B-154637, APR. 6, 1965, 44 COMP. GEN. 609

B-154637: Apr 6, 1965

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NOT A PARTY TO THE MILITARY RATE TENDER ON WHICH THE CHARGES ARE BASED. FILED MORE THAN 3 YEARS AFTER THE DATE OF DELIVERY IS BARRED BY SECTION 322 OF THE TRANSPORTATION ACT OF 1940. IS BARRED FROM CONSIDERATION HERE BY THE 3-YEAR STATUTE OF LIMITATIONS IN SECTION 322 OF THE TRANSPORTATION ACT OF 1940. THE ORIGINAL CLAIM AND SUPPORTING PAPERS WERE RETURNED WITH THE TRANSPORTATION DIVISION'S LETTER OF NOVEMBER 29. THAT THE CLAIM WAS BARRED. THE SHIPMENT WAS DELIVERED AT FORT DEVENS BY CONTAINER TRANSPORT INTERNATIONAL. THE CLAIM FOR THE TRANSPORTATION CHARGES ON THE SHIPMENT WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON SEPTEMBER 3. - AND OUR TRANSPORTATION DIVISION RETURNED IT TO THE CARRIER BECAUSE IT WAS BARRED BY SECTION 322 OF THE TRANSPORTATION ACT OF 1940.

B-154637, APR. 6, 1965, 44 COMP. GEN. 609

STATUTES OF LIMITATION - CLAIMS - TRANSPORTATION - FOREIGN COMMERCE - HOUSEHOLD EFFECTS THE CLAIM FOR TRANSPORTATION CHARGES, WAIVED BY THE MOTOR CARRIER CONTRACTING TO TRANSPORT A SHIPMENT OF HOUSEHOLD GOODS FROM OVERSEAS IN THROUGH CONTAINER SERVICE, BY AN UNREGULATED CARRIER (FORWARDER), NOT A PARTY TO THE MILITARY RATE TENDER ON WHICH THE CHARGES ARE BASED, FILED MORE THAN 3 YEARS AFTER THE DATE OF DELIVERY IS BARRED BY SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66, DELIVERY BY THE FORWARDER AS AGENT, ALTHOUGH DIRECTING PAYMENTS TO BE MADE TO ITS ASSIGNEE, OR WAIVER BY THE REGULAR CARRIER OF THE TRANSPORTATION CHARGES NOT CONFERRING A GREATER RIGHT ON THE FORWARDER THAN THE BILL OF LADING CONTRACT PROVIDED, AND EVEN IF AUTHORIZED TO BILL IN ITS OWN NAME, PAYMENT MAY NOT BE ALLOWED THE FORWARDER, THE 3-YEAR LIMITATION FOR FILING CLAIM FOR TRANSPORTATION CHARGES PRESCRIBED BY SECTION 322, APPLYING AS WELL TO THE FOREIGN SEGMENT OF SHIPMENT MOVING UNDER THROUGH GOVERNMENT BILLS OF LADING, THE RULES AND PROCEDURES GOVERNING THE INTERSTATE OPERATION OF HOUSEHOLD GOODS CARRIERS APPLYING WHEN A REGULAR CARRIER SUBJECTS ITSELF TO THE INTERSTATE COMMERCE ACT.

TO ALAN F. WOHLSTETTER, APRIL 6, 1965:

WE REFER TO YOUR REQUEST THAT WE REVIEW THE DETERMINATION OF OUR TRANSPORTATION DIVISION THAT A CLAIM (OUR NO. TK-769194) FOR TRANSPORTATION CHARGES OF $808.25, BY CONTAINER TRANSPORT INTERNATIONAL, INC., IS BARRED FROM CONSIDERATION HERE BY THE 3-YEAR STATUTE OF LIMITATIONS IN SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C.A. 66.

THE ORIGINAL CLAIM AND SUPPORTING PAPERS WERE RETURNED WITH THE TRANSPORTATION DIVISION'S LETTER OF NOVEMBER 29, 1963, NOTIFYING CONTAINER TRANSPORT INTERNATIONAL, SAID TO BE AN EXEMPT FREIGHT FORWARDER, THAT THE CLAIM WAS BARRED. THE RECORD CONSISTS OF COPIES OF BILL NO. 87795, GOVERNMENT BILL OF LADING NO. WY-9307679, AND A WAIVER OF THE TRANSPORTATION CHARGES DUE ON THE BILL OF LADING, EXECUTED BY PAUL ARPIN VAN LINES, INC., IN FAVOR OF CONTAINER TRANSPORT INTERNATIONAL.

THE CLAIM ARISES FROM BILL OF LADING NO. WY-9307679 WHICH REPRESENTS A CONTRACT WITH PAUL ARPIN VAN LINES TO TRANSPORT A SHIPMENT OF HOUSEHOLD GOODS IN THROUGH CONTAINER SERVICE AT RATES PROVIDED IN MILITARY RATE TENDER I.C.C. NO. 17, PUBLISHED BY MOVERS' AND WAREHOUSEMEN'S ASSOCIATION OF AMERICAN, INC., AGENT, FROM YOKOHAMA, JAPAN, TO FORT DEVENS, MASSACHUSETTS. A NOTATION ON THE BILL OF LADING READS: "SIT (STORAGE IN TRANSIT) AUTHORIZED 90 DAYS AT DESTINATION.' THE CONSIGNEE'S CERTIFICATE OF DELIVERY ON THE BILL OF LADING SHOWS THAT ON JULY 29, 1960, THE SHIPMENT WAS DELIVERED AT FORT DEVENS BY CONTAINER TRANSPORT INTERNATIONAL, APPARENTLY IN THE CAPACITY OF AGENT FOR PAUL ARPIN VAN LINES, THE CONTRACTING CARRIER. BILL NO. 87795 SHOWS THAT THE SHIPMENT MOVED OUT OF STORAGE AT DESTINATION ON JULY 29, 1960, THE DATE OF DELIVERY.

