B-142112, NOV. 23, 1960

B-142112, NOV. 23, 1960

TO EAST TEXAS MOTOR FREIGHT:

FURTHER REFERENCE IS MADE TO YOUR REQUESTS FOR REVIEW OF 19 OF OUR SETTLEMENT CERTIFICATES WHICH DISALLOWED YOUR CLAIMS FOR ADDITIONAL FREIGHT CHARGES PREDICATED ON THE TARIFF BASES FOR EXCLUSIVE USE OF VEHICLE SERVICES ALLEGED TO HAVE BEEN FURNISHED ON NUMEROUS SHIPMENTS OF GOVERNMENT PROPERTY MOVING ON GOVERNMENT BILLS OF LADING. ON THE BASIS OF OUR REVIEW OF THE 12 CLAIMS LISTED BELOW, WE HAVE AUTHORIZED THE ISSUANCE OF REVISED SETTLEMENTS BASED ON THE APPLICABLE EXCLUSIVE USE OF VEHICLE TARIFF PROVISIONS. NOTICES OF THE REVISED SETTLEMENTS WILL REACH YOU IN DUE COURSE.

TABLE

YOUR BILL YOUR CLAIM OUR CLAIM

NUMBER NUMBER NUMBER AMOUNT

9328-A TD58-1891 TK-677939 $135.80

9384-A TD58-1141 TK-679695 204.80

9732-B TD58-1026TK-676600 552.00

9769-A TD58-0860 TK-678447 166.50

9820-A TD58-6864 TK-677941 45.60

10007-B TD58-1244 TK-679187 552.00

10028-A TD58-1245 TK-677943 552.00

10469-A TD58-2354 TK-675881 552.00

10556-A TD59-1845 TK-675880 329.60

10759-A TD58-2153 TK-677947 944.00

10834-A TD58-2492 TK-677948 256.80

10900-A TD58-3312 TK-675879 314.00

WE CONSTRUE THE MATTER OF THE APPLICABILITY OF MOTOR CARRIER EXCLUSIVE USE CHARGES AS DEPENDENT UPON TWO FACTORS: FIRST, THERE MUST BE EVIDENCE OF A REQUEST FOR EXCLUSIVE USE SERVICE BY THE SHIPPER, AND SECOND, THERE MUST BE EVIDENCE OF THE PERFORMANCE OF THE EXCLUSIVE USE SERVICE BY THE CARRIER. THE FIRST FACTOR GENERALLY IS SATISFIED BY A SHOWING OF AT LEAST SUBSTANTIAL COMPLIANCE WITH THE BILL OF LADING NOTATION REQUIREMENTS OF THE PERTINENT TARIFF EXCLUSIVE USE RULE; THE SECOND, BY A SHOWING THAT THE SHIPMENT WAS SEALED AND THAT THE SEALS WERE INTACT UPON THE ARRIVAL OF THE SHIPMENT AT DESTINATION AS, FOR EXAMPLE, WOULD BE SHOWN BY A COMPLETION ON THE BILL OF LADING OF THE ADMINISTRATIVE CERTIFICATE PRESCRIBED IN ARMY REGULATIONS SR-55-155-1, OR THOSE PRESCRIBED IN THE REGULATIONS OF THE OTHER SERVICES.

THE BURDEN OF PROVING ENTITLEMENT TO CHARGES FOR EXCLUSIVE USE SERVICE RESTS WITH THE CARRIERS. TO ESTABLISH FOR THOSE CHARGES THE CLEAR LEGAL LIABILITY OF THE UNITED STATES AND THE CARRIERS' RIGHT TO PAYMENT UNDER THE APPROPRIATIONS INVOLVED, THEY, LIKE ALL CLAIMANTS, MUST PROVE THEIR CLAIMS AND ALL MATTERS INCIDENTAL THERETO. 18 COMP. GEN. 980; 17 ID. 831. WE CONSIDER, ALSO, THAT THIS BURDEN IS NOT AFFECTED BY THE FACT THAT PREVIOUSLY THE AMOUNT IN ISSUE MAY HAVE BEEN PAID CONDITIONALLY, SUBJECT TO LATER AUDIT AND COLLECTION BY DEDUCTION UNDER SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66. SEE UNITED STATES V. NEW YORK, N.H. AND H.R. CO., 355 U.S. 253.

