B-159900, SEPT. 13, 1968

B-159900, SEPT. 13, 1968

TO ARIANA AFGHAN AIRLINES, LTD.:

YOUR LETTER OF JULY 18, 1968, AND EARLIER LETTERS, REQUEST RECONSIDERATION OF OUR DECISION OF APRIL 27, 1967, TO THE EXTENT THAT IT SUSTAINED REJECTION OF YOUR CLAIM FOR $1,097.40, YOUR INVOICE 25402. YOU ALSO ASK THAT YOUR INVOICES F-934 ($375.25), 10169 ($273.60), AND 20548 ($649.74) BE PAID. THE CLAIMS ON INVOICES F-934 AND 20548 WERE REJECTED BY OUR TRANSPORTATION DIVISION IN A LETTER OF JUNE 27, 1967, TO YOUR COMPANY AT KABUL.

YOUR CLAIM ON INVOICE 10169 STATES CHARGES OF $273.60 FOR PASSENGER TRANSPORTATION BETWEEN KABUL, AFGHANISTAN, AND BEIRUT, LEBANON. SINCE THE TRANSPORTATION OCCURRED ENTIRELY OUTSIDE THE UNITED STATES, THE THREE-YEAR STATUTE OF LIMITATIONS SET FORTH IN SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 72 STAT. 860, 49 U.S.C. 66, HAS BEEN FOUND NOT APPLICABLE TO BAR CONSIDERATION OF THE CLAIM ON THE MERITS. UPON CONFIRMATION OF NONPAYMENT OF THE CHARGES SAID TO BE DUE ON INVOICE 10169, OUR TRANSPORTATION DIVISION WILL AUTHORIZE PAYMENT OF THE ALLOWABLE AMOUNT.

THE RECORDS ASSEMBLED IN CONNECTION WITH INVOICES F-934 AND 20458 SHOW THAT THE FORMER, DATED JANUARY 15, 1960, WAS ORIGINALLY SUBMITTED TO COLLECT CHARGES ON THREE AIR WAYBILLS AND THAT IT WAS PAID IN PART BY THE AGENCY FOR INTERNATIONAL DEVELOPMENT IN KABUL IN AUGUST 1964. AIR WAYBILL 010134, DATED OCTOBER 11, 1959, COVERING THE TRANSPORTATION OF UNACCOMPANIED BAGGAGE FROM KANDAHAR TO WASHINGTON, THE SUBJECT OF YOUR PRESENT CLAIM FOR $375.25, WAS RETURNED TO YOU AUGUST 8, 1964, WITH ADVICE THAT IT WAS PROPERLY PAYABLE BY THE CIVIL AVIATION ASSISTANCE GROUP, KABUL.

INVOICE 20458, DATED SEPTEMBER 21, 1959, FOR $649.74, THE CHARGES ON AIR WAYBILL 013632, DATED MAY 13, 1959, COVERED TRANSPORTATION OF UNACCOMPANIED BAGGAGE FROM KABUL TO NEW YORK. THE AGENCY FOR INTERNATIONAL DEVELOPMENT, KABUL, RETURNED THIS INVOICE TO YOU APRIL 23, 1964, AND ADVISED THAT IT WAS PROPERLY PAYABLE BY THE CIVIL AVIATION ASSISTANCE GROUP AT KABUL. MEANWHILE, YOUR SUPPLEMENTAL INVOICE FOR ADDITIONAL CHARGES OF $18.20 ON YOUR DEBIT NOTE R-1035 IN CONNECTION WITH AIR WAYBILL 013632 WAS APPARENTLY PAID BY THE STATE DEPARTMENT IN AUGUST 1960. BOTH INVOICES F-934 AND 20458 WERE SENT TO OUR OFFICE BY THE FEDERAL AVIATION AGENCY IN WASHINGTON WITH A COVERING LETTER DATED MAY 6, 1966.

YOUR INVOICE 25042, WHICH WAS CONSIDERED IN OUR DECISION B-159900, IS FOR $1,097.40, AS TRANSPORTATION CHARGES ON 13 DIPLOMATIC POUCHES SHIPPED FROM KABUL TO WASHINGTON AND DELIVERED TO THE STATE DEPARTMENT BY PAN AMERICAN WORLD AIRWAYS ON AUGUST 20, 1961. THE RECORD NOW SHOWS THAT THIS INVOICE WAS SUBMITTED TO THE AMERICAN EMBASSY IN KABUL IN JULY 1964. IN 1965 THE INVOICE WAS SENT TO THE STATE DEPARTMENT AND SUBSEQUENTLY REFERRED TO OUR OFFICE FOR HANDLING AS A TIME-BARRED CLAIM.

WE CANNOT JUSTIFY REVERSING THE POSITION MAINTAINED IN OUR EARLIER DECISION THAT INVOICE 25402, HAVING BEEN SUBMITTED TO OUR OFFICE FOR SETTLEMENT MORE THAN THREE YEARS AFTER THE CAUSE OF ACTION FIRST ACCRUED, WAS BARRED FROM CONSIDERATION ON THE MERITS. SINCE INVOICES F-934 AND 20458 WERE ALSO SUBMITTED HERE FOR SETTLEMENT MORE THAN THREE YEARS AFTER THE RIGHT TO BILL FOR THE CHARGES AROSE, THEY ARE ALSO BARRED. WE MUST APPLY THE LAW AS IT IS WRITTEN AND ALL CARRIERS WHOSE CLAIMS ARE SUBJECT TO THE PROVISIONS OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66, SUFFER ITS CONSEQUENCES IF THEY FAIL TO TIMELY FILE THEIR CLAIMS WITH OUR OFFICE. WE ARE THEREFORE UNABLE TO MAKE ANY SPECIAL EXCEPTION FOR YOUR COMPANY BY HANDLING YOUR CLAIMS ON THEIR MERITS.

IN ADDITION TO THE FACT THAT SECTION 322 MUST BE STRICTLY APPLIED, WE HAVE SOME DOUBT AS TO WHETHER YOUR COMPANY HAS NOT ALREADY BEEN PAID THE MONEY NOW BEING CLAIMED. WE FIND GROUNDS FOR THIS DOUBT BECAUSE OF (1) THE AGE OF THE TRANSACTIONS; (2) THE CONFUSED STATE OF THE RECORDS; (3) YOUR ADMISSIONS THAT YOUR AFFAIRS WERE IN A "DEPLORABLE CONDITION" AND THAT IN 1962 ARIANA "LOST CONTROL OF ITS RECEIVABLES"; AND (4) THE FACT THAT THE FEDERAL AVIATION AGENCY IN WASHINGTON, .C., FEELS IT TO BE A GOOD POSSIBILITY THAT THE CHARGES CLAIMED ON YOUR INVOICES F-934 AND 20458 WERE IN FACT PAID BY A UNITED STATES GOVERNMENT DISBURSING OFFICER AT KABUL, AS OTHER AIR BILLS FOR THE SAME PERIOD WERE ACTUALLY PAID. WE ARE ADVISED BY THAT AGENCY OF OTHER INSTANCES IN WHICH BILLS REPORTED UNPAID BY YOUR COMPANY WERE FOUND TO HAVE BEEN PAID.

IN THE CIRCUMSTANCES WE MUST CONCLUDE THAT THE REJECTION OF YOUR CLAIMS ON INVOICES F-934, 25402, AND 20548 WAS PROPER AND THAT THEY MAY NOT BE AFFORDED FURTHER CONSIDERATION BY OUR OFFICE.