A-24222, DECEMBER 1, 1939, 19 COMP. GEN. 537

A-24222, DECEMBER 1, 1939, 19 COMP. GEN. 537

PROPERTY - PUBLIC - LOSS OR DAMAGE IN TRANSIT - APPLICABILITY OF LIMITATIONS ON FILING CLAIMS TO THE UNITED STATES GENERALLY AND TO A FEDERAL CORPORATION SINCE THE PROVISIONS OF PARAGRAPH 7 OF " CONDITIONS" ON THE STANDARD GOVERNMENT BILL OF LADING WERE APPARENTLY INSERTED TO CLARIFY THE EXISTING POSITION OR STATUS OF THE UNITED STATES AS NOT SUBJECT TO TIME LIMITATIONS RELATIVE TO THE FILING OF CLAIMS AND SUITS CONTAINED IN THE UNIFORM (COMMERCIAL) BILL OF LADING, AND AS THERE IS A CONFLICT OF JUDICIAL AUTHORITY IN THE MATTER, THE POSITION OF THE GENERAL ACCOUNTING OFFICE MUST BE THAT THE DELETION OF SAID PARAGRAPH CANNOT BRING THE LIMITATIONS INTO OPERATION AGAINST THE UNITED STATES, NOTWITHSTANDING THE STANDARD GOVERNMENT BILL OF LADING PROVIDES THAT THE CONDITIONS OF THE COMMERCIAL BILL OF LADING GOVERN EXCEPT WHERE SPECIFICALLY PROVIDED OTHERWISE. WHILE FOR CERTAIN PURPOSES SOME FEDERAL CORPORATIONS HAVE BEEN REGARDED AS ENTITIES DISTINCT FROM THE UNITED STATES, IT SEEMS CLEAR THAT AS TO THE FEDERAL SURPLUS COMMODITIES CORPORATION, THERE WAS NO INTENTION TO DENY TO THE UNITED STATES THE BENEFIT OF ANY SOVEREIGN RIGHTS OR IMMUNITIES MERELY BY PROVIDING THAT CERTAIN PUBLIC RELIEF ACTIVITIES SHOULD BE CARRIED ON THROUGH THE MEDIUM OF AN AGENCY CORPORATE IN FORM. WHILE EVERY EFFORT SHOULD BE MADE TO MAKE EARLY DISCOVERY AND ADJUSTMENT OF ANY LOSS, DAMAGE, OR SHRINKAGE WHICH MAY OCCUR IN CONNECTION WITH SHIPMENTS OF THE FEDERAL SURPLUS COMMODITIES CORPORATION, INABILITY TO MAKE SUCH ADJUSTMENTS WITHIN THE PERIOD AS SET FORTH IN SECTION 2 OF THE UNIFORM (COMMERCIAL) STRAIGHT BILL OF LADING WILL NOT FORECLOSE ANY RIGHT THE UNITED STATES MAY HAVE BY REASON OF SUCH LOSS, DAMAGE, OR SHRINKAGE, AND AMOUNTS SUFFICIENT TO COVER SUCH LOSS, ETC., SHOULD BE WITHHELD FROM CURRENT UNPAID CARRIER BILLS, THE ENTIRE MATTER, WITH PERTINENT PAPERS, TO BE REFERRED TO THE GENERAL ACCOUNTING OFFICE FOR SETTLEMENT AS A CLAIM IF THE CARRIER OBJECTS TO SUCH OFFSET.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF AGRICULTURE, DECEMBER 1, 1939:

I HAVE YOUR LETTER OF OCTOBER 3, 1939, AS FOLLOWS:

