B-122904, JUN. 7, 1955

B-122904, JUN. 7, 1955

TO FARRELL LINES, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 6, 1955, REQUESTING RECONSIDERATION OF SETTLEMENT CERTIFICATE, DATED DECEMBER 13, 1954, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $55.13, REPRESENTING THE SUM ADMINISTRATIVELY DEDUCTED FROM AN AMOUNT OTHERWISE DUE YOU TO EFFECT COLLECTION OF YOUR INDEBTEDNESS TO THE UNITED STATES IN THAT AMOUNT BECAUSE OF SHORTAGE OF BERYL ORE AND DAMAGE TO EIGHT BALES OF SISAL SHIPPED VIA YOUR VESSEL, S.S. AFRICAN PLANET, UNDER VARIOUS OCEAN BILLS OF LADING.

PARAGRAPH 24 OF THE BILLS OF LADING PROVIDES THAT NOTICE OF THE LOSS OR DAMAGE AND THE GENERAL NATURE OF SUCH LOSS OR DAMAGE MUST BE GIVEN WITHIN A SPECIFIED TIME. IT IS ALSO STIPULATED THAT:

"IN ANY EVENT THE CARRIER AND THE SHIP SHALL BE DISCHARGED FROM ALL LIABILITY FOR ANY LOSS OF OR DAMAGE TO THE GOODS, DELAY OR ANY OTHER CLAIM WITH RESPECT TO OR IN CONNECTION WITH THE GOODS OR THE SHIPMENT, UNLESS SUIT IS BROUGHT WITHIN ONE YEAR AFTER DELIVERY OF THE GOODS OR THE DATE WHEN THE GOODS SHOULD HAVE BEEN DELIVERED. * * *"

YOU STATE THAT IT IS NOT YOUR CONTENTION THAT THE GOVERNMENT FAILED TO GIVE NOTICE OF ITS CLAIMS WITHIN THE TIME SPECIFIED IN THE CONTRACT OF CARRIAGE, BUT THAT SUIT WAS NOT COMMENCED AGAINST YOU WITHIN THE TIME LIMITATION PROVIDED FOR IN THE COVERING BILLS OF LADING TO WHICH THE GOVERNMENT IS BOUND AS ANY PRIVATE PARTY, CITING THE CASE OF UNITED STATES V. THE SOUTH STAR ET ., 115 F.SUPP. 102, AFFIRMED 210 F.2D 44.

THE PRESCRIBED LIMITATION ON THE TIME IN WHICH TO COMMENCE SUIT TO RECOVER THE CARRIER'S LIABILITY FOR LOSS OR DAMAGE TO GOVERNMENT PROPERTY IS NOT HERE INVOLVED, SINCE COLLECTION OF YOUR INDEBTEDNESS WAS EFFECTED BY SETOFF AND NOT BY THE INSTITUTION OF SUIT. IT DOES NOT APPEAR THAT WHEN NOTIFIED OF THE LOSS OR DAMAGE YOU DENIED RESPONSIBILITY OR INDICATED THAT NO REMITTANCE THEREFOR WOULD BE MADE UNLESS SUIT WAS INSTITUTED. SINCE THE MERIT OF THE GOVERNMENT'S CLAIMS WAS NOT DISPUTED IT WAS INCUMBENT UPON YOU TO SATISFY THEM AT AN EARLY DATE.

THE AMOUNTS OF THE CLAIMS WERE SMALL, TOTALING ONLY $55.13, AND THE INSTITUTING OF SUIT IN A COURT OF LAW TO RECOVER THIS SMALL AMOUNT OBVIOUSLY WAS NOT CONTEMPLATED NOR, UNLESS OTHER MEANS AVAILABLE TO EFFECT COLLECTION FAILED, WOULD SUCH ACTION BE WARRANTED. HENCE, THE AMOUNT OF THE GOVERNMENT'S LOSS OR DAMAGE WAS DEDUCTED FROM THE PAYMENTS OF BILLS OF YOUR FIRM SUBSEQUENTLY PRESENTED. IN THIS CONNECTION IT MAY BE STATED THAT ASIDE FROM THE DOUBT THAT THE TIME LIMITATION ATTEMPTED TO BE IMPOSED ON THE INSTITUTION OF SUIT IS BINDING ON THE GOVERNMENT--- THE CITED DECISION NOTWITHSTANDING, IN ANY EVENT IT MAY NOT BE REGARDED AS AFFECTING THE GOVERNMENT'S RIGHT TO SET OFF ONE DEBT AGAINST ANOTHER WHEN A CLAIMANT IS BOTH DEBTOR AND CREDITOR. SEE READY-MIX CONCRETE CO., LTD. V. UNITED STATES, COURT OF CLAIMS DECISION OF APRIL 5, 1955 (NO. 49279).