B-129936, APRIL 26, 1957, 36 COMP. GEN. 739

B-129936: Apr 26, 1957

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TRANSPORTATION - CLAIMS - STATUTES OF LIMITATION - TRANSIT PRIVILEGES ALTHOUGH THERE ARE TWO DELIVERIES WHERE GOVERNMENT PROPERTY. IS ACCORDED A TRANSIT PRIVILEGE. THE CONTINUITY OF THE THROUGH MOVEMENT IS MAINTAINED. SO THAT THE INBOUND PORTION OF THE TRANSPORTATION IS LOST IN THE FICTION OF TRANSIT AND THE FINAL DELIVERY AT THE OUTBOUND DESTINATION FIXES THE CARRIER'S RIGHT TO FREIGHT CHARGES AND COMMENCES THE RUNNING OF THE 10 YEAR STATUTE OF LIMITATIONS IN 31 U.S.C. 71A. IS BARRED BY THE 10-YEAR STATUTE OF LIMITATIONS IN 31 U.S.C. 71A. YOUR BILL WAS SENT HERE FOR DIRECT SETTLEMENT BY THE ARMY FINANCE CENTER SINCE THE APPLICABLE APPROPRIATION HAS LAPSED. WE ARE CONFRONTED AT THE OUTSET BY A LENGTHY AND COMPLICATED SET OF FACTS.

B-129936, APRIL 26, 1957, 36 COMP. GEN. 739

TRANSPORTATION - CLAIMS - STATUTES OF LIMITATION - TRANSIT PRIVILEGES ALTHOUGH THERE ARE TWO DELIVERIES WHERE GOVERNMENT PROPERTY, TRANSPORTED ON GOVERNMENT BILLS OF LADING, IS ACCORDED A TRANSIT PRIVILEGE, THE FIRST AT THE TRANSIT POINT AND A LATER ONE AT FINAL DESTINATION, THE CONTINUITY OF THE THROUGH MOVEMENT IS MAINTAINED, SO THAT THE INBOUND PORTION OF THE TRANSPORTATION IS LOST IN THE FICTION OF TRANSIT AND THE FINAL DELIVERY AT THE OUTBOUND DESTINATION FIXES THE CARRIER'S RIGHT TO FREIGHT CHARGES AND COMMENCES THE RUNNING OF THE 10 YEAR STATUTE OF LIMITATIONS IN 31 U.S.C. 71A. AN OUTBOUND RAIL CARRIER'S SUPPLEMENTAL CLAIM, FILED MORE THAN 11 1/2 YEARS AFTER DELIVERY AT THE OUTBOUND DESTINATION OF A THROUGH TRANSIT SHIPMENT, MOVED ON GOVERNMENT BILLS OF LADING TO AND FROM A TRANSIT POINT, IS BARRED BY THE 10-YEAR STATUTE OF LIMITATIONS IN 31 U.S.C. 71A. THE TIMELY FILING AND DISALLOWANCE OF THE INBOUND CARRIER'S SUPPLEMENTAL CLAIM, AFTER PAYMENT TO THE OUTBOUND CARRIER ON THE OUTBOUND BILLING, NEITHER TOLLED THE STATUTE OF LIMITATIONS NOR GAVE NEW RIGHTS TO THE PARTIES TO THE THROUGH SHIPMENT.

TO THE BALTIMORE AND OHIO RAILROAD CO., APRIL 26, 1957:

CONSIDERATION HAS BEEN GIVEN TO YOUR SUPPLEMENTAL BILL 113644-F-B, CLAIMING ADDITIONAL CHARGES OF $1,205.98 IN CONNECTION WITH AN OUTBOUND TRANSIT SHIPMENT ON BILL OF LADING WQ-17170018, DATED OCTOBER 12, 1943. YOUR BILL WAS SENT HERE FOR DIRECT SETTLEMENT BY THE ARMY FINANCE CENTER SINCE THE APPLICABLE APPROPRIATION HAS LAPSED.

WE ARE CONFRONTED AT THE OUTSET BY A LENGTHY AND COMPLICATED SET OF FACTS, BROUGHT ABOUT BY THE CIRCUMSTANCE THAT BILL OF LADING WQ 17170018 REPRESENTS ONE LEG OF A THROUGH TRANSIT SHIPMENT FOR WHICH ADJUSTMENTS OF CHARGES HAVE BEEN MADE, OR SOUGHT TO BE MADE, ON BOTH THE INBOUND AND OUTBOUND BILLING. THE ASSISTANT TRANSPORTATION OFFICER AT THE ANNISTON ORDNANCE DEPOT ISSUED BILL OF LADING WQ-17170018 ON OCTOBER 12, 1943, TO COVER THE TRANSPORTATION OF AN EXPORT SHIPMENT OF GENERAL PURPOSE, 1,000- POUND BOMBS, WEIGHING 88,692 POUNDS, FROM BYNUM, ALABAMA, TO THE WAR SHIPPING ADMINISTRATOR; FOR ACCOUNT OF THE BRITISH MINISTRY OF WAR TRANSPORT, HAWKINS POINT, BALTIMORE, MARYLAND. THE BALTIMORE FORWARDING CORPORATION, ACTING AS AGENTS FOR THE WAR SHIPPING ADMINISTRATOR, RECEIVED THE SHIPMENT AT DESTINATION ON OCTOBER 25, 1943. THE TONNAGE HAD ORIGINATED AT DOYLINE, LOUISIANA, AND MOVED INTO BYNUM ON BILLS OF LADING WQ-17635899 AND WQ-17635900, BOTH DATED AUGUST 27, 1943.

FOR THE OUTBOUND SERVICE TO BALTIMORE, YOU SUBMITTED YOUR BILL 113644-F FOR $660.75, COMPUTED AT THE THROUGH CLASS RATE FROM DOYLINE, LESS THE LOCAL RATE TO THE TRANSIT POINT, PLUS THE TRANSIT CHARGE. THIS BILL WAS PAID ON VOUCHER 996,496 IN THE DECEMBER 1943 ACCOUNT OF ARMY DISBURSING OFFICER N. B. HALE. MEANWHILE, THE SOUTHERN RAILWAY COMPANY, IN ITS BILL F-52725, PAID ON VOUCHER 632,846, OCTOBER 1943 ACCOUNTS OF M. B. HALE, HAD COLLECTED INBOUND CHARGES COMPUTED AT THE LOCAL RATE, LESS LAND-GRANT DEDUCTIONS. SUBSEQUENTLY, IN AUGUST 1945, THE SOUTHERN RAILWAY CLAIMED ADDITIONAL INBOUND CHARGES COMPUTED AT THE FULL LOCAL RATE WITHOUT LAND- GRANT DEDUCTIONS, AS PROVIDED IN THE TRANSIT ARRANGEMENT, ASSOCIATION OF AMERICAN RAILROADS SECTION 22 QUOTATION 31-B. THIS CLAIM WAS DISALLOWED HERE IN CERTIFICATE NO. 296738 1/2, DATED JUNE 25, 1946, SINCE ASSOCIATION OF AMERICAN RAILROADS LETTER OF PROCEDURE FOR SETTLING TRANSPORTATION CHARGES ON TRANSIT SHIPMENTS, FILE 10-3-6, DATE JUNE 30, 1944, PROVIDED THAT ADJUSTMENT OF INBOUND CHARGES SHOULD BE MADE IN CONNECTION WITH THE OUTBOUND MOVEMENT. YOU THEN SUBMITTED YOUR SUPPLEMENTAL BILL 113644-F A, IN MAY 1947, CLAIMING $106.43, WHICH WAS PAID IN FULL BY GENERAL ACCOUNTING OFFICE CERTIFICATE NO. T-512733, DATED JULY 18, 1951. NEARLY FOUR YEARS LATER, ON MAY 6, 1955, YOU SUBMITTED YOUR PRESENT CLAIM ON BILL 113644-F-B FOR $1,205.98, WHICH DOES NOT TAKE INTO ACCOUNT EITHER THE AMOUNT OF $660.75 PAID ON YOUR ORIGINAL BILL OR THE ALLOWANCE OF $106.43 MADE TO YOU IN 1951. THE BALANCE, $438.80, REPRESENTS AN AMOUNT NOT PREVIOUSLY CLAIMED IN YOUR BILLS.

AN OBSTACLE TO THE ALLOWANCE OF ANY PART OF YOUR CLAIM IS PRESENTED BY PUBLIC LAW 820, 31 U.S.C.A. 71A, WHICH PROVIDES THAT CLAIMS COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE ARE FOREVER BARRED UNLESS RECEIVED HERE WITHIN 10 FULL YEARS FROM THE TIME THE CLAIM ACCRUED. YOUR BILL 113644-F- B, DATED MAY 6, 1955, WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE AT 10:09 A.M. ON MAY 26, 1955. WE HAVE, THEN, FIRST TO DETERMINE WHEN YOUR CLAIM ACCRUED AND THE STATUTE BEGAN TO RUN. HERE, THE INBOUND SHIPMENTS WERE DELIVERED AT THE TRANSIT POINT ON SEPTEMBER 1, 1943, SUBJECT TO THE PRIVILEGE OF STORAGE FOR A MAXIMUM OF 2 YEARS, OR UNTIL SEPTEMBER 1, 1945. THEY WERE SHIPPED OUTBOUND IN A LITTLE OVER A MONTH, HOWEVER, AND FINAL DELIVERY WAS MADE ON OCTOBER 25, 1943.