IN CONNECTION WITH THE SHIPMENT OF SURPLUS AGRICULTURAL COMMODITIES BY THE FEDERAL SURPLUS COMMODITIES CORPORATION, IT IS OBSERVED THAT SEVERAL CARRIERS, THE WABASH RAILWAY COMPANY BEING ONE IN POINT, HAVE BEEN DELETING CONDITION 7 OF THE GOVERNMENT BILL OF LADING AND, IN SOME CASES, STAMPING OR WRITING ON THE FACE THEREOF " CONDITION 7 DELETED PRIOR TO EXECUTION.' IT IS UNDERSTOOD THAT THIS ACTION IS ON THE STRENGTH OF A RULING OF THE COMPTROLLER GENERAL DATED JULY 18, 1931,(A 24222), WHICH STATED,"* * * THE STRIKING OUT BY CARRIER OF THE SAID PROVISIONS OF PARAGRAPH 7 WILL NOT BE OBJECTED TO BY THIS OFFICE, WHENEVER THE CARRIER DEFINITELY REFUSES TO ACCEPT SHIPMENTS ON STANDARD GOVERNMENT BILL OF LADING AS PRESCRIBED.'

THE FEDERAL SURPLUS COMMODITIES CORPORATION, AS WELL AS OTHER GOVERNMENT BRANCHES, DOES NOT EMPLOY THE UNIFORM (COMMERCIAL) BILL OF LADING BUT, WITH SOME EXCEPTIONS, THE GOVERNMENT BILL OF LADING IS MADE SUBJECT TO THE CONDITIONS OF THE UNIFORM DOCUMENT. ONE OF THE EXCEPTIONS IS CONTAINED IN CONDITION 7 OF THE GOVERNMENT FORM, WHICH READS:

"IN CASE OF LOSS, DAMAGE, OR SHRINKAGE IN TRANSIT, THE RULES AND CONDITIONS GOVERNING COMMERCIAL SHIPMENTS SHALL NOT APPLY AS TO PERIOD WITHIN WHICH NOTICE THEREOF SHALL BE GIVEN THE CARRIERS OR TO PERIOD WITHIN WHICH CLAIMS THEREFOR SHALL BE MADE OR SUIT INSTITUTED.'

THE RULES AND CONDITIONS REFERRED TO ARE EMBODIED IN SECTION 2 (B) OF THE UNIFORM STRAIGHT BILL OF LADING CONTRACT TERMS AND CONDITIONS AND READ AS FOLLOWS:

"AS A CONDITION PRECEDENT TO RECOVERY, CLAIMS MUST BE FILED IN WRITING WITH THE RECEIVING OR DELIVERING CARRIER ISSUING THIS BILL OF LADING, OR CARRIER ON WHOSE LINE THE LOSS, DAMAGE, INJURY OR DELAY OCCURRED, WITHIN NINE MONTHS AFTER DELIVERY OF THE PROPERTY * * * OR * * * WITHIN NINE MONTHS AFTER A REASONABLE TIME FOR DELIVERY HAS ELAPSED; AND SUITS SHALL BE INSTITUTED AGAINST ANY CARRIER ONLY WITHIN TWO YEARS AND ONE DAY FROM THE DAY WHEN NOTICE IN WRITING IS GIVEN BY THE CARRIER TO THE CLAIMANT THAT THE CARRIER HAS DISALLOWED THE CLAIM OR ANY PART OR PARTS THEREOF SPECIFIED IN THE NOTICE. WHERE CLAIMS ARE NOT FILED OR SUITS ARE NOT INSTITUTED THEREON IN ACCORDANCE WITH THE FOREGOING PROVISIONS, NO CARRIER HEREUNDER SHALL BE LIABLE AND SUCH CLAIMS WILL NOT BE PAID.'

THIS CONDITION IS IMPOSED UNDER AUTHORITY OF SECTION 20 (11) OF THE INTERSTATE COMMERCE ACT AS AMENDED.

