B-133865, JUL. 21, 1958

B-133865: Jul 21, 1958

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INC.: REFERENCE IS MADE TO YOUR LETTERS DATED SEPTEMBER 21. THE FREIGHT CHARGES INITIALLY CLAIMED BY HUGHES FOR THESE TRANSPORTATION SERVICES WERE DULY PAID UPON PRESENTATION OF BILLS THEREFOR. ALLEGING THAT THE INITIAL BILLS WERE UNDERCHARGED. THESE CLAIMS WERE CONSIDERED AND SETTLEMENTS WERE ISSUED BY OUR OFFICE AT VARIOUS TIMES DURING THE YEARS 1948 TO 1951. WERE PAID IN FULL. WERE PAID IN PART. THE OTHER CLAIMS WERE DISALLOWED. SOME SIX YEARS AFTER THESE SETTLEMENTS WERE ISSUED. ADDITIONAL SUPPLEMENTAL BILLS COVERING THE SAME SHIPMENTS WERE FILED. THESE BILLS BORE REFERENCE TO THE PRIOR SETTLEMENTS AND WERE REPORTEDLY FILED TO PROTEST THE EARLIER SETTLEMENT ACTIONS. SOME OF THE BILLS WERE FOR THE SAME AMOUNTS AS THE EARLIER BILLS.

B-133865, JUL. 21, 1958

TO HUGHES TRANSPORTATION, INC.:

REFERENCE IS MADE TO YOUR LETTERS DATED SEPTEMBER 21, OCTOBER 1, NOVEMBER 11, 1957, AND DECEMBER 9, 1957, REQUESTING RECONSIDERATION OF A TOTAL OF 20 SETTLEMENTS ISSUED BY OUR OFFICE, INVOLVING 50 SHIPMENTS OF GOVERNMENT PROPERTY TRANSPORTED BY HUGHES TRANSPORTATION, INC., IN THE YEARS 1942, 1943, AND 1945. THE FREIGHT CHARGES INITIALLY CLAIMED BY HUGHES FOR THESE TRANSPORTATION SERVICES WERE DULY PAID UPON PRESENTATION OF BILLS THEREFOR. APPROXIMATELY SIX YEARS LATER, WITH CERTAIN EXCEPTIONS NOTED BELOW, THE CARRIER FILED SUPPLEMENTAL BILLS FOR ADDITIONAL FREIGHT CHARGES, SETTING FORTH THE BASIS FOR SUCH CLAIMS, AND ALLEGING THAT THE INITIAL BILLS WERE UNDERCHARGED. THESE CLAIMS WERE CONSIDERED AND SETTLEMENTS WERE ISSUED BY OUR OFFICE AT VARIOUS TIMES DURING THE YEARS 1948 TO 1951, INCLUSIVE.

FOUR OF THE CLAIMS--- HUGHES BILLS 165-X-5, 133-X, 680-Y, AND 101-W 1--- PERTAINING TO SHIPMENTS COVERED BY BILLS OF LADING WQ-11825886, WQ- 8231297, WV/5474248, AND N-946354, WERE PAID IN FULL. SEVEN OF THE CLAIMS --- HUGHES BILLS 175-X-2, 134-Z, 165-X-3, 195-X-6, 191-X-7, 101 W-1, AND 210-W-1--- PERTAINING TO SHIPMENTS COVERED BY BILLS OF LADING WQ-10266542, WQ-8180764, WQ-8181144, WQ-6732005, WQ-8181400, N-946790, AND N-622589, WERE PAID IN PART. THE OTHER CLAIMS WERE DISALLOWED.

SOME SIX YEARS AFTER THESE SETTLEMENTS WERE ISSUED, ADDITIONAL SUPPLEMENTAL BILLS COVERING THE SAME SHIPMENTS WERE FILED, EITHER BY OR ON BEHALF OF HUGHES, WITH OUR TRANSPORTATION DIVISION. THESE BILLS BORE REFERENCE TO THE PRIOR SETTLEMENTS AND WERE REPORTEDLY FILED TO PROTEST THE EARLIER SETTLEMENT ACTIONS. SOME OF THE BILLS WERE FOR THE SAME AMOUNTS AS THE EARLIER BILLS; OTHERS WERE FOR AMOUNTS GREATER OR LESSER THAN THE AMOUNTS PREVIOUSLY CLAIMED. THESE BILLS WERE DISALLOWED BY REVISED SETTLEMENTS ISSUED BY THE TRANSPORTATION DIVISION. LESS THAN A YEAR LATER, YOU FILED THE REQUESTS NOW UNDER CONSIDERATION.

THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, (31 U.S.C. 71A), FOREVER BARS EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNLESS SUCH CLAIM BE RECEIVED IN OUR OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. AS TO THE FOUR CLAIMS CITED ABOVE WHICH WERE PAID IN FULL, AND THE SEVEN CLAIMS CITED ABOVE WHICH WERE PAID IN PART, THE PAYMENTS BEING ACCEPTED WITHOUT PROTEST FOR A PERIOD OF APPROXIMATELY SIX YEARS, IT IS CONCLUDED THAT ANY LIABILITY OF THE UNITED STATES WAS DISCHARGED AND THAT THE SETTLEMENTS ARE NOT OPEN TO REVIEW. CONSEQUENTLY, YOUR PRESENT REQUESTS FOR ADDITIONAL SUMS FOR THE SAME SERVICES MUST BE CONSIDERED, NOT AS REQUESTS FOR REVIEW OF THE INITIAL SETTLEMENTS, BUT AS NEW CLAIMS, AND, AS SUCH, BARRED BY THE CITED ACT BECAUSE NOT RECEIVED HERE WITHIN 10 YEARS AFTER DELIVERY OF THE SHIPMENTS INVOLVED. ALSO, AS TO THE CLAIMS COVERED BY HUGHES BILLS 134-W- 1 AND 101-W-1, PERTAINING TO SHIPMENTS COVERED BY BILLS OF LADING N-380938 AND N-946615, WE FIND THAT THE SHIPMENTS WERE DELIVERED IN 1942, AND CLAIMS FIRST FILED IN 1956. CONSIDERATION OF THESE CLAIMS IS CLEARLY BARRED BY THE CITED ACT.

WITH RESPECT TO THE BALANCE OF THE CLAIMS, WHICH WERE TOTALLY DISALLOWED INITIALLY, THE RECORD SHOWS, WITH CERTAIN EXCEPTIONS NOTED BELOW, THAT REVIEW BY THE COMPTROLLER GENERAL OF THE UNITED STATES WAS NOT REQUESTED UNTIL SOME SIX OR MORE YEARS AFTER THE INITIAL SETTLEMENTS WERE ISSUED. OUR REGULATIONS, 4 C.F.R., 1957 SUPP., 32.1 AND 55.2, PROVIDE FOR REVIEW, IN THE DISCRETION OF THE COMPTROLLER GENERAL, OF A CLAIM SETTLED HERE UPON APPLICATION OF THE CLAIMANT OR HIS DULY AUTHORIZED ATTORNEY OR AGENT. WHILE SUCH REGULATIONS DO NOT PLACE A SPECIFIC TIME LIMIT UPON REQUESTS FOR REVIEW, IT IS OBVIOUS, IN THE LIGHT OF THE EVIDENT PURPOSE OF THE ACT OF OCTOBER 9, 1940, SUPRA, THAT AN INDEFINITE TIME MAY NOT BE ALLOWED, AND THAT A REQUEST FOR REVIEW SHOULD BE RECEIVED WITHIN A REASONABLE TIME FROM THE DATE OF SETTLEMENT. WITHOUT ATTEMPTING A STRICT DEFINITION OF WHAT WOULD CONSTITUTE A REASONABLE TIME IN ALL CASES, WE CANNOT REGARD AS TIMELY THE SUBJECT REQUESTS WHICH WERE RECEIVED HERE SIX OR MORE YEARS AFTER THE CLAIMANT HAD BEEN ADVISED BY NOTICES OF SETTLEMENT THAT ITS CLAIMS WERE DISALLOWED. ACCORDINGLY, THOSE REQUESTS FOR REVIEW ARE DENIED BECAUSE NOT TIMELY FILED.

WITH RESPECT TO FOUR CLAIMS--- HUGHES BILLS 211-W-1 AND 680-W-1--- PERTAINING TO SHIPMENTS COVERED BY BILLS OF LADING WQ-6313703, WV 3654588, WV-5474193, AND WV-5473786, THE RECORD SHOWS THAT YOUR REQUESTS FOR REVIEW WERE RECEIVED LESS THAN ONE YEAR AFTER THE NOTICES OF SETTLEMENT WERE ISSUED. WE CONSIDER THOSE REQUESTS AS TIMELY FILED AND HAVE THEREFORE REVIEWED THOSE SETTLEMENTS.