YOUR CLAIM ON SUPPLEMENTAL BILL NO. 7854-A, FOR $91.80, REPRESENTS THE ADDITIONAL FREIGHT CHARGES ALLEGEDLY DUE FOR THE TRANSPORTATION OF 11,700 POUNDS OF A COMMODITY DESCRIBED ON GOVERNMENT BILL OF LADING NO. WY- 4250601 AS "PROJECTILES, NOI EMTY" FROM FORT ATKINSON, WISCONSIN, TO DEFENSE, TEXAS, IN NOVEMBER 1954. NOTATION ON THE BILL OF LADING--- PRESUMABLY MADE BY THE SHIPPER--- INDICATE THAT "EXCLUSIVE USE OF EQUIPMENT REQUIRED, SEALED TO DESTINATION CHARGES GUARANTEED," AND THAT AT ORIGIN THE VEHICLE CARRYING THE SHIPMENT WAS SEALED WITH SEAL NO. 1895936.

YOU ORIGINALLY CLAIMED AND COLLECTED ON THIS SHIPMENT FREIGHT CHARGES OF $450, BASED ON THE EXCLUSIVE USE OF VEHICLE RULE OF THE APPLICABLE TARIFF. IN OUR AUDIT, WE DETERMINED THAT YOU WERE ENTITLED ONLY TO CHARGES OF $358.20, BASED ON THE APPLICABLE TRUCKLOAD RATE AND MINIMUM WEIGHT. THE ALLOWABLE CHARGES WERE BASED ON RULINGS OF THE INTERSTATE COMMERCE COMMISSION IN SIMILAR CASES, INDICATING THAT CHARGES FOR EXCLUSIVE USE WERE PRIMA FACIE UNREASONABLE TO THE EXTENT THAT THEY EXCEEDED CHARGES DERIVED FROM THE APPLICABLE TRUCKLOAD RATE AND MINIMUM WEIGHT (SEE, E.G., BRODERICK AND BASCOM ROPE CO. V. HALL FREIGHT LINE, INC., 302 I.C.C. 347 (1957) (, AND ON A DEPARTMENT OF THE ARMY REPORT INDICATING (1) THAT THE COMMODITY TRANSPORTED ON THE BILL OF LADING SHOULD HAVE BEEN CLASSIFIED AS EMPTY RIFLE GRENADES AND (2) THAT THE SHIPMENT HAD ARRIVED AT DESTINATION WITH SECURITY CARTAGE SEAL NO. 40530 ON THE VEHICLE. THE RESULTING OVERPAYMENT, $91.80, LATER WAS COLLECTED BY DEDUCTION. 49 U.S.C. 66. YOUR SUBSEQUENT CLAIM FOR THE AMOUNT DEDUCTED WAS DISALLOWED, NOT ON REASONABLENESS GROUNDS,A BASIS PRECLUDED BY THE DECISION IN T.I.M.E., INC. V. UNITED STATES, 359 U.S. 464 (1959), BUT BECAUSE THE RECORD DOES NOT SHOW THAT THE EXCLUSIVE USE SERVICE ACTUALLY WAS PERFORMED BY THE CARRIER.

