B-128611, NOVEMBER 2, 1956, 36 COMP. GEN. 362

B-128611, NOVEMBER 2, 1956, 36 COMP. GEN. 362

TRANSPORTATION - CLAIMS - STATUTE OF LIMITATIONS - ADDITIONAL CLAIMS THE INADVERTENT PAYMENT IN FULL OF ADDITIONAL TRANSPORTATION CHARGES, WHICH WERE CLAIMED BY A CARRIER AFTER THE EXPIRATION OF THE TEN-YEAR STATUTE OF LIMITATIONS, 31 U.S.C. 71A, AND WHEN NO OTHER CHARGES WERE CLAIMED OR CONTEMPLATED BY EITHER THE CARRIER OR THE GOVERNMENT, CANNOT BE REGARDED AS A PART PAYMENT OR AN ACKNOWLEDGMENT OF A LARGER DEBT TO REVIVE AN INDEBTEDNESS BARRED BY THE STATUTE.

TO ILLINOIS CENTRAL RAILROAD, NOVEMBER 2, 1956:

REFERENCE IS MADE TO YOUR LETTER, PER FILE G-WQ-28011-C-WAG, REQUESTING RECONSIDERATION OF THE DISALLOWANCE OF YOUR CLAIM, PER SUPPLEMENTAL BILL NO. WQ-28011-C, FOR $519.39, REPRESENTING ADDITIONAL CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF THREE SHIPMENTS OF BLEACH WHICH ORIGINATED AT LATHROP, CALIFORNIA, AND WERE DELIVERED TO THE CONSIGNEE AT MEMPHIS, TENNESSEE, ON DECEMBER 18 AND 21, 1943.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID A TOTAL OF 4880.40 ON GOVERNMENT BILLS OF LADING NO. WQ-13388695, WQ-13388696, AND WQ- 13388697. ON YOUR SUPPLEMENTAL BILL NO. WQ-28011-B, RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON JANUARY 29, 1954, YOU CLAIMED AND WERE ALLOWED IN SETTLEMENT CERTIFICATE NO. T-609759, DATED JULY 16, 1954, ADDITIONAL CHARGES TOTALING $12.56 ON THE SAME THREE BILLS OF LADING. MAY 24, 1956, OUR OFFICE RECEIVED YOUR SUPPLEMENTAL BILL NO. WQ 28011-C ON WHICH YOU CLAIMED ADDITIONAL CHARGES OF $519.39 ALLEGEDLY DUE ON THE SHIPMENTS TRANSPORTED UNDER THE SUBJECT BILLS OF LADING. OUR TRANSPORTATION DIVISION, BY LETTER DATED JUNE 6, 1956, DISALLOWED YOUR SUPPLEMENTAL BILL NO. WQ-28011-C FOR THE REASON THAT IT WAS BARRED BY THE 10-YEAR STATUTE OF LIMITATIONS PROVIDED IN THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A. IN YOUR REQUEST FOR REVIEW YOU CONTEND THAT THE CLAIM IS NOT BARRED BY THE 10-YEAR STATUTE OF LIMITATIONS SINCE THE PAYMENT BY OUR OFFICE OF THE ADDITIONAL CHARGES ON YOUR SUPPLEMENTAL "B" BILL IN JULY 1954 AUTOMATICALLY EXTENDED THE TIME LIMITATION TO JULY 16, 1964.

THE ACT OF OCTOBER 9, 1940, PROVIDES IN PERTINENT PART THAT---

EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 71 AND 236 OF THIS TITLE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUES * * *. THE 10 FULL YEARS PROVIDED IN THE LAW BEGIN TO RUN FROM THE DATE OF THE CONSIGNEE'S CERTIFICATE OF DELIVERY, AS EVIDENCED BY THE BILL OF LADING. IN THE PRESENT CASE, TWO OF THE BILLS OF LADING SHOW THAT THE CONSIGNEE RECEIPTED FOR DELIVERY OF THE GOODS ON DECEMBER 18, 1943, AND THE THIRD SHOWS THAT THE GOODS WERE RECEIVED ON DECEMBER 21, 1943. THEREFORE, THE FULL 10 YEARS IN WHICH YOUR CLAIM COULD HAVE BEEN CONSIDERED HAD EXPIRED BY DECEMBER 21, 1953. SINCE YOUR SUPPLEMENTAL "B" BILL WAS RECEIVED IN OUR OFFICE ON JANUARY 29, 1954, MORE THAN 1 MONTH AFTER THE EXPIRATION DATE, IT WAS BARRED BY THE STATUTE OF LIMITATIONS, BUT INADVERTENTLY PAYMENT WAS MADE CONTRARY TO LAW. 32 COMP. GEN. 107; 25 ID. 670. ALSO, SEE FINN V. UNITED STATES, 123 U.S. 227, 232-233; MUNRO V. UNITED STATES, 303 U.S. 36, 41; MODERN ENGINEERING CO., INC. V. UNITED STATES, 126 C.1CLS. 136, 141.

