B-169975, JUN 21, 1971

B-169975, JUN 21, 1971

TRANSPORTATION CHARGES - STATUTE OF LIMITATIONS - SEVERABLE BILL OF LADING CONTRACT DENYING CLAIM OF JOHN F. IVORY STORAGE CO., INC., FOR LINE HAUL TRANSPORTATION AND ACCESSORIAL CHARGES FOR DOOR-TO-DOOR TRANSPORTATION OF HOUSEHOLD GOODS FROM VISTA, CALIF., TO GREENSBORO, NORTH CAROLINA. THE PROPERTY WAS DELIVERED TO POINT OF STORAGE AT THE DESTINATION ON MAY 6, 1966, IT WAS REMOVED FROM STORAGE ON OCTOBER 14, 1966. THE CLAIM OF IVORY STORAGE FOR STORAGE AND DELIVERY FROM THE WAREHOUSE WAS PAID ON JUNE 12, 1967. UNDER THE PROVISIONS OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66, AND IN LINE WITH THE DECISION OF THE LOWER COURT IN UNITED VAN LINES V U.S. (NOW BEING APPEALED), