B-159634, AUG. 11, 1966

B-159634, AUG. 11, 1966

TO THE SECRETARY OF STATE:

WE REFER TO A LETTER DATED APRIL 29, 1966, FILE FSD:FSB/V):DJG, TO OUR TRANSPORTATION DIVISION FROM VIRGINIA WILLIAMS, FISCAL SERVICES BRANCH, DEPARTMENT OF STATE, REQUESTING FURTHER CONSIDERATION OF TWO TIME-BARRED CLAIMS OF PAKISTAN INTERNATIONAL AIRLINES CORPORATION.

ON MARCH 9 AND APRIL 12, 1965, WE ORIGINALLY RECEIVED THESE TWO CLAIMS FROM YOUR DEPARTMENT. THE FIRST, FOR $590.10, COVERED CHARGES FOR THE TRANSPORTATION OF 300 POUNDS OF UNACCOMPANIED BAGGAGE FROM BURLINGTON, MASSACHUSETTS, TO THE AMERICAN EMBASSY, KARACHI, PAKISTAN, ON BILL OF LADING S-295680, WHICH WAS ACCOMPLISHED TO SHOW DELIVERY BY PAKISTAN INTERNATIONAL AIRLINES ON NOVEMBER 18, 1959. THE CLAIM WAS RETURNED TO THE CARRIER BY LETTER OF APRIL 20, 1965, IN CLAIM TK-798099, IN ACCORDANCE WITH SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C.A. 66, BECAUSE IT WAS RECEIVED IN THIS OFFICE MORE THAN THREE YEARS AFTER ACCRUAL.

ON AUGUST 27, 1965, ARIANA AFGHAN AIRLINES, LTD., SUED THE UNITED STATES IN THE COURT OF CLAIMS (NO. 308-65) FOR CERTAIN ALLEGEDLY UNPAID TRANSPORTATION CHARGES, INCLUDING $590.10 DUE ON BILL OF LADING S 295680, SUPPORTING ITS CLAIM WITH A CERTIFICATE IN LIEU OF LOST GOVERNMENT BILL OF LADING S-295680, ISSUED IN JULY 1963 BY THE AMERICAN EMBASSY IN KARACHI. THE PLAINTIFF, AFTER BEING INFORMED OF THE ACCOMPLISHMENT OF ORIGINAL BILL OF LADING S-295680 TO SHOW DELIVERY BY PAKISTAN INTERNATIONAL AIRLINES AND OF THE CLAIM PRESENTED BY THAT CARRIER, INVESTIGATED THE CIRCUMSTANCES OF THIS SHIPMENT FURTHER. ON JULY 1, 1966, PLAINTIFF'S COUNSEL FURNISHED THE DEFENDANT A CERTIFICATE EXECUTED BY AN OFFICER OF PAKISTAN INTERNATIONAL AIRLINES WITHDRAWING THIS CLAIM IN FAVOR OF ARIANA AFGHAN AIRLINES WHICH, AS APPARENTLY SHOWN IN RELEVANT CARGO MANIFESTS, ACTUALLY TRANSPORTED THE SHIPMENT FROM FRANKFURT, GERMANY, WHERE IT HAD BEEN RECEIVED FROM THE AMERICAN FLAG CARRIER, PAN AMERICAN WORLD AIRWAYS. THE DEFENDANT EXPECTS TO FILE A STIPULATION IN COURT OF CLAIMS NO. 308-65 THAT ARIANA AFGHAN AIRLINES IS ENTITLED TO RECOVER $590.10 ON BILL OF LADING S-295680. SINCE PAKISTAN INTERNATIONAL AIRLINES WITHDREW ITS CLAIM IN FAVOR OF ARIANA, WHICH WILL RECEIVE THE AMOUNT DUE, THIS CLAIM WILL NOT BE FURTHER DISCUSSED HERE. WE ENCLOSE A COPY OF THE CERTIFICATE EXECUTED FOR PAKISTAN INTERNATIONAL AIRLINES.

THE SECOND CLAIM, FOR $1,957.44, COVERED CHARGES FOR THE TRANSPORTATION OF 914 POUNDS OF UNACCOMPANIED BAGGAGE BELONGING TO AMBASSADOR WILLIAM M. ROUNTREE FROM WASHINGTON, D.C., TO KARACHI IN JULY 1959. THE CLAIM WAS SUPPORTED BY A CERTIFICATE IN LIEU OF LOST GOVERNMENT BILL OF LADING S- 290662 AND A COPY OF PAN AMERICAN WORLD AIRWAYS AIR WAYBILL 026-0-456593. THE CERTIFICATE IN LIEU, WHICH WAS ISSUED IN 1964, REFERS TO NO CARRIER OTHER THAN PAN AMERICAN AND THE CERTIFICATE AND WAIVER BY TRANSPORTATION COMPANY THEREON HAS NOT BEEN EXECUTED. THIS CLAIM WAS RETURNED TO PAKISTAN INTERNATIONAL AIRLINES BY LETTER OF MAY 11, 1965, IN CLAIM TK- 801337, ALSO IN ACCORDANCE WITH SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED.

SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED BY PUBLIC LAW 85-762, 72 STAT. 860, 49 U.S.C.A. 66, PROVIDING FOR PAYMENT FOR TRANSPORTATION FOR OR ON BEHALF OF THE UNITED STATES BY ANY COMMON CARRIER SUBJECT TO THE INTERSTATE COMMERCE ACT OR THE CIVIL AERONAUTICS ACT OF 1938 (NOW THE FEDERAL AVIATION ACT), CONTAINS A PROVISO THAT EVERY CLAIM COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE FOR TRANSPORTATION CHARGES WITHIN THE PURVIEW OF THE SECTION SHALL BE FOREVER BARRED UNLESS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN THREE YEARS FROM THE DATE OF ACCRUAL OF THE CAUSE OF ACTION THEREON.