THE SHIPMENTS CONSISTED OF SMOKELESS POWDER OR AMMUNITION IN LESS THAN- TRUCKLOAD QUANTITIES, AND EACH OF THE BILLS OF LADING INDICATES THAT THE VEHICLE INTO WHICH THE SHIPMENT WAS LOADED WAS SEALED AT ORIGIN. THE BILLS OF LADING DO NOT SHOW THAT EXCLUSIVE USE OF THE VEHICLES WAS REQUESTED BY THE SHIPPERS OR THAT THE VEHICLES ARRIVED AT DESTINATION WITH SEALS INTACT. YOUR CLAIMS ARE FOR THE DIFFERENCE BETWEEN CHARGES COMPUTED AT TRUCKLOAD OR VOLUME RATES AND MINIMUM WEIGHTS AND THOSE COMPUTED AT LESS-THAN-TRUCKLOAD RATES AND ACTUAL WEIGHTS.

AS CORRECTLY STATED BY YOU IN YOUR REQUESTS FOR REVIEW, THE QUESTION AT ISSUE IS NOT WHETHER A VEHICLE WAS SPECIFICALLY ORDERED FOR EXCLUSIVE USE BY THE GOVERNMENT AND THE BILL OF LADING SO ANNOTATED, BUT WHETHER THE VEHICLE INTO WHICH THE SHIPMENT WAS LOADED BY THE GOVERNMENT WAS SEALED BY THE GOVERNMENT AND WHETHER THIS SEAL PROTECTION WAS PRESERVED BY THE CARRIER FROM ORIGIN TO DESTINATION IN ACCORDANCE WITH PREVAILING INSTRUCTIONS AND TRANSPORTATION REQUIREMENTS OF THE MILITARY AGENCIES OF GOVERNMENT. WITH RESPECT TO THIS LATTER QUESTION OF FACT, THE RECORD BEFORE US IS SILENT. WHILE WE KNOW FROM THE BILLS OF LADING THAT EACH VEHICLE WAS SEALED AT ORIGIN, WE DO NOT KNOW WHETHER THIS SEAL PROTECTION IN FACT WAS REQUIRED TO BE PRESERVED OR WAS PRESERVED BY THE CARRIER BETWEEN ORIGIN AND DESTINATION. IT MAY BE THAT THE SEALS WERE REMOVED AND OTHER FREIGHT TRANSPORTED IN THE VEHICLES, OR EVEN THAT THE GOVERNMENT FREIGHT WAS RELOADED EN ROUTE AND DELIVERED IN OTHER VEHICLES.

IT HAS LONG BEEN RECOGNIZED, AS PROVIDED IN THE MOTOR FREIGHT CLASSIFICATION RULES, THAT LESS-THAN-TRUCKLOAD RATINGS ORDINARILY APPLY ON SHIPMENTS IN QUANTITIES LESS THAN THE MINIMUM WEIGHT SPECIFIED FOR VOLUME SHIPMENTS. IN ORDER, THEREFORE, TO JUSTIFY THE EXACTION OF CHARGES HIGHER THAN THOSE BASED ON THE LESS-THAN-TRUCKLOAD RATES, WE THINK IT INCUMBENT ON THE CARRIER TO PROVE THAT THE SERVICE ACCORDED WAS DIFFERENT FROM THAT ORDINARILY GIVEN LESS-THAN-TRUCKLOAD SHIPMENTS. SEE, IN THIS CONNECTION, IN A CASE INVOLVING CAPACITY-LOAD CHARGES, CONTINENTAL MOTORS CORP. V. WENHAM TRANSPORTATION, INC., 67 M.C.C. 83. IN THE ABSENCE, AS HERE, OF EVIDENCE THAT THESE SHIPMENTS WERE TRANSPORTED UNDER UNBROKEN SEAL FROM ORIGIN TO DESTINATION, PAYMENT OF ADDITIONAL CHARGES WOULD NOT BE JUSTIFIED AND THE SETTLEMENTS DISALLOWING YOUR CLAIMS ARE SUSTAINED.

WITH RESPECT TO THE ACCOUNTS COVERED BY HUGHES BILLS 110-X AND 117-W 1, THE SETTLEMENTS THERE AT ISSUE WERE REVIEWED AND CERTAIN ALLOWANCES WERE MADE IN FEBRUARY OF THIS YEAR BY OUR TRANSPORTATION DIVISION. THE SETTLEMENTS REFLECT CONSIDERATION OF THE CLAIMS THERE INVOLVED TO THE EXTENT THAT THEY DID NOT FALL INTO THE CATEGORIES OF CLAIMS DISCUSSED ABOVE AS NOT BEING ENTITLED TO FURTHER REVIEW OR AS BEING BARRED BY THE 10 -YEAR LIMITATION. WE FIND THAT THE REVISED SETTLEMENTS WERE SUBSTANTIVELY CORRECT AND THAT THE ALLOWANCES WERE PROPER.