B-156656, MAY 19, 1965

B-156656, MAY 19, 1965

TO AIRBORNE FREIGHT CORPORATION:

YOUR LETTER OF APRIL 20, 1965, REQUESTS REVIEW OF A LETTER DATED MARCH 31, 1965, TK-797350, FROM OUR TRANSPORTATION DIVISION ADVISING YOU THAT YOUR CLAIM BY THE ABOVE-REFERENCED BILL FOR $52.52 FOR SERVICES RENDERED PURSUANT TO GOVERNMENT BILL OF LADING NO. A-2595692 DATED JULY 14, 1960, IS BARRED BY THE THREE-YEAR STATUTE OF LIMITATIONS IN SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 54 STAT. 955, AS AMENDED BY THE ACT OF AUGUST 26, 1958, 72 STAT. 860, 49 U.S.C. 66.

THE FILE FORWARDED WITH YOUR LETTER, AND OUR RECORDS HERE, INDICATE THAT BY YOUR BILL NO. 674, DATED FEBRUARY 3, 1965, RECEIVED IN THE GENERAL ACCOUNTING OFFICE FEBRUARY 24, 1965, YOUR COMPANY CLAIMED CHARGES FOR THE SHIPMENT BY AIR OF THE PERSONAL EFFECTS OF AN ENLISTED MEMBER OF THE UNITED STATES NAVY FROM PEARL HARBOR, HAWAII, TO CORONA, CALIFORNIA, WHICH MOVED PURSUANT TO GOVERNMENT BILL OF LADING NO. A 2595692, DATED JULY 14, 1960.

THE PERTINENT PORTION OF 49 U.S.C. 66, PROVIDES:

"* * *. 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, * * * " AND IS APPLICABLE TO CLAIMS OF "ANY COMMON CARRIER SUBJECT TO * * * THE CIVIL AERONAUTICS ACT OF 1938" AS TO TRANSPORTATION PERFORMED SUBSEQUENT TO AUGUST 28, 1958.

AIRBORNE FREIGHT CORPORATION HAS BEEN HELD TO BE AN INDIRECT AIR CARRIER. AIRBORNE FREIGHT CORPORATION V. CIVIL AERONAUTICS BOARD, 257 F.2D 210. AN "AIR CARRIER" UNDER THE FEDERAL AVIATION ACT OF 1958 WHICH SUPERSEDED THE CIVIL AERONAUTICS ACT OF 1938 INCLUDES INDIRECT AIR CARRIERS, AND MEANS CITIZENS WHO ENGAGE IN AIR TRANSPORTATION WHICH IS DEFINED AS ENCOMPASSING INTERSTATE AIR TRANSPORTATION OR THE CARRIAGE BY AIRCRAFT OF PERSONS OR PROPERTY AS A COMMON CARRIER BETWEEN TWO STATES OF THE UNITED STATES. SEE 49 U.S.C. 1301 (3), (10), (21) A. AND, SUCH AN INDIRECT AIR CARRIER IS SUBJECT TO THE CIVIL AERONAUTICS ACT, 49 U.S.C. 1371. THUS, AIRBORNE FREIGHT APPEARS TO BE A COMMON CARRIER SUBJECT TO THE CIVIL AERONAUTICS ACT AND, THE THREE-YEAR PERIOD OF LIMITATION SET OUT IN 49 U.S.C. 66 IS APPLICABLE TO ITS BILLS FOR TRANSPORTATION SERVICES PERFORMED AFTER AUGUST 26, 1958.

A CAUSE OF ACTION FOR TRANSPORTATION CHARGES AGAINST THE UNITED STATES ACCRUES UPON THE COMPLETION OF THE TRANSPORTATION SERVICE, THAT IS THE DATE OF DELIVERY TO THE CONSIGNEE, AND THE STATUTE OF LIMITATIONS BEGINS TO RUN FROM THAT DATE. SEE ARKANSAS OAK FLOORING CO. V. LOUISIANA AND ARKANSAS RY. CO., 166 F.2D 98; UNITED STATES V. WILDER, 13 WALL. 254; SOUTHERN PACIFIC CO. V. UNITED STATES, 67 CT.CL. 414, CERT. DENIED 280 U.S. 567; ATLANTIC COAST LINE R.CO. V. UNITED STATES, 66 CT.CL. 577 AND HUGHES TRANSPORTATION, INC. V. UNITED STATES, 109 F.SUPP. 373.

WHILE THE RECORDS DO NOT SHOW UPON WHAT DATE DELIVERY WAS MADE, THEY PLAINLY INDICATE THAT SUCH DELIVERY WAS MADE SOME TIME IN 1960, CERTAINLY MORE THAN THREE YEARS PRIOR TO FEBRUARY 24, 1965, WHEN YOUR BILL WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE. YOU STATE THAT YOU HAVE BEEN TRYING TO OBTAIN AN ACCOMPLISHED GOVERNMENT BILL OF LADING SINCE JULY 1960, AND THE FILE INDICATES THE DIFFICULTY WHICH YOU ENCOUNTERED IN OBTAINING THE PROOF OF DELIVERY.

WE APPRECIATE YOUR POSITION IN THIS MATTER, HOWEVER, NO GOVERNMENT OFFICER IS VESTED, EITHER EXPRESSLY OR BY IMPLICATION, WITH AUTHORITY TO WAIVE THE STATUTE OF LIMITATIONS. FINN V. UNITED STATES, 123 U.S. 227; MUNRO V. UNITED STATES, 303 U.S. 36; WALLACE V. UNITED STATES, 142 F.2D 49; CHRISTIAN BEACON V. UNITED STATES, 322 F.2D 512.

FURTHER, THIS CLAIM COULD HAVE BEEN FILED PRIOR TO RECEIPT OF THE CERTIFICATE IN LIEU OF LOST U.S. GOVERNMENT BILL OF LADING WITH A STATEMENT THAT SATISFACTORY PROOF WOULD FOLLOW.

ACCORDINGLY, THE ACTION TAKEN IN ADVISING YOU THAT YOUR CLAIM IS BARRED BECAUSE IT WAS NOT FILED WITHIN THE THREE-YEAR PERIOD OF LIMITATIONS APPEARS PROPER AND IS SUSTAINED.