B-152077, DECEMBER 3, 1963, 43 COMP. GEN. 461

B-152077: Dec 3, 1963

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- IS SUBJECT TO THE CIVIL AERONAUTICS ACT OF 1938 (49 U.S.C. 401. IS BARRED BY THE 1940 ACT FROM CLAIMING FREIGHT CHARGES. 1963: WE HAVE CONSIDERED YOUR LETTER OF JANUARY 18. WAS RETURNED BECAUSE SECTION 322 OF THE TRANSPORTATION ACT OF 1940. IS NOT SUBJECT TO THE FEDERAL AVIATION ACT OF 1958. THUS SECTION 322 "IS NOT APPLICABLE TO THAT COMPANY.'. WE CONCLUDE THAT IRANIAN AIRWAYS COMPANY WAS SUBJECT TO THE CIVIL AERONAUTICS ACT OF 1938. IS BARRED BY THE 3-YEAR LIMITATION PRESCRIBED IN SECTION 322. CONSIDERABLE DIFFICULTY SEEMS TO HAVE BEEN ENCOUNTERED IN FINALLY OBTAINING SOME EVIDENCE OF DELIVERY AT DESTINATION. BILL F-5280 WAS NOT SUPPORTED BY THE GOVERNMENT BILLS OF LADING COVERING THE SHIPMENTS ON WHICH CHARGES ARE CLAIMED.

B-152077, DECEMBER 3, 1963, 43 COMP. GEN. 461

STATUTES OF LIMITATION - CLAIMS - TRANSPORTATION - FOREIGN COMMERCE THE TRANSPORTATION CHARGES CLAIMED 4 YEARS AFTER ACCRUAL BY THE IRANIAN AIRWAYS COMPANY, OPERATING OUTSIDE THE UNITED STATES--- A FOREIGN CARRIER NOT INCLUDED IN THE TRANSPORTATION CONTRACT AND SUPPORTING ITS CLAIM WITH THE DOMESTIC CARRIER'S DOCUMENTS EVIDENCING TRANSFER OF THE SHIPMENTS OVERSEAS--- IS SUBJECT TO THE CIVIL AERONAUTICS ACT OF 1938 (49 U.S.C. 401, ET SEQ.), AND THUS TO THE 3 YEAR STATUTE OF LIMITATION PRESCRIBED IN SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED (49 U.S.C. 66), IRRESPECTIVE OF THE FACT THAT THE UNITED STATES DID NOT CONTEMPLATE DOING BUSINESS WITH THE FOREIGN CARRIER, THEREBY LIMITING BILLING AUTHORITY TO THE DOMESTIC CARRIER SUBJECT TO THE CIVIL AERONAUTICS ACT OF 1938, THE SHIPMENTS CONSIDERED DEVIATIONS WITHIN THE TERMS OF THE R. C. LOUNSBURY C.A.B. NO. 259--- A SINGLE-FACTOR THROUGH RATES AND ROUTES TARIFF--- THE IRANIAN GOVERNMENT HAVING PARTICIPATED IN THE TARIFF, WHETHER OR NOT HOLDING A FOREIGN AIR CARRIER PERMIT, IS BARRED BY THE 1940 ACT FROM CLAIMING FREIGHT CHARGES.

TO IRANIAN AIRWAYS COMPANY, DECEMBER 3, 1963:

WE HAVE CONSIDERED YOUR LETTER OF JANUARY 18, 1963, TO THE DIRECTOR OF OUR TRANSPORTATION DIVISION, REQUESTING REVIEW OF THE ACTION TAKEN IN CLAIM TK-75084, DATED DECEMBER 11, 1962, RETURNING YOUR BILL F-5280 FOR $10,122.19, FREIGHT CHARGES ALLEGEDLY DUE AND UNPAID FOR THE TRANSPORTATION OF FIVE SHIPMENTS FROM UNITED STATES POINTS OF ORIGIN TO ANKARA, TURKEY, IN SEPTEMBER 1958. YOUR BILL, RECEIVED HERE NOVEMBER 27, 1962, WAS RETURNED BECAUSE SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C.A. 66, FOREVER BARS CLAIMS NOT RECEIVED HERE WITHIN 3 YEARS FROM THE ACCRUAL OF THE CAUSE OF ACTION THEREON.

