B-141964, JUN. 7, 1960

B-141964, JUN. 7, 1960

TO THE BALTIMORE AND OHIO RAILROAD COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4, 1960, FILE USG- BILL-70199-FB-CRS, IN WHICH YOU, IN EFFECT, REQUEST REVIEW OF OUR DISALLOWANCE ON DECEMBER 21, 1959, OF YOUR CLAIM (SUPPLEMENTAL BILL NO. 70199-FB) FOR ADDITIONAL FREIGHT CHARGES OF $333.70 ALLEGED TO BE DUE ON A SHIPMENT OF RAILS, WEIGHING 162,932 POUNDS, WHICH MOVED OUTBOUND FROM CAMBRIDGE, OHIO, TO PHILADELPHIA, PENNSYLVANIA, UNDER GOVERNMENT BILL OF LADING NO. WQ-12573148, DATED FEBRUARY 3, 1943, AND IS SHOWN THEREON TO HAVE BEEN DELIVERED AT DESTINATION ON MAY 9, 1943.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID FREIGHT CHARGES OF $404.16 ON VOUCHER NO. 105340 IN THE JULY 1944 ACCOUNTS OF M. B. HALE. AUDIT OF THE PAYMENT VOUCHER IN OUR OFFICE, WE DETERMINED THAT YOU HAD BEEN OVERPAID IN THE AMOUNT OF $333.71, APPLYING THROUGH COMMERCIAL RATES PER TRANSIT TARIFF NO. T-1-A, LESS DEDUCTIONS FOR LAND GRANT. THE AMOUNT OF THE OVERPAYMENT WAS RECOVERED ON APRIL 28, 1947, BY DEDUCTION FROM YOUR BILL NO. 072670.

BY SUPPLEMENTAL BILL NO. 70199-F-A, RECEIVED ON MAY 12, 1949, YOU RECLAIMED THE AMOUNT DEDUCTED, BUT BY SUPPLEMENTAL BILL NO. 70199-F-B, RECEIVED IN OUR OFFICE ON NOVEMBER 22, 1949, YOU SUPERSEDED THE PRIOR SUPPLEMENTAL BILL AND CLAIMED TOTAL ADDITIONAL FREIGHT CHARGES OF $553.26. YOUR CLAIM WAS ALLOWED IN THE AMOUNT OF $502.12 AND DISALLOWED IN THE AMOUNT OF $51.14, BY OUR CERTIFICATE OF SETTLEMENT NO. T-530254, DATED DECEMBER 11, 1951. YOUR PRESENT CLAIM FOR ADDITIONAL CHARGES OF $333.70, RECEIVED IN OUR OFFICE ON MAY 26, 1958, IS BASED UPON THE DECISION OF THE INTERSTATE COMMERCE COMMISSION IN UNITED STATES V. WESTERN PACIFIC RAILROAD, 303 I.C.C. 571, IN WHICH IT WAS FOUND THAT THE PROVISIONS OF TRANSIT TARIFF NO. T-1-A WERE NOT APPLICABLE ON GOVERNMENT TRAFFIC. YOUR CLAIM WAS DISALLOWED IN FULL ON THE GROUNDS THAT IT CONSTITUTED A NEW CLAIM WHICH HAD NOT BEEN RECEIVED IN OUR OFFICE WITHIN 10 FULL YEARS, AS REQUIRED BY THE ACT OF OCTOBER 9, 1940.

THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, PROVIDES, IN PART, THAT EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM SHALL BE RECEIVED IN OUR OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. A CLAIM FIRST ACCRUES WHEN ALL OF THE EVENTS HAVE OCCURRED WHICH FIX THE CARRIER'S RIGHT TO AND THE GOVERNMENT'S LIABILITY FOR THE FREIGHT CHARGES. GROUP V. UNITED STATES, 125 C.CLS. 135; RELIANCE MOTORS V. UNITED STATES, 112 C.CLS. 324, 29 COMP. GEN. 517, 519. IN REGARD TO FREIGHT CHARGES FOR TRANSPORTATION SERVICES FURNISHED ON GOVERNMENT BILLS OF LADING, ALL DETERMINING EVENTS HAVE ORDINARILY OCCURRED AND THE CLAIM HAS ACCRUED WHEN THE FREIGHT IS DELIVERED TO THE PROPER DESTINATION. ATLANTIC COAST LINE RAILROAD V. UNITED STATES, 66 C.CLS. 577; HUGHES TRANSP.INC. V. UNITED STATES, 109 F.SUPP. 373. THIS OFFICE HAS BEEN GRANTED NO POWERS OF DISPENSATION IN THE MATTER AND, CONSEQUENTLY, IT LEGALLY MAY MAKE NO EXCEPTIONS TO THE PROVISIONS OF THE STATUTE. 25 COMP. GEN. 670, 672.

