B-182235, OCT 9, 1974

B-182235: Oct 9, 1974

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TRANSPORTATION AND CLAIMS DIVISION DISALLOWED THE CARRIER'S CLAIM BECAUSE THE CLAIM WAS PRESENTED TO THIS OFFICE AFTER THE EXPIRATION OF THE STATUTE OF LIMITATIONS IN 49 U.S.C. 66 (SUPP. 791.89 WAS PAID ON JULY 16. 732.09 REPRESENTING UNBILLED TRANSIT CHARGES WAS RECEIVED IN THIS OFFICE ON JUNE 24. WAS ALLOWED ON JANUARY 26. WAS RECEIVED ON OCTOBER 19. BECAUSE THE SECOND SUPPLEMENTAL BILL WAS RECEIVED MORE THAN THREE YEARS AFTER PAYMENT OF THE ORIGINAL BILL. THE SECOND BILL WAS RETURNED. WHICHEVER IS LATER.". WE HAVE HELD THAT THE WORD "PAYMENT" IN THIS SECTION REFERS TO THE PAYMENT OF THE ORIGINAL BILL END NOT TO PAYMENT OF ANY SUPPLEMENTAL BILLS. 43 COMP. WE ARE AWARE AND HAVE CONSIDERED IN THE PAST THE TWO LEADING COURT DECISIONS ON THIS POINT.

B-182235, OCT 9, 1974

THE STATUTE OF LIMITATIONS UNDER 49 U.S.C. 66 (SUPP. II, 1972) RUNS THREE YEARS FROM THE DATE OF THE INITIAL PAYMENT OF THE TRANSPORTATION BILL. PAYMENT OF A SUPPLEMENTAL BILL DURING THAT THREE-YEAR PERIOD DOES NOT EXTEND THE STATUTE OF LIMITATIONS.

CENTRAL RAILROAD OF NEW JERSEY:

THE CENTRAL RAILROAD OF NEW JERSEY IN REQUESTING RECONSIDERATION OF CLAIM NUMBER TK-932535 FOR $2,049.94 HAS EFFECTIVELY REQUESTED REVIEW OF THE DISALLOWANCE OF THAT CLAIM. TRANSPORTATION AND CLAIMS DIVISION DISALLOWED THE CARRIER'S CLAIM BECAUSE THE CLAIM WAS PRESENTED TO THIS OFFICE AFTER THE EXPIRATION OF THE STATUTE OF LIMITATIONS IN 49 U.S.C. 66 (SUPP. II, 1972).

THE RECORD SHOWS THAT 23 SHIPMENTS OF CLASS A EXPLOSIVE PROJECTILES MOVED IN 1969 FROM ATLAS, OHIO, TO EARLE, NEW JERSEY, UNDER GOVERNMENT TRANSIT BILLS OF LADING. THE CARRIER'S INITIAL BILL FOR $13,791.89 WAS PAID ON JULY 16, 1969. A SUPPLEMENTAL BILL FOR $3,732.09 REPRESENTING UNBILLED TRANSIT CHARGES WAS RECEIVED IN THIS OFFICE ON JUNE 24, 1971, AND WAS ALLOWED ON JANUARY 26, 1972.

THE SECOND SUPPLEMENTAL BILL, THE ONE AT ISSUE HERE, WAS RECEIVED ON OCTOBER 19, 1973, OVER FOUR YEARS AFTER PAYMENT OF THE ORIGINAL BILL AND NEARLY TWO YEARS AFTER PAYMENT OF THE FIRST SUPPLEMENTAL BILL. BECAUSE THE SECOND SUPPLEMENTAL BILL WAS RECEIVED MORE THAN THREE YEARS AFTER PAYMENT OF THE ORIGINAL BILL, THE SECOND BILL WAS RETURNED, UNPAID, TO THE CARRIER.

49 U.S.C. 66 (SUPP. II, 1972) PROVIDES IN PERTINENT PART:

"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."

WE HAVE HELD THAT THE WORD "PAYMENT" IN THIS SECTION REFERS TO THE PAYMENT OF THE ORIGINAL BILL END NOT TO PAYMENT OF ANY SUPPLEMENTAL BILLS. 43 COMP. GEN. 252 (1963). THUS, THE PAYMENT OF THE CARRIER'S FIRST SUPPLEMENTAL BILL DID NOT EXTEND THE STATUTE OF LIMITATIONS.

WE ARE AWARE AND HAVE CONSIDERED IN THE PAST THE TWO LEADING COURT DECISIONS ON THIS POINT. T.I.M.E. FREIGHT INC. V. UNITED STATES, 302 F. SUPP. 573 (N.D. TEX. 1969) SUPPORTS THE RULINGS OF THE OFFICE, AND ERIE L. RY. V. UNITED STATES, 439 F. 2D 194 (CT. CL. 1971) IS ADVERSE. IN THE ABSENCE OF MORE AUTHORITATIVE DECISIONS, WE SHALL CONTINUE TO MAINTAIN OF STATED POSITION. SEE B-175654, DECEMBER 28, 1973.

THE CARRIER CONTENDS THAT THIS CLAIM HAS BEEN UNDER CORRESPONDENCE SINCE MAY 1971. HOWEVER, WE HAVE NO RECORD OF ANY CORRESPONDENCE AND THE LETTERS SUPPLIED BY THE CARRIER ARE COMMUNICATIONS AMONG THE CARRIERS INVOLVED IN THESE SHIPMENTS.

THE DISALLOWANCE OF THIS CLAIM IS SUSTAINED.