WITH YOUR LETTER OF JANUARY 18, 1963, YOU RETURNED YOUR BILL F-5280, ON WHICH YOU REVISED THE CHARGES UPWARD TO $10,365.51. YOU CLAIMED EXEMPTION FROM THE LIMITATION PROVISIONS OF SECTION 322 ON THE GROUND THAT IRANIAN AIRWAYS COMPANY, WHICH OPERATES ENTIRELY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, IS NOT SUBJECT TO THE FEDERAL AVIATION ACT OF 1958, 49 U.S.C. 1301, ET SEQ., AND THUS SECTION 322 "IS NOT APPLICABLE TO THAT COMPANY.' WE CONCLUDE THAT IRANIAN AIRWAYS COMPANY WAS SUBJECT TO THE CIVIL AERONAUTICS ACT OF 1938, EFFECTIVE WHEN ITS CLAIM FOR $10,365.51 AROSE, AND THAT, THEREFORE, THE CLAIM, RECEIVED IN THIS OFFICE MORE THAN 4 YEARS AFTER ACCRUAL, IS BARRED BY THE 3-YEAR LIMITATION PRESCRIBED IN SECTION 322.

CONSIDERABLE DIFFICULTY SEEMS TO HAVE BEEN ENCOUNTERED IN FINALLY OBTAINING SOME EVIDENCE OF DELIVERY AT DESTINATION. BILL F-5280 WAS NOT SUPPORTED BY THE GOVERNMENT BILLS OF LADING COVERING THE SHIPMENTS ON WHICH CHARGES ARE CLAIMED, BUT BY SIGNED DELIVERY RECEIPT FORMS BEARING THE STAMPED NAME OF A TRANSPORTATION OFFICER AND SHOWING JANUARY 19, 1962, ACCOUNTING COPIES OF PAN AMERICAN WORLD AIRWAYS AIR WAYBILLS (SHOWN TO HAVE BEEN EXECUTED AT THE ORIGIN POINTS ON SEPTEMBER 9, 10, 11, AND 12, 1958), AND A COPY OF PAN AMERICAN AIR CARGO TRANSFER MANIFEST NO. 427247, DATED SEPTEMBER 18, 1958, INDICATING TRANSFER OF THE FIVE SHIPMENTS TO IRANIAN AIRWAYS AT FRANKFURT/MAIN AIRPORT, FRANKFURT, GERMANY.

THE DELAY IN SUBMISSION OF YOUR BILL WAS OCCASIONED BY THE ABSENCE OF THE COVERING BILLS OF LADING AND BY OUR APPARENT INABILITY TO LOCATE THEM OR TO SECURE CERTIFICATES IN LIEU OF LOST GOVERNMENT BILLS OF LADING. NOTE THAT THIS SITUATION COULD HAVE BEEN AVOIDED HAD PAN AMERICAN WORLD AIRWAYS, THE AIRLINE WHICH TRANSPORTED THE CARGO FROM THE UNITED STATES, RETAINED IN ITS POSSESSION THE ORIGINAL GOVERNMENT BILLS OF LADING FOR TIMELY SUBMISSION FOR PAYMENT, ACCOMPANIED BY DULY EXECUTED DELIVERY RECEIPTS, IN ACCORDANCE WITH THE TERMS OF THE VARIANCE FROM CUSTOMARY BILLING PROCEDURES AUTHORIZED (AT THE INSTITUTION OF PAN AMERICAN WORLD AIRWAYS) IN OUR LETTER OF OCTOBER 5, 1951, B-92523, TO THE AIRLINE FINANCE AND ACCOUNTING CONFERENCE AND EXTENDED, IN OUR LETTER OF MAY 5, 1954, B- 92523, TO ALL INTERNATIONAL AIR TRANSPORT ASSOCIATION MEMBERS TRANSPORTING GOVERNMENT SHIPMENTS FROM THE UNITED STATES TO FOREIGN DESTINATIONS.