IT IS NOT UNUSUAL FOR CARRIERS TO DELAY PRESENTATION OF FREIGHT BILLS FOR AS LONG AS NINE MONTHS. IN FACT, THEY COULD DELIBERATELY DELAY THEM AND THEREBY PREVENT THE GOVERNMENT FROM RECOVERING THE VALUE OF GOODS LOST OR DAMAGED, SINCE, AS A RULE, THE SHORTAGE DOES NOT BECOME APPARENT UNTIL THE BILL OF LADING SUPPORTING THE CARRIER'S BILL, BEARING NOTATION AS TO LOSS, IS RECEIVED IN THE AUDIT OFFICE. FOR THIS REASON, IT HAS BEEN CONSIDERED THAT TENDER TO THE DESTINATION CARRIER OF THE ACCOMPLISHED GOVERNMENT BILL OF LADING, EXECUTED BY THE CONSIGNEE AS TO "LOSS, DAMAGE, OR SHRINKAGE" OR OTHER EVIDENCE OF FAILURE IN EXECUTION OF CONTRACT, CONSTITUTES COMPLIANCE WITH SECTION 2 (B) OF THE UNIFORM TERMS AND CONDITIONS. IN SUCH CASES, THE USUAL PRACTICE IN THE AUDIT OFFICE IS TO MAKE DEDUCTIONS FROM THE CARRIER'S BILL FOR THE VALUE OF THE GOODS LOST OR DAMAGED. THIS PRACTICE HAS, TO OUR KNOWLEDGE, MET WITH NO OBJECTION ON THE PART OF THE CARRIERS. HOWEVER, THERE HAVE BEEN INSTANCES WHERE THE CONSIGNEE FAILED TO NOTE ON THE BILL OF LADING THE LOSS OR OTHER DISCREPANCY, AND INFORMATION HAS COME TO THE AUDIT SECTION AFTER THE NINE-MONTH (AND SOMETIMES THE TWO-YEAR) PERIOD HAS ELAPSED. IN SUCH CASES, THE CARRIERS ARE ADVISED AND REQUESTED TO REMIT FOR THE VALUE OF THE GOODS. CERTAIN OF THE CARRIERS HAVE, IN THESE CIRCUMSTANCES, DECLINED TO ADJUST AND WE ARE, THEREFORE, CONFRONTED WITH THE PROBLEM OF THE EFFECT OF BOTH THE NINE MONTH AND TWO-YEAR RULES AGAINST THE CORPORATION. THE COMMODITIES PURCHASED BY THE FEDERAL SURPLUS COMMODITIES CORPORATION ARE CONSIGNED, IN MOST INSTANCES, TO THE DIRECTORS OF RELIEF DISTRIBUTION IN THE SEVERAL STATES. THESE DIRECTORS ARE APPOINTED BY AND ARE THE AGENTS FOR THE STATES WITH POWER TO RECEIVE AND ACCEPT THESE COMMODITIES ON BEHALF OF THE STATES. THERE HAVE BEEN OCCASIONS WHEN THE STATE AGENTS HAVE ERRONEOUSLY EXECUTED THE BILL OF LADING WITHOUT NOTATION AS TO "LOSS, DAMAGE, OR SHRINKAGE.' SUBSEQUENTLY, THE CORPORATION WAS ADVISED OF AN ACTUAL LOSS, BUT SUCH NOTIFICATION WAS AFTER THE EXPIRATION OF THE NINE-MONTH PERIOD OF LIMITATIONS.

IT IS, OF COURSE, UNDERSTOOD THAT THE GOVERNMENT OCCUPIES A PRIVILEGED POSITION WITH RESPECT TO ACTIONS AT LAW WHICH AMOUNTS TO TECHNICAL IMMUNITY FROM SUIT OR STATUTORY LIMITATIONS. THE INHERITANCE OF THIS IMMUNITY BY GOVERNMENT CORPORATIONS HAS, HOWEVER, RECENTLY BEEN QUESTIONED BY SEVERAL CARRIERS AND GROUPS OF CARRIERS, IN VIEW OF THE SUPREME COURT DECISION OF FEBRUARY 27, 1939 ( NO. 364, BY MR. JUSTICE FRANKFURTER), IN KEIFER AND KEIFER V. RECONSTRUCTION FINANCE CORPORATION AND REGIONAL AGRICULTURAL CREDIT CORPORATION OF SIOUX CITY, IOWA. FOR THIS REASON, IT IS THOUGHT DESIRABLE TO INVITE A RECONSIDERATION OF COMPTROLLER GENERAL'S OPINION 24222 AS TO THE PROPRIETY OF DELETION OF CONDITION 7. IF, UPON RECONSIDERATION, NO CHANGE IN POLICY IS RECOMMENDED, IT IS REQUESTED THAT AN OPINION BE GIVEN ON THE FOLLOWING POINTS:

