B-150410, APR. 5, 1963

B-150410, APR. 5, 1963

TO PACIFIC INTERMOUNTAIN EXPRESS:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 29, 1962, WITH ENCLOSURES, REQUESTING REVIEW OF OUR CERTIFICATE OF SETTLEMENT OF OCTOBER 30, 1962, WHICH DISALLOWED YOUR CLAIM 9-1600 (OUR TK-715724) FOR $172.80 ADDITIONAL FREIGHT CHARGES ON BILL NO. 1120.5-135. THESE CHARGES WERE FOR THE TRANSPORTATION OF THE FREIGHT TRAILER FROM TULSA, OKLAHOMA, TO ENGLEWOOD, COLORADO, WHICH MOVED UNDER A COMMERCIAL BILL OF LADING DATED JUNE 28, 1957, CONVERTED TO GOVERNMENT BILL OF LADING AF-7304439, ISSUED AUGUST 17, 1957.

FOR THE SERVICE PERFORMED YOU ORIGINALLY CLAIMED AND WERE PAID $477.40, AS THE MINIMUM CHARGE FOR EXCLUSIVE USE OF VEHICLE SERVICE COMPUTED AT A RATE OF $3.40 PER 100 POUNDS ON A MINIMUM WEIGHT OF 14,000 POUNDS. AUDIT OF THE PAYMENT VOUCHER IN OUR OFFICE THE APPLICABLE FREIGHT CHARGES WERE DETERMINED TO BE $320, COMPUTED AT THE CLASS 45 TRUCKLOAD RATE OF $1.60 PER 100 POUNDS ON A MINIMUM WEIGHT OF 20,000 POUNDS, UPON THE THEORY THAT THE CHARGES WERE UNJUST AND UNREASONABLE TO THE EXTENT THAT THEY EXCEEDED THE TRUCKLOAD CHARGES. BY LETTER OF APRIL 3, 1959, YOU PROTESTED THIS ACTION AND IN VIEW OF THE DECISION IN T.I.M.E., INC. V. UNITED STATES, 359 U.S. 464 (1959), WE ISSUED AN AMENDED NOTICE OF OVERCHARGE (FORM 1003) COMPUTING THE CHARGES ON THE SAME TRUCKLOAD RATE AND MINIMUM WEIGHT BUT ON A DIFFERENT BASIS, NAMELY THAT YOU HAD FURNISHED NO EVIDENCE THAT EXCLUSIVE-USE SERVICE WAS, IN FACT, PERFORMED. WHEN YOU REFUSED TO REFUND THE OVERCHARGE OF $157.40, IT WAS COLLECTED PURSUANT TO 49 U.S.C. 66 BY DEDUCTION FROM AMOUNTS OTHERWISE DUE YOU. YOU THEN PRESENTED FOR PAYMENT A SUPPLEMENTAL BILL FOR $172.80, BASED UPON A CHARGE FOR EXCLUSIVE -USE SERVICE COMPUTED AT THE CLASS 100 RATE OF $3.52 PER 100 POUNDS ON A MINIMUM WEIGHT OF 14,000 POUNDS, PUBLISHED IN ITEM 2140 OF SOUTHWESTERN MOTOR FREIGHT BUREAU TARIFF NO. 309-B, MF I.C.C. NO. 259. THIS SUPPLEMENTAL BILL WAS DISALLOWED BECAUSE YOU FAILED TO FURNISH PROOF THAT EXCLUSIVE-USE SERVICE WAS ACTUALLY FURNISHED.

BEFORE A CARRIER CAN BE CONSIDERED ENTITLED TO RECEIVE PREMIUM CHARGES FOR EXCLUSIVE USE OF VEHICLE, TWO CONDITIONS MUST BE SATISFIED. FIRST, THERE MUST BE SUBSTANTIAL COMPLIANCE WITH EXCLUSIVE USE OF VEHICLE TARIFF OR QUOTATION REQUIREMENTS CONCERNING ANNOTATION OF THE BILL OF LADING. SEE CLARK THREAD COMPANY, INC. V. PILOT FREIGHT CARRIERS, INC., 62 M.C.C. 185, 189 1953); GUS BLASS COMPANY V. POWELL BROTHERS TRUCK LINES, 53 M.C.C. 603 (1951). AND SECOND, THERE MUST BE SOME EVIDENCE THAT EXCLUSIVE USE OF VEHICLE SERVICE WAS, IN FACT, PERFORMED SINCE THE BURDEN IS UPON CLAIMANTS TO PRESENT EVIDENCE SATISFACTORILY PROVING THEIR CLAIMS AND ALL MATTERS INCIDENTAL THERETO REQUISITE TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES AND THE CLAIMANT'S RIGHT TO PAYMENT UNDER THE APPROPRIATIONS INVOLVED. UNITED STATES V. NEW YORK, N.H. AND H.R.CO. 355 U.S. 253 (1957), 17 COMP. GEN. 831, 18 ID. 980, 37 ID. 535.

ALTHOUGH BILL OF LADING AF-7304439 BEARS A NOTATION INDICATING THAT EXCLUSIVE-USE SERVICE WAS REQUESTED, THE PRESENT RECORD DOES NOT CONTAIN ANY EVIDENCE THAT THE SERVICE WAS ACTUALLY RENDERED. IN THE ABSENCE OF SUCH EVIDENCE WE HAVE NO AUTHORITY TO AUTHORIZE PAYMENT OF PREMIUM CHARGES. SEE CHARLES V. UNITED STATES, 19 CT.CL. 316 (1884); LONGWILL V. UNITED STATES, 17 CT.CL. 288 (1881).