IN RESPONSE TO OUR REQUEST TO THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, WE HAVE RECEIVED MEMORANDUM COPIES OF BILLS OF LADING AF-8337206 AND AF-8336931, SUPPORTED BY COPIES OF RELEVANT PROCUREMENT AND SHIPPING DOCUMENTS, AND CERTIFICATES IN LIEU OF LOST BILLS OF LADING AF-8695131, AF-8693910 AND AF-8695372. THE FIRST TWO SETS OF DOCUMENTS SHOW THE ORIGIN OF THE SHIPMENTS COVERED THEREBY TO HAVE BEEN SHELBY, OHIO, AND THE ROUTING TO HAVE BEEN GCS AIR SERVICE TO HOPKINS AIRPORT, CLEVELAND, OHIO, UNITED AIR LINES TO IDLEWILD AIRPORT, NEW YORK, AND PAN AMERICAN WORLD AIRWAYS BEYOND. THE LAST THREE BILLS OF LADING SHOWED THE ORIGIN OF THE SHIPMENTS THEY COVERED TO HAVE BEEN BROOKLEY, ALABAMA, AND THE SPECIFIED ROUTING TO HAVE BEEN RAILWAY EXPRESS AGENCY TO IDLEWILD AND PAN AMERICAN WORLD AIRWAYS BEYOND. THUS THE CONSIGNORS CONTRACTED FOR SERVICES WHICH CONTEMPLATED TRANSPORTION FROM IDLEWILD TO ANKARA VIA PAN AMERICAN WORLD AIRWAYS, THE ONLY AMERICAN FLAG AIR CARRIER THEN AUTHORIZED TO SERVE TURKEY. THE FINANCE CENTER AT INDIANAPOLIS ALSO INFORMED US THAT IT HAD NO RECORD OF PAYMENT ON THESE BILLS OF LADING.

AS INDICATED, IRANIAN AIRWAYS WAS NOT SHOWN ON THE COVERING AIR WAYBILLS OR BILLS OF LADING AS BEING IN THE ROUTE OF MOVEMENT, AND ITS PARTICIPATION IN THE TRANSPORTATION SERVICE SEEMS TO HAVE BEEN THAT OF AGENT FOR PAN AMERICAN WORLD AIRWAYS. INSOFAR AS OUR RECORD SHOWS, THE TRANSPORTATION CONTRACT DID NOT AUTHORIZE THE PARTICIPATION OF IRANIAN AIRWAYS AS DELIVERING OR ANY OTHER KIND OF CARRIER AND CONSISTENT WITH THE TERMS OF THE ARRANGEMENT APPROVED IN OUR LETTER OF OCTOBER 5, 1951, B- 92523, PAN AMERICAN WORLD AIRWAYS WOULD BE THE AUTHORIZED BILLING CARRIER. THE USE OF THE SIGNED RECEIPT FORMS BY IRANIAN AIRWAYS IN THIS CASE WAS NOT PROPER UNDER THE APPROVED ARRANGEMENT. THE GOVERNMENT DID NOT CONTEMPLATE DOING BUSINESS WITH THE IRANIAN AIRWAYS UNDER THE TERMS OF ITS ROUTING INSTRUCTIONS AND THE EFFECT OF THE ARRANGEMENT AS MADE IN EACH CASE WAS TO LIMIT BILLING AUTHORITY FOR THE TRANSPORTATION INVOLVED TO PAN AMERICAN WORLD AIRWAYS. IN SUCH A CASE THERE WOULD BE NO QUESTION THAT THE BILLING CARRIER WAS SUBJECT TO THE CIVIL AERONAUTICS OF 1938.