(A) THE PROPRIETY OF THE FEDERAL SURPLUS COMMODITIES CORPORATION MAKING DEDUCTIONS FROM CURRENT UNPAID CARRIER BILLS FOR LOSS AND DAMAGE CLAIMS WHICH, UNDER COMMERCIAL LIMITATIONS APPLYING AS A RESULT OF DELETION OF CONDITION 7, WOULD HAVE BEEN OUTLAWED.

(B) IF THE CORPORATION IS DAMAGED AND, AS A RESULT OF THE DELETION OF CONDITION 7, HAS NO RECOURSE AGAINST THE CARRIER, WHAT IS THE RESPONSIBILITY OF:

(1) THE PROPERTY OFFICER IN THE EVENT THE CONSIGNEE ( STATE RELIEF DISTRIBUTION AGENCY) FAILS TO EXECUTE THE GOVERNMENT BILL OF LADING AS TO "LOSS, DAMAGE, OR SHRINKAGE; "

(2) THE OFFICER CERTIFYING FOR PAYMENT A CARRIER BILL ON WHICH IT IS LATER ASCERTAINED THAT DEDUCTIONS SHOULD HAVE BEEN MADE FOR "LOSS, DAMAGE, OR SHRINKAGE.'

IT IS POSSIBLE THAT THE STATEMENT MADE IN LETTER OF THE FORMER COMPTROLLER GENERAL OF THE UNITED STATES UNDER DATE OF JULY 18, 1931, TO THE SECRETARY OF THE INTERIOR, REFERRED TO IN YOUR SUBMISSION, HAS BEEN MISCONSTRUED IN ITS SCOPE AND APPLICATION. SUCH STATEMENT IS MERELY TO THE EFFECT THAT THIS OFFICE WOULD NOT OBJECT TO THE STRIKING OUT BY A CARRIER OF THE PROVISIONS OF PARAGRAPH 7 OF THE GOVERNMENT BILL OF LADING WHENEVER THE CARRIER SHOULD DEFINITELY REFUSE OTHERWISE TO ACCEPT SHIPMENTS ON SAID FORM OF BILL OF LADING AS PRESCRIBED. SAID STATEMENT IS NOT TO BE UNDERSTOOD AS INDICATING A VIEW OF THIS OFFICE TO THE EFFECT THAT A CARRIER SO STRIKING OUT SAID PROVISIONS WOULD THEREBY BE RELIEVED FROM ANY OF ITS LIABILITIES UNDER THE LAW.

IT IS PROVIDED IN CONDITION 2 OF THE GENERAL CONDITIONS PRINTED ON GOVERNMENT BILL OF LADING STANDARD FORM NO. 1058 THAT " UNLESS OTHERWISE SPECIFICALLY PROVIDED OR OTHERWISE STATED HEREON, THIS BILL OF LADING IS SUBJECT TO THE SAME RULES AND CONDITIONS AS GOVERN COMMERCIAL SHIPMENTS MADE ON THE USUAL FORMS PROVIDED THEREFOR BY THE CARRIER.' WHEN SHIPMENTS ARE MADE ON A GOVERNMENT BILL OF LADING FROM WHICH CONDITION 7, AS QUOTED IN YOUR LETTER, HAS BEEN DELETED, THERE APPEARS TO BE SOME CONFLICT OF JUDICIAL AUTHORITY AS TO WHETHER, IN VIEW OF THE QUOTED TERMS OF CONDITION 2, THE USUAL LIMITATIONS RELATIVE TO THE TIME FOR FILING CLAIMS AND THE INSTITUTING OF SUITS WHICH ARE CONTAINED IN UNIFORM BILL OF LADING FORMS APPROVED BY THE INTERSTATE COMMERCE COMMISSION ARE FOR APPLICATION AND ENFORCEMENT AGAINST THE UNITED STATES. SEE 36 OP. ATTY. GEN. 289, 296-7.

