B-179294, DEC 4, 1973

B-179294, DEC 4, 1973

CLAIM BY FOREIGN AIR CARRIER FOR TRANSPORTATION CHARGES DISALLOWED WHERE CARRIER IS WITHIN PURVIEW OF SECTION 322 OF TRANSPORTATION ACT OF 1940; CLAIM ARRIVED IN GAO MORE THAN 3 YEARS FROM ACCRUAL OF CAUSE OF ACTION; IN SPITE OF CARRIERS ATTEMPT TO OBTAIN CERTIFICATE IN LIEU, NO AUTHORITY FOR AGENTS OF GOVERNMENT TO WAIVE PROVISIONS OF LAW. SEE CT. CASES CITED.

TO INDIAN AIRLINES:

SUBJECT: REVIEW OF A TIME BARRED CLAIM INDIAN AIRLINES BILL NO. F 8394 GBL NO. C-8583715

WE REFER AGAIN TO YOUR LETTER OF JULY 4, 1973, PERTAINING TO A CLAIM FOR AIR FREIGHT CHARGES FROM ST. CROIX, VIRGIN ISLANDS, TO BANGALORE, INDIA, UNDER GOVERNMENT BILL OF LADING NO. C-8583715 ISSUED BY THE AMERICAN PEACE CORPS IN 1966.

YOU ASK US TO REVIEW THE ACTION TAKEN BY OUR TRANSPORTATION AND CLAIMS DIVISION AS REGARDS THIS CLAIM IN VIEW OF THE CIRCUMSTANCES WHICH RESULTED IN A DELAY OF THE CLAIM IN REACHING THE GENERAL ACCOUNTING OFFICE. THE DELAY IN SUBMISSION OF YOUR BILL WAS OCCASIONED BY THE ABSENCE OF THE COVERING BILL OF LADING AND BY YOUR APPARENT INABILITY TO LOCATE IT OR TO SECURE PROMPT ISSUANCE OF A CERTIFICATE IN LIEU OF LOST GOVERNMENT BILL OF LADING.

OUR REGULATIONS, 4 CFR 52.19, PROVIDE FOR AN ALTERNATIVE DELIVERY RECEIPT PROCEDURE ON INTERNATIONAL SHIPMENTS WHEREBY AIR CARRIERS WHICH RECEIVE SHIPMENTS IN THE UNITED STATES FOR DELIVERY AT FOREIGN DESTINATIONS MAY ELECT TO RETAIN THE ORIGINAL BILL OF LADING. THUS, IT IS POSSIBLE THAT PAN AMERICAN WORLD AIRWAYS (HEREAFTER PAN AM) RETAINED THE ORIGINAL BILL OF LADING AND BILLED THE UNITED STATES FOR THE TOTAL TRANSPORTATION CHARGES. WE NOTE THAT SOME OF YOUR CORRESPONDENCE ALLOWED PAN AM A COPY, BUT THE RECORD FAILS TO INDICATE RECEIPT OF ANY ANSWER FROM THE SUBJECT CARRIER.

NEVERTHELESS, EVEN IF WE ASSUME PAN AM WAS NOT PAID THE TOTAL TRANSPORTATION CHARGES, INDIAN AIRLINES BY PARTICIPATING IN LOCAL AND JOINT AIR CARGO TARIFF NO. C-AD-9, CAB NO. 259, AND HAVING FILED ITS POWER OF ATTORNEY WITH THE CIVIL AERONAUTICS BOARD, MADE THE SHIPMENT SUBJECT TO THE CIVIL AERONAUTICS ACT OF 1938, AS AMENDED, 49 U.S.C. 1301 AND FOLLOWING SECTIONS, AND THUS YOUR CLAIM IS WITHIN THE PURVIEW OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED IN 1950 BY PUBLIC LAW 85 -762, 72 STAT. 860, 49 U.S.C. 66.

