B-147781, SEP. 21, 1967

B-147781: Sep 21, 1967

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DEDUCTED FROM CARRIER IN 1953 AND DISALLOWED BY GAO SETTLEMENT ACTION IN 1962 IS CONSIDERED TO BE BARRED. INC.: REFERENCE IS MADE TO THE BRIEF DATED JULY 10. SUBSEQUENTLY THE ADMINISTRATIVE OFFICE DETERMINED THAT UPON DISCHARGE OF THE CARGO AT KOBE THERE WAS A SHORTAGE OF 4. 272.10 FREIGHT ADMITTEDLY PAID BUT UNEARNED PLUS $855.40 WHICH HAD BEEN PAID TO THE DEPARTMENT OF THE ARMY IN JULY 1950 FOR STEVEDORING SERVICES FURNISHED BY IT BUT WHICH WOULD NOT HAVE BEEN PROPERLY FOR PAYMENT IF IT WAS DETERMINED THAT THE MISSING SACKS OF RICE. THE ADMINISTRATIVE OFFICE FORWARDED YOUR CLAIM TO OUR OFFICE WHERE IT WAS RECEIVED ON FEBRUARY 17. IT WAS CERTIFIED THAT THE AMOUNT OF $855.40 WAS BARRED BY THE 10-YEAR STATUTE OF LIMITATION IN 31 U.S.C. 71A AND THAT THE BALANCE OF $20.

B-147781, SEP. 21, 1967

PROPERTY - PUBLIC - DAMAGE, LOSS, ETC. IN TRANSIT - STALE CLAIM DECISION TO STATES MARINE LINES, INC., CONCERNING REVIEW OF CLAIM FOR REFUND OF UNEARNED FREIGHT AND STEVEDORING SERVICES FOR SHORTAGE IN ARMY CARGO SHIPPED TO KOBE. CLAIM FOR REFUND OF FREIGHT CHARGES INCIDENT TO TRANSPORTATION SERVICES FURNISHED IN 1950, DEDUCTED FROM CARRIER IN 1953 AND DISALLOWED BY GAO SETTLEMENT ACTION IN 1962 IS CONSIDERED TO BE BARRED.

TO STATES MARINE LINES, INC.:

REFERENCE IS MADE TO THE BRIEF DATED JULY 10, 1967, SUBMITTED BY YOUR ATTORNEY, MR. MILTON C. GRACE, ON YOUR BEHALF, REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE OF APRIL 26, 1962, WHICH DISALLOWED YOUR CLAIM FOR $21,830.40, IN CONNECTION WITH THE REPORTED LOSS OF GOVERNMENT CARGO FROM THE SS. WESTPORT AND INDICATING A WILLINGNESS, IN ORDER TO SIMPLIFY THE SETTLEMENT, TO REDUCE THE TOTAL AMOUNT TO BE RETURNED TO $20,680.40.

THE RECORD SHOWS THAT THE DEPARTMENT OF THE ARMY SHIPPED 45,696 SACKS OF RICE UNDER GOVERNMENT BILL OF LADING WV-9698659, DATED JANUARY 16, 1950, FROM STOCKTON, CALIFORNIA, TO KOBE, JAPAN, ABOARD THE SS. WESTPORT, VOYAGE NO. 1. SUBSEQUENTLY THE ADMINISTRATIVE OFFICE DETERMINED THAT UPON DISCHARGE OF THE CARGO AT KOBE THERE WAS A SHORTAGE OF 4,195 SACKS. THE ADMINISTRATIVE OFFICE HELD YOUR COMPANY LIABLE FOR THE LOSS AND ON SEPTEMBER 9, 1953, MADE DEDUCTION OF $20,975 PLUS $3,272.10 FOR UNEARNED FREIGHT OR A TOTAL OF $24,247.10 FROM AN AMOUNT OTHERWISE DUE YOU.