NEVERTHELESS, EVEN IF WE ASSUME THAT IRANIAN AIRWAYS COMPANY HAD A RIGHT TO BILL FOR THE CHARGES AS PRINCIPAL IN ITS OWN NAME, WE BELIEVE THAT IN THE CIRCUMSTANCES THAT CARRIER WAS SUBJECT TO THE CIVIL AERONAUTICS ACT OF 1938, 49 U.S.C. 401, ET SEQ. (APPLICABLE WHEN THESE SHIPMENTS MOVED SINCE THE RELEVANT SECTIONS OF THE FEDERAL AVIATION ACT OF 1958 BY ITS TERMS DID NOT BECOME EFFECTIVE UNTIL 60 DAYS AFTER OCTOBER 31, 1958, THE DATE THE ADMINISTRATOR OF THE FEDERAL AVIATION AGENCY WAS APPOINTED, QUALIFIED AND TOOK OFFICE) SO AS TO BRING ITS CLAIM ,WITHIN THE PURVIEW" OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED.

THE CHARGES BILLED FOR THESE SHIPMENTS WERE COMPUTED, ON THE SHIPMENTS FROM BROOKLEY, AT THE RAILWAY EXPRESS AGENCY LOCAL RATE TO IDLEWILD AND AT AN AIR FREIGHT RATE OF $1.41 PER POUND BEYOND TO ANKARA; THE CHARGES FOR THE THREE SHIPMENTS FROM SHELBY, OHIO, WERE COMPUTED AT THE LOCAL RATE OF THE GCS AIR SERVICE TO THE HOPKINS AIRPORT AT CLEVELAND AND AT AN AIR FREIGHT RATE OF $1.45 PER POUND FROM CLEVELAND TO ANKARA. THE AIR FREIGHT RATES ARE PUBLISHED IN PAN AMERICAN WORLD AIRWAYS SYSTEM LOCAL AND JOINT AIR CARGO TARIFF NO. C AP-9, AGENT R. C. LOUNSBURY'S C.A.B. NO. 259, WHICH NAMES, AMONG OTHERS, GENERAL CARGO RATES AND CHARGES APPLICABLE BETWEEN NORTH AMERICAN POINTS AND POINTS IN TURKEY. IRANIAN AIRWAYS IS LISTED IN THIS TARIFF AS A PARTICIPANT, HAVING FILED ITS POWER OF ATTORNEY WITH THE CIVIL AERONAUTICS BOARD AND HAVING LIMITED ITS TRANSPORTATION TO JOINT HAULS ONLY (RULE NO. 2, 4TH REVISED PAGE 10 EFFECTIVE AUGUST 15, 1958). AT THE TIME THESE SHIPMENTS MOVED, PAN AMERICAN WAS LISTED AS THE ONLY PARTICIPATING CARRIER SERVING ANKARA (6TH REVISED PAGE 6, EFFECTIVE MARCH 1, 1958), BUT RULE NO. 5 (B) (4TH REVISED PAGE 10, EFFECTIVE AUGUST 15, 1958), PERMITTED CARRIERS TO DEVIATE FROM THE ROUTING SPECIFIED IN AIR WAYBILLS AND TO FORWARD BY OTHER CARRIERS WHEN CONSIDERED NECESSARY TO EXPEDITE DELIVERY, AT CHARGES NO GREATER THAN THOSE VIA THE DESIGNATED ROUTE. PRESUMABLY THE DEVIATION FROM THE AIR WAYBILL ROUTING AND THE INTERCHANGE AT FRANKFURT WITH IRANIAN WAS ACCOMPLISHED UNDER THE AUTHORITY OF THIS RULE. THUS AGENT LOUNSBURY'S TARIFF C.A.B. NO. 259 PROVIDED SINGLE-FACTOR THROUGH RATES AND THROUGH ROUTES FROM UNITED STATES POINTS TO ANKARA, TURKEY: FROM NEW YORK (IDLEWILD) VIA PAN AMERICAN AND FROM CLEVELAND VIA UNITED AIR LINES TO IDLEWILD AND PAN AMERICAN BEYOND, WITH POSSIBLE TRANSFER OF CARGO AT SPECIFIED INTERCHANGE POINTS, OF WHICH FRANKFURT WAS ONE, WITH OTHER CARRIERS SUCH AS IRANIAN AIRWAYS, FOR DELIVERY IN ANKARA.

THE CIVIL AERONAUTICS ACT OF 1938 DEFINED A "FOREIGN AIR CARRIER" AS "ANY PERSON, NOT A CITIZEN OF THE UNITED STATES, WHO UNDERTAKES, WHETHER DIRECTLY OR INDIRECTLY OR BY A LEASE OR ANY OTHER ARRANGEMENT, TO ENGAGE IN FOREIGN AIR TRANSPORTATION," 49 U.S.C. 401 (19), AND "FOREIGN AIR TRANSPORTATION" AS "THE CARRIAGE BY AIRCRAFT OF PERSONS OR PROPERTY AS A COMMON CARRIER FOR COMPENSATION OR HIRE" BETWEEN "A PLACE IN THE UNITED STATES AND ANY PLACE OUTSIDE THEREOF, WHETHER SUCH COMMERCE MOVES WHOLLY BY AIRCRAFT OR PARTLY BY AIRCRAFT AND PARTLY BY OTHER FORMS OF TRANSPORTATION," 49 U.S.C. 401 (21) (C). THE TRANSPORTATION SERVICES UPON WHICH YOU BASE YOUR CLAIM WERE "FOREIGN AIR TRANSPORTATION" AND IRANIAN AIRWAYS COMPANY WAS A FOREIGN AIR CARRIER AS DEFINED IN THE ACT. SINCE IRANIAN PARTICIPATED IN LOUNSBURY'S TARIFF C.A.B. NO. 259, HAVING FILED ITS POWER OF ATTORNEY WITH THE BOARD, IRANIAN PRESUMABLY OTHERWISE COMPLIED WITH THE LAW AND SECURED FROM THE BOARD THE FOREIGN AIR CARRIER PERMIT REQUIRED UNDER THE TERMS OF SECTION 402 OF THE ACT, 49 U.S.C. 482.

WHETHER OR NOT IRANIAN HELD A FOREIGN AIR CARRIER PERMIT, HOWEVER, ITS PARTICIPATION IN THE APPLICABLE SINGLE-FACTOR THROUGH RATES AND JOINT THROUGH RATES NAMED IN LOUNSBURY'S TARIFF C.A.B. NO. 259 MADE ITS OPERATIONS SUBJECT TO THE CIVIL AERONAUTICS BOARD AND TO THE CIVIL AERONAUTICS ACT OF 1938 FOR THE PURPOSES OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED. COMPARE CINCINNATI, NEW ORLEANS AND TEXAS PACIFIC RAILWAY COMPANY V. INTERSTATE COMMERCE COMMISSION, 162 U.S. 184 (1896), WHEREIN THE UNITED STATES SUPREME COURT HELD THAT WHEN AN INTRASTATE RAILROAD COMPANY ENTERS INTO THE CARRIAGE OF INTERSTATE FREIGHT BY AGREEING TO RECEIVE THE GOODS BY VIRTUE OF INTERSTATE THROUGH BILLS OF LADING AND TO PARTICIPATE IN THROUGH RATES AND CHARGES, IT THEREBY BECOMES PART OF A CONTINUOUS LINE BY AN ARRANGEMENT FOR THE CONTINUOUS CARRIAGE FROM ONE STATE TO ANOTHER AND THUS BECOMES AMENABLE TO THE INTERSTATE COMMERCE ACT, 49 U.S.C. 1, ET. SEQ., SUBJECT TO THE CONTROL OF THE INTERSTATE COMMERCE COMMISSION. COMPARE ALSO JESS E. FRANCIS V. UNITED STATES, 320 F.2D 191 (1963), WHEREIN THE NINTH CIRCUIT COURT OF APPEALS HELD THAT AN INTRASTATE CARRIER SUBJECTED ITSELF TO THE INTERSTATE COMMERCE ACT AND THUS TO SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, WHEN IT ADOPTED AS ITS OWN THE RATES AND CHARGES APPLICABLE TO PARTICULAR GOVERNMENT TRAFFIC PUBLISHED BY AN INTERSTATE CARRIER PURSUANT TO SECTION 22 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22.

