B-101448, SEP. 9, 1955

B-101448, SEP. 9, 1955

TO MCCLURE AND UPDIKE:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 13, 1955, CONCERNING CERTAIN CLAIMS OF THE READING COMPANY FOR ADDITIONAL CHARGES, AGGREGATING $3,468.86, ON SOME 106 CARLOAD SHIPMENTS OF GASOLINE, IN DRUMS AND BLITZ CANS, FROM SMITH'S BLUFF, TEXAS, TO MARCUS HOOK, (PHILADELPHIA) PENNSYLVANIA, FOR EXPORT, IN MAY, JUNE, AND JULY, 1943, AS DETAILED ON THE SEVEN SUPPLEMENTAL BILLS OF THE READING COMPANY WHICH YOU FORWARDED TO OUR TRANSPORTATION DIVISION WITH YOUR LETTER DATED MAY 31, 1955.

THE BILLS OF LADING IDENTIFIED ON THESE SEVEN SUPPLEMENTAL BILLS ARE IDENTICAL WITH BILLS OF LADING THAT WERE INCLUDED IN THE SUIT FILED IN THE COURT OF CLAIMS ON FEBRUARY 29, 1952, DOCKETED AS READING COMPANY V. UNITED STATES, COURT OF CLAIMS NO. 98-52. JUDGMENT FOR THE STIPULATED AMOUNT OF $7,865.89 WAS ENTERED BY THE COURT ON NOVEMBER 30, 1954, AND THE JUDGMENT CLAIM WAS CERTIFIED FOR PAYMENT BY THE GENERAL ACCOUNTING OFFICE BY CERTIFICATE OF SETTLEMENT NO. 631186, DATED MAY 27, 1955.

IT IS UNDERSTOOD HERE THAT THE CLAIMS SUBMITTED WITH YOUR LETTER OF MAY 31, 1955, REPRESENT AMOUNTS WHICH ARE ALLEGED TO BE DUE, GIVING EFFECT TO THE CONCLUSION OF THE COURT OF CLAIMS THAT THE RATES PUBLISHED FOR APPLICATION ON THESE SHIPMENTS SHOULD NOT BE REDUCED AS PROVIDED FOR IN THE TARIFF OF REDUCED RATES NO. P-1, BUT WHICH WERE BARRED FROM CONSIDERATION BY THE COURT OF CLAIMS BECAUSE OF THE FAILURE OF THE PLAINTIFF TO FILE A COMPLAINT WITHIN SIX YEARS NEXT AFTER THE CAUSE OF ACTION FIRST ACCRUED. IN OTHER WORDS, YOUR CLAIMS FOR CHARGES ON THESE SHIPMENTS WERE SUBMITTED TO THE COURT OF CLAIMS IN FEBRUARY 1952, MORE THAN EIGHT YEARS AFTER THE SHIPMENTS WERE TRANSPORTED AND DELIVERED, AND IN THE SUBSEQUENT LITIGATION THE COURT GRANTED JUDGMENT ON SO MUCH OF YOUR CLAIM AS IT HAD JURISDICTION TO CONSIDER BEING LIMITED TO AMOUNTS DEDUCTED BY THIS OFFICE FROM AMOUNTS OTHERWISE DUE PLAINTIFF WITHIN A PERIOD OF NOT MORE THAN SIX YEARS PRIOR TO THE FILING OF THE PETITION IN THE COURT OF CLAIMS. THE JUDGMENT OF THE COURT HAS NOW BEEN PAID.

SECTION 2517/B) OF TITLE 28, U.S.C. PROVIDES WITH RESPECT TO JUDGMENTS OF THE COURT OF CLAIMS, THAT---

"/B) PAYMENT OF ANY SUCH JUDGMENT AND OF INTEREST THEREON SHALL BE A FULL DISCHARGE TO THE UNITED STATES OF ALL CLAIMS AND DEMANDS ARISING OUT OF THE MATTERS INVOLVED IN THE CONTROVERSY.'

THIS PROVISION OF LAW MUST BE TREATED AS CONCLUSIVE OF THE PRESENT MATTER, AND THE PAYMENT OF THE JUDGMENT MUST BE GIVEN EFFECT AS CONSTITUTING A FULL DISCHARGE TO THE UNITED STATES AS TO ALL CLAIMS ARISING OUT OF ITS OBLIGATION TO PAY CHARGES FOR THESE SHIPMENTS.

