B-134547, APR. 25, 1958

B-134547, APR. 25, 1958

TO UNION PACIFIC RAILROAD:

CONSIDERATION HAS BEEN GIVEN YOUR REQUEST, FILE GW 55001, FOR REVIEW OF THE SETTLEMENT (CERTIFICATE NO. T-661751) WHICH DISALLOWED $1,347.48 OF YOUR CLAIM, PER SUPPLEMENTAL BILL NO. IW-55001-B, FOR $1,908.84 ADDITIONAL TO THE AMOUNT PREVIOUSLY PAID FOR THE TRANSPORTATION OF A SHIPMENT OF MOTOR VEHICLES, FREIGHT TRUCKS, 3/4 TON 4 BY 4, WEAPONS CARRIERS, WITH WINCH, BOXED FOR EXPORT, FROM DETROIT, MICHIGAN, TO OGDEN, UTAH, UNDER BILL OF LADING NO. WQ-14042597, DATED APRIL 30, 1943, AND A SHIPMENT OF PASSENGER VEHICLES, 3/4 TON, 4 BY 4, COMMAND RECONNAISSANCE, WITHOUT WINCH, TRANSPORTED FROM OGDEN, UTAH, TO LOS ANGELES, CALIFORNIA, ON BILL OF LADING NO. WT-89534, DATED JULY 16, 1943.

FOR THE TRANSPORTATION OF THE WEAPONS CARRIERS FROM DETROIT, MICHIGAN, TO OGDEN, UTAH, ON BILL OF LADING NO. WQ-14142597, THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY CLAIMED (PER BILL F-18895) AND WAS PAID CHARGES COMPUTED ON THE BASIS OF A RATE OF $3.38, REDUCED BY LAND-GRANT DEDUCTIONS TO $2.853 PER 100 POUNDS. THUS, FOR THE TRANSPORTATION OF THIS SHIPMENT, WEIGHING 39,330 POUNDS, THE CARRIER RECEIVED $1,122.08, AND IN A SUBSEQUENT ADJUSTMENT $417.50 WAS RECOVERED BY SETOFF IN THE PAYMENT OF A SUBSEQUENT BILL, RESULTING IN A PAYMENT TO THE CARRIER ON THIS SHIPMENT OF $704.58.

FOR THE TRANSPORTATION OF THE SHIPMENT OF PASSENGER CARS (COMMAND RECONNAISSANCE), WEIGHING 39,330 POUNDS, FROM OGDEN, UTAH, TO LOS ANGELES, CALIFORNIA, ON BILL OF LADING WT-89534, YOU CLAIMED (PER BILL IW-55001) $221.04, COMPUTED ON THE BASIS OF A RATE OF 52.7 CENTS PER 100 POUNDS, REPRESENTING THE BALANCE OF A THROUGH RATE FROM DETROIT, MICHIGAN, TO LOS ANGELES, CALIFORNIA, PLUS A TRANSIT CHARGE OF 3 1/2 CENTS PER 100 POUNDS. THIS CLAIM WAS COMPATIBLE WITH THE ASSESSMENTS OF THROUGH CHARGES ON A TRANSIT SHIPMENT. THEREAFTER, OUR OFFICE AUDITED THE PAYMENT ON THE BASIS OF A THROUGH TRANSITSHIPMENT AND YOU WERE REQUESTED TO REFUND THE AMOUNT OF $561.33, WHICH WAS LATER SET OFF IN MAKING PAYMENT OF YOUR BILL NO. W- 190910 ON VOUCHER 274825 ON MARCH 20, 1947. UPON RECEIPT OF YOUR SUPPLEMENTAL BILL NO. IW-55001 B, DATED FEBRUARY 18, 1954, FOR $1,908.84, THE AMOUNT OF $561.33, PREVIOUSLY DEDUCTED WAS ALLOWED YOU IN CERTIFICATE NO. T-661751, DATED JUNE 4, 1956, THUS LEAVING UNIMPAIRED THE ORIGINAL AMOUNT OF $221.04 CLAIMED BY AND PAID TO YOU IN SEPTEMBER 1943, FOR THE TRANSPORTATION OF THIS SHIPMENT.

IN YOUR LETTER OF NOVEMBER 22, 1957, YOU REQUEST THE ALLOWANCE OF $600.43, REPRESENTING THE DIFFERENCE BETWEEN $821.47, STATED IN THE ABOVE- MENTIONED SUPPLEMENTAL BILL AS THE PROPER CHARGE FOR THE TRANSPORTATION OF THE SHIPMENT FROM OGDEN, UTAH, TO LOS ANGELES, CALIFORNIA, AND THE AMOUNT OF $221.04 PREVIOUSLY CLAIMED AND PAID TO YOU FOR THIS SERVICE. BOTH OF YOUR CLAIMS--- SUPPLEMENTAL BILL NO. IW 55001-B AND THE LETTER OF NOVEMBER 22, 1957--- FOR ADDITIONAL AMOUNTS FOR THIS TRANSPORTATION WERE PRESENTED TO OUR OFFICE MORE THAN 10 FULL YEARS AFTER YOUR CAUSE OF ACTION ACCRUED, AND CONSIDERATION BY OUR OFFICE IS BARRED BY THE 10-YEAR STATUTE OF LIMITATIONS (31 U.S.C. 71A), EXCEPT AS TO THE AMOUNT OF $561.33 WHICH WAS RECOVERED BY THE GOVERNMENT BY SETOFF LESS THAN 10 YEARS PRIOR TO THE RECEIPT OF YOUR SUPPLEMENTAL BILL AND WAS REPAID BY CERTIFICATE NO. T- 661751, REFERRED TO ABOVE.

IN YOUR REQUEST FOR REVIEW YOU URGE THAT THIS WAS A TRANSIT SHIPMENT AND THAT THE DEDUCTION MADE FROM THE CHARGES OF THE DENVER AND RIOGRANDE WESTERN RAILROAD COMPANY STAYED THE OPERATION OF THE STATUTE OF LIMITATIONS. HOWEVER, A TRANSIT PRIVILEGE DOES NOT APPEAR TO BE AVAILABLE IN THE SITUATION DISCLOSED BY A REVIEW OF THE PRESENT RECORD AND YOU HAVE CITED NO AUTHORITY OF ANY KIND FOR THE APPLICATION OF TRANSIT ON A SHIPMENT OF FREIGHT AUTOMOBILES TO A STORAGE POINT AND A SHIPMENT OF PASSENGER AUTOMOBILES FROM SUCH STORAGE POINT TO FINAL DESTINATION. THUS, THE MOVEMENTS FROM DETROIT TO OGDEN AND FROM OGDEN TO LOS ANGELES ARE SEPARATE AND DISTINCT, AND THE TRANSIT FICTION THAT THESE TRANSPORTATION SERVICES TO AND BEYOND OGDEN CONSTITUTE A CONTINUOUS SHIPMENT HAS NO APPLICATION IN THIS CASE. IN THIS SITUATION, EACH MOVEMENT IS THAT OF A SEPARATE SHIPMENT, AND THE CHARGES ON EACH SHIPMENT ARE FOR PAYMENT TO, AND ADJUSTMENT WITH, THE DESTINATION CARRIER IN THAT PARTICULAR MOVEMENT, SUBJECT, NECESSARILY, TO ANY PERTINENT STATUTE OF LIMITATIONS, ETC. ..END