INASMUCH AS THE TRANSPORTATION HERE INVOLVED WAS PERFORMED BY COMMON CARRIERS SUBJECT TO THE CIVIL AERONAUTICS ACT OF 1938 AND WAS THEREFORE "WITHIN THE PURVIEW" OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, THE CONCLUSION IS INESCAPABLE THAT THE CLAIM ON BILL F-5280 IS BARRED BY THE 3-YEAR LIMITATION IN SECTION 322. THIS SECTION PROVIDES, AS TO TRANSPORTATION PERFORMED AND PAYMENT MADE AFTER AUGUST 26, 1958, THAT CLAIMS COGNIZABLE BY THIS OFFICE FOR TRANSPORTATION CHARGES SHALL BE FOREVER BARRED UNLESS RECEIVED HERE WITHIN 3 YEARS FROM THE DATE OF (1) ACCRUAL OF THE CAUSE OF ACTION THEREON, (2) PAYMENT OF THE CHARGES, (3) REFUND OF AN OVERPAYMENT OR (4) DEDUCTION TO OFFSET AN OVERPAYMENT, WHICHEVER IS LATER. SINCE THE TRANSPORTATION CHARGES CLAIMED ON BILL F- 5280 HAVE NOT BEEN PAID AND THEREFORE NEITHER REFUND NOR DEDUCTION HAS BEEN MADE, THE TIMELINESS OF YOUR CLAIM MUST BE TESTED BY WHETHER IT WAS RECEIVED HERE WITHIN 3 YEARS FROM THE DATE OF ACCRUAL OF THE CAUSE OF ACTION ON SAID CLAIM.

A CLAIM ACCRUES WHEN THE EVENTS HAVE OCCURRED WHICH FIX THE LIABILITY OF THE UNITED STATES TO THE CLAIMANT AND WHICH ENTITLE THE CLAIMANT TO SUE THEREON. GROUP V. UNITED STATES, 125 CT.CL. 135 (1953). A CLAIM FOR FREIGHT CHARGES GENERALLY ACCRUES UPON DELIVERY OR TENDER OF DELIVERY OF THE GOODS SHIPPED AND THE STATUTE OF LIMITATIONS BEGINS TO RUN FROM THAT DATE. COMPARE HUGHES TRANSPORTATION, INC. V. UNITED STATES, 109 F.SUPP. 373 (1953). THE RECORD SHOWS THAT THESE SHIPMENTS DEPARTED THE POINTS OF ORIGIN IN EARLY SEPTEMBER 1958 AND REPORTEDLY ARRIVED IN ANKARA SOMETIME AFTER SEPTEMBER 18, 1958, THE DATE THE CARGO WAS TRANSFERRED TO IRANIAN AIRWAYS AT FRANKFURT, GERMANY. UPON DELIVERY OF THE CARGO AT ANKARA IN SEPTEMBER 1958, THE RIGHTS OF THE PARTIES TO THE TRANSPORTATION CONTRACTS REPRESENTED BY THE FIVE BILLS OF LADING BECAME FIXED: THE CARRIER'S CLAIM FOR THE FREIGHT CHARGES RIPENED, AS DID THE LIABILITY OF THE UNITED STATES FOR THEIR PAYMENT. AT THE SAME TIME, THE 3 YEAR STATUTE OF LIMITATIONS PRESCRIBED IN SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, BEGAN TO RUN. THIS 3-YEAR PERIOD HAD EXPIRED MORE THAN A YEAR BEFORE YOUR CLAIM IN BILL NO. F 5280 WAS RECEIVED HERE ON NOVEMBER 27, 1962.

SINCE THE CLAIM FOR $10,365.51 ON YOUR BILL F-5280 IS BARRED FROM SETTLEMENT IN THE GENERAL ACCOUNTING OFFICE, THE ACTION OF OUR TRANSPORTATION DIVISION IN RETURNING THE BILL RECEIVED HERE NOVEMBER 27, 1962, WAS PROPER AND IT IS SUSTAINED.