THE CAUSE OF ACTION FOR THE SHIPMENT COVERED BY BILL OF LADING S 290662 AROSE WHEN IT WAS DELIVERED IN KARACHI IN 1959, MORE THAN THREE YEARS BEFORE APRIL 12, 1965, WHEN WE RECEIVED THE CLAIM FOR TRANSPORTATION CHARGES. THOSE CHARGES WERE COMPUTED AT A RATE PROVIDED 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, IN WHICH PAKISTAN INTERNATIONAL AIRLINES IS LISTED AS A PARTICIPATING CARRIER, HAVING FILED ITS POWER OF ATTORNEY WITH THE CIVIL AERONAUTICS BOARD. WHILE CERTIFICATE IN LIEU OF LOST BILL OF LADING S-290662 AND AIR WAYBILL 026-0-456593 SHOW ONLY PAN AMERICAN AS THE CARRIER BETWEEN WASHINGTON AND KARACHI, RULE 5 (B) OF TARIFF C.A.B. NO. 259 AUTHORIZES CARRIERS TO DEVIATE FROM THE ROUTING SPECIFIED IN AIR WAYBILLS AND TO FORWARD SHIPMENTS BY OTHER CARRIERS WHEN CONSIDERED NECESSARY TO EXPEDITE DELIVERY, AT CHARGES NO GREATER THAN THOSE VIA THE DESIGNATED ROUTE. PRESUMABLY IF DELIVERY WAS IN FACT MADE BY PAKISTAN INTERNATIONAL AIRLINES, THE DEVIATION FROM THE AIR WAYBILL ROUTING WAS ACCOMPLISHED UNDER THE AUTHORITY OF THIS RULE. THUS, TARIFF C.A.B. NO. 259 PROVIDED SINGLE-FACTOR THROUGH RATES AND JOINT THROUGH ROUTES, AND WE HAVE HELD THAT A FOREIGN AIR CARRIER WHICH PARTICIPATES IN SUCH THROUGH RATES AND ROUTES PUBLISHED IN A TARIFF FILED WITH THE CIVIL AERONAUTICS BOARD BRINGS ITSELF WITHIN THE PURVIEW OF SECTION 322. 43 COMP. GEN. 461 (1963). THE CLAIM INVOLVED IS THUS SUBJECT TO THE PROVISO BARRING CLAIMS COGNIZABLE BY THIS OFFICE WHICH ARE NOT RECEIVED HERE WITHIN THREE YEARS OF ACCRUAL.

WE APPRECIATE THE CONCERN OF YOUR DEPARTMENT THAT THIS APPARENTLY LEGITIMATE CLAIM OF A FOREIGN AIR CARRIER SHOULD BE PAID. WE ARE, HOWEVER, POWERLESS TO ACT UPON IT. THE STATUTE IS CLEAR; THE COURT OF CLAIMS HAS HELD THAT IT IS INTENDED TO BAR ADMINISTRATIVE SETTLEMENT OF TRANSPORTATION CLAIMS PRESENTED TO THE GENERAL ACCOUNTING OFFICE MORE THAN THREE YEARS AFTER THE CLAIMS ACCRUED. IRAN NATIONAL AIRLINES CORPORATION V. UNITED STATES, 360 F.2D 640 (CT.CL. NO. 241-64, DECIDED MAY 13, 1966). AND IT HAS LONG BEEN SETTLED THAT GOVERNMENT OFFICERS ARE NOT VESTED, EITHER EXPRESSLY OR BY IMPLICATION, WITH AUTHORITY TO WAIVE THE STATUTE OF LIMITATIONS. FINN V. UNITED STATES, 123 U.S. 227 (1887); MUNRO V. UNITED STATES, 303 U.S. 36 (1938); WALLACE V. UNITED STATES, 142 F.2D 240 (1944); CHRISTIAN BEACON V. UNITED STATES, 322 F.2D 512, 514 (1963). HOWEVER, AS THE HANDLING OF PAKISTAN INTERNATIONAL AIRLINES' CLAIM ON BILL OF LADING S -295680 AND OF SEVERAL OTHER CLAIMS SUED ON BY ARIANA AFGHAN AIRLINES IN COURT OF CLAIMS NO. 308-65 INDICATES, THERE MAY BE SOME CONFUSION IN THE ACCOUNTING SYSTEMS OF THESE CARRIERS. IT SEEMS POSSIBLE THAT PAKISTAN INTERNATIONAL AIRLINES MAY NOT HAVE PARTICIPATED IN THE CARRIAGE OF THE SHIPMENT ON BILL OF LADING S-290662 AND MAY NOT HAVE SETTLED WITH PAN AMERICAN WORLD AIRWAYS FOR ITS PROPORTION OF THE CHARGES.

IN THE CIRCUMSTANCES THE CLAIMS OF PAKISTAN INTERNATIONAL AIRLINES, SENT HERE WITH THE LETTER OF APRIL 29, 1966, FROM YOUR DEPARTMENT, WILL BE RETURNED TO THE CLAIMANT BY OUR TRANSPORTATION DIVISION, TOGETHER WITH A COPY OF THE CARRIER'S WAIVER CERTIFICATE ON BILL OF LADING S 295680.