLE SERVICE IS THAT CERTAIN CONDITIONS MUST BE MET BY THE CARRIER BY WAY OF PROOF THAT THE SERVICE WAS ACTUALLY REQUESTED AND FURNISHED BEFORE ALLOWING CHARGES BASED ON THIS SERVICE. BRIEFLY, THESE CONDITIONS REQUIRE (1) SUBSTANTIAL COMPLIANCE WITH EXCLUSIVE USE OF VEHICLE TARIFF OR QUOTATION REQUIREMENTS AS TO BILL OF LADING ANNOTATIONS, AND (2) PROOF OF PERFORMANCE OF EXCLUSIVE USE OF VEHICLE SERVICE. THE PURPOSE OF INSISTING ON ADHERENCE TO SUCH CONDITIONS PRECEDENT TO THE ALLOWANCE OF THESE CHARGES IS TO SATISFY OURSELVES IN THE AUDIT THAT THE SERVICE WAS PROPERLY AUTHORIZED AND ORDERED AND THAT THE GOVERNMENT PAID ONLY FOR THE SERVICE ACTUALLY ORDERED AND FURNISHED. OUR POSITION THAT THE CARRIER HAS THE BURDEN OF PROVING ITS ENTITLEMENT TO FREIGHT CHARGES HAS ITS ORIGIN IN THE CASES OF LONGWILL V. UNITED STATES, 17 CT.CL. 288 (1881), AND CHARLES V. UNITED STATES, 19 CT.CL. 316 (1884). THE UNITED STATES SUPREME COURT RECOGNIZED THE VALIDITY OF THIS POSITION WHEN IT CITED THE CHARLES CASE IN UNITED STATES V. NEW YORK, N.H. AND H.R. CO., 355 U.S. 253, 262 (1957), AND HELD THAT THE BURDEN IS ON THE CARRIER TO ESTABLISH THE CORRECTNESS OF ITS CHARGES, WHEN THE CARRIER SEEKS TO RECOVER CHARGES ORIGINALLY PAID AND ADJUSTED PURSUANT TO THE PROVISIONS OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 54 STAT. 955, 49 U.S.C. 66.

IN THIS CASE SINCE THERE IS A NOTATION SUBSTANTIALLY THE EQUIVALENT OF THE FORM PRESCRIBED IN THE EXCLUSIVE USE PROVISION OF THE APPLICABLE TARIFF PLACED ON THE BILL OF LADING, WE AGREE THAT PREMIUM SERVICE WAS REQUESTED, BUT THE RECORD FAILS TO SHOW ANY EVIDENCE THAT EXCLUSIVE USE SERVICE WAS ACTUALLY PERFORMED. USUALLY, EITHER THE COMPLETION ON THE BILLS OF LADING OF THE CERTIFICATE OF SERVICE PRESCRIBED BY ADMINISTRATIVE OFFICE REGULATIONS, OR A SHOWING THAT THE SHIPMENT WAS SEALED AT ORIGIN AND ARRIVED AT DESTINATION WITH SEAL INTACT, IS SATISFACTORY EVIDENCE OF PERFORMANCE OF THE EXCLUSIVE USE SERVICE. ALSO TRUCK MANIFESTS, TRIP SHEETS, AND DRIVER'S LOGS ARE DOCUMENTS WHICH MIGHT SERVE TO ESTABLISH PROOF OF RENDITION OF EXCLUSIVE USE SERVICE. THIS SHIPMENT HEREIN INVOLVED BORE NO SEALS; NO CERTIFICATION THAT THE SERVICE WAS PERFORMED IS AVAILABLE, NOR ARE THERE ANY DOCUMENTS WHICH MIGHT OTHERWISE ESTABLISH PROOF OF SERVICE. FURTHERMORE, THE FACT THAT ROUTING DIRECTIONS ON THE BILL OF LADING INDICATE THREE CARRIERS WERE TO PARTICIPATE IN THE PERFORMANCE OF THE TRANSPORTATION WOULD NECESSITATE PROOF THAT EXCLUSIVE USE SERVICE WAS ACTUALLY PERFORMED THROUGHOUT THE ROUTE OF MOVEMENT INCLUDING SUCH CARRIERS.

THEREFORE, IN THE ABSENCE OF PROOF THAT THE PREMIUM SERVICE WAS ACTUALLY PERFORMED, THE SETTLEMENT ACTION IS SUSTAINED.