ON JANUARY 25, 1961, MR. GRACE PRESENTED TO THE DEPARTMENT OF THE ARMY YOUR CLAIM FOR REFUND OF THE SUM OF $24,247.10 WHICH HAD BEEN DEDUCTED FROM YOUR ACCOUNT LESS $3,272.10 FREIGHT ADMITTEDLY PAID BUT UNEARNED PLUS $855.40 WHICH HAD BEEN PAID TO THE DEPARTMENT OF THE ARMY IN JULY 1950 FOR STEVEDORING SERVICES FURNISHED BY IT BUT WHICH WOULD NOT HAVE BEEN PROPERLY FOR PAYMENT IF IT WAS DETERMINED THAT THE MISSING SACKS OF RICE, IN FACT, HAD NEVER BEEN LOADED ON THE VESSEL. THE ADMINISTRATIVE OFFICE FORWARDED YOUR CLAIM TO OUR OFFICE WHERE IT WAS RECEIVED ON FEBRUARY 17, 1961. BY SETTLEMENT CERTIFICATE OF APRIL 26, 1962, IT WAS CERTIFIED THAT THE AMOUNT OF $855.40 WAS BARRED BY THE 10-YEAR STATUTE OF LIMITATION IN 31 U.S.C. 71A AND THAT THE BALANCE OF $20,975 ($21,830.40 LESS $855.40) WAS DISALLOWED. THERE IS NO INDICATION THAT ANY FURTHER CORRESPONDENCE RELATIVE TO THE MATTER WAS RECEIVED FROM YOUR COMPANY UNTIL WE RECEIVED MR. GRACE'S BRIEF DATED JULY 10, 1967, MORE THAN FIVE YEARS AFTER THE DATE OF THE SETTLEMENT CERTIFICATE.

THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061 (31 U.S.C. 71A), FOREVER BARS EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNLESS SUCH CLAIM BE RECEIVED IN OUR OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. HERE THE TRANSPORTATION SERVICES WERE FURNISHED IN 1950, PAYMENT FOR THE STEVEDORING SERVICES WAS MADE IN THE SAME YEAR AND THE SUBSEQUENT DEDUCTIONS FOR THE LOSS OF CARGO WERE MADE IN 1953. THE PRIMARY PURPOSE OF THE ACT OF OCTOBER 9, 1940, AS SHOWN BY ITS LEGISLATIVE HISTORY, IS TO RELIEVE THE GOVERNMENT OF THE NECESSITY FOR RETAINING OR GOING BACK OVER OLD RECORDS FOR THE PURPOSE OF SETTLING STALE CLAIMS.

UNDER THE REGULATIONS OF OUR OFFICE A CLAIMANT, IF HE DESIRES, MAY REQUEST REVIEW BY THE COMPTROLLER GENERAL OF THE FINAL ACTION TAKEN IN THE SETTLEMENT OF HIS CLAIM. WHILE SUCH REGULATIONS DO NOT PLACE A SPECIFIC TIME LIMIT UPON SUCH REQUESTS FOR REVIEW, IT IS OBVIOUS, IN THE LIGHT OF THE ACT OF OCTOBER 9, 1940, SUPRA, AND ITS PRIMARY PURPOSE, THAT SUCH REQUEST MUST BE MADE WITHIN A REASONABLE PERIOD AFTER THE DATE THE SETTLEMENT IS ISSUED. WITHOUT ATTEMPTING TO ESTABLISH WHAT CONSTITUTES A REASONABLE TIME IN ALL INSTANCES, WE CANNOT CONSIDER A REQUEST RECEIVED OVER FIVE YEARS AFTER THE SETTLEMENT WAS ISSUED TO HAVE BEEN TIMELY FILED. SEE IN THIS CONNECTION 32 COMP. GEN. 107; B-133865, JULY 21, 1958; B-155521, FEBRUARY 23, 1965; B-156233, DECEMBER 20, 1965; B-157883, DECEMBER 30, 1965. ACCORDINGLY, YOUR REQUEST FOR REVIEW IS DENIED BECAUSE THE REQUEST WAS NOT TIMELY FILED.

VIEWING YOUR LETTER AS A NEW CLAIM, THE TEN-YEAR PERIOD DURING WHICH WE COULD CONSIDER THE CLAIM BEGAN TO RUN AT THE LATEST FROM THE DATE THE ADMINISTRATIVE OFFICE MADE ITS DEDUCTIONS FROM YOUR ACCOUNT IN SEPTEMBER 1953 AND THE TIME WAS NOT EXTENDED BY YOUR COMPANY'S LETTER OF JANUARY 25, 1961, OR BY THE SETTLEMENT ISSUED APRIL 26, 1962. THE SETTLEMENT DISPOSED OF YOUR CLAIM AND AFTER ISSUANCE THERE WAS NOTHING BEFORE OUR OFFICE UPON WHICH TO ACT UNTIL MR. GRACE'S BRIEF DATED JULY 10, 1967, WAS RECEIVED. SINCE THE BRIEF, REGARDED AS A NEW CLAIM, WAS RECEIVED IN OUR OFFICE MORE THAN TEN YEARS AFTER THE DEDUCTION WAS MADE IN SEPTEMBER 1953, IT FOLLOWS THAT IT IS BARRED UNDER 31 U.S.C. 71A, AND WE ARE PRECLUDED FROM MAKING ANY FURTHER ALLOWANCE THEREON.

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