IN THE CASE OF MISSOURI-1KANSAS-1TEXAS RAILROAD CO. OF TEXAS V. UNITED STATES, DECIDED JUNE 14, 1926, 62 CT.1CLS. 373, IT WAS HELD BY THE COURT OF CLAIMS THAT A PROVISION IN A GOVERNMENT BILL OF LADING THAT EXCEPT AS OTHERWISE THEREIN PROVIDED SAID BILL OF LADING WAS SUBJECT TO THE SAME RULES AND CONDITIONS AS GOVERNED COMMERCIAL SHIPMENTS, DID NOT OPERATE TO REQUIRE THE GOVERNMENT, IN CASE OF LOSS OR DAMAGE, TO SUBMIT A CLAIM THEREFOR TO THE CARRIER WITHIN THE TIME PRESCRIBED IN BILLS OF LADING USED BY THE CARRIER FOR NON-GOVERNMENT SHIPMENTS. AMONG THE REASONS ASSIGNED BY THE COURT IN SUPPORT OF ITS CONCLUSION WAS THAT THE APPLICATION OF SUCH LIMITATION AGAINST THE GOVERNMENT WOULD CONSTITUTE AN UNAUTHORIZED IMPAIRMENT OF THE RIGHTS OF THE SOVEREIGN. ON THIS POINT THE COURT SAID:

* * * UNQUESTIONABLY THE RULE IS THAT IT REQUIRES CONGRESSIONAL ACTION CLEARLY MANIFESTING SUCH A PURPOSE BEFORE THE UNITED STATES CAN BE BOUND BY STATUTES OF LIMITATIONS. SEE UNITED STATES V. NASHVILLE RY. CO., 118 U.S. 120, 125. IT IS SAID THAT "NO LACHES CAN BE IMPUTED TO THE GOVERNMENT, AND AGAINST IT NO TIME RUNS SO AS TO BAR ITS RIGHTS.' SEE THOMPSON CASE, 98 U.S. 486, 488. THE RULE IS NOT CONFINED TO STATUTES OF LIMITATIONS. IN KIRKPATRICK'S CASE, 9 WHEAT. 720, 735, MR. JUSTICE STORY SPEAKING FOR THE COURT SAYS: "THE GENERAL PRINCIPLE IS THAT LACHES IS NOT IMPUTABLE TO THE GOVERNMENT; AND THIS MAXIM IS FOUNDED NOT IN THE NOTION OF EXTRAORDINARY PREROGATIVE BUT UPON A GREAT PUBLIC POLICY. THE GOVERNMENT CAN TRANSACT ITS BUSINESS ONLY THROUGH ITS AGENTS, AND ITS FISCAL OPERATIONS ARE SO VARIOUS AND ITS AGENCIES SO NUMEROUS AND SCATTERED THAT THE UTMOST VIGILANCE WOULD NOT SAVE THE PUBLIC FROM THE MOST SERIOUS LOSSES IF THE DOCTRINE OF LACHES CAN BE APPLIED TO ITS TRANSACTIONS.' SEE UNITED STATES V. AMERICAN BELL TELEPHONE CO., 159 U.S. 548, 554. IF IT BE CONCEDED THAT THE GOVERNMENT IS BOUND BY ITS CONTRACTS IT MUST APPEAR, IN VIEW OF THE AUTHORITIES CITED, THAT THERE IS STATUTORY AUTHORITY FOR THE PARTICULAR CONTRACT AS WELL AS AN AUTHORITY IN THE AGENT WHO MAKES IT TO WAIVE RIGHTS OF THE GOVERNMENT. THERE IS AN ABSENCE OF THESE THINGS IN THE INSTANT CASE. THE TRANSPORTATION ACT FURNISHES NO BASIS FOR THE CONTENTION THAT THE GOVERNMENT IS BOUND BY THE PROVISIONS OF THE UNIFORM COMMERCIAL BILL OF LADING, AND THE IMPLICATIONS TO BE FOUND IN THAT ACT TEND RATHER TO EXCLUDE GOVERNMENT SHIPMENTS FROM ITS OPERATION. * * * THE APPLICATION FOR CERTIORARI IN THIS CASE WAS DENIED, 273 U.S. 725. THE SAME QUESTION WAS AGAIN CONSIDERED BY THE COURT OF CLAIMS IN DECISION OF NOVEMBER 16, 1926 ( AMERICAN RY. EXPRESS CO. V. UNITED STATES, 62 CT.1CLS. 615, 635-638), AND A LIKE CONCLUSION REACHED. AGAIN CERTIORARI WAS SOUGHT AND DENIED, 273 U.S. 750. THE FOLLOWING YEAR (1927) T CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT CONSIDERED THIS SAME GENERAL QUESTION IN THE CASE OF UNITED STATES V. SEABOARD AIR LINE RY. CO., 22 F. (2D) 113, AND HELD THAT THE PROVISION IN THE UNIFORM BILL OF LADING RELATIVE TO TIME FOR FILING OF CLAIMS AND SUITS WAS INCORPORATED INTO THE GOVERNMENT BILL OF LADING BY REFERENCE "AS FULLY AS IF IT WERE PRINTED ON THE GOVERNMENT BILL OF LADING ITSELF," AND THAT THE PROVISION THUS INCORPORATED WAS BINDING UPON THE UNITED STATES. IN THE COURSE OF THE OPINION THE COURT SAID:

