B-152805, JAN. 22, 1964

B-152805, JAN. 22, 1964

TO UNION PACIFIC RAILROAD COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 29, 1963, FILE GO 95480, IN WHICH YOUR REQUEST REVIEW OF OUR SETTLEMENT CERTIFICATE OF JULY 1, 1963 (TK-760712), DISALLOWING YOUR SUPPLEMENTAL BILL TA-95480 B FOR $19.95, ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF A SHIPMENT OF LARD UNDER GOVERNMENT BILL OF LADING A 416869.

THE RECORD SHOWS THAT YOU ORIGINALLY CLAIMED AND WERE PAID $776.92, OUTBOUND FREIGHT CHARGES, UNDER BILL OF LADING A-416869 DATED JANUARY 17, 1945; FOR A SHIPMENT OF LARD, WEIGHING 56,973 POUNDS, FROM WICHITA, KANSAS, TO LONGVIEW, WASHINGTON. THIS SHIPMENT WAS INITIALLY CONSIGNED TO PORTLAND, OREGON, AND LATER RECONSIGNED WHILE EN ROUTE TO LONGVIEW, WASHINGTON. YOUR COMPANY BILLED AND ORIGINALLY WAS PAID FREIGHT CHARGES COMPUTED AT A THROUGH RATE OF $1.56 PER 100 POUNDS, LESS 22 1/2 CENTS PER 100 POUNDS PAID IN, LESS 3 CENTS PER 100 POUNDS PORT ALLOWANCE, PLUS AN $11.00 CHARGE FOR STORAGE IN TRANSIT AT KANSAS CITY, MISSOURI, A RECONSIGNMENT CHARGE OF $2.48 AND A CHARGE OF 3 1/2 CENTS PER 100 POUNDS FOR STORAGE IN TRANSIT AT PASCO, WASHINGTON. THE OUTBOUND CHARGES OF $776.92, TOGETHER WITH THE $128.19 PAID FOR THE INBOUND MOVE, BROUGHT THE TOTAL CHARGES PAID ON THIS SHIPMENT TO $905.11 FOR THE THROUGH MOVEMENT FROM THE ORIGIN POINT, WICHITA, KANSAS, TO DESTINATION, LONGVIEW, WASHINGTON.

IN OUR AUDIT OF THE PAYMENT VOUCHER (24936403 5/45 GFA), WE DETERMINED THAT THE APPLICABLE CHARGES WERE AS FOLLOWS:

CHART TOTAL THROUGH (TRANSIT) CHARGES ON CIVIL BASIS: 56,973 LBS. AT $1.51, PLUS TC $11.00 P/C), LESS P/A 3 CENTS CWT. ----------------- ------ ---------------------------------- $854.20 TOTAL THROUGH CHARGES ON MILITARY LAND-GRANT BASIS: 56,973 LBS. AT NET RATE $0.81069, PLUS TC $11.00 P/C, LESS P/A 3 CENTS CWT. ---------------- $455.78

(GROSS RATE $1.51 CWT.) DIFFERENCE BETWEEN CIVIL AND MILITARY CHARGES --- ---- 398.42 DEDUCT 75 PERCENT OF $398.42 FROM CIVIL CHARGES -------------- -298.82

$555.38 DIVERSION CHARGE --------------------- ------------------------ 2.48

TOTAL THROUGH CHARGES (PER RUSSIAN CCC AGREEMENT) ------------ $557.86

YOU WERE REQUESTED TO REFUND THE OVERCHARGE OF $347.25 ($905.11 LESS $557.86), WHICH AMOUNT WAS LATER DEDUCTED BECAUSE OF YOUR FAILURE TO REMIT THE SAME.

ON YOUR SUPPLEMENTAL BILL TA-95480-B, YOU ALLEGED ENTITLEMENT, IN ADDITION TO THE NET AMOUNT TO WHICH YOUR CHARGES WERE ADJUSTED, TO A TRANSIT CHARGE OF 3 1/2 CENTS PER 100 POUNDS AT PASCO, WASHINGTON, WHICH AMOUNTS TO $19.95, UNDER ITEM 18 AAR SECTION 22 QUOTATION 16E. OTHERWISE, YOUR AUDIT RECORD, A COPY OF WHICH WAS SUBMITTED WITH YOUR SUPPLEMENTAL BILL, INDICATES THAT THE APPLICABLE FREIGHT CHARGES FOR THIS SHIPMENT REACHED IN OUR AUDIT WAS PROPER AND CORRECT.

AS YOU PROBABLY KNOW, OUR AUDIT IS PERFORMED ON THE BASIS OF THE WRITTEN RECORD. THE RECORD IN THIS CASE DOES NOT SHOW THE LADING WAS STOPPED OR TRANSITED AT PASCO, WASHINGTON; THEREFORE, A QUESTION OF FACT THEN ARISES AS TO WHETHER THE TRANSIT AT PASCO, WASHINGTON, WAS ACTUALLY PERFORMED. YOU HAVE NOT FURNISHED SUCH EVIDENCE WHICH WOULD ENTITLE YOU TO THE ADDITIONAL TRANSIT CHARGE OF 3 1/2 CENTS PER 100 POUNDS AND THE COURTS HAVE HELD THAT THE BURDEN IS AT ALL TIMES ON THE CARRIER TO ESTABLISH THAT IT IS LAWFULLY ENTITLED TO THE CHARGES CLAIMED IN ITS ORIGINAL BILL, WHICH WAS PAID UPON PRESENTATION AND BEFORE AUDIT, PURSUANT TO THE PROVISIONS OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66. UNITED STATES V. NEW YORK, NEW HAVEN AND HARTFORD R.CO., 355 U.S. 253; BENJAMIN MOTOR EXPRESS, INC. V. UNITED STATES, 251 F.2D 547; AND UNITED STATES V. MISSOURI PACIFIC R.C.O., 250 F.2D 805, REHEARING DENIED 254 F.2D 598, CERTIORARI DENIED358 U.S. 821.

ACCORDINGLY, IN THE ABSENCE OF YOUR FURNISHING EVIDENCE ESTABLISHING THAT THIS SHIPMENT WAS TRANSITED AT PASCO, WASHINGTON, OUR SETTLEMENT OF JULY 1, 1963, DISALLOWING YOUR CLAIM FOR ADDITIONAL TRANSIT CHARGES OF $19.95, WAS PROPER AND IS SUSTAINED.