B-151606, AUG. 13, 1963

B-151606, AUG. 13, 1963

TO WHEATON VAN LINES, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF MAY 17, 1963, WITH ENCLOSURES, REQUESTING REVIEW OF THE DISALLOWANCES OF YOUR CLAIMS BY BILLS NOS. 313- 902A AND 313-909A FOR TRANSPORTATION CHARGES IN THE AMOUNTS OF $524.67 AND $395.90 IN CONNECTION WITH SHIPMENTS MOVING UNDER GOVERNMENT BILLS OF LADING NOS. B-0736746 AND A-3405383, RESPECTIVELY.

THE SUM OF $524.67 REPRESENTS AN ADDITIONAL AMOUNT CLAIMED FOR THE TRANSPORTATION OF A SHIPMENT OF HOUSEHOLD GOODS FROM FALLS CHURCH, VIRGINIA, TO VERONA, ITALY, UNDER BILL OF LADING B-0736746, DATED JULY 7, 1960, AND THE SUM OF $395.90 REPRESENTS AN ADDITIONAL AMOUNT CLAIMED FOR THE TRANSPORTATION OF A SHIPMENT OF HOUSEHOLD GOODS FROM FORT BELVOIR, VIRGINIA, TO VERONA, ITALY, UNDER BILL OF LADING A-3405383 DATED JULY 18, 1960.

FOR THE SERVICE PERFORMED UNDER BILL OF LADING B-0736746 YOU ORIGINALLY CLAIMED AND WERE PAID THE SUM OF $1,771.62. IN THE AUDIT OF THE PAYMENT VOUCHER, IT WAS CONSIDERED THAT YOU HAD OVERCHARGED THE GOVERNMENT $910.20, SINCE THE BILL OF LADING SPECIFICALLY ROUTED THE SHIPMENT ,WHEATON VAN LINES MSTS," WHEREAS THE SHIPMENT, BY REASON OF YOUR ERROR, WHICH HAS BEEN ADMITTED, MOVED OVERSEAS BY COMMERCIAL WATER CARRIAGE. YOU WERE REQUESTED TO REMIT THE $910.20 AND, UPON YOUR FAILURE TO DO SO, THIS SUM WAS COLLECTED BY DEDUCTION ON MARCH 29, 1962, PURSUANT TO AUTHORITY CONTAINED IN 49 U.S.C. 66.

YOU FILED YOUR SUPPLEMENTAL BILL NO. 313-902A DATED JUNE 27, 1962, RECLAIMING $524.67 OF THE AMOUNT SO DEDUCTED. IN ARRIVING AT THIS FIGURE YOU STATE THAT FROM OFFICIAL INFORMATION FURNISHED CARRIERS DURING STRIKE CONDITIONS YOU HAVE COMPUTED THE PORT HANDLING COSTS AT NORFOLK, VIRGINIA, AND LEGHORN, ITALY, AS $29.79 AND $24.48, RESPECTIVELY, AND FROM UNOFFICIAL INFORMATION YOU HAVE OBTAINED THE MILITARY SEA TRANSPORTATION SERVICE OCEAN CONTRACT RATE IN EFFECT AT THE TIME THIS SHIPMENT MOVED AND ASCERTAINED THE COST TO THE GOVERNMENT WOULD HAVE BEEN $470.40, OR A TOTAL OF $524.67.

YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT OF NOVEMBER 14, 1962, FOR THE REASONS THAT THE GOVERNMENT BILL OF LADING WAS SPECIFICALLY ROUTED FOR MOVEMENT IN MILITARY SEA TRANSPORATION SERVICE; THAT BY YOUR OWN ADMISSION YOUR PORT AGENT MISROUTED THE SHIPMENT AND FORWARDED BY A COMMERCIAL OCEAN CARRIER IN ERROR; AND THAT SINCE COMMERCIAL WATER TRANSPORTATION WAS NOT AUTHORIZED BY THE GOVERNMENT BILL OF LADING, NOR THE TRANSPORTATION OFFICER AT CAMERON STATION, ALEXANDRIA, VIRGINIA, WE ARE WITHOUT AUTHORITY TO APPROVE CHARGES IN EXCESS OF THE CHARGES APPLICABLE FOR THE SERVICE CONTRACTED FOR UNDER THE BILL OF LADING.

IN REQUESTING REVIEW OF THE MATTER YOU DO NOT SUBMIT ANY ADDITIONAL INFORMATION OR DATA BUT REITERATE YOUR CONTENTION THAT YOU SHOULD BE ALLOWED THE AMOUNT THE GOVERNMENT WOULD HAVE EXPENDED HAD THE OCEAN TRANSPORTATION BEEN PERFORMED BY MILITARY SEA TRANSPORTATION SERVICE AS DIRECTED OR REQUESTED.

FOR THE SERVICE PERFORMED UNDER BILL OF LADING A-3405383, YOU ORIGINALLY CLAIMED AND WERE PAID THE SUM OF $1,619.30. IN THE AUDIT OF THE PAYMENT VOUCHER, IT WAS DETERMINED THAT YOU HAD OVERCHARGED THE GOVERNMENT $899.95, SINCE THE BILL OF LADING SPECIFICALLY ROUTED THE SHIPMENT VIA "/MOTOR VAN--- MSTS)" WHEREAS THE SHIPMENT, BY REASON OF YOUR ADMITTED ERROR, MOVED OVERSEAS BY COMMERCIAL WATER CARRIER. YOU WERE REQUESTED TO REMIT THE $899.95 AND, UPON YOUR FAILURE TO DO SO, THIS SUM WAS COLLECTED BY DEDUCTION ON MARCH 29, 1962, PURSUANT TO AUTHORITY CONTAINED IN 49 U.S.C. 66.