IN OUR REVIEW OF THIS CLAIM WE FIND THAT THERE IS EVIDENCE OF A REQUEST FOR EXCLUSIVE USE SERVICE: THE ANNOTATION ON BILL OF LADING NO. WY-4250601 SUBSTANTIALLY COMPLIES WITH THE BILL OF LADING NOTATION REQUIREMENTS OF THE PERTINENT TARIFF EXCLUSIVE USE RULE. HOWEVER, THE FACT THAT AT ORIGIN AND DESTINATION DIFFERENT SEALS WERE USED SUGGESTS THAT THE CARRIER DID NOT PERFORM THE REQUESTED EXCLUSIVE USE SERVICE. IN THESE CIRCUMSTANCES, THE LEGAL LIABILITY OF THE UNITED STATES FOR THE CLAIMED CHARGES HAS NOT BEEN ESTABLISHED, AND THE DISALLOWANCE OF YOUR CLAIM FOR $91.80, ON YOUR SUPPLEMENTAL BILL NO. 7854-A, IS, ACCORDINGLY, SUSTAINED.

YOUR CLAIM ON SUPPLEMENTAL BILL NO. 9911-A, FOR $292.15, REPRESENTS THE ADDITIONAL FREIGHT CHARGES ALLEGEDLY DUE FOR THE TRANSPORTATION OF FIVE PIECES OF MISCELLANEOUS FREIGHT, WEIGHING 6,858 POUNDS, INCLUDING ONE DRUM, WEIGHING 6,638 POUNDS, CONTAINING A COMMODITY DESCRIBED ON THE BILL OF LADING AS "ENGINES, INTERNAL COMBUSTION, JET OR RADIAL, NOIBN," AND PARTS, FROM GREENVILLE, SOUTH CAROLINA, TO SAN ANTONIO, TEXAS, UNDER GOVERNMENT BILL OF LADING NO. AF-6538038, IN AUGUST 1956. THE BILL OF LADING IS ANNOTATED TO INDICATE A REQUEST FOR EXCLUSIVE USE SERVICE, BUT IT CONTAINS NOTHING TO INDICATE THAT THE SHIPMENT WAS SEALED AT ORIGIN BY THE SHIPPER.

FOR THIS TRANSPORTATION SERVICE YOU BILLED AND COLLECTED FREIGHT CHARGES OF $887.40 BASED ON THE EXCLUSIVE USE OF THE EQUIPMENT RULE OF THE APPLICABLE TARIFF. IN OUR AUDIT, MADE PRIOR TO THE DECISION IN THE T.I.M.E. CASE, SUPRA, WE TOOK EXCEPTION TO THE COLLECTED FREIGHT CHARGES ON THE GROUND THAT THE EXCLUSIVE USE CHARGE BASIS WAS PRIMA FACIE UNREASONABLE. WE ISSUED A REQUEST TO REFUND EXCESS CHARGES OF $292.75, BASED ON OUR DETERMINATION AT THAT TIME THAT THE ALLOWABLE CHARGES WERE THOSE BASED ON THE APPLICABLE TRUCKLOAD RATES AND MINIMUM WEIGHTS, OR $594.65. IN APPLYING THE MIXED SHIPMENT RULE OF THE APPLICABLE TARIFF, WE USED, ON THE INTERNAL COMBUSTION ENGINES, A CLASS 55 EXCEPTIONS RATE. THE ABSENCE OF REFUND, THE OVERPAYMENT OF $292.75 WAS COLLECTED BY DEDUCTION.