YOU STATE THAT THE SIGNATURE OF THE RECEIVING OFFICER, WITHOUT NOTATION OR EXCEPTION, CONSTITUTES SUFFICIENT PROOF THAT EXCLUSIVE-USE SERVICE WAS PERFORMED. THE CERTIFICATION TO WHICH YOU REFER MERELY RECITES WHAT PROPERTY WAS RECEIVED AT DESTINATION, THE CONDITION OF SUCH PROPERTY AND WHETHER DELIVERY WAS BY THE GOVERNMENT OR ITS AGENT. THIS CERTIFICATION DOES NOT INDICATE WHETHER EXCLUSIVE- USE SERVICES WERE OR WERE NOT ACCORDED THE SHIPMENT.

YOU INQUIRE AS TO WHAT TYPE OF PROOF YOU WOULD BE REQUIRED TO SUBMIT TO SUPPORT YOUR CLAIM FOR EXCLUSIVE-USE CHARGES. THE BEST INDICATION THAT EXCLUSIVE-USE SERVICES WERE ACTUALLY PERFORMED APPEARS TO BE PROVIDED BY A SHOWING OF A CLEAR SEAL RECORD ON THE BILL OF LADING, THAT IS, A SHOWING THAT THE SHIPMENT WAS SEALED AT ORIGIN WITH NO INDICATION THAT THE SEALS WERE NOT INTACT WHEN THE SHIPMENT ARRIVED AT DESTINATION. IN THE ABSENCE OF SUCH A CLEAR SEAL RECORD, WE WILL CONSIDER WHATEVER DOCUMENTARY EVIDENCE YOU CARE TO SUBMIT WHICH REASONABLY ESTABLISHES THAT EXCLUSIVE USE OF VEHICLE SERVICES WERE RENDERED. FOR EXAMPLE, SATISFACTORY EVIDENCE MAY TAKE THE FORM OF A CERTIFICATION ON THE BILL OF LADING IN ACCORDANCE WITH REGULATIONS ISSUED BY THE SHIPPING ADMINISTRATIVE AGENCY, OR CERTIFIED COPIES OF CARRIERS' RECORDS MADE CONTEMPORANEOUSLY AT THE TIME OF SHIPMENT EVIDENCING THAT NO OTHER FREIGHT WAS TRANSPORTED ON THE TRUCK OR TRUCKS ON WHICH THE SHIPMENT MOVED. IT IS UNDERSTOOD THERE ARE VARIOUS TYPES OF RECORDS PREPARED BY THE SEVERAL CARRIERS IN THEIR NORMAL BUSINESS OPERATIONS, WHICH MAY CONTAIN SUFFICIENT PERTINENT INFORMATION TO SATISFACTORILY ESTABLISH THE PERFORMANCE OF EXCLUSIVE USE SERVICES. SOME OF THESE ARE: ROAD MANIFESTS OR CONSISTS, TRIP TICKETS AND REPORTS, DISPATCH SHEETS AND OTHER DOCUMENTS WHICH DESCRIBE THE CARGO CARRIED ON THE VEHICLE WHILE EN ROUTE. THE CARRIERS PARTICIPATING IN THIS PARTICULAR FREIGHT MOVEMENT MAY HAVE IN THEIR POSSESSION SUCH FORMS OR SIMILAR TYPE FORMS WHICH SUPPORT YOUR CONTENTION THAT EXCLUSIVE-USE SERVICES WERE RENDERED ON THIS SHIPMENT. SINCE NOT ALL OF THE MOTOR CARRIERS EMPLOY THE SAME TYPE OF BUSINESS FORMS IN THE CONDUCT OF THEIR OPERATIONS, HOWEVER, WE ARE UNABLE TO ADVISE YOU AS TO THE SPECIFIC DOCUMENT WHICH MAY HAVE BEEN USED BY THE CARRIERS PARTICIPATING IN THIS FREIGHT MOVEMENT.

IF YOU ARE ABLE TO FURNISH CERTIFIED COPIES OF CARRIERS' RECORDS MADE IN THE COURSE OF THEIR BUSINESS AT THE TIME THE FREIGHT MOVED AND WHICH REASONABLY ESTABLISH THAT EXCLUSIVE USE OF A VEHICLE WAS FURNISHED FOR THE ENTIRE FREIGHT MOVEMENT, FROM POINT OF ORIGIN TO DESTINATION, WE WILL GIVE FURTHER CONSIDERATION TO YOUR CLAIM FOR ADDITIONAL CHARGES BASED ON THE FURNISHING OF THE EXCLUSIVE USE OF A VEHICLE TO PERFORM THE TRANSPORTATION SERVICE. IF THE COPIES OF RECORDS FURNISHED ARE SUCH THAT AN EXPLANATION THEREOF IS NECESSARY TO ESTABLISH THAT EXCLUSIVE USE WAS FURNISHED FOR THE FULL DISTANCE FROM POINT OF ORIGIN TO DESTINATION, SUCH EXPLANATION SHOULD ACCOMPANY THE DOCUMENTARY EVIDENCE RELIED UPON.

HOWEVER, UPON THE PRESENT RECORD AND IN THE ABSENCE OF ANY EVIDENCE TO SUPPORT YOUR CLAIM THAT EXCLUSIVE-USE SERVICE WAS ACTUALLY ACCORDED THE SHIPMENT WE HAVE NO RECOURSE BUT TO SUSTAIN THE DISALLOWANCE OF YOUR CLAIM.