B-147803, JUN. 4, 1962

B-147803, JUN. 4, 1962

TO BUCKINGHAM FREIGHT LINES:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 9, 1960, IN WHICH YOU REQUEST A REVIEW OF THE SETTLEMENT CERTIFICATE OF JULY 31, 1961, WHICH DISALLOWED YOUR CLAIM FOR $105.63 UNDER SUPPLEMENTAL BILL NO. WQ 1898 BASED ON EXCLUSIVE USE OF VEHICLE SERVICE AS AN ADDITIONAL ALLOWANCE FOR THE TRANSPORTATION OF EQUIPMENT FOR THE DEPARTMENT OF THE AIR FORCE FROM SAN ANTONIO, TEXAS, TO GLASGOW AIR FORCE BASE, MONTANA, UNDER GOVERNMENT BILL OF LADING NO. AF -1474086, DATED DECEMBER 11. 1960.

UPON RECEIPT OF YOUR LETTER OF DECEMBER 9, 1961, WE INVESTIGATED THE CIRCUMSTANCES OF THIS SHIPMENT FURTHER, AND IT IS NOW ESTABLISHED THAT THE VEHICLE IN QUESTION WAS NOT LOADED TO CAPACITY. THEREFORE, THE RULE IN THE CASE OF CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, 303 I.C.C. 576, IS NOT FOR APPLICATION IN THIS CASE. HOWEVER, WE HAVE NO INFORMATION IN THE PRESENT RECORD THAT EXCLUSIVE USE SERVICE WAS ACTUALLY PERFORMED.

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. IN THIS CASE, WE HAVE BEEN INFORMED BY THE ADMINISTRATIVE OFFICER THAT THE SHIPMENT WAS NOT SEALED AT POINT OF ORIGIN; ALSO TRUCK MANIFESTS, TRIP SHEETS, AND DRIVER'S LOGS ARE DOCUMENTS WHICH MIGHT SERVE TO ESTABLISH PROOF OF RENDITION OF EXCLUSIVE USE SERVICE. NO CERTIFICATION THAT EXCLUSIVE USE SERVICE WAS PERFORMED IS AVAILABLE, NOR ARE THERE ANY DOCUMENTS WHICH MIGHT OTHERWISE ESTABLISH PROOF OF SUCH SERVICE. FURTHERMORE, THE FACT THAT THE ROUTING DIRECTIONS ON THE BILL OF LADING INDICATE TWO 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 ACCEPTABLE DOCUMENTARY PROOF THAT EXCLUSIVE USE SERVICE WAS ACTUALLY PERFORMED, THE SETTLEMENT ACTION IS SUSTAINED.