AFTER THE DECISION IN THE T.I.M.E. CASE, YOU PRESENTED YOUR CLAIM ON SUPPLEMENTAL BILL NO. 7711-A, FOR $292.75. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT WHILE THE BILL OF LADING INDICATED EXCLUSIVE USE SERVICE WAS REQUESTED BY THE SHIPPER, THERE WAS NOTHING ON THE BILL OF LADING, SUCH AS A CLEAR SEAL RECORD OR EVIDENCE OTHERWISE IN THE RECORD, TO INDICATE THAT THE REQUESTED SPECIAL SERVICE WAS FURNISHED. ALSO, ANOTHER STATEMENT OF EXCESS CHARGES--- DATED MARCH 17, 1960--- WAS ISSUED ADVISING YOU THAT AN ADDITIONAL $130.44 WAS DUE THE GOVERNMENT BASED ON THE APPLICATION OF A RELEASED VALUE TRUCKLOAD RATING OF CLASS 45 TO THE INTERNAL COMBUSTION ENGINES WEIGHING 6,638 POUNDS, SUBJECT TO A TRUCKLOAD MINIMUM WEIGHT OF 22,000 POUNDS. IN YOUR LETTER REQUESTING REVIEW OF THE DISALLOWANCE, YOU DO NOT QUESTION THE VALIDITY OF THE SECOND STATEMENT OF EXCESS CHARGES; YOU SEEK TO ESTABLISH THE VALIDITY OF YOUR ORIGINAL EXCLUSIVE USE CHARGE BASIS WHICH, IF ESTABLISHED, ADMITTEDLY WOULD NULLIFY THE BASES SHOWN ON OUR STATEMENTS OF EXCESS CHARGES.

THE ISSUE HERE, LIKE THAT CONCERNING YOUR CLAIM ON SUPPLEMENTAL BILL NO. 7854-A, IS ONE OF PROOF THAT THE REQUESTED EXCLUSIVE USE SERVICE ACTUALLY WAS PERFORMED BY THE CARRIER. BILL OF LADING NO. AF 6538038 DOES NOT INDICATE THAT THE SHIPMENT MOVED UNDER SEAL; IT DOES NOT CONTAIN THE ADMINISTRATIVE CERTIFICATE SET FORTH IN PARAGRAPH 40107 OF THE AIR FORCE MANUAL 75-1, OR A SIMILAR CERTIFICATION WHICH WOULD SERVE AS EVIDENCE OF PERFORMANCE OF THE REQUESTED SERVICE; AND THE PRESENT RECORD OTHERWISE CONTAINS NO EVIDENCE OF THE PERFORMANCE ON THE SHIPMENT OF OTHER THAN ORDINARY TRUCKLOAD SERVICE. IN THE ABSENCE OF SUCH EVIDENCE, THE APPLICABLE CHARGES ON THE SHIPMENT ARE $464.21, AS SHOWN ON OUR STATEMENT OF EXCESS CHARGES DATED MARCH 17, 1960. THUS, THE DISALLOWANCE OF YOUR CLAIM FOR $292.75, ON OUR CERTIFICATE OF SETTLEMENT DATED MARCH 17, 1960, IS SUSTAINED, AND THE $130.40 OVERCHARGE, SHOWN ON OUR STATEMENT OF EXCESS CHARGES DATED MARCH 17, 1960, SHOULD BE PROMPTLY REFUNDED TO AVOID ITS COLLECTION BY OTHER MEANS.

YOUR CLAIMS ON SUPPLEMENTAL BILLS NOS. 7867-B, 7882-A, 7709-A, 7892 A, AND 7881-A CONCERN YOUR REQUESTS FOR REVIEW OF SETTLEMENTS WHICH DISALLOWED YOUR CLAIMS FOR CHARGES ON THE BASIS OF EXCLUSIVE USE OF VEHICLE TARIFF PROVISIONS. THE SETTLEMENTS ALLOWED CHARGES ON THE BASIS OF TRUCKLOAD RATES AND MINIMUM WEIGHTS IN CONNECTION WITH SHIPMENTS MOVING FROM FORT ATKINSON, WISCONSIN, TO TEXARKANA, TEXAS, DURING OCTOBER AND NOVEMBER 1954. WE ARE ASKING THE DEPARTMENT OF THE AIR FORCE FOR ADDITIONAL INFORMATION ON THESE SHIPMENTS AND WHEN THAT INFORMATION IS RECEIVED AND EVALUATED WE WILL REVIEW THE CLAIMS FURTHER AND ADVISE YOU OF OUR CONCLUSION.