B-150539, B-147507, SEP. 9, 1963

B-150539, B-147507, SEP. 9, 1963

TO NAVAJO FREIGHT LINES, INC:

WE HAVE THOROUGHLY CONSIDERED YOUR LETTERS OF DECEMBER 20, 1962 AND AUGUST 2, 1963, RELATIVE TO YOUR CLAIM ON SUPPLEMENTAL BILL 28A-3-5-A-B (OUR CLAIM TK-719868) AND 31 OTHERS, ALL DATED AUGUST 3, 1962, IN THE TOTAL AMOUNT OF $163,580.90, ALLEGED TO BE DUE ON 88 SHIPMENTS OF AMMUNITION AND EXPLOSIVES WHICH ORIGINATED AT THE UNITED STATES NAVAL AMMUNITION DEPOT (SAVANNA), MCALESTER, OKLAHOMA, DURING 1951 AND 1952.

THIRTEEN CLAIMS FOR LESSER AMOUNTS ON 45 OF THESE SHIPMENTS HAD BEEN DISALLOWED AND THE SETTLEMENTS SUSTAINED IN OUR DECISION OF JUNE 6, 1962, B-147507. TWENTY-FIVE OF YOUR AUGUST 3, 1962, SUPPLEMENTAL BILLS WERE DISALLOWED IN CERTIFICATES OF SETTLEMENT ISSUED BETWEEN OCTOBER 10, 1962 AND FEBRUARY 12, 1963, ON TWO GROUNDS: (1) THE HOLDING IN B-147507 WAS DISPOSITIVE OF THE ISSUE PRESENTED; AND (2) THE CLAIMS WERE BARRED BY THE TEN-YEAR STATUTE OF LIMITATIONS, 31 U.S.C. 71A, TO THE EXTENT THAT THEY EXCEEDED SUMS COLLECTED BY DEDUCTION SUBSEQUENT TO AUGUST 3, 1952. CERTIFICATES OF SETTLEMENT HAVE NOT BEEN ISSUED ON THE REMAINING SEVEN AUGUST 3 SUPPLEMENTAL BILLS.

YOUR LETTER OF DECEMBER 20, 1962, IS, BASICALLY, A REQUEST FOR RECONSIDERATION OF B-147507 AND A REQUEST FOR REVIEW OF THE SETTLEMENTS INSOFAR AS THEY INDICATE THAT CONSIDERATION WOULD BE GIVEN TO YOUR CLAIMS ONLY TO THE EXTENT OF THE SUMS DEDUCTED IN PREVIOUS AUDIT ACTIONS.

YOU OBJECT TO OUR DECISION B-147507 ON THE GROUND THAT THE "TARIFFS AND TENDERS" FROM WHICH WE DERIVED THE CHARGE BASIS OF $3.96 PER HUNDRED POUNDS NAMED AS THE ORIGIN ONLY "MCALLISTER" (SIC), OKLAHOMA, AND THAT NONE OF THESE 88 SHIPMENTS ORIGINATED THERE, ESSENTIALLY, YOUR POSITION IS THAT THE QUOTATION OFFERING THE GOVERNMENT A PREFERENTIAL RATE BASIS ON ITS SHIPMENTS OF AMMUNITION AND EXPLOSIVES FROM MCALESTER, OKLAHOMA, IS INAPPLICABLE FROM THE ONLY GOVERNMENT INSTALLATION IN THAT VICINITY WHICH COULD CONCEIVABLY OFFER AMMUNITION AND EXPLOSIVES FOR SHIPMENT, THE UNITED STATES NAVAL AMMUNITION DEPOT AT SAVANNA, MAILING ADDRESS MCALESTER.

GENERALLY, THESE SHIPMENTS MOVED FROM SAVANNA, OKLAHOMA, TO PORT CHICAGO, CALIFORNIA, AND THE RATE TO WHICH YOU OBJECT, $3.96 PER HUNDRED POUNDS, WAS SHOWN ON THE ORIGINAL BILLS OF LADING AND WAS USED BY YOU AS THE BASIS FOR DETERMINING THE CHARGES WHICH YOU COLLECTED ORIGINALLY. WE CONSIDERED THIS MATTER FULLY IN B-147507 AND EXPLAINED IN DETAIL OUR CONCLUSION THAT THE $3.96 RATE WAS APPLICABLE, SINCE THE OFFER TO ACCEPT SHIPMENTS FROM MCALESTER NECESSARILY INCLUDED SAVANNA, UNDER ANY REASONABLE CONSTRUCTION WHICH WOULD GIVE EFFECT TO THE MANIFEST INTENT OF THE CARRIERS MAKING THE OFFER AND TO THE UNDERSTANDING OF THE SHIPPING OFFICERS TO WHOM THE OFFER WAS DIRECTED. IN THIS CONNECTION WE ALSO POINTED OUT THAT JOINT U.S. GOVERNMENT QUOTATION NO. 78, ISSUED JOINTLY BY THE FOUR CARRIERS IN THE BILL OF LAIDING ROUTE, BY SUPPLEMENTS NO. 1 AND 2, THERETO, EXPRESSLY REFERRED THE USER TO ITEM 205 OF THE ROCKY MOUNTAIN TARIFF BUREAU QUOTATION NO. 43-A FOR THE RATE FROM THE NAVAL AMMUNITION DEPOT TO PORT CHICAGO. WE ALSO DISTINGUISHED OUR DECISION OF MAY 11, 1960, B-138622, WHICH YOU AGAIN CITE AS REQUIRING A CONTRARY CONCLUSION. YOUR CURRENT OBJECTIONS CONTAIN NOTHING OF SUBSTANCE WHICH WAS NOT PREVIOUSLY BEFORE US AND CONSIDERED IN ARRIVING AT OUR DECISION OF JUNE 6, 1962, B-147507 THEREFORE MUST BE, AND IT IS HEREBY, SUSTAINED.

YOUR SECOND POINT, THAT THE TEN-YEAR STATUTE OF LIMITATIONS FOR PRESENTING CLAIMS TO THIS OFFICE STARTS TO RUN FROM THE TIME DEDUCTIONS ARE MADE, IS WELL TAKEN ONLY TO THE EXTENT OF THE AMOUNTS DEDUCTED, AS SHOWN IN THE SETTLEMENT CERTIFICATES WHICH DISALLOWED 25 OF YOUR SUPPLEMENTAL BILLS OF AUGUST 3, 1962. THE CAUSE OF ACTION FOR TRANSPORTATION CHARGES ACCRUES UPON DELIVERY OR UPON TENDER OF DELIVERY, AS PROVIDED IN THE INTERSTATE COMMERCE ACT, 49 U.S.C. 304A (4). THESE 88 SHIPMENTS WERE DELIVERED DURING 1951 AND 1952; YOUR RIGHT TO CLAIM YOUR CHARGES AROSE ON THE DELIVERY DATES, AND THE BILLS YOU SUBMITTED WERE PAID UPON PRESENTATION, IN ACCORDANCE WITH SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66. YOUR RIGHT TO PRESENT CLAIMS FOR CONSIDERATION HERE, RELATING BACK TO THE ACCRUAL OF THE ORIGINAL CAUSES OF ACTION, EXPIRED TEN YEARS FROM THE DELIVERY DATES, AND PRIOR TO AUGUST 3, 1962. HOWEVER, AN INTERVENING FACTOR--- DEDUCTIONS MADE DURING AND SUBSEQUENT TO 1954--- SET THE STATUTE OF LIMITATIONS RUNNING ANEW FROM THE DATES OF THE DEDUCTIONS, BUT ONLY TO THE EXTENT OF THE DEDUCTIONS, AND GAVE YOU THE BASIS FOR PRESENTING CLAIMS COGNIZABLE HERE UP TO AND INCLUDING THE AMOUNTS DEDUCTED. COMPARE EASTERN FREIGHT WAYS, INC. V. UNITED STATES, 155 F.SUPP. 22, AFFIRMED 257 F.2D 703 (1957); WABASH RAILWAY COMPANY V. UNITED STATES, 59 CT.CL. 322, AFFIRMED 270 U.S. 1 (1924). THE SUMS CLAIMED IN YOUR SUPPLEMENTAL BILLS DATED AUGUST 3, 1962, MORE THAN TEN YEARS AFTER DELIVERY OF THE SHIPMENTS, ARE THEREFORE BARRED FROM OUR CONSIDERATION TO THE EXTENT THAT THEY EXCEED THE DEDUCTIONS MADE DURING AND AFTER 1954.

