B-148180, JUN. 20, 1962

B-148180, JUN. 20, 1962

TO THE PACIFIC ELECTRIC RAILWAY COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 7, 1962, FILE YG-E- 85-D-PE-28243-19, REQUESTING REVIEW OF THE SETTLEMENT DISALLOWING YOUR CLAIM FOR $116.38 IN ADDITIONAL FREIGHT CHARGES ON TWO SHIPMENTS OF LANDING MATS WHICH MOVED FROM DOWAGIAC, MICHIGAN, TO LOS ANGELES HARBOR, WILMINGTON, CALIFORNIA, UNDER BILLS OF LADING WQ 18833856 AND WQ-18833858, DATED FEBRUARY 1 AND 3, 1944.

FOR THE TRANSPORTATION SERVICES PERFORMED, YOUR COMPANY ORIGINALLY BILLED AND WAS PAID $1,654.99 ON EACH SHIPMENT, BUT IN JUNE 1946 YOU REFUNDED THE TERMINAL ALLOWANCE OF $34.91 ON EACH SHIPMENT. IN THE AUDIT HERE, HOWEVER, IT WAS CONSIDERED THAT THE FREIGHT CHARGES WERE OVERPAID AND A REFUND OF $919.43 WAS REQUESTED ON EACH SHIPMENT, OR A TOTAL OF $1,838.86. ON OCTOBER 25, 1947, YOUR COMPANY REFUNDED $1,117.42 BUT DECLINED PAYMENT OF $721.44 WHICH WAS DEDUCTED DURING SEPTEMBER 1950 FROM YOUR BILL F-45030-7. YOUR SUBSEQUENT CLAIMS FOR REPAYMENT OF THE SUM OF $421.44 WERE DISALLOWED.

IN THE CONSIDERATION OF YOUR REQUEST FOR REVIEW OF THAT DISALLOWANCE, WE ARE BOUND BY THE ACT OF OCTOBER 9, 1940, 54 STATE 1061, 31 U.S.C. 71A (COPY ENCLOSED) WHICH PROHIBITS CONSIDERATION BY OUR OFFICE OF CLAIMS RECEIVED MORE THAN 10 YEARS AFTER THE DATE THE RIGHT ACCRUED.

ORDINARILY THE 10 YEARS STARTS TO RUN FROM THE DATE OF DELIVERY OF THE SHIPMENTS AS EVIDENCED BY THE CONSIGNEE'S CERTIFICATE OF DELIVERY ON THE BILL OF LADING. SEE ARKANSAS OAK FLOORING CO. V. LOUISIANA AND A.RY.CO., 166 F.2D 98; UNITED STATES V. MILDER, 13, WALL. 254. WHERE AN AMOUNT IS COLLECTED BY REFUND OR DEDUCTION UNDER 49 U.S.C. 66, HOWEVER, A NEW RIGHT ACCRUES AS OF THE DATE OF REFUND OR DEDUCTION WHICH MAY BE ASSERTED, AS TO TRANSPORTATION PERFORMED ON OR PRIOR TO AUGUST 26, 1958, BY CLAIMS FILED IN OUR OFFICE WITHIN 10 YEARS OF THE DATE OF DEDUCTION. SEE WILLIAMS V. UNITED STATES, 63 CT.CL. 668, CERTIORARI DENIED, 275 U.S. 539; EASTERN FREIGHT WAYS V. UNITED STATES, 155 FED.SUPP. 22; THE ACT OF AUGUST 26, 1958, 72 STAT. 859, 49 U.S.C. 16 (3), AS AMENDED. SUCH RIGHT, HOWEVER, APPLIES ONLY TO THE EXTENT OF THE AMOUNT COLLECTED AND DOES NOT, OF COURSE, GIVE RISE TO A RIGHT OF RECOVERY IN A GREATER AMOUNT.

THE PAYMENT RECORDS PERTAINING TO THESE SHIPMENTS SHOW THAT DELIVERY OF THE SHIPMENTS WAS ACCOMPLISHED ON FEBRUARY 19 AND 21, 1944, AND THAT YOUR CLAIM FOR THE $721.44 PREVIOUSLY DEDUCTED WAS CERTIFIED FOR PAYMENT PURSUANT TO THE CERTIFICATE OF SETTLEMENT DATED AUGUST 6, 1959. SINCE YOUR CLAIM FOR $116.38 WAS NOT RECEIVED IN OUR OFFICE UNTIL SEPTEMBER 25, 1959, MORE THAN 10 YEARS AFTER BOTH THE DATES OF DELIVERY OF THE SHIPMENTS ON FEBRUARY 19 AND 21, 1944 AND THE REFUNDS OF $69.82 ($34.91 ON EACH SHIPMENT) IN JUNE 1946 AND OF $1,117,42 IN OCTOBER 1947, THE AMOUNT CLAIMED IS BARRED BY THE STATUTE OF LIMITATIONS, AND PAYMENT OF YOUR SUPPLEMENTAL BILL CANNOT BE AUTHORIZED. ACCORDINGLY, YOUR SUPPLEMENTAL BILL IS BEING RETURNED TO YOU WITH A COPY OF THE ACT OF OCTOBER 9, 1940.