B-40645 April 21, 1944

B-40645: Apr 21, 1944

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Puerto Rico Gentlemen: Reference is make to your letter of October 26. Provides as follows: "That when there is filed in the General Accounting Office a claim or demand against the United States that may not lawfully be adjusted by th use of an appropriation theretofore made. $.105 per barrel (except when bonded oil is delivered to war vessels) Fuel Oil for Diesel Engines. $.005 per gallon "Import duties are included in the contract price on item 12. "The Contract price on Item 11 does not include this import duty because the Contractor contemplates delivering bonded oil into bunkers of vessels of war of the United States and the Contractor will require the usual afidavits as to consumption which are necessary to duty exemption.

B-40645 April 21, 1944

West India Oil Company (P.R.), San Juan, Puerto Rico

Gentlemen:

Reference is make to your letter of October 26, 1943, requesting the consideration under the terms of the act of April 10, 1928, 45 Stat. 413 (31 U.S.C. 236), of your claim in the aggregate amount of $790.50 represented as being the amount of the Federal import duty paid by you on certain fuel oil furnished by you at San Juan, Puerto Rico, during the months of November and December, 1941, to the United States Coast Guard cutters Unalga and Acacia under the terms of contract No. NOs-93182, dated October 15, 1941.

The act of April 10, 1928, supra, provides as follows:

"That when there is filed in the General Accounting Office a claim or demand against the United States that may not lawfully be adjusted by th use of an appropriation theretofore made, but which claim or demand in the judgment of the Comptroller General of the United States contains such elements of legal liability or equity as to be deserving of the consideration of the Congress, he shall submit the same to the Congress by a special report containing the material facts and his recommendation thereon."

By the terms of item 11 of the above-mentioned contract you agreed to deliver fuel oil of a certain type into the bunkers of Government vessels alongside your docks at San Juan, Puerto Rico, at the prices specified therin and it appears that the clause entitled "Federal Tax" contained in said contract at San Juan, P.R., as follows:

"Grade I Navy Fuel Oil-- $.105 per barrel (except when bonded oil is delivered to war vessels)

Fuel Oil for Diesel Engines--$.005 per gallon

"Import duties are included in the contract price on item 12.

"The Contract price on Item 11 does not include this import duty because the Contractor contemplates delivering bonded oil into bunkers of vessels of war of the United States and the Contractor will require the usual afidavits as to consumption which are necessary to duty exemption. Any deliveries made under this item to other activities, sucj as to vessels of the U.S. Customs regulations, and will be made only if the Government accepts an additional charge equal to the amount of the Federal duty applicable."

The following statement of facts and cerccumstances is quoted from your said letter of October 26, 1943:

"Around the end of December 1941, we were informed by the U.S. Customs, that by Executive Order No. 8929 of November 1st. 1941 the Coast Guard vessels were placed under the jurisdiction of the Navy. Evidently, the U.S. Customs in Puerto Rico ws not aware of the new duty exemption for Coast Guard vessels until January 1, 1942, because they collected duty from us on the deliveries made during November and December, 1941.

"During the month of January 1943, we filed a claim with the U.S. Customs Service for the refund of the duties already paid in the deliveries that we made to the U.S. Coast Guard during the month of November, claim that wss not allowed because we addredded our letter requesting refund under date of February 20, 1942. They stated that if this letter would have been received in the U.S. Customs Office before February 23, 1942, it might have been considered to be a protest under Section 514, Tariff Act of 1930, filed within the 60 days after the exaction of the amounts in question in the case of the withdrawals deliverd on December 23 and 30, 1941, provided that amounts were actually paid within 60 days prior to the receipt of the letter in the Customs House Office at San Juan. They further stated, that the protest could not be considered timely as to the amounts paid in connection with the deliveries of December 13 and 18, 1941, assuming thath payment was made on or about the date of delivery, and that they were, therefore, without authority to athorize refund of these amounts.