* * * WE RECOGNIZE THE RULE, OF COURSE, THAT STATUTES OF LIMITATION DO NOT APPLY TO THE GOVERNMENT UNLESS EXPRESSLY MADE APPLICABLE TO IT, AND THAT THE GOVERNMENT IS NOT BARRED BY LACHES OF ITS OFFICERS, HOWEVER GROSS, IN A SUIT BROUGHT BY IT AS A SOVEREIGN TO ENFORCE A PUBLIC RIGHT OR TO ASSERT A PUBLIC INTEREST. BUT THESE DOCTRINES HAVE NO APPLICATION HERE. THE LIMITATION INVOKED BY THE RAILWAY COMPANY IS NOT STATUTORY, BUT CONTRACTUAL, AND THE CLAIM OF THE GOVERNMENT IS BARRED, NOT BECAUSE OF LACHES OF ITS OFFICERS, BUT BECAUSE OF THE EXPRESS PROVISIONS OF A CONTRACT INTO WHICH ITS OFFICERS HAVE ENTERED. * * *

THE DIFFERENCE IN THE CONCLUSIONS REACHED BY THE TWO COURTS IN THE ABOVE CASES APPEARS LARGELY TRACEABLE TO THE FACT THAT THE COURT OF CLAIMS WAS OF THE OPINION THAT AN OFFICER OR AGENT OF THE UNITED STATES IS WITHOUT AUTHORITY, IN THE ABSENCE OF AN EXPRESS STATUTORY PROVISION THEREFOR, TO ASSENT IN ITS BEHALF BY CONTRACT OR OTHERWISE TO THE PLACING OF A TIME LIMIT UPON THE GOVERNMENT'S RIGHT TO ASSERT OTHERWISE VALID CLAIMS FOR LOSS OR DAMAGE AGAINST THE CARRIER, WHEREAS THE CIRCUIT COURT OF APPEALS DID NOT RECOGNIZE SUCH LACK OF AUTHORITY. IN THIS CONNECTION THERE WOULD APPEAR FOR CONSIDERATION THE PRINCIPLE THAT OFFICERS AND EMPLOYEES OF THE GOVERNMENT ARE CREATURES OF LAW AND HAVE ONLY SUCH AUTHORITY AS GIVEN TO THEM BY STATUTE. UNITED STATES V. LEE, 106 U.S. 196. IT SEEMS UNREASONABLE THAT OFFICERS OF THE UNITED STATES SHOULD, IN THE ABSENCE OF A STATUTORY PROVISION TO THAT EFFECT, BE REGARDED AS POSSESSED OF AUTHORITY TO IMPOSE BY CONTRACTUAL ARRANGEMENT, A TIME LIMITATION UPON THE ASSERTION BY THE UNITED STATES OF ITS RIGHTS--- ESPECIALLY IN VIEW OF THE RULE THAT "THE UNITED STATES ARE NEITHER BOUND NOR ESTOPPED BY THE ACTS OF THEIR OFFICERS AND AGENTS IN ENTERING INTO AN AGREEMENT OR ARRANGEMENT TO DO OR CAUSE TO BE DONE WHAT THE LAW DOES NOT SANCTION OR PERMIT.' WILBUR NATIONAL BANK V. UNITED STATES, 294 U.S. 120, 123, AND CASES THERE CITED. IN ITS DEALINGS WITH INDIVIDUALS "PUBLIC POLICY DEMANDS THAT THE GOVERNMENT SHOULD OCCUPY AN APPARENTLY FAVORED POSITION.' ( UNITED STATES V. VERDIER, 164 U.S. 213). THESE PRINCIPLES