B-151433, JULY 1, 1963, 43 COMP. GEN. 13

B-151433: Jul 1, 1963

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STATUTES OF LIMITATION - CLAIMS - TRANSPORTATION - TRANSIT PRIVILEGES IN TRANSIT SHIPMENTS UNDER GOVERNMENT BILLS OF LADING WHICH ORIGINATED IN 1953 BUT WERE NOT DELIVERED AT DESTINATION UNTIL AFTER AUGUST 26. - MUST BE REGARDED AS BEING PERFORMED WITHIN THE MEANING OF THE ACT WHEN THE SHIPMENTS WERE DELIVERED AT DESTINATION RATHER THAN WHEN THE SHIPMENTS ORIGINATED. SINCE THE CLAIMS FOR ADDITIONAL FREIGHT CHARGES WERE NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE UNTIL MORE THAN 3 YEARS AFTER BOTH PERFORMANCE OF THE TRANSPORTATION AND PAYMENT. THE CLAIMS ARE BARRED BY THE ACT. YOU ORIGINALLY CLAIMED AND WERE PAID THE AMOUNT OF $4. NO EXCEPTION WAS TAKEN BUT YOU SUBSEQUENTLY CLAIMED THE ADDITIONAL FREIGHT CHARGES IN QUESTION BY YOUR SUPPLEMENTAL BILL WHICH WAS RECEIVED IN OUR OFFICE ON APRIL 6.

B-151433, JULY 1, 1963, 43 COMP. GEN. 13

STATUTES OF LIMITATION - CLAIMS - TRANSPORTATION - TRANSIT PRIVILEGES IN TRANSIT SHIPMENTS UNDER GOVERNMENT BILLS OF LADING WHICH ORIGINATED IN 1953 BUT WERE NOT DELIVERED AT DESTINATION UNTIL AFTER AUGUST 26, 1958--- THE DATE OF THE ACT (49 U.S.C. 66) ESTABLISHING A 3 YEAR LIMITATION ON CLAIMS FOR TRANSPORTATION PERFORMED AND PAID FOR AFTER SUCH DATE--- MUST BE REGARDED AS BEING PERFORMED WITHIN THE MEANING OF THE ACT WHEN THE SHIPMENTS WERE DELIVERED AT DESTINATION RATHER THAN WHEN THE SHIPMENTS ORIGINATED; THEREFORE, SINCE THE CLAIMS FOR ADDITIONAL FREIGHT CHARGES WERE NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE UNTIL MORE THAN 3 YEARS AFTER BOTH PERFORMANCE OF THE TRANSPORTATION AND PAYMENT, THE CLAIMS ARE BARRED BY THE ACT.

TO THE GULF, MOBILE AND OHIO RAILROAD COMPANY, JULY 1, 1963:

BY LETTER OF MARCH 8, 1963, FILE NO. W-66826-CI24, TO THE DIRECTOR OF OUR TRANSPORTATION DIVISION, YOU REQUEST RECONSIDERATION OF YOUR CLAIM PER SUPPLEMENTAL BILL NO. W-66826-A FOR ADDITIONAL FREIGHT CHARGES OF $1,349.64 ALLEGED TO BE DUE FOR THE TRANSPORTATION OF THREE CARLOADS OF FIBER CORDAGE SISAL WHICH MOVED FROM NAVAL CONSTRUCTION BATTALION CENTER, DAVISVILLE, RHODE ISLAND, A TRANSIT POINT, TO THE INTERNATIONAL HARVESTER CO., NEW ORLEANS, LOUISIANA, UNDER GOVERNMENT BILL OF LADING NOS. GS-T- 3017, GS-T-3023, AND GS-T-3021, DATED DECEMBER 19, DECEMBER 18, AND DECEMBER 23, 1958, RESPECTIVELY. THE INBOUND TRANSIT MOVEMENTS ORIGINATED FROM BOSTON, MASSACHUSETTS, DURING THE FIRST QUARTER OF 1953.

FOR THE SERVICE PERFORMED ON THE OUTBOUND TRANSPORTATION, YOU ORIGINALLY CLAIMED AND WERE PAID THE AMOUNT OF $4,200.75 ON MARCH 4, 1959, BY D.O. VOUCHER NO. 14312. ON AUDIT OF THE PAYMENT VOUCHER IN OUR OFFICE, NO EXCEPTION WAS TAKEN BUT YOU SUBSEQUENTLY CLAIMED THE ADDITIONAL FREIGHT CHARGES IN QUESTION BY YOUR SUPPLEMENTAL BILL WHICH WAS RECEIVED IN OUR OFFICE ON APRIL 6, 1962, OR MORE THAN 3 YEARS AFTER THE ORIGINAL PAYMENT. YOU WERE ADVISED THAT CONSIDERATION OF SUCH SUPPLEMENTAL CLAIM WAS BARRED UNDER THE PROVISIONS OF PUBLIC LAW 85-762, 72 STAT. 860, 49 U.S.C. 66, WHICH PROVIDES IN PART AS FOLLOWS:

THAT EVERY CLAIM COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE FOR CHARGES FOR TRANSPORTATION WITHIN THE PURVIEW OF THIS SECTION SHALL BE FOREVER BARRED UNLESS SUCH CLAIM SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN THREE YEARS (NOT INCLUDING ANY TIME OF WAR) FROM THE DATE OF (1) ACCRUAL OF THE CAUSE OF ACTION THEREON, OR (2) PAYMENT OF CHARGES FOR THE TRANSPORTATION INVOLVED, OR (3) SUBSEQUENT REFUND FOR OVERPAYMENT OF SUCH CHARGES, OR (4) DEDUCTION MADE PURSUANT TO THIS SECTION, WHICHEVER IS LATER.

IN YOUR LETTERS OF SEPTEMBER 26, 1962, AND MARCH 9, 1963, FILE NO. W 66826-C124, YOU URGE THAT SINCE THESE TRANSIT SHIPMENTS ORIGINATED FROM BOSTON PRIOR TO THE EFFECTIVE DATE OF PUBLIC LAW 85-762, AUGUST 26, 1958, THE PERIOD OF LIMITATIONS DOES NOT APPLY.

SECTION 3 OF PUBLIC LAW 85-762, 72 STAT. 860, 861, 49 U.S.C 66 NOTE, PROVIDES IN PERTINENT PART AS FOLLOWS:

THE PROVISIONS OF THIS ACT WHICH AMENDS SECTION 322 OF THE TRANSPORTATION ACT OF 1940 (49 U.S.C. 66) SHALL APPLY ONLY TO TRANSPORTATION PERFORMED AND PAYMENT MADE THEREFOR SUBSEQUENT TO THE EFFECTIVE DATE OF THIS ACT.

IN OUR LETTER OF DECEMBER 21, 1962, T-C/R-CL-TK-736158-REV., TO YOU WE STATED:

TRANSIT IS BASED ON THE THEORY THAT THE ENTIRE SHIPMENT FROM ORIGIN THROUGH THE TRANSIT POINT TO FINAL DESTINATION IS THE SAME IN PRINCIPLE AS IF THE SHIPMENT HAD MOVED WITHOUT TRANSIT. THE SUBJECT SHIPMENTS WERE DELIVERED AT FINAL DESTINATION JANUARY 15, 1959, AND THE CHARGES, PER YOUR BILL NO. W-66826, WERE PAID IN MARCH 1959, AND THE RIGHT TO MAKE CLAIM ACCRUED AT THAT TIME.

THERE CAN BE NO QUESTION BUT THAT THE DELIVERY, ACCOMPLISHED ON JANUARY 15, 1959, AND THE PAYMENT ON MARCH 4, 1959, WERE BOTH AFTER THE EFFECTIVE DATE OF THE ACT, AUGUST 26, 1958. IT IS APPARENTLY YOUR CONTENTION THAT BECAUSE THE SHIPMENTS ORIGINATED BEFORE THE EFFECTIVE DATE OF THE ACT, THE TRANSPORTATION SERVICE WAS NOT "PERFORMED" SUBSEQUENT TO THE EFFECTIVE DATE OF THE ACT. THE WORD "PERFORMED" HAS BEEN DEFINED AS MEANING COMPLETED OR FINISHED AND NOT SOMETHING BEGUN OR HALF DONE. KENDALL V. GARNUE, 75 N.W. 852, 853. THE WORDS IN A STATUTE ARE TO BE GIVEN THEIR ORDINARY AND CUSTOMARY MEANING IN THE ABSENCE OF EVIDENCE TO THE CONTRARY. DEPUTY V. DUPONT, 308 U.S. 488, AND OLD COLONY R.CO. V. COMMISSIONER OF INTERNAL REVENUE, 284 U.S. 552, 560. ALSO SEE 82 C.J.S. STATUTES, SECTION 316, PAGE 550, AND 50 AM.JUR., STATUTES, SECTION 238, PAGE 228. THE LEGISLATURE IS PRESUMED TO KNOW THE MEANING OF THE WORDS USED, TO HAVE USED THE WORDS OF A STATUTE ADVISEDLY, AND TO HAVE EXPRESSED ITS INTENT BY THE USE OF THE WORDS FOUND IN THE STATUTE. STATE EX REL. ATTORNEY GENERAL V. ANDERSON TULLY CO., 53 S.W.2D 17; LEWIS V. PETROLEUM COUNTY, 17 P.2D 60, 61; IN REOPINION OF THE JUSTICES, 22 N.E.2D 49; CRAM V. CHICAGO, B AND Q.RY. CO., 123 N.W. 145, AFFIRMED 228 U.S. 70; VAN PELT V. HILLIARD, 78 SO. 693.

A CONTRACT OF TRANSPORTATION IS COMPLETED, AND THEREFORE "PERFORMED" BY ACCEPTANCE OF DELIVERY AT DESTINATION AND REMOVAL OF THE SHIPMENT FROM THE CARRIER'S POSSESSION. SEE CHESTNUT V. CHICAGO, B. AND Q.RY.CO., 208 I.C.C. 456, 458; WOODWARD AND SONS V. SOUTHERN RY.CO., 156 I.C.C. 354; AND ALCOA S.S.CO. V. UNITED STATES, 338 U.S. 421. SINCE THE THREE SHIPMENTS INVOLVED IN THIS CLAIM WERE DELIVERED AT DESTINATION ON JANUARY 15, 1959, THE SERVICES WERE "PERFORMED" SUBSEQUENT TO THE EFFECTIVE DATE OF PUBLIC LAW 85-762. ALSO, AS PREVIOUSLY POINTED OUT PAYMENT WAS MADE SUBSEQUENT TO SUCH EFFECTIVE DATE. CONSEQUENTLY, SINCE YOUR CLAIM WAS NOT RECEIVED IN OUR OFFICE UNTIL APRIL 6, 1962, OR MORE THAN 3 YEARS AFTER BOTH THE PERFORMANCES OF THE TRANSPORTATION AND THE PAYMENT OF THE FREIGHT CHARGES IN MARCH 1950, THE CLAIM IS BARRED BY THE 3-YEAR PERIOD OF LIMITATION CONTAINED IN PUBLIC LAW 85-762, 72 STAT. 860, 49 U.S.C. 66.