B-129587, FEBRUARY 25, 1958, 37 COMP. GEN. 535

B-129587, FEBRUARY 25, 1958, 37 COMP. GEN. 535

TRANSPORTATION - OVERPAYMENTS - DEDUCTION RECLAIMS - BURDEN OF PROOF IN RECLAIMING A DEDUCTION FROM A FREIGHT CHARGE PAYMENT ON THE BASIS THAT THE SHIPMENT MOVED IN SPECIAL VAN TRAILERS AND THAT THE NATURE OF THE CARGO AND THE VEHICLE NECESSITATED PAYMENT OF AN EXTRA PREMIUM FOR INSURANCE, THE CARRIER MUST PROVE THE LAWFULNESS OF THE CLAIMED CHARGE, AND IN THE ABSENCE OF EVIDENCE OF THE CARGO LIABILITY INSURANCE FOR EACH LOAD OF FREIGHT AND THE SPECIAL EQUIPMENT USED FOR EACH PARTICULAR SHIPMENT, THE CLAIM MAY NOT BE ALLOWED.

TO UTICA CARTING, STORAGE AND CONTRACTING CO., INC., FEBRUARY 25, 1958:

REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 4, 1957, AND JANUARY 14, 1958, CONCERNING YOUR CLAIMS FOR REFUND OF $555.20 WHICH WAS DEDUCTED FROM YOUR BILLS 513 A-514 A AND 16158 FOR OVERPAYMENTS ARISING OUT OF THE TRANSPORTATION OF GOVERNMENT PROPERTY FROM EATONTOWN, NEW JERSEY, TO ROME, NEW YORK, UNDER GOVERNMENT BILLS OF LADING WV-1893113 AND WV-1893116, DURING JULY 1951. GOVERNMENT CLAIMS FOR OVERCHARGES NOW TOTALING $6,023.22 STILL REMAIN OUTSTANDING ON SIMILAR MOVEMENTS AND, THEREFORE, WE WILL CONSIDER THE ENTIRE MATTER IN THIS DECISION. AN AMENDED CERTIFICATE SHOWING THE CURRENT INDEBTEDNESS WILL BE ISSUED.

YOU CLAIMED AND WERE PAID FOR THE INVOLVED SERVICES ON THE BASIS OF A RATE OF $2.80 PER 100 POUNDS, MINIMUM WEIGHT 8,000 POUNDS, NAMED IN YOUR U.S. GOVERNMENT QUOTATION NO. 1. IT APPEARS THAT IN ONLY ONE OF THE DISPUTED INSTANCES A SHIPMENT WEIGHED AS LITTLE AS 8,700 POUNDS AND THAT IN MOST INSTANCES THE WEIGHT WAS SUBSTANTIALLY IN EXCESS OF 10,000 POUNDS. IN OUR AUDIT WE DETERMINED THAT THE CHARGES WERE PROPERLY ASSESSABLE ON THE BASIS OF A RATE OF 80 CENTS PER 100 POUNDS, MINIMUM WEIGHT 24,000 POUNDS, NAMED IN YOUR U.S. GOVERNMENT QUOTATION NO. 2. YOU ASSERT THAT QUOTATION NO. 1 IS APPLICABLE SINCE THE SHIPMENT MOVED IN "SPECIAL VAN TRAILERS" WHICH, BECAUSE OF THE NATURE OF THE MERCHANDISE TRANSPORTED AND THE VEHICLE USED, REQUIRED YOU TO PAY AN EXTRA PREMIUM FOR THEIR INSURANCE. YOU ATTORNEY HAS SUBMITTED AFFIDAVITS FROM YOUR EMPLOYEES IN AN EFFORT TO SUBSTANTIATE THESE CONTENTIONS.

QUOTATIONS NOS. 1 AND 2 WERE BOTH IN EFFECT ON AND AFTER DECEMBER 8, 1950, AND COVERED THE MOVEMENT OF A WIDE VARIETY OF GOVERNMENT PROPERTY, RANGING FROM ELECTRONIC AND SCIENTIFIC EQUIPMENT TO OFFICE FURNITURE, MACHINES, AND RECORDS. THESE QUOTATIONS ARE SIMILAR EXCEPT THAT (1) RATES AND MINIMUM WEIGHTS DIFFER; (2) QUOTATION NO. 1 DOES NOT SPECIFY THE TYPE OF EQUIPMENT UPON WHICH THE QUOTED RATE IS CONDITIONED, WHEREAS QUOTATION NO. 2 IS APPLICABLE WHERE SHIPMENTS ARE MADE IN ,REGULAR TYPE TRAILERS INCLUDING FLATBEDS AND LOW BED TRAILERS; " AND (3) QUOTATION NO. 1 SPECIFIES A CARGO LIABILITY LIMIT OF $100,000 WHILE QUOTATION NO. 2 SPECIFIES A LIMIT OF $25,000.