GENERALLY, A CLAIM FOR FREIGHT CHARGES ACCRUES UPON DELIVERY OR TENDER OF DELIVERY OF THE GOODS SHIPPED, AND THE STATUTE OF LIMITATIONS BEGINS TO RUN FROM THAT DATE. SEE HUGHES TRANSPORTATION, INC. V. UNITED STATES, 109 F.1SUPP. 373. THE RULE IS NECESSARILY OTHERWISE IN A TRANSIT SITUATION, WHERE THERE ARE TWO DELIVERIES, ONE AT THE TRANSIT POINT AND A LATER ONE AT THE FINAL DESTINATION. UPON RESHIPMENT OUTBOUND, THE INBOUND LEG OF THE TRANSPORTATION IS LOST IN THE FICTION OF TRANSIT, AND THE CONTINUITY OF THE THROUGH MOVEMENT IS MAINTAINED. SEE, IN THIS CONNECTION, BOARD OF TRADE OF KANSAS CITY V. UNITED STATES, 314 U.S. 534, REHEARING DENIED, 315 U.S. 826; BALTIMORE AND OHIO R. CO. V. UNITED STATES, 24 F.1SUPP. 734; GREAT NORTHERN RY. CO. V. COMMODITY CREDIT CORPORATION, 77 F.1SUPP. 780, AMENDED 81 F.1SUPP. 852; GREAT NORTHERN RY. CO. V. UNITED STATES, 81 F.1SUPP. 921, AFFIRMED 336 U.S. 933. NEITHER DOES THE AVAILABILITY OF THE TRANSIT PRIVILEGE SERVE TO TOLL APPLICABLE STATUTES OF LIMITATION FOR THE DURATION OF THE PRIVILEGE REGARDLESS OF WHEN RESHIPMENT MAY HAVE TAKEN PLACE. SEABOARD AIR LINE R. CO. V. RED DIAMOND MILLS, INC., 128 F.1SUPP. 606. INSTEAD, THE CLAIM FOR TRANSPORTATION CHARGES ACCRUES UPON THE HAPPENING OF THE EVENT WHICH FIXES THE RESPECTIVE RIGHTS OF THE PARTIES TO THE TRANSACTION, AND THE STATUTE OF LIMITATIONS BEGINS TO RUN FROM THAT TIME. ARKANSAS OAK FLOORING COMPANY V. LOUISIANA AND ARKANSAS RY. CO., 166 F.2D 98; CHICAGO AND NORTHWESTERN R. CO. V. CONNOR LUMBER AND LAND CO., 212 F.2D 712.

IN THIS CASE, THE EVENT WHICH FIXED THE RIGHTS OF THE PARTIES WAS THE FINAL DELIVERY AT BALTIMORE, THE OUTBOUND DESTINATION, WHICH WAS ACCOMPLISHED ON OCTOBER 25, 1943. ON THAT DATE, YOUR CLAIM TO FREIGHT CHARGES BASED UPON THE APPLICABLE THROUGH RATE, LESS THE RATE ACTUALLY PAID IN TO THE TRANSIT POINT, PLUS THE TRANSIT CHARGE, FIRST ACCRUED, AND THE 10-YEAR STATUTE OF LIMITATIONS PROVIDED IN 31 U.S.C.A. 71A COMMENCED TO RUN. YOUR ORIGINAL BILL 113644-F, FOR OUTBOUND CHARGES, WAS PAID AS PRESENTED; SO WAS YOUR SUPPLEMENTAL BILL 113644-F-A; AND THE GOVERNMENT MADE NO ADJUSTMENT BY WAY OF SETOFF WHICH WOULD HAVE STARTED THE STATUTE OF LIMITATIONS RUNNING AFRESH TO THE EXTENT OF THE SETOFF. AS THE INBOUND SHIPMENT, WHEN REBILLED OUTBOUND, LOST ITS IDENTITY IN THE MAINTENANCE OF THE THROUGH MOVEMENT, SO THE INBOUND CARRIER'S CLAIM, BASED UPON THE INBOUND BILLING, WAS ALSO LOST IN THE FICTION OF TRANSIT AND MERGED WITH ANY POSSIBLE CLAIM ACCRUING TO YOU, THE OUTBOUND CARRIER. THUS THE FILING AND SUBSEQUENT DISALLOWANCE OF THE INBOUND CARRIER'S CLAIM CREATED NO NEW RIGHTS IN ANY OF THE PARTIES TO THE THROUGH TRANSIT SHIPMENT AND DID NOT OPERATE TO TOLL THE STATUTE AS TO YOUR CLAIM.

YOUR CLAIM, WHICH WAS RECEIVED HERE ON MAY 26, 1955, MORE THAN 11 1/2 YEARS AFTER ITS ACCRUAL ON OCTOBER 25, 1943, WAS NOT TIMELY FILED AND MUST, THEREFORE, BE DISALLOWED.