YOU MENTIONED SPECIFICALLY CLAIM TK-719868, OUR FORM 1003 THEREIN IN THE AMOUNT OF $947.30, AND BILL OF LADING N-15253866. OUR TRANSPORTATION DIVISION WITHDREW THIS FORM 1003 ON APRIL 10, 1963; THUS THE SETTLED CHARGES ON THIS BILL OF LADING ARE THOSE RESULTING FROM THE FORM 1003 DATED JUNE 24, 1955, ON WHICH YOU MADE REFUND ON DECEMBER 29, 1955. YOU STATE THAT THE BASIS OF SETTLEMENT IS INAPPLICABLE BECAUSE THE NORTHERN TRANSPORTATION COMPANY, A CARRIER IN THE ROUTE OF VEMENT,"WAS NOT SHOWN AS SERVING RENO, NEVADA," ON DECEMBER 27, 1951, CITING OUR DECISION B-143584 AND J AND H BERGE V. CENTRAL STATES FREIGHT LINES CO., 47 M.C.C. 331, 334. THE CHARGE BASIS AUTHORIZED IN YOUR QUOTATION NO. 116, AND USED IN THE SETTLEMENT OF THE CHARGES ON THIS BILL OF LADING, INCLUDED A PROVISION FOR THE USE OF 65 PERCENT OF THE FIRST CLASS RAIL RATE AS MAXIMUM. THE FORM 1003 OF JUNE 24, 1955, USED 65 PERCENT OF THE FIRST CLASS RAIL RATE, $4.45 PLUS 6 PERCENT, TO DETERMINE THE CHARGES TO HAWTHORNE, AND YOU REFUNDED ON THAT BASIS. WHETHER THE NORTHERN TRANSPORTATION COMPANY WAS SHOWN AS SERVING RENO IN THE MOTOR CARRIER CLASS RATE TARIFF DOES NOT SEEM TO BE MATERIAL TO THE DETERMINATION OF 65 PERCENT OF THE FIRST CLASS RAIL RATE, AND NEITHER B-143584 NOR THE BERGE CASE SEEMS IN POINT HERE. THESE CIRCUMSTANCES, THE SETTLEMENT OF CHARGES ON BILL OF LADING N- 15253866 MADE IN 1955 NEED NOT BE DISTURBED, AND YOUR CLAIM FOR ADDITIONAL CHARGES THEREON IS DISALLOWED.

IT IS NOTED THAT ONE OF THE ABOVE-MENTIONED FORMS 1003 (CLAIM TK 719860, YOUR BILL NO. 28A-1-4-A-B), IN THE AMOUNT OF $503.36, INADVERTENTLY WAS NOT WITHDRAWN, BUT WAS COLLECTED BY DEDUCTION ON OCTOBER 19, 1962. HAVE INSTRUCTED OUR TRANSPORTATION DIVISION TO ISSUE A CERTIFICATE OF SETTLEMENT ALLOWING $503.36 IN CLAIM TK-719860. THE OTHER CLAIMS OF AUGUST 3, 1962, HOWEVER, ARE PROPERLY FOR DISALLOWANCE, AND THOSE CERTIFICATES OF SETTLEMENT WHICH DISALLOWED 25 ..END :