THE GENERAL ACCOUNTING OFFICE, IN THE DISCHARGE OF THE DUTY IMPOSED UPON IT BY THE BUDGET AND ACCOUNTING ACT OF 1921, 31 U.S.C. 71, IS REQUIRED TO QUESTION OR DISAPPROVE THAT PAYMENT OF A PAYMENT TO A CARRIER WHICH IS FOUND TO BE IN EXCESS OF THAT PROPERLY DUE ON THE BASIS OF THE APPLICABLE TARIFFS OR SPECIAL QUOTATIONS AND WHICH IS NOT SUPPORTED BY ESSENTIAL DOCUMENTARY EVIDENCE ESTABLISHING A PROPER OBLIGATION OF THE UNITED STATES. SEE LONGWILL V. UNITED STATES, 17 C.1CLS. 288, 291; AND CHARLES V. UNITED STATES, 19 C.1CLS. 316, 319. YOUR TRANSPORTATION BILLS FOR THE SERVICES INVOLVED WERE PAID UPON PRESENTATION, BUT THE RIGHT WAS RESERVED TO THE GOVERNMENT TO DEDUCT THE AMOUNT OF ANY OVERPAYMENT FROM ANY AMOUNT SUBSEQUENTLY FOUND TO BE DUE YOU, UNDER AUTHORITY OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66. THE SUPREME COURT OF THE UNITED STATES HAS RECENTLY HELD THAT THE BURDEN OF PROOF CONTINUES TO REMAIN WITH THE CARRIER TO ESTABLISH THE LAWFULNESS OF ITS CHARGES AFTER DEDUCTION HAS BEEN MADE UNDER SECTION 322. NEW YORK, N.H. AND H.R. CO. V. UNITED STATES, 355 U.S. 253. THEREFORE, IN THIS CASE, OUR DUTY IS TO DECIDE WHETHER APPROPRIATED FUNDS ARE PROPERLY AVAILABLE FOR PAYMENT OF THE CLAIMED CHARGES ON THE BASIS OF THE EVIDENCE WHICH YOU HAVE PRESENTED.

WHEN WE FIRST AUDITED YOUR BILLS WE FOUND THAT ALTHOUGH THE GOVERNMENT BILLS OF LADING INVOLVED REFERRED TO YOUR QUOTATION NO. 1 THERE WAS NO APPARENT REASON WHY QUOTATION NO. 2 SHOULD NOT BE APPLIED AS THE PROPER BASIS FOR THE ASSESSABLE CHARGES. THEREFORE, GENERAL ACCOUNTING OFFICE NOTICES OF OVERPAYMENT ( FORMS 1003) WERE ISSUED ON THE BASIS OF QUOTATION NO. 2. YOU PROTESTED OUR ACTION AND EXPLAINED THAT QUOTATION NO. 1 COVERED THE TRANSPORTATION OF MATERIAL OF A HIGHLY SECRETIVE NATURE NECESSITATING THE USE OF SPECIAL VANS, AND IN MANY INSTANCES TRAVELED UNDER ARMED GUARD. YOU ALSO STATED THAT THE EQUIPMENT MOVING UNDER QUOTATION NO. 1 COULD ONLY BE MOVED AT SPEEDS NOT EXCEEDING 25 MILES AN HOUR, AND THE UTMOST CARE HAD TO BE EMPLOYED SO AS NOT TO CAUSE EXCESSIVE SHOCK DUE TO ROAD CONDITIONS. YOU ASSERTED THAT THE LOADS WERE KEPT LIGHT, WELL PADDED AND BRACED, AND ALSO NECESSITATED EXCESSIVE INSURANCE LIMITS OF $100,000 A LOAD WHICH REQUIRED YOU TO PAY ADDITIONAL PREMIUMS TO COVER THE EXCESSIVE LIMITS.

THE ADMINISTRATIVE OFFICE HAS REPORTED THAT NO SPEED LIMITS WERE ORDERED OR REQUIRED TO BE OBSERVED, AND THAT SOME OF THE SHIPMENTS ABOUT WHICH WE HAD INQUIRED, COULD HAVE BEEN MOVED IN REGULAR TYPE TRAILERS. IN ORDER TO VERIFY YOUR STATEMENT AS TO THE INSURANCE OBTAINED WE REQUESTED PHOTOSTATIC COPY OF EACH SPECIAL $100,000 CARGO LIABILITY INSURANCE CERTIFICATE THAT WAS TO BE ISSUED FOR EACH LOAD OF FREIGHT IN ACCORDANCE WITH QUOTATION NO. 1. WE RECEIVED FROM YOU A PHOTOSTATIC COPY OF A POLICY ISSUED BY AMERICAN EAGLE FIRE INSURANCE COMPANY WHICH APPLIED GENERALLY TO ALL GOVERNMENT SHIPMENTS AND LIMITED LIABILITY TO $75,000, TOGETHER WITH WHAT APPEARS TO BE AN ACCOUNTS RECEIVABLE LEDGER SHEET WHICH LISTED MOST OF THE BILL NUMBERS INVOLVED IN THE MOVEMENT WITH THE WORD "SPECIAL" SHOWN IN THE "CREDITS" COLUMN. THIS POLICY DOES NOT MEET THE $100,000 LIABILITY REQUIREMENT OF QUOTATION NO. 1, AND THE LEDGER SHEET, ON ITS FACE, DOES NOT APPEAR TO BE CONNECTED IN ANY WAY WITH LIABILITY INSURANCE. WE ALSO FURNISHED YOU A LIST OF THE INVOLVED BILLS OF LADING SHOWING THE FREIGHT CLASSIFICATION DESCRIPTIONS AND THE WEIGHT OF THE SHIPMENTS CONCERNED, AND REQUESTED THAT YOU RETURN A COPY OF THE LIST SHOWING AS TO THE SEPARATE BILLS OF LADING, THE NUMBER OF PIECES AND THE TOTAL SCALED WEIGHT LOADED ON EACH VEHICLE, STATING WHETHER IT WAS A PADDED VAN, A FLAT-BED TRAILER, OR AN ORDINARY CARGO TRAILER, AND THE IDENTIFYING NUMBER, IF ANY. ALTHOUGH WE HAVE MADE THIS REQUEST TWICE, YOU HAVE NEITHER FURNISHED US SUCH A LIST NOR AN EXPLANATION AS TO WHY SUCH A LIST COULD NOT BE FURNISHED.

IN THE AFFIDAVITS WHICH YOU SUBMITTED, THE TRUCK DRIVERS HANDLING THE INVOLVED SHIPMENTS STATE THAT THE "SHIPMENTS WERE ACCOMPLISHED AND CARRIED OUT" BY THE DRIVERS "ACCORDING TO U.S. GOVERNMENT QUOTATION NO. 1, WHICH REQUIRED THE USE IN ALL SUCH CASES OF SPECIAL VAN TRAILERS.' HOWEVER, QUOTATION NO. 1 DOES NOT REQUIRE THE USE OF SPECIAL VAN TRAILERS. IN ANY EVENT, WE ARE NOT INFORMED OF SUCH FEATURES OF EACH TRAILER USED ON EACH PARTICULAR SHIPMENT COVERED BY THE INVOICE NUMBERS IDENTIFIED IN THE AFFIDAVITS AS WOULD DISTINGUISH THESE TRAILERS FROM THOSE ORDINARILY EMPLOYED IN THE TRANSPORTATION OF THE ARTICLES DESCRIBED ON THE BILLS OF LADING SO AS TO JUSTIFY A RATE IN EXCESS OF THAT AUTHORIZED IN QUOTATION NO. 2.

YOUR OFFICE MANAGER AND BOOKKEEPER STATES IN HIS AFFIDAVIT THAT A LEDGER KEPT BY HIM SHOWS THAT AFTER EACH VOUCHER NUMBER APPEARS THE WORD "1SPECIAL," WHICH IS SAID TO MEAN THAT A HIGHER PREMIUM OF INSURANCE WAS REQUIRED BY AND PAID TO THE INSURANCE COMPANY, AND THAT HE HAS IN HIS POSSESSION THE RECORDS OF THE INSURANCE COMPANY AND THE INSURANCE POLICY WHICH SUPPORT HIS STATEMENT. IF THIS AFFIDAVIT IS BASED ON THE SAME INSURANCE POLICY AND LEDGER SHEET OF WHICH YOU FURNISHED US COPIES PREVIOUSLY, WE DO NOT CONSIDER THIS EVIDENCE AS SUPPORTING YOUR CLAIM THAT YOU FULFILLED THE PROVISION OF QUOTATION NO. 1 REQUIRING CARGO LIABILITY INSURANCE OF $100,000 "NAMED PERIL WITH SPECIAL CERTIFICATE WITH EACH LOAD," FOR THE REASONS PREVIOUSLY STATED.

THUS, THERE IS STILL LACKING IN THIS RECORD SUFFICIENT DOCUMENTARY EVIDENCE TO SUSTAIN YOUR BURDEN OF PROVING THE LAWFULNESS OF THE CHARGES ORIGINALLY PAID ON THE BASIS OF QUOTATION NO. 1. WE WOULD NOT BE JUSTIFIED IN RECOGNIZING THE VALIDITY OF SUCH PAYMENTS, ALTHOUGH IT MAY BE NOTED THAT IN ADDITION TO THE OTHER INFORMATION MENTIONED ABOVE AS POSSIBLY CONTRIBUTING TO THE CLARIFICATION OF THE DOUBT NOW PRESENT IT WOULD BE HELPFUL FOR PURPOSES OF COMPARISON AND EVALUATION, IF WE WERE PROVIDED WITH REFERENCES TO SPECIFIC MOVEMENTS, IDENTIFIED BY ALL PERTINENT DETAIL, FOR WHICH YOU ACTUALLY BILLED AND COLLECTED CHARGES COMPUTED ON THE BASIS OF QUOTATION NO. 2.

UNDER THE CIRCUMSTANCES, YOUR CLAIMS FOR REFUND OF $555.20 ON BILLS 513 A, 514 A AND 16518 MUST BE DISALLOWED, AND REFUND SHOULD BE MADE PROMPTLY OF THE OTHER OVERPAYMENTS REPORTED TO YOU TO AVOID RECOVERY BY OTHER MEANS.