IN YOUR REQUEST FOR REVIEW, HOWEVER, YOU ALLEGE THAT YOUR PRESENT CLAIM SHOULD NOT BE CONSIDERED A NEW CLAIM, SINCE YOU HAVE ALWAYS CLAIMED CHARGES ON THE BASIS OF A THROUGH RATE OF $19.21 A GROSS TON. AS TO ANY PROTEST PRIOR TO THE DECISION OF THE INTERSTATE COMMERCE COMMISSION IN THE WESTERN PACIFIC CASE, SUPRA, YOU STATE THAT YOU WOULD UNDOUBTEDLY HAVE RECEIVED A REPLY THAT NO ADDITIONAL INFORMATION HAD BEEN FURNISHED WHICH HAD NOT BEEN PREVIOUSLY CONSIDERED. IN ADDITION, YOU URGE THAT YOU COULD NOT HAVE PRESENTED A CLAIM ON THE BASIS OF THE INAPPLICABILITY OF TARIFF T -1-A BEFORE THE DECISION OF THE COMMISSION IN THE WESTERN PACIFIC CASE, AND THAT "THE FACT THAT IT TOOK SIX YEARS FOR THE COURTS OR THE INTERSTATE COMMERCE COMMISSION TO COME TO THE CONCLUSION THAT YOU (THE GOVERNMENT) WERE NOT ENTITLED TO LAND GRANT ON THIS TRAFFIC IS, OF COURSE, NO FAULT OF THIS COMPANY.' HOWEVER, AT ANY TIME WITHIN SIX YEARS OF THE DATE OF THE DELIVERY OF THE SHIPMENT YOU COULD HAVE FILED SUIT AGAINST THE UNITED STATES IN EITHER THE COURT OF CLAIMS OR ONE OF THE UNITED STATES DISTRICT COURTS AND, THEREBY, PROTECTED YOUR RIGHTS. IN ADDITION, THE DECISION OF THE INTERSTATE COMMERCE COMMISSION, UPON WHICH YOU NOW RELY, WAS RENDERED BY THE COMMISSION ON REFERENCE OF THE COURT OF CLAIMS IN WESTERN PACIFIC RAILROAD V. UNITED STATES, C.CLS. NO. 533-52, WHICH WAS FILED IN COURT ON OCTOBER 23, 1952. ANY TIMELY CLAIM OR PROTEST FILED IN OUR OFFICE AFTER THAT DATE, ALTHOUGH NOT CONSIDERED ON ITS MERITS IN VIEW OF THE PENDING LITIGATION, WOULD HAVE PROTECTED YOUR RIGHTS. IN ADDITION, THE DECISION OF THE INTERSTATE COMMERCE COMMISSION, UPON WHICH YOU NOW RELY, WAS RENDERED BY THE COMMISSION ON REFERENCE OF THE COURT OF CLAIMS IN WESTERN PACIFIC RAILROAD V. UNITED STATES, C.CLS. NO. 533-52, WHICH WAS FILED IN COURT ON OCTOBER 23, 1952. ANY TIMELY CLAIM OR PROTEST FILED IN OUR OFFICE AFTER THAT DATE, ALTHOUGH NOT CONSIDERED ON ITS MERITS IN VIEW OF THE PENDING LITIGATION, WOULD HAVE PROTECTED YOUR INTERESTS, AND A PROTEST TIMELY FILED UPON TERMINATION OF LITIGATION WOULD HAVE RECEIVED CONSIDERATION ON ITS MERITS. ALSO THE T-109 PROCEDURE WAS AUTHORIZED ON THIS QUESTION IN INFORMATION ISSUE NO. 47 DATED MARCH 30, 1956. ACTION, HOWEVER, WAS TAKEN ON YOUR CLAIM FOR OVER SIX YEARS.

GENERAL ACCOUNTING OFFICE REGULATIONS, 4 C.F.R. 55.1 AND 55.2, 5 GAO 6060.10 AND 6060.20, PROVIDE THE PROCEDURES FOR OBTAINING A REVIEW BY THE COMPTROLLER GENERAL, OF A CLAIM SETTLED IN THIS OFFICE UPON APPLICATION OF THE CLAIMANT OR HIS DULY AUTHORIZED ATTORNEY OR AGENT, AND DO NOT PLACE A SPECIFIC TIME LIMIT UPON SUCH REQUEST. THEY ARE, HOWEVER, REQUIRED TO BE RECEIVED WITHIN A REASONABLE TIME IN VIEW OF THE PRIMARY PURPOSE OF THE ACT OF OCTOBER 9, 1940, AS SHOWN BY ITS LEGISLATIVE HISTORY, WHICH WAS TO RELIEVE THE GOVERNMENT OF THE NECESSITY OF RETAINING OR GOING BACK OVER OLD RECORDS FOR THE PURPOSE OF SETTLING STALE CLAIMS. 32 COMP. GEN. 107. A PROTEST OR REQUEST FOR REVIEW WHICH WAS NOT RECEIVED IN OUR OFFICE UNTIL NEARLY SIX AND ONE-HALF YEARS AFTER THE CLAIM BARRED CONSIDERATION UNDER THE ACT OF OCTOBER 9, 1940. FURTHERMORE, IF YOUR PRESENT CLAIM WAS MERELY A REQUEST FOR REVIEW OF THE FORMER ACTION WHICH DISALLOWED $51.14 OF YOUR CLAIM FOR $553.26, AS ALLEGED BY YOU, EXCEPTION COULD BE TAKEN ONLY TO THE DISALLOWANCE OF $51.14, INSTEAD OF CLAIMING AN ADDITIONAL PAYMENT OF $333.70.

ACCORDINGLY, THE DISALLOWANCE OF THE CLAIM APPEARS TO BE CORRECT AND IS SUSTAINED.