YOU FILED YOUR SUPPLEMENTAL BILL NO. 313-909A DATED JUNE 27, 1962, RECLAIMING $395.90 OF THE AMOUNT SO DEDUCTED. IN ARRIVING AT THIS FIGURE YOU AGAIN STATE THAT FROM OFFICIAL INFORMATION FURNISHED CARRIERS DURING STRIKE CONDITIONS YOU HAVE COMPUTED THE PORT HANDLING COSTS AT NORFOLK, VIRGINIA, AND LEGHORN, ITALY, AS $22.20 AND $18.50, RESPECTIVELY, AND FROM UNOFFICIAL INFORMATION YOU HAVE OBTAINED THE MILITARY SEA TRANSPORTATION SERVICE OCEAN CONTRACT RATE IN EFFECT AT THE TIME THIS SHIPMENT MOVED AND ASCERTAINED THE COST TO THE GOVERNMENT WOULD HAVE BEEN $355.20, OR A TOTAL OF $395.90.

YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT OF JANUARY 15, 1963, FOR THE SAME REASONS DISCUSSED ABOVE IN CONNECTION WITH THE SHIPMENT MOVING UNDER BILL OF LADING B-0736746.

YOU REQUEST REVIEW OF THIS DISALLOWANCE FOR THE SAME REASONS THAT YOU PROTESTED THE DISALLOWANCE OF YOUR CLAIM FOR $524.67 ON YOUR SUPPLEMENTAL BILL NO. 313-902A, THAT IS, YOU SHOULD BE ENTITLED TO COST WHICH WOULD HAVE BEEN BORNE BY THE GOVERNMENT FOR THE OCEAN TRANSPORTATION PORTION IF THESE TWO SHIPMENTS HAD MOVED VIA MILITARY SEA TRANSPORTATION SERVICE.

WE UNDERSTAND THAT THE MILITARY SEA TRANSPORTATION SERVICE PROGRAMS FOR THE TRANSPORT OF THE GOVERNMENT SHIPMENTS AND ARE INFORMALLY ADVISED THAT APPROXIMATELY ONE-THIRD OF THE TRAFFIC IS HANDLED ON GOVERNMENT VESSELS. IN THESE INSTANCES, IT WOULD APPEAR THAT VESSEL OPERATING COSTS WOULD NOT BE REDUCED BY A DIVERSION OF TONNAGE TO COMMERCIAL CARRIERS. OF THE REMAINING TWO-THIRDS ABOUT TEN PERCENT IS HANDLED ON A SHIP CHARTER BASIS. HERE, TOO, THE TRANSPORT COST WOULD NOT SEEM TO BE SUBJECT TO REDUCTION BY A DIVERSION OF TONNAGE TO COMMERCIAL MEANS. THE BALANCE OF THE TRAFFIC IS SAID TO BE HANDLED ON A SPACE CONTRACT BASIS AND THESE CHARGES, TOO, WOULD BE PAYABLE WHETHER THE SPACE WAS USED OR NOT, DEPENDING UPON WHETHER ADVANCE ARRANGEMENTS WERE MADE AND SPACE RESERVED. ON THE OCCASIONS WHERE NO RESERVATION OF SPACE IS MADE IN ADVANCE OF SAILING DATES THERE WOULD OF COURSE BE NO ASSESSMENT OF CHARGES, BUT IT CANNOT BE SAID THAT THE GOVERNMENT WILL BE PAYING NO OCEAN FREIGHT ON OVERSEAS HOUSEHOLD GOODS SHIPMENTS AS A GENERAL PROPOSITION, THOUGH THERE MAY BE INSTANCES WHEN THIS COULD OCCUR. HOWEVER, NO EVIDENCE HAS BEEN SUBMITTED TO SUBSTANTIATE THAT THIS WAS THE CIRCUMSTANCE IN THESE PARTICULAR SHIPMENTS. MOREOVER, SINCE YOU CLAIM THAT THE MILITARY SEA TRANSPORTATION SERVICE CHARGE SHOULD BE APPLIED IN REDUCTION OF YOUR LIABILITY TO THE GOVERNMENT, THE BURDEN IS UPON YOU TO SHOW SOME BASIS FOR RELIEF. IT IS A WELL SETTLED RULE THAT THE BURDEN OF PROVING THAT DAMAGES SHOULD BE MITIGATED IS ON THE PARTY ASSERTING IT. FINBERG TRADING CO. V. REPUBLIC OF CHINA, 220 F.2D 844; GRUBER V. S-M NEWS CO., C., 126 F.SUPP. 442; STANDARD GROWERS' EXCHANGE V. HOOKS, 22 F.2D 599.

THE GENERAL RULE IS THAT MOTOR CARRIERS SHOULD BE ALLOWED CHARGES FOR TRANSPORTATION PERFORMED BY THEM, WHICH ARE CONSISTENT WITH THE BILL OF LADING INSTRUCTIONS AND WITH THE APPLICABLE RATE TENDERS AND TARIFFS. THE RECORD SHOWS THAT YOU HAVE BEEN PAID CHARGES FOR THE SHIPMENTS IN QUESTION ON THAT BASIS. ACCORDINGLY, ON THE PRESENT RECORD, THE DISALLOWANCES OF YOUR CLAIMS MUST BE, AND ARE, SUSTAINED.