B-128472, JUL. 2, 1957

B-128472: Jul 2, 1957

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TO THE WILLIAM POWELL COMPANY: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 23. THE RECORDS OF OUR OFFICE SHOW THAT THE VALVES WERE NEVER RECEIVED BY THE UNITED STATES. IS NOT MANUALLY SIGNED BY ANY CARRIER. " WHICH COULD HAVE BEEN PLACED ON THE BILL OF LADING BY ANYONE. OUR RECORDS SHOW THAT NO FREIGHT CHARGES HAVE EVER BEEN PAID OR CLAIMED FOR THIS SHIPMENT. THE EVIDENCE PRESENTLY OF RECORD HERE TENDS TO ESTABLISH THAT THE VALVES WERE NEVER TENDERED FOR SHIPMENT. THAT THE GOVERNMENT HAS PAID YOU FOR A COMMODITY WHICH YOU HAVE FAILED TO DELIVER. THIS REFERENCE IS NOT ENTIRELY CLEAR. THEY HAVE NO APPLICATION TO THE PRESENT CASE. THE RULE IS WELL SETTLED THAT NEITHER LACHES NOR PERIODS OF LIMITATION APPLY AGAINST THE GOVERNMENT IN THE ABSENCE OF A CLEAR EXPRESSION OF CONGRESSIONAL INTENT TO THE CONTRARY.

B-128472, JUL. 2, 1957

TO THE WILLIAM POWELL COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 23, 1956, IN WHICH YOU REQUEST CANCELLATION OF THE DEBT ASSESSED AGAINST YOU BY THE UNITED STATES IN THE AMOUNT OF $684.15, REPRESENTING THE COST OF REPLACING NINE STEEL VALVES PURCHASED FROM YOU UNDER UNITED STATES MARITIME PURCHASE ORDER NO. PD-MC-44-21154, AND PAID FOR ON VOUCHER NO. 1971184 IN THE MARCH 1944 ACCOUNTS OF G. F. ALLEN.

THE RECORDS OF OUR OFFICE SHOW THAT THE VALVES WERE NEVER RECEIVED BY THE UNITED STATES. GOVERNMENT BILL OF LADING NO. MC-568746, DATED DECEMBER 8, 1943, SUBMITTED BY YOU AS PROOF OF TENDER TO A CARRIER FOR DELIVERY TO THE GOVERNMENT, IS NOT MANUALLY SIGNED BY ANY CARRIER. IN THE SPACE FOR THE CARRIER'S SIGNATURE IN RECEIPT FOR THE GOODS, THE BILL OF LADING BEARS ONLY THE TYPEWRITTEN NAME "WESTERN TRUCKING," WHICH COULD HAVE BEEN PLACED ON THE BILL OF LADING BY ANYONE. THE WESTERN TRUCKING COMPANY DENIES THAT IT EVER RECEIVED THE PURPORTED SHIPMENT, AND OUR RECORDS SHOW THAT NO FREIGHT CHARGES HAVE EVER BEEN PAID OR CLAIMED FOR THIS SHIPMENT. THE EVIDENCE PRESENTLY OF RECORD HERE TENDS TO ESTABLISH THAT THE VALVES WERE NEVER TENDERED FOR SHIPMENT, AND THAT THE GOVERNMENT HAS PAID YOU FOR A COMMODITY WHICH YOU HAVE FAILED TO DELIVER.

IN YOUR REQUEST FOR CANCELLATION OF THIS DEBT YOU REFER TO A REQUIREMENT OF INTERSTATE COMMERCE COMMISSION REGULATIONS THAT A CLAIM MUST BE FILED WITHIN TWO YEARS AND PROOF OF CLAIM WITHIN A PERIOD OF NINE MONTHS. THIS REFERENCE IS NOT ENTIRELY CLEAR, BUT YOU APPARENTLY REFER TO SECTIONS 20 (11) AND 219 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 20 (11) AND 319, WHICH PROVIDE, IN PART, THAT A COMMON CARRIER MAY NOT PROVIDE BY RULE, REGULATION, OR CONTRACT FOR A PERIOD OF LESS THAN NINE MONTHS FOR THE PRESENTATION OF A CLAIM AGAINST THE CARRIER, OR FOR A PERIOD OF LESS THAN TWO YEARS FOR THE INSTITUTION OF A SUIT AT LAW AGAINST THE CARRIER. SECTION 16 (3) (B) OF THE ACT, 49 U.S.C. 16 (3) (B), PROVIDES THAT ALL COMPLAINTS AGAINST CARRIERS SUBJECT TO PART I OF THE ACT FOR RECOVERY OF DAMAGES NOT BASED ON OVERCHARGES SHALL BE FILED WITH THE COMMISSION WITHIN TWO YEARS FROM THE TIME THE CAUSE OF ACTION ACCRUES. SINCE THESE PROVISIONS REFER ONLY TO CLAIMS OR RIGHTS OF ACTION BY A CONSIGNOR OR CONSIGNEE AGAINST A COMMON CARRIER, THEY HAVE NO APPLICATION TO THE PRESENT CASE, WHICH INVOLVES A CLAIM BY THE GOVERNMENT AGAINST A CONTRACTOR ARISING OUT OF BREACH OF CONTRACT. FURTHERMORE, PARAGRAPH NO. 7 UNDER "GENERAL CONDITIONS AND INSTRUCTIONS" ON THE REVERSE SIDE OF THE GOVERNMENT BILL OF LADING PROVIDES THAT IN CASE OF LOSS, DAMAGE, OR SHRINKAGE IN TRANSIT, THE RULES AND CONDITIONS GOVERNING COMMERCIAL SHIPMENTS SHALL NOT APPLY AS TO THE PERIOD WITHIN WHICH NOTICE THEREOF SHALL BE GIVEN THE CARRIERS OR TO THE PERIOD WITHIN WHICH CLAIM THEREFOR SHALL BE MADE OR SUIT INSTITUTED. FINALLY, THE RULE IS WELL SETTLED THAT NEITHER LACHES NOR PERIODS OF LIMITATION APPLY AGAINST THE GOVERNMENT IN THE ABSENCE OF A CLEAR EXPRESSION OF CONGRESSIONAL INTENT TO THE CONTRARY. SEE UNITED STATES V. WHITED AND WHELASS, 246 U.S. 552; STANELY V. SCHWALBY, 147 U.S. 508, 514 ET SEQ.; MISSOURI K.-T.R. CO. V. UNITED STATES, 62 C.CLS. 373.

ACCORDINGLY, IT APPEARS THAT THIS DEBT HAS BEEN CORRECTLY ASSESSED AGAINST YOU, AND THE CLAIM, THEREFORE, MAY NOT BE CANCELLED.