B-151961, DEC. 10, 1963

B-151961, DEC. 10, 1963

TO GULF, MOBILE AND OHIO RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 13, 1963, FILE 61184 CL24, WITH ENCLOSURE, IN WHICH YOU REQUEST RECONSIDERATION AND PAYMENT OF YOUR CLAIM FOR $146.01 ADDITIONAL CHARGES ON A SHIPMENT OF 600 BALES OF COTTON LINTERS TRANSPORTED ON FIVE CARS FROM DYERSBURG, TENNESSEE, TO NEW ORLEANS, LOUISIANA, UNDER GOVERNMENT BILL OF LADING NO. A-2764683, DATED JUNE 23, 1943, TK-058560. THE SHIPMENT WAS LEND LEASE PROPERTY, SUPPLIED UNDER UNITED KINGDOM REQUISITION NO. 16315 AND CONSIGNED TO AN ARM OF THE BRITISH GOVERNMENT.

BECAUSE IN OUR ORIGINAL AUDIT OF THE PAYMENT OF THE TRANSPORTATION CHARGE, THE SHIPMENT WAS CONSIDERED TO BE 100 PERCENT FOR MILITARY OR NAVAL USE, AN OVERCHARGE OF $285.79 WAS STATED AGAINST SUCH PAYMENT. SUCH AMOUNT WAS NOT REFUNDED AND WAS DEDUCTED IN JUNE 1946 FROM AMOUNTS OTHERWISE DUE. YOUR COMPANY, IN A LETTER OF OCTOBER 3, 1946, FILED CLAIM TO RECOVER THE SUM OF $285.79 URGING THAT THE DEDUCTION FOR LAND-GRANT WAS UNWARRANTED. THIS CLAIM WAS LATER RESTATED ON SUPPLEMENTAL BILL NO. 61184 -A RECEIVED IN OUR OFFICE ON APRIL 30, 1948. PAYMENT OF $85.74 WAS MADE ON YOUR SUPPLEMENTAL BILL NO. 61184-A BY DEPARTMENT OF AGRICULTURE CHECK NO. 983769, DATED JUNE 8, 1950. THIS PAYMENT WAS MADE IN ACCORDANCE WITH AGREEMENT OF MARCH 13, 1950, BETWEEN THE COMMODITY CREDIT CORPORATION AND THE GULF, MOBILE AND OHIO RAILROAD COMPANY. SUCH AGREEMENT PROVIDED FOR COMPUTING THE CHARGES FOR THIS SHIPMENT AS THOUGH THE GOODS WERE 70 PERCENT FOR MILITARY USE (SUBJECT TO APPLICATION OF LAND-GRANT) AND 30 PERCENT FOR CIVILIAN USE (NOT SUBJECT TO LAND-GRANT). THE UNPAID PORTION OF THE $285.79 CLAIMED IN SUPPLEMENTAL BILL NO. 61184-A, AMOUNTING TO $200.05 ($285.79 LESS $85.74), IN ACCORDANCE WITH THE AGREEMENT REACHED WITH THE COMMODITY CREDIT CORPORATION, WAS NOT PAID AND BY LETTER OF SEPTEMBER 16, 1953, FROM YOUR AUDITOR OF RECEIPTS CLAIM FOR SUCH AMOUNT WAS WITHDRAWN.

YOU SEEM TO CONTEND THAT THE UNITED STATES GENERAL ACCOUNTING OFFICE HAS THE AUTHORITY TO PAY YOUR CLAIM BY SUPPLEMENTAL BILL NO. 61184-B, RECEIVED HERE FEBRUARY 8, 1960, FOR $146.01 (COVERING SHIPSIDE HANDLING CHARGES OF $88.85, NOT PREVIOUSLY CLAIMED, AND $57.16 ADDITIONAL TRANSPORTATION CHARGES ON GOVERNMENT BILL OF LADING NO. A-2764683, COMPUTED AS IF THE SHIPMENT MOVED 50 PERCENT FOR MILITARY USE AND 50 PERCENT FOR CIVIL USE) ON THE BASIS THAT THE TEN-YEAR PERIOD OF LIMITATION (31 U.S.C. 71A) BEGAN TO RUN ON SEPTEMBER 16, 1953, THE DATE YOU WITHDREW THE CLAIM FOR $200.04 ($200.05) BY LETTER OF SAME DATE, AND DID NOT END UNTIL SEPTEMBER 16, 1963.

THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061 (31 U.S.C.A. 71A), PROVIDES, IN PART, THAT EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM SHALL BE RECEIVED IN OUR OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. A CLAIM FOR TRANSPORTATION CHARGES AGAINST THE UNITED STATES ACCRUES UPON THE COMPLETION OF THE TRANSPORTATION SERVICE, THAT IS, THE DATE OF DELIVERY OF THE SHIPMENT TO THE CONSIGNEE, AND THE STATUTE OF LIMITATIONS BEGINS TO RUN FROM THAT TIME. SEE ARKANSAS OAK FLOORING CO. V. LOUISIANA AND ARKANSAS RAILWAY CO., 166 F.2D. 98; UNITED STATES V. WILDER, 13 WALL. 254; SOUTHERN PACIFIC CO. V. UNITED STATES, 67 CT.CL. 414, CERT. DENIED 280 U.S. 567; ATLANTIC COAST LINE RAILROAD CO. V. UNITED STATES, 66 CT.CL. 576; AND HUGHES TRANSPORTATION, INC. V. UNITED STATES, 109 F.SUPP. 373. HOWEVER, WHERE UPON POST-AUDIT A DETERMINATION IS REACHED THAT AN OVERPAYMENT WAS MADE AND THE OVERPAYMENT IS COLLECTED BY REFUND OR DEDUCTION UNDER 49 U.S.C. 66, A NEW RIGHT THEN ACCRUES, IF SUCH COLLECTION PROVES ERRONEOUS, TO RECOVER SUCH ERRONEOUS COLLECTION. SUCH RIGHT MAY BE ASSERTED AS TO TRANSPORTATION PERFORMED ON OR PRIOR TO AUGUST 26, 1958, BY CLAIMS FILED IN OUR OFFICE WITHIN TEN YEARS OF THE DATE OF THE ERRONEOUS DEDUCTION. SEE, IN THIS CONNECTION, WILLIAMS V. UNITED STATES, 63 CT.CL. 668, CERTIORARI DENIED 275 U.S. 539; EASTERN FREIGHT WAYS V. UNITED STATES, 155 FED.SUPP. 22, AND, THE ACT OF AUGUST 26, 1958, 72 STAT. 860, 49 U.S.C. 66, AS TO TRANSPORTATION PERFORMED AFTER AUGUST 26, 1958. SUCH RIGHT APPLIES ONLY TO THE EXTENT OF THE AMOUNT SO COLLECTED AND DOES NOT, OF COURSE, GIVE RISE TO A NEW RIGHT EXCEPT TO THE QUANTUM OF THE COLLECTION ACTUALLY MADE.

YOUR ORIGINAL BILL OF $1,540.12 WAS PAID IN THE AMOUNT CLAIMED. IN JUNE 1946, THE GOVERNMENT DEDUCTED $285.79 FROM AMOUNTS OTHERWISE DUE YOU WHICH WOULD START THE STATUTE OF LIMITATIONS RUNNING AFRESH. THEREFORE, THE FULL TEN YEARS IN WHICH YOUR CLAIM FOR $285.79 OR ANY PART THEREOF COULD HAVE BEEN CONSIDERED EXPIRED IN JUNE 1956.

YOUR CURRENT CLAIM BY SUPPLEMENTAL BILL NO. 61184-B WAS NOT RECEIVED HERE UNTIL FEBRUARY 8, 1960, ALMOST FOUR YEARS AFTER JUNE 1956 WHEN THE FULL TEN-YEAR PERIOD EXPIRED. THE WITHDRAWAL OF YOUR CLAIM FOR $200.05 OF THE AMOUNT OF YOUR SUPPLEMENTAL BILL NO. 61184-A ON SEPTEMBER 16, 1953, MERELY TERMINATED SUCH CLAIM SO THAT, AFTER SUCH DATE, THERE WAS NO CLAIM AS TO SUCH AMOUNT BEFORE THIS OFFICE. YOUR SUPPLEMENTAL BILL NO. 61184-B RECEIVED HERE FEBRUARY 8, 1960, THUS MUST BE CONSIDERED TO BE A NEW CLAIM FILED MORE THAN TEN FULL YEARS AFTER BOTH RENDITION OF THE TRANSPORTATION SERVICE IN 1943 AND THE DEDUCTION ACTION IN 1946 AND HENCE IS BARRED BY THE ACT OF OCTOBER 9, 1940.