B-172370, JUN 3, 1971

B-172370, JUN 3, 1971

TRANSPORTATION CHARGES - STATUTE OF LIMITATIONS DENYING CLAIM OF DAILY EXPRESS, INC., FOR $205 DETENTION OR DEMURRAGE CHARGES IN CONNECTION WITH A SHIPMENT OF AERIAL BOMBS MOVING FROM YORK, PA., TO YORKTOWN, VIRGINIA, ARRIVING AT ITS DESTINATION ON JUNE 9, 1967. THE CLAIM FOR DEMURRAGE CHARGES WHILE PRESENTED TO THE NAVY ON SEPTEMBER 10, 1969, WAS NOT RECEIVED AT THE GAO UNTIL NOVEMBER 5, 1970. THEREFORE, IT IS BARRED UNDER 49 U.S.C. 66 WHICH REQUIRES THAT SUCH CLAIMS BE RECEIVED BY THE GAO WITHIN 3 YEARS FROM THE DATE THEY ACCRUE REGARDLESS OF WHETHER THE DELAY IN PRESENTATION OCCURRED IN THE GOVERNMENT DEPARTMENT FOR WHICH THE SERVICES WERE RENDERED.

TO DAILY EXPRESS, INC.:

WE REFER TO YOUR LETTER OF JANUARY 21, 1971, WHICH WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF THE ACTION TAKEN IN CONNECTION WITH YOUR CLAIM, BY YOUR BILL NO. 215, FOR $205 DETENTION OR DEMURRAGE CHARGES IN CONNECTION WITH A SHIPMENT WHICH MOVED UNDER GOVERNMENT BILL OF LADING NO. D-5379239, ISSUED JUNE 6, 1967. WE HAVE STUDIED THE RECORD AND THE HANDLING OF THIS CLAIM IN THE DEPARTMENT OF THE NAVY AND MUST CONCLUDE THAT THE ACTION TAKEN IN ADVISING YOU THAT SUCH CLAIM WAS BARRED AND COULD NOT BE ALLOWED WAS THE ONLY PROPER DISPOSITION THAT COULD HAVE BEEN MADE UNDER THE APPLICABLE LAW AND REGULATIONS.

BRIEFLY, THE RECORD SHOWS THAT PURSUANT TO GOVERNMENT BILL OF LADING NO. D-5379239, ISSUED JUNE 6, 1967, YOUR CORPORATION MOVED 215,875 POUNDS OF AERIAL BOMBS IN FIVE TRUCKS (43,175 POUNDS ON EACH VEHICLE), FROM YORK, PENNSYLVANIA, TO THE NAVAL WEAPONS STATION, YORKTOWN, VIRGINIA, BETWEEN JUNE 7 AND 9, 1967, AT WHICH LATTER DATE THE RIGHT TO TRANSPORTATION CHARGES FOR ALL SERVICES RENDERED INCIDENT TO SUCH MOVEMENT ACCRUED; AND THAT ON AUGUST 2, 1967, YOUR CORPORATION WAS PAID $2,233.75 AS BILLED (CARRIER'S BILL NO. 789), REPRESENTING CHARGES FOR THE LINE HAUL MOVEMENT, PLUS $15 PROTECTIVE COVERING FOR EACH VEHICLE, BY THE U.S. ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA.

ON SEPTEMBER 10, 1969, MORE THAN TWO YEARS AFTER PAYMENT OF THE LINE HAUL CHARGES, YOUR CORPORATION ADDRESSED AN INQUIRY TO THE U.S. NAVAL WEAPONS STATION, YORKTOWN, VIRGINIA, REGARDING AN ADDITIONAL $205 FOR DETENTION OR DEMURRAGE CHARGES INCIDENT TO THIS MOVEMENT COMPUTED AT THE RATE OF $10 PER HOUR PER VEHICLE FOR ALL TIME IN EXCESS OF THE FREE TIME ALLOWED BY YOUR TARIFF FOR LOADING AND UNLOADING THE CARGO, BECAUSE EACH VEHICLE WAS DETAINED FROM 2 TO 5-1/2 HOURS IN EXCESS OF SUCH FREE TIME. ON SEPTEMBER 25, 1969, YOUR DETENTION BILL WAS RETURNED BY THE NAVAL WEAPONS STATION, YORKTOWN, CERTIFIED BY THE RECEIVING TRANSPORTATION OFFICE AT THAT INSTALLATION AS TO ITS MERITS WITH ADVICE THAT IT WOULD HAVE BEEN SO CERTIFIED IN 1967 IF IT HAD BEEN SENT TO THAT OFFICE AT THAT TIME AND WAS READY FOR FORWARDING TO THE NAVY FINANCE CENTER, WASHINGTON, D.C., FOR PAYMENT.