AS ADVISED BY OUR TRANSPORTATION AND CLAIMS DIVISION IN ITS LETTER OF MAY 7, 1973, SECTION 322 OF THE TRANSPORTATION ACT OF 1940, SUPRA, PROVIDES THAT EVERY CLAIM COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE FOR CHARGES FOR TRANSPORTATION WITHIN PURVIEW OF THIS SECTION SHALL BE FOREVER BARRED UNLESS SUCH CLAIM SHALL BE RECEIVED IN THAT OFFICE WITHIN 3 YEARS FROM THE DATE OF ACCRUAL OF THE CAUSE OF ACTION. A CAUSE OF ACTION FOR TRANSPORTATION CHARGES AGAINST THE UNITED STATES ACCRUES UPON THE COMPLETION OF THE TRANSPORTATION SERVICE; THAT IS, THE DATE OF DELIVERY TO THE CONSIGNEE, AND THE STATUTE OF LIMITATIONS BEGINS TO RUN FROM THAT DATE. UNITED STATES V. WILDER, 13 WALL. 254 (U.S. 1871); ARKANSAS OAK FLOORING CO. V. LOUISIANA & ARKANSAS RY. CO., 166 F.2D 98 (1948), CERT. DENIED 334 U.S. 828; SOUTHERN PACIFIC CO. V. UNITED STATES, 67 CT. CL. 414 (1929), CERT. DENIED 280 U.S. 567; ATLANTIC COAST LINE R. CO. V. UNITED STATES, 66 CT. CL. 576 (1929); AND HUGHES TRANSPORTATION, INC. V. UNITED STATES, 109 F. SUPP. 373 (1953).

THE RECORD HERE INDICATES THAT THE SHIPMENT WAS DELIVERED SOMETIME IN OCTOBER 1966 AND THE CAUSE OF ACTION THEREFORE ACCRUED ON THE DATE OF DELIVERY. THE STATUTE OF LIMITATIONS BARRED THE CLAIM IN OCTOBER 1969 BUT THE CLAIM WAS NOT RECEIVED IN OUR OFFICE UNTIL SEPTEMBER 21, 1972.

REGULATIONS OF OUR OFFICE, 4 CFR 54.6A, SPECIFICALLY PROVIDE THAT THE FILING OF A CLAIM WITH SOME AGENCY OF THE GOVERNMENT WILL NOT MEET THE REQUIREMENTS OF THE STATUTE, THAT THE CLAIM MUST BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 3 YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED, AND 4 CFR 54.6, WHILE GENERALLY STATING THAT ACTION WILL BE EXPEDITED IF CLAIMANTS FILE THEIR CLAIMS WITH THE DEPARTMENT OR AGENCY OUT OF THE ACTIVITY OF WHICH IT AROSE, POINTS OUT THAT A CLAIMANT MAY FILE A CLAIM DIRECT WITH THE TRANSPORTATION AND CLAIMS DIVISION, GENERAL ACCOUNTING OFFICE, PARTICULARLY IF THE APPLICABLE STATUTORY PERIOD OF LIMITATIONS IS ABOUT TO EXPIRE. COMPARE UNITED STATES V. UTZ, 80 FED. 848 (1897); KENNEDY V. UNITED STATES, 79 FED. 893 (1897), AFFIRMED 95 FED. 127.

PRIOR TO THE 1958 AMENDMENT, CARRIER CLAIMS, LIKE OTHER CLAIMS COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE, WOULD 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. 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. DELIVERY OF THE SHIPMENT HERE INVOLVED WAS ADMITTEDLY MADE MORE THAN 3 YEARS BEFORE YOUR CLAIM BASED THEREON 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 3-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 YOUR CLAIMS ON THE MERITS.

WE APPRECIATE YOUR VIEW THAT THE CLAIM SHOULD HAVE BEEN ACTED ON MORE PROMPTLY BY THE PEACE CORPS. HOWEVER, SINCE YOUR CLAIM WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 3 YEARS AS REQUIRED BY LAW, THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION IN RETURNING YOUR BILL AND THE SUPPORTING PAPERS WITH ADVICE THAT THE CLAIM WAS BARRED WAS THE ONLY DISPOSITION THAT COULD LEGALLY BE MADE OF IT. ALSO, AS INDICATED IN THE REGULATIONS REFERRED TO ABOVE, INDIAN AIRLINES COULD HAVE PROTECTED ITSELF AS TO THE INSTANT BILL, AND CAN PROTECT ITSELF AS TO FUTURE BILLS BY FILING CLAIMS DIRECT WITH THE TRANSPORTATION AND CLAIMS DIVISION, U.S. GENERAL ACCOUNTING OFFICE, WHERE THE RUNNING OF THE PERIOD OF LIMITATIONS IS IMMINENT. FOR YOUR INFORMATION, THE BARRING PROVISION, 49 U.S.C. 66, NOT ONLY BARS CARRIERS' CLAIMS NOT FILED IN THE GENERAL ACCOUNTING OFFICE WITHIN THE 3-YEAR LIMITATION PERIOD, BUT ALSO PRECLUDES OUR OFFICE FROM DEDUCTING AFTER EXPIRATION OF SUCH PERIOD, OVERCHARGES IN CARRIERS' BILLS.

ACCORDINGLY, THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION IN RETURNING THE BILL RECEIVED HERE SEPTEMBER 21, 1972, WAS PROPER AND IT IS SUSTAINED.