YOU STATE, HOWEVER, IN YOUR LETTER OF JUNE 13, 1955, THAT THE "CLAIMS" RELATING TO THE UNDERPAYMENTS ON WHICH THE SIX-YEAR STATUTE OF LIMITATIONS HAD RUN WERE REMOVED FROM THE SUIT BY THE STIPULATION OF FACTS ENTERED INTO BY THE PARTIES, AND THAT THE COURT DID NOT RENDER A JUDGMENT THEREON, AND APPARENTLY URGE THIS FACT AS JUSTIFICATION FOR THE REQUEST THAT THESE ADDITIONAL CLAIMS BE FURTHER CONSIDERED HERE. A MORE ACCURATE STATEMENT WOULD SEEM TO BE THAT, BY CONCURRENCE OF THE PARTIES, THERE WAS ELIMINATED FROM THE CONSIDERATION OF THE COURT SO MUCH OF THE CHARGES ALLEGEDLY ACCRUING ON THESE SHIPMENTS AS WAS BEYOND THE JURISDICTION OF THE COURT TO CONSIDER IN ANY EVENT. IT IS WELL SETTLED THAT THE STATUTE OF LIMITATIONS WITH RESPECT TO SUITS AGAINST THE UNITED STATES IN THE COURT OF CLAIMS IS JURISDICTIONAL IN EFFECT AND NEED NOT BE PLEADED IN ORDER TO EXCLUDE FROM CONSIDERATION BY THE COURT ANY CLAIMS, OR PORTIONS THEREOF, NOT FILED WITHIN SIX YEARS NEXT AFTER THE CAUSE OF ACTION FIRST ACCRUES. ACCORDINGLY, THE ONLY EFFECT OF THE ENTRY OF THE STIPULATION OF FACTS, PARTICULARLY PARAGRAPH XIV THEREOF, WAS TO DO FOR THE COURT WHAT IT WOULD HAVE BEEN REQUIRED TO DO ITSELF HAD NO SUCH REPRESENTATION BEEN MADE BY THE PARTIES.

REGARDLESS, HOWEVER, OF THE LIMITATIONS THAT MAY HAVE EXISTED WITH RESPECT TO THE COURT'S JURISDICTION TO AWARD A JUDGMENT FOR CHARGES ON THESE SHIPMENTS, THERE IS NO ESCAPE FROM THE FACT THAT THE JUDGMENT OF THE COURT OF CLAIMS IN THIS CASE WAS AWARDED UPON A CONSIDERATION OF, AND DETERMINATION AS TO, THE RIGHT OF THE PLAINTIFF TO PAYMENT OF CHARGES FOR THE TRANSPORTATION OF THE IDENTICAL SHIPMENTS AS TO WHICH YOU NOW SEEK, ON BEHALF OF THE PLAINTIFF, AN ALLOWANCE OF ADDITIONAL CHARGES. IN THE CIRCUMSTANCES, IN VIEW OF 28 U.S.C. 2517 (B) QUOTED ABOVE, ALL FURTHER CLAIMS AGAINST THE UNITED STATES FOR CHARGES GROWING OUT OF THE TRANSPORTATION OF THE SAME SHIPMENTS, THAT WERE CONSIDERED, ADJUDGED, AND SATISFIED IN THE COURT OF CLAIMS PROCEEDING, ARE FULLY DISCHARGED. SEE IN THIS CONNECTION ST. LOUIS, BROWNSVILLE AND MEXICO RY. CO. V. UNITED STATES, 59 C.CLS. 82, AFFIRMED ON THIS POINT UPON APPEAL IN 268 U.S. 169.

THE FACT THAT WE ARE NOT LIMITED, IN OUR CONSIDERATION OF OTHERWISE PROPER CLAIMS, TO A PERIOD OF SIX YEARS FROM THE DATES OF THEIR ACCRUAL, AS IS THE COURT OF CLAIMS, DOES NOT AFFORD US ANY AUTHORITY TO MAKE AN ADDITIONAL ALLOWANCE ON MATTERS THAT HAVE BEEN THE SUBJECT OF SATISFIED JUDGMENTS ENTERED BY THE COURT OF CLAIMS.

ACCORDINGLY, YOU ARE ADVISED THAT NO FURTHER ACTION WILL BE TAKEN HERE UPON THE CLAIMS IN QUESTION.