Matter of: Emery Worldwide File: B-201980.2 Date: January 14,1993 72 Comp.Gen. 77
Highlights
Emery does not explain why the Airline Deregulation Act requires application of carrier-imposed time limitations on the filing of claims for loss or damage when services are acquired through a GBL. Sec. 101-40.709 is misplaced. A GBL was the basis for providing service. The terms and condition on the reverse side of each GBL stated that it was governs by 41 C.F.R. Deletion of this item will be considered valid only with the written concurrence of the Government official responsible for making the shipment. The agreement between Emery and the government for each of the two shipments is defined in the GBLs. The Claims Group's settlements are affirmed. 1. The losses were a pallet of air filters ($62.50) under GBL E-O.
Matter of: Emery Worldwide File: B-201980.2 Date: January 14,1993 72 Comp.Gen. 77
Procurement Payment/Discharge Shipment Losses Common carriers Notification The limit set out in a carrier's standard airbill for filing a claim for loss of property does not apply where the Department of Defense acquired the service under a government bill of lading.
Emery Worldwide, an air freight carrier, requests review of our claims Group's settlements affirming offsets by the Defense Finance and Accounting Service to recover transit losses on two shipments. We affirm the settlements.
Each shipment moved between domestic locations in 1990 or 1991 under a government bill of lading (GBL). Emery does not dispute the losses or their value. [1] However it has denied liability because the Department of Defense (DOD) did not file either claim within 120 days of Emery's acceptance of the respective shipment, as required in the carrier's airbill. To support its position, Emery relies on the Airline Deregulation Act of 19782 and on 41 C.F.R. Sec. 101-40.709(a)(2); this subsection in the Federal Property Management Regulations states that claims for loss to shipments moving by domestic air carriers shall be filed within the time limits in the carrier's air waybill.
Emery does not explain why the Airline Deregulation Act requires application of carrier-imposed time limitations on the filing of claims for loss or damage when services are acquired through a GBL, which does not set out a time limit. Moreover, Emery's reliance on 41 C.F.R. Sec. 101-40.709 is misplaced. Generally, Part 101-40 does not apply to DOD transportation. See 41 C.F.R. Sec. 101-40.000; A-Transport Northwest Co., Inc. v. United States, No. 90-224C, note 8 (Fed. Cl. Nov. 25, 1992); Charles E. Robertson, B-242457, May 24, 1991, note 4. In each shipment, a GBL was the basis for providing service, and the terms and condition on the reverse side of each GBL stated that it was governs by 41 C.F.R. Part 101-41. That regulation, at Sec. 101-41.302-3(g), states: In case of loss... the rules and conditions governing commercial shipments, as they relate to the period within which notice thereof shall be given the carrier or to the period within which claim therefor shall be made or suit instituted, shall not apply. Deletion of this item will be considered valid only with the written concurrence of the Government official responsible for making the shipment.
The regulation had the force and effect of law. See United Airlines, B-2O3753 July 27, 1982.
In sum, the agreement between Emery and the government for each of the two shipments is defined in the GBLs, and we therefore see no basis for applying the claims limitation terms of Emery's airbill. Since the GBL does not contain a claim filing deadline, the Claims Group's settlements are affirmed.
1. The losses were a pallet of air filters ($62.50) under GBL E-O,776,462, and two tires ($456.O5) under GBL D-0,606,268.
2. Pub. L. No. 95-504, 92 Stat. 1705(1978).