"Dated August 25, 1943, we received a letter from the U.S. Coast Guard, stating that with regard to November deliveries, they erroneously paid to us the amount of $379.84 representing the duties, and requesting from us immediate refund, otherqise they stated would take appropriate action to have this amount collected by your office. In view of this formal demand for payment we decided to pay them by our check No. 2773 against the Royal Bank of Canada. Both the U.S. Customs Service and the U.S. Coast Guard recommended us to file claim for the refund of these duties with you under the authority of the Act mentioned at the beginning of this letter."

Thus it appears that your present request rests on the promise that the persons concerned with the payment of the duty here involved did not know of the providions of Executive Order No. 8929, dated November 1, 1941, stipulating "that the Coast Guard shall from this dated, until further orders, operate as a part of the Navy," until after such pament had been made. But such a theory obviously ignores the fact that said Executive order was filed with the National Archives estalishment on November 3, 1941 (sec. 6 Federal Register 5581), as required by the terma of section 5 of the Federal Register Act, 49 Stat. 501 (44 U.S.C. 305), and that section 7 of that act, 49 Stat. 502 (44 U.S.C. 307), specifically provides that "such filing of any document, required or authorized to be published under section 5, shall ***be sufficient to give notice of the contents of such document to any person subject therto or affected thereby." Moreover, although you admit that you had actual knowledge "Around the end of December 1941" of the contents of Executive Order No. 8929 and there would seem to be no doubt that a timely protest in respect to the collection of the duty here involved then could have been filed with the Collector of Customs for the District of Puerto Rico, it appears that an appropriate protest was not filed by you within the period allowed therefor by the terms of section 514 of the Tariff Act of 1930, 46 Stat. 734 (19 U.S.C. 1514).

Hence, while it appears that it was not until August, 1943, that you were required to refund the payment made to you on account of your charge for duty on the November deliveries of fuel oil here involved, it must be concluded that the proximate caused of my loss which may have been suffered by you in the instant case was your failure to avail yourself of the remedy provided by the terms of the last above mentioned act an that there is for application the well settled rule that the act of April 10, 1928, supra, may not be employed as a means to revive a claim barred by a statutory or regualtory limitation. In this connection attention is invited to the decision of November 14, 1938, 18 Comp. Gen. 454, wherein Acting Comptroller General Elliott, in holding that this office was not warranted in submitting the claim for refund of the supplemental customs duties then involved for consideration of the Congress under the authority of the act of April 10, 1928, supra, said:

"The propriety of affording relief under the act of April 10, 1928, supra, is a matter of discretion to be exercised according to the circumstances of each particular case. However, this discretion is not an arbitrary one, but is required to be exercised in accordance with fixed principles and precedents. It is a principle of long standing, governing the exercise of equitable jurisdiction, that when there is a complete and adequate remedy at law, and the party aggrieved fails to take advatage of such remedy, such party will not be permitted to assert it in equity unless he was prevented by fraud or mistake or by circumstances beyond his control. Murray v. United States, 46 Ct. Cls. 94. Where an adequate remedy at alw has bee lost through either positive negligence or mere failure to seek it at the proper time, equity will not interpose to grant relief. Baker v. Cummings, 169 U.S. 189; Hendrickson v. Hinckley, 17 How. 443. In the disposition of claims presented for consideration under the act of April 10, 1928, supra, these principles have been observed uniformly. Said act does not contemplate the revival of claims barred by statutory or regulatory limitations under circumstances such as here involved. See 14 Comp. Gen. 324; A-74206, August 4, 1936."

Furthermore, it is to be observed that the duties on merchandise imported into Puerto Rico are collected for the "government and benefit of Puerto Rico" under the provisions of section 4 of the act of April 12, 1990, 31 Stat. 78 (48 U.S.C. 740); and, that being the case, it is difficult tp perceive how the circumstances here involved properly can be regarded as furnishing a sufficient basis for the view that the Federal Government, which obtained no benefit from the duties in question, should compensate you for a loss resulting from your own neglect.

In view of the foregoing , you are advised that the instant claim does not, in my judgement, contain "such elements of legal liability or equity as to be deserving of the consideration of the Congress" and, therefore, is not one proper for reporting to the Congress by this office under the provisions of the act of April 10, 1928, supra.

Respectfully,

Lindsay C. Warren Comptroller General of the United States