THE AMOUNT CLAIMED IN YOUR SUPPLEMENTAL BILL NO. WQ-28011-B WAS THE ENTIRE ADDITIONAL AMOUNT CLAIMED BY YOU AT THAT TIME, AND IT WAS PAID IN FULL. EVEN IF IT BE ASSUMED, MERELY FOR THE SAKE OF ARGUMENT, THAT A DEBT OF THE UNITED STATES AGAINST WHICH THE STATUTE OF LIMITATIONS HAD RUN COULD, IN SOME INSTANCES, BE REVIVED BY A PART PAYMENT MADE AFTER THE RUNNING OF THE STATUTE, A PAYMENT MADE INADVERTENTLY AND CONTRARY TO LAW COULD NOT EFFECT SUCH A REVIVAL. FOR THE ELEMENTS OF INTENT ON THE PART OF THE DEBTOR AND THE FACTUAL SITUATION WHICH MUST EXIST BEFORE A DEBT CAN BE REVIVED, SEE SHEPHERD V. THOMPSON, 122 U.S. 231, 235; UNITED STATES V. WILDER, 80 U.S. 254; CLEMENTSON V. WILLIAMS, 12 U.S. 72; MOORE V. THE BANK OF COLUMBIA, 31 U.S. 86.

ASIDE FROM THE REASONS JUST GIVEN, AND THE FACT THAT, ORDINARILY, NO OFFICER OR AGENCY OF THE UNITED STATES HAS THE POWER TO WAIVE THE STATUTE OF LIMITATIONS ( MODERN ENGINEERING COMPANY, INC. V. UNITED STATES, SUPRA), AS AN INDIVIDUAL MAY DO IF HE SO ELECTS ( FINN V. UNITED STATES, SUPRA), THE PAYMENT OF YOUR SUPPLEMENTAL "B" BILL AFTER THE RUNNING OF THE STATUTE COULD NOT REVIVE THE LIABILITY (IF ANY EVER EXISTED) FOR THE ADDITIONAL CHARGES CLAIMED IN YOUR SUPPLEMENTAL "C" BILL. WITH NO ADDITIONAL CHARGES BEYOND THOSE COVERED BY YOUR "B" BILL BEING CLAIMED OR EVEN CONTEMPLATED BY EITHER PARTY AT THAT TIME, THE PAYMENT OF YOUR "B" BILL COULD NOT BE CONSTRUED AS A PART PAYMENT OR ACKNOWLEDGMENT OF, OR A PROMISE TO PAY, A LARGER DEBT SUCH AS MIGHT REVIVE AN INDEBTEDNESS BARRED BY THE STATUTE OF LIMITATIONS IF THE MATTER HAPPENED TO BE ONE BETWEEN PRIVATE PARTIES INSTEAD OF ONE IN WHICH THE GOVERNMENT WAS A PARTY.

FOR THE REASONS GIVEN ABOVE, THE ALLEGED INDEBTEDNESS CLAIMED IN YOUR SUPPLEMENTAL BILL NO. WQ-28011-C, EVEN IF VALID AT ONE TIME, COULD NOT BE REVIVED AGAINST THE UNITED STATES BY THE INADVERTENT AND ERRONEOUS PAYMENT OF $12.56 ON YOUR SUPPLEMENTAL BILL NO. WQ-28011-B; NOR WOULD THE FACTS IN THIS CASE HAVE REVIVED SUCH INDEBTEDNESS IF THE ISSUE HAD BEEN BETWEEN PRIVATE PARTIES.