B-124893, JAN. 31, 1956
Highlights
COX CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 27. YOU CONTEND THAT THE STATUTE OF LIMITATIONS COVERING SHIPMENTS HANDLED BY A COMMON CARRIER IS MEANT TO GOVERN ALL SHIPMENTS INCLUDING THOSE MADE TO A GOVERNMENT AGENCY AND THAT ALL RECORDS PERTAINING TO THE SUBJECT CLAIM CLEARLY SHOW THAT YOU WERE NOT NOTIFIED OF ANY SHORTAGE IN SHIPMENTS WITHIN THE PRESCRIBED NINE MONTHS. THE ISSUE HERE IS NOT WHETHER YOU WERE ENTITLED TO A NOTICE OF LOSS OR SHORTAGE OF SHIPMENT BUT WHETHER UNDER THE FACTS AND THE LAW YOU MAY RETAIN THE OVERPAYMENT. THE CASE YOU CITED IS TO BE DISTINGUISHED FROM THE PRESENT CASE. WAS THE SHIPPER AND THE CONTRACT OF SHIPMENT OR BILL OF LADING WAS BETWEEN THE GOVERNMENT AND THE CARRIER.
B-124893, JAN. 31, 1956
TO CHARLES O. COX CORPORATION:
REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 27, 1955, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $455.20, REPRESENTING AN OVERPAYMENT WHICH AROSE BY REASON OF A SHORT SHIPMENT OF MATERIALS TO THE BOSTON NAVAL SHIPYARD, BOSTON, MASSACHUSETTS, UNDER CONTRACT NO. N600SX-17080. YOUR LETTER IN EFFECT REQUESTS CANCELLATION OF THE GOVERNMENT'S CLAIM AGAINST YOU.
YOU CONTEND THAT THE STATUTE OF LIMITATIONS COVERING SHIPMENTS HANDLED BY A COMMON CARRIER IS MEANT TO GOVERN ALL SHIPMENTS INCLUDING THOSE MADE TO A GOVERNMENT AGENCY AND THAT ALL RECORDS PERTAINING TO THE SUBJECT CLAIM CLEARLY SHOW THAT YOU WERE NOT NOTIFIED OF ANY SHORTAGE IN SHIPMENTS WITHIN THE PRESCRIBED NINE MONTHS. IN SUPPORT OF YOUR CONTENTION YOU CITE THE CASE OF UNITED STATES V. CHICAGO ROCK ISLAND AND PACIFIC RAILROAD COMPANY, ET AL., 200 F.2D 263.
THE ISSUE HERE IS NOT WHETHER YOU WERE ENTITLED TO A NOTICE OF LOSS OR SHORTAGE OF SHIPMENT BUT WHETHER UNDER THE FACTS AND THE LAW YOU MAY RETAIN THE OVERPAYMENT. THE CASE YOU CITED IS TO BE DISTINGUISHED FROM THE PRESENT CASE. IN THE CASE CITED, THE CREDIT COMMODITY CORPORATION,A GOVERNMENT AGENCY, WAS THE SHIPPER AND THE CONTRACT OF SHIPMENT OR BILL OF LADING WAS BETWEEN THE GOVERNMENT AND THE CARRIER. SINCE THE SHIPMENT WAS MADE ON A COMMERCIAL BILL OF LADING, THE GOVERNMENT WAS BOUND BY THE TERMS OF THE CONTRACT OF SHIPMENT. IN THE INSTANT MATTER THE CONTRACT OF SHIPMENT WAS BETWEEN YOU AND THE CARRIER. SINCE THE GOVERNMENT WAS NOT A PARTY TO THE BILL OF LADING IT WAS NOT REQUIRED TO GIVE YOU NOTICE OF THE SHORTAGE WITHIN NINE MONTHS FROM THE DATE IT OCCURRED. CONSEQUENTLY, THE CASE WHICH YOU CITE AND QUOTE FROM IS NOT IN POINT AND IS NOT APPLICABLE HERE.
IT IS A SETTLED RULE THAT PUBLIC MONEYS OF THE UNITED STATES WHICH ARE DISBURSED BY GOVERNMENT DISBURSING OFFICERS CONTRARY TO LAW--- WHETHER THROUGH MISTAKE OF FACT OR LAW--- MAY BE RECOVERED FROM THE PARTY WHO RECEIVED THE PROCEEDS. SEE UNITED STATES V. BENTLEY, 107 F.2D 382, 384; UNITED STATES V. GUDEWICZ, 45 F.SUPP. 787, 789; AND THE ANNOTATIONS IN 63 A.L.R. 1346, 1356.
ACCORDINGLY, UNLESS YOU EFFECT PROMPT SETTLEMENT OF YOUR INDEBTEDNESS, THE MATTER WILL BE REFERRED TO THE DEPARTMENT OF JUSTICE FOR APPROPRIATE ACTION.