SEEM INCONSISTENT WITH THE CONCLUSION THAT, IN THE ABSENCE OF A SPECIFIC STATUTORY GRANT OF AUTHORITY, AGENTS OF THE UNITED STATES ARE CLOTHED WITH POWER TO BARGAIN AWAY ANY OF THE ADVANTAGES THUS DEMANDED BY PUBLIC POLICY. IT IS NOTED THE PROVISIONS OF PARAGRAPH 7 OF " CONDITIONS" ON THE STANDARD GOVERNMENT BILL OF LADING APPEARED FOR THE FIRST TIME ON STANDARD FORM NO. 1058, AS APPROVED AUGUST 24, 1928, OR AFTER THE CONFLICTING DECISIONS ABOVE REFERRED TO WERE RENDERED AND WERE APPARENTLY INSERTED MERELY TO CLARIFY THE EXISTING POSITION OR STATUS OF THE UNITED STATES AS REGARDS TIME LIMITATIONS RELATIVE TO THE FILING OF CLAIMS AND SUITS CONTAINED IN THE UNIFORM BILL OF LADING. FOR THAT REASON, AND IN VIEW OF THE CONFLICT OF JUDICIAL AUTHORITY THE POSITION OF THIS OFFICE IN THE DISPOSITION OF CLAIMS AND ACCOUNTS MUST BE THAT EVEN IN THE ABSENCE OF PARAGRAPH 7, THE UNITED STATES WAS NOT SUBJECT TO THE LIMITATIONS IN QUESTION AND, THEREFORE, THAT THE DELETION OF SUCH PARAGRAPH COULD NOT BRING THE LIMITATIONS INTO OPERATION.

ON THE QUESTION WHETHER THE GOVERNMENT'S IMMUNITY TO THE LIMITATIONS FOR FILING CLAIMS AND SUITS APPLIES IN THE CASE OF SHIPMENTS MADE BY THE FEDERAL SURPLUS COMMODITIES CORPORATION, IT IS TO BE NOTED THAT WHILE SAID CORPORATION WAS NOT ORGANIZED PURSUANT TO ANY FEDERAL STATUTE ITS INCORPORATORS WERE OFFICERS IN THE FEDERAL GOVERNMENT AND ITS PURPOSE WAS TO AID OR FACILITATE THE ADMINISTRATION OF PUBLIC RELIEF AUTHORIZED BY CONGRESS UNDER THE ACT OF MAY 12, 1933, 48 STAT. 55, AND AMENDMENTS THEREUNDER. 17 COMP. GEN. 50. FURTHERMORE, BY ACT OF JUNE 28, 1937 (50 STAT. 323) THIS CORPORATION WAS CONTINUED UNTIL JUNE 30, 1939,"AS AN AGENCY OF THE UNITED STATES UNDER THE DIRECTION OF THE SECRETARY OF AGRICULTURE" AND PUBLIC FUNDS WERE PLACED AT ITS DISPOSAL FOR THE PURPOSE "EFFECTUATING" CLAUSE (2) OF SECTION 32 OF THE ACT OF AUGUST 24, 1935 (49 STAT. 774). THUS, WHILE IT WAS BROUGHT INTO BEING ORIGINALLY AS A CORPORATE ENTITY IT WAS CONTINUED IN EXISTENCE AFTER JUNE 28, 1937, AS AN AGENCY OF THE UNITED STATES. ITS EXISTENCE AS A FEDERAL AGENCY WAS LATER EXTENDED TO JUNE 30, 1942, BY ACT OF FEBRUARY 16, 1938, 52 STAT. 38.