THE CLAIM FOR THE TRANSPORTATION CHARGES ON THE SHIPMENT WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON SEPTEMBER 3, 1963, MORE THAN THREE YEARS AFTER JULY 29, 1960, THE DATE OF THE ACCRUAL OF THE CLAIM--- SEE GROUP V. UNITED STATES, 125 CT.CL. 135 (1953/--- AND OUR TRANSPORTATION DIVISION RETURNED IT TO THE CARRIER BECAUSE IT WAS BARRED BY SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C.A. 66.

IN URGING REVERSAL OF THE TRANSPORTATION DIVISION'S DETERMINATION, YOU ALLEGE THAT YOUR CLIENT IS AN UNREGULATED CARRIER (FORWARDER) NOT HAVING TARIFFS ON FILE WITH THE INTERSTATE COMMERCE COMMISSION OR THE CIVIL AERONAUTICS BOARD AND THUS NOT SUBJECT TO THE 3-YEAR LIMITATION. WE DO NOT BELIEVE THAT CONTAINER TRANSPORT INTERNATIONAL IS ENTITLED TO PAYMENT BECAUSE (1) IT IS NOT AUTHORIZED TO SUBMIT THE BILL FOR THE APPLICABLE CHARGES, AND (2) EVEN IF PROPERLY BILLED AS AGENT FOR PAUL ARPIN VAN LINES, PAYMENT WOULD BE BARRED BY THE 3-YEAR LIMITATION.

THIS CLAIM FOR TRANSPORTATION CHARGES ARISES FROM THE GOVERNMENT BILL OF LADING WHICH REPRESENTS A CONTRACT WITH PAUL ARPIN VAN LINES, A REGULATED CARRIER, IN FACT THE ONLY CARRIER SHOWN IN THE ROUTING BLOCK ON THE BILL OF LADING. THE FACT THAT CONTAINER TRANSPORT INTERNATIONAL, AN UNREGULATED CARRIER, IS SHOWN IN THE CONSIGNEE'S CERTIFICATE OF DELIVERY, OR THAT PAUL ARPIN VAN LINES WAIVED ITS RIGHT TO THE TRANSPORTATION CHARGES ON THE BILL OF LADING, DOES NOT GIVE CONTAINER TRANSPORT INTERNATIONAL ANY GREATER RIGHTS THAN THE BILL OF LADING CONTRACT CONFERRED ON PAUL ARPIN VAN LINES, WHOSE TENDER (I.C.C. NO. 17) IS USED AS THE BASIS FOR COMPUTING THE BILLED CHARGES. THAT TENDER DOES NOT LIST CONTAINER TRANSPORT INTERNATIONAL AS A PARTY AND THE FORWARDER'S FUNCTION IN THIS INSTANCE WAS AS AN AGENT FOR PAUL ARPIN VAN LINES. THE BILL INVOLVED IS NOT SUBMITTED BY THE FORWARDER AS AGENT FOR THE MOTOR CARRIER; INSTEAD, IT IMPROPERLY SHOWS THAT PAYMENT IS TO BE MADE TO THE BROAD STREET TRUST COMPANY, AS ASSIGNEE OF THE FORWARDER. WE NOTE INCIDENTALLY THAT AN ASSIGNMENT WOULD NOT BE VALID IN THIS INSTANCE BECAUSE THE AMOUNT INVOLVED IS LESS THAN $1,000 (31 U.S.C. 203) BUT NO INSTRUMENT OF ASSIGNMENT IS WITH OUR RECORD.

EVEN IF WE ASSUMED THAT OTHER LEGAL CONDITIONS WERE SATISFIED, AND THAT CONTAINER TRANSPORT INTERNATIONAL WAS AUTHORIZED TO BILL IN ITS OWN NAME, PAYMENT COULD NOT BE ALLOWED. IN OUR DECISION OF DECEMBER 2, 1963, B- 151883, COPY ENCLOSED, WE HELD THAT CLAIMS BY REGULATED CARRIERS FOR FREIGHT CHARGES ON THE FOREIGN SEGMENT OF SHIPMENTS MOVING BETWEEN POINTS IN THE UNITED STATES AND IN WEST GERMANY ON THROUGH GOVERNMENT BILLS OF LADING WERE SUBJECT TO THE 3-YEAR LIMITATION IN SECTION 322 OF THE TRANSPORTATION ACT OF 1940 WHICH, AMONG OTHER THINGS, APPLIES TO COMMON CARRIERS SUBJECT TO THE INTERSTATE COMMERCE ACT (49 U.S.C. 1, ET SEQ.). THE SAME CONCLUSION WOULD BE APPLICABLE TO A CLAIM BY OR FOR PAUL ARPIN VAN LINES IN THE PRESENT MATTER. THE MOTOR CARRIER SUBJECTED ITSELF TO THE INTERSTATE COMMERCE ACT BY ENGAGING IN A PATTERN OF DEALINGS WITH THE GOVERNMENT WHICH CONTEMPLATED THE APPLICATION OF RULES AND PROCEDURES ORDINARILY GOVERNING THE INTERSTATE OPERATION OF HOUSEHOLD GOODS CARRIERS.

IN THESE CIRCUMSTANCES WE AFFIRM THE DETERMINATION BY OUR TRANSPORTATION DIVISION THAT CONTAINER TRANSPORT INTERNATIONAL'S CLAIM FOR $808.25 IS NOT ALLOWABLE.