IT APPEARS THAT ON OCTOBER 6, 1969, BILLING FOR THE $205 DEMURRAGE CHARGE ARISING BECAUSE OF THE DETENTION OF THE VEHICLES INVOLVED BEYOND THE TIME AUTHORIZED BY TARIFF WAS SUBMITTED TO THE NAVY FINANCE CENTER, WASHINGTON, D.C., BUT ON DECEMBER 9, 1969, THE NAVY FINANCE CENTER, WASHINGTON, RETURNED THE CERTIFIED INVOICE WHICH HAD BEEN SUBMITTED WITH THE ADVICE THAT SUCH CLAIM "WILL BE HONORED FOR PAYMENT WHEN PREPARED AS A BILL ON THE STD FORMS 1113-1113A, A SET OF WHICH IS (WAS) ENCLOSED FOR YOUR IMMEDIATE USE."

ON OCTOBER 22, 1970, A SUPPLEMENTAL BILL (CARRIER'S BILL NO. 215) FOR THE ADDITIONAL $205 IN QUESTION WAS FINALLY SUBMITTED TO THE NAVY FINANCE CENTER ON A STANDARD FORM 1113. THE NAVY REGIONAL FINANCE CENTER, WASHINGTON, ON OCTOBER 30, 1970, FORWARDED THE CLAIM TO THE U.S. GENERAL ACCOUNTING OFFICE AND ADVISED YOUR CORPORATION THAT THE CLAIM AS PRESENTED WAS BARRED BY THE THREE-YEAR STATUTE OF LIMITATIONS, AND ON NOVEMBER 5, 1970, THE CLAIM IN QUESTION WAS FIRST RECEIVED IN THE U.S. GENERAL ACCOUNTING OFFICE.

YOUR CORPORATION URGES THAT ITS CERTIFIED INVOICE FOR THE DEMURRAGE CHARGE INVOLVED WAS PRESENTED TO THE DEPARTMENT OF THE NAVY WITHIN THREE YEARS FROM THE DATE OF THE MOVEMENT AND IT APPARENTLY IS YOUR POSITION THAT BY REASON OF SUCH PRESENTATION THE STATUTES WOULD THEN BE RENEWED FOR AN ADDITIONAL THREE YEARS. IN SUPPORT OF SUCH POSITION, COPIES OF CORRESPONDENCE WITH THE DEPARTMENT OF THE NAVY WERE SUBMITTED.

DEMURRAGE IS A CHARGE FOR THE DETENTION OF CARRIER EQUIPMENT INCIDENT TO TRANSPORTATION (UNION BELT OF DETROIT POOLING OF REVENUES, 201 I.C.C. 577, 581 (1934); ST. LOUIS, SOUTHWESTERN RY. CO. V MAYS, 177 F. SUPP. 182, 183 (1959)), AND IS PART AND PARCEL OF THE TRANSPORTATION CHARGES. DAVIS V TIMMONSVILLE OIL CO., 285 F. 470, 472 (1922); PROCTOR AND GAMBLE CO. V UNITED STATES, 281 F. 1014, 1015 (1922); NORTON V SHOTMEYER, 72 F. SUPP. 188, 191 (1947); INDIANA HARBOR BELT R. CO. V JACOB STERN & SONS, 37 F. SUPP. 690, 692 (1941). HOWEVER, DEMURRAGE CHARGES ON AN INTERSTATE SHIPMENT ARE SUBJECT TO REGULATION BY THE INTERSTATE COMMERCE COMMISSION (TURNER LUMBER CO. V CHICAGO, M. & ST. PAUL RY. CO., 271 U.S. 259 (1926)) AND EVEN THOUGH FREIGHT CHARGES AND DEMURRAGE CHARGES ACCRUE ON THE SAME INTERSTATE SHIPMENT, THE TWO CHARGES ARE TREATED AS GIVING RISE TO SEPARATE AND INDEPENDENT CLAIMS. GREAT NORTHERN RY. CO. V UNITED STATES, 312 F. 2D 906, 910 (1963); KRAUSS BROTHERS LUMBER CO. V DIRECTOR GENERAL, 92 I.C.C. 450, 452 (1924); CF. ISTHMIAN S.S. CO. V UNITED STATES, 191 F. SUPP. 335, 337 (1957); PENNSYLVANIA R. CO. V MOORE-MCCORMACK LINES, INC., 246 F. SUPP. 143, 146 (1965), AFFIRMED 370 F. 2D 430 (1966).

SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED BY PUBLIC LAW 85-762, 72 STAT. 860, 49 U.S.C. 66, SPECIFICALLY PROVIDES FOR PAYMENT OF TRANSPORTATION BILLS UPON PRESENTATION SUBJECT TO THE PROVISO:

" *** 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 TRANSPORATION INVOLVED, OR (3) SUBSEQUENT REFUND FOR OVERPAYMENT OF SUCH CHARGES, OR (4) DEDUCTION MADE PURSUANT TO THIS SECTION, WHICHEVER IS LATER."

YOUR CORPORATION'S DEMURRAGE CLAIM IN THE AMOUNT OF $205 WAS FIRST RECEIVED IN THE U.S. GENERAL ACCOUNTING OFFICE ON NOVEMBER 5, 1970, WHICH WAS MORE THAN THREE YEARS AFTER ACCRUAL OF THE CLAIM UPON COMPLETION OF THE MOVEMENT ON JUNE 9, 1967. EVEN IF THE DEMURRAGE CLAIM PROPERLY COULD BE CONSIDERED IN THE NATURE OF A SUPPLEMENTAL CLAIM FOR ADDITIONAL FREIGHT CHARGES, IT WAS FIRST RECEIVED HERE MORE THAN THREE YEARS AFTER THE PAYMENT OF THE ORIGINAL TRANSPORTATION CHARGES ON AUGUST 2, 1967, THE LATEST DATE TO WHICH THE PERIOD OF LIMITATIONS POSSIBLY COULD BE EXTENDED UNDER THE QUOTED PROVISIONS OF THE STATUTE.

PRIOR TO THE 1958 AMENDMENT, CARRIER CLAIMS, LIKE OTHER CLAIMS COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE, COULD BE CONSIDERED IF PRESENTED WITHIN 10 YEARS AFTER THE CLAIMS FIRST ACCRUED. SEE 31 U.S.C. 71A. THE 1958 AMENDMENT WAS ENACTED DUE, IN LARGE PART, TO CARRIER SUPPORT FOR A REDUCED LIMITATION TO APPLY IN TRANSPORTATION ACCOUNTS. AS YOU KNOW, THE PURPOSE OF THE STATUTE IS TO TERMINATE CONTROVERSY AFTER A REASONABLE PERIOD OF TIME AND TO ASSURE THE GOVERNMENT AS WELL AS THE CARRIERS PROTECTION FROM OLD CLAIMS ON WHICH RECORDS HAVE BECOME DESTROYED, LOST OR IMPRACTICABLE TO OBTAIN.

IN THE CIRCUMSTANCES OF THIS CASE, THE CAUSE OF ACTION AROSE ON THE CLAIM IN QUESTION WHEN THE SHIPMENT WAS DELIVERED. DELIVERY OF THE SHIPMENT WAS ADMITTEDLY MADE MORE THAN THREE YEARS BEFORE THE CLAIM WAS RECEIVED IN OUR OFFICE, AND THERE IS NO DISCRETION OR AUTHORITY IN OFFICERS OR AGENTS OF THE UNITED STATES TO WAIVE THE PROVISIONS OF LAW ESTABLISHING THE THREE- YEAR STATUTE OF LIMITATIONS. COMPARE UNITED STATES V GARBUTT OIL CO., 302 U.S. 528 (1937); JOHN FINN V UNITED STATES, 123 U.S. 227 (1887); MUNRO V UNITED STATES, 303 U.S. 36 (1938). WE WOULD BE VIOLATING THE LAW IF WE UNDERTOOK TO CONSIDER AND ALLOW YOUR CLAIM ON ITS MERITS.

WE ARE AWARE THAT CARRIERS SOMETIMES ENCOUNTER TIME-CONSUMING DELAYS IN PREPARING AND SUBMITTING THEIR CLAIMS. WE ALSO KNOW THAT AFTER BILLS ARE PRESENTED TO THE PAYING AGENCIES, THERE MAY OCCASIONALLY BE ADMINISTRATIVE DELAYS IN MAKING PAYMENT. TO WARN CARRIERS OF THE NEED TO PURSUE THEIR CLAIMS ACTIVELY AND TO REMEDY THIS SITUATION TO THE EXTENT POSSIBLE, OUR REGULATIONS POINT OUT THAT THE FILING OF A CLAIM WITH ANOTHER AGENCY DOES NOT MEET THE REQUIREMENTS OF SECTION 322; THE CLAIM MUST BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN THREE YEARS OF ACCRUAL. 4 CFR 54.6AA). AND CLAIMANTS ARE ADVISED, IF THE APPLICABLE STATUTORY PERIOD OF LIMITATIONS IS ABOUT TO EXPIRE, THAT CLAIMS MAY BE FILED INITIALLY WITH THE TRANSPORTATION DIVISION OF THIS OFFICE, RATHER THAN WITH THE APPROPRIATE ADMINISTRATIVE OFFICE. 4 CFR 54.6. COMPARE UNITED STATES V UTZ, 80 FED. 848 (1897); KENNEDY V UNITED STATES, 79 FED. 893 (1897), AFFIRMED 95 FED. 127 (1899).

IN THE YEARS SINCE THE AMENDMENT TO SECTION 322 WAS ENACTED, OFFICIALS OF OUR TRANSPORTATION DIVISION, WHEN SPEAKING TO CARRIER ORGANIZATIONS AND PARTICIPATING IN CARRIER MEETINGS, HAVE EMPHASIZED THE NEED FOR ATTENTION TO THE TIME ELEMENT IN PURSUING CARRIER CLAIMS AND THE CARRIERS ARE REMINDED THAT CLAIMS - ALTHOUGH NOT THEN FULLY SUPPORTED - MAY BE FILED HERE, TO TOLL THE STATUTE, WHILE DEVELOPMENT OF SUPPORT FOR THE CLAIM CONTINUES.

SINCE YOUR DEMURRAGE CLAIM WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN THREE YEARS AS REQUIRED BY LAW, REGARDLESS OF WHETHER THE DELAY IN PRESENTATION OCCURRED IN THE DEPARTMENT FOR WHICH THE SERVICES WERE RENDERED OR BECAUSE OF THE LACHES OF THE CLAIMANT IN PRESENTING AND PURSUING ITS CLAIM - AND, IN THIS CONNECTION, WE NOTE THE DELAY ON YOUR CORPORATION'S PART OF APPROXIMATELY TWO YEARS BETWEEN COMPLETION OF THE SERVICE AND YOUR FIRST INQUIRY AS TO DETENTION CHARGES AND FROM DECEMBER 9, 1969, TO OCTOBER 22, 1970, IN EXECUTING AND RETURNING THE STANDARD FORMS 1113-1113A, FORWARDED FOR YOUR IMMEDIATE USE - WE MUST CONCLUDE THAT SUCH CLAIM IS BARRED AND YOU WERE PROPERLY ADVISED THAT SUCH CLAIM COULD NOT BE ALLOWED.

THERE IS ENCLOSED FOR YOUR READY REFERENCE A COPY OF CHAPTER 6000 OF TITLE 5 OF GAO MANUAL FOR GUIDANCE OF FEDERAL AGENCIES, WHICH CONTAINS THE GENERAL PROCEDURES APPLICABLE TO THE PRESENTATION, SETTLEMENT, RECONSIDERATION AND REVIEW OF CLAIMS AGAINST THE UNITED STATES RELATING TO FREIGHT AND PASSENGER TRANSPORTATION SERVICES.