WHILE FOR CERTAIN PURPOSES SOME FEDERAL CORPORATIONS HAVE BEEN REGARDED AS ENTITIES DISTINCT FROM THE UNITED STATES ( UNITED STATES EX REL. SKINNER AND EDDY CORPORATION V. MCCARL, 275 U.S. 1), IT SEEMS CLEAR THAT THERE WAS NO INTENTION AS TO THE GOVERNMENT AGENCY HERE UNDER CONSIDERATION, TO DENY TO THE UNITED STATES THE BENEFIT OF ANY SOVEREIGN RIGHTS OR IMMUNITIES MERELY BY PROVIDING THAT CERTAIN PUBLIC RELIEF ACTIVITIES SHOULD BE CARRIED ON THROUGH THE MEDIUM OF AN AGENCY CORPORATE IN FORM. SEE GENERALLY EMERGENCY FLEET CORPORATION V. WESTERN UNION, 275 U.S. 415. IT IS NOT UNDERSTOOD THAT THE CASE OF KEIFER AND KEIFER V. R.F.C., 306 U.S. 381, REFERRED TO IN YOUR LETTER, REQUIRES THE CONCLUSION THAT THE FEDERAL SURPLUS COMMODITIES CORPORATION IS NOT EXEMPT FROM THE LIMITATIONS CONTAINED IN UNIFORM BILLS OF LADING.

IN VIEW OF THE ABOVE, I HAVE TO ADVISE THAT WHILE EVERY PRECAUTION SHOULD BE TAKEN AND EVERY EFFORT MADE TO MAKE EARLY DISCOVERY AND ADJUSTMENT OF ANY LOSS, DAMAGE, OR SHRINKAGE WHICH MAY OCCUR IN CONNECTION WITH SHIPMENTS OF THE FEDERAL SURPLUS COMMODITIES CORPORATION, NO REASON APPEARS WHY INABILITY TO MAKE SUCH ADJUSTMENTS WITHIN THE PERIOD AS SET FORTH IN SECTION 2 OF THE UNIFORM STRAIGHT BILL OF LADING IS TO BE REGARDED AS FORECLOSING ANY RIGHT THE UNITED STATES MAY HAVE BY REASON OF SUCH LOSS, DAMAGE, OR SHRINKAGE. ON THE CONTRARY, IT WOULD APPEAR THAT IN ALL SUCH CASES THERE SHOULD BE WITHHELD FROM CURRENT UNPAID CARRIER BILLS AN AMOUNT SUFFICIENT TO COVER THE LOSS, DAMAGE, OR SHRINKAGE. IN THE EVENT THE CARRIER OBJECTS TO SUCH OFFSET AND REQUESTS RETURN OF THE AMOUNT DEDUCTED, THE ENTIRE MATTER, WITH PERTINENT PAPERS, MAY BE REFERRED TO THIS OFFICE FOR SETTLEMENT AS A CLAIM.

THE CONCLUSION THUS REACHED MAKES UNNECESSARY A SPECIFIC REPLY TO POINTS (B) (1) AND (B) (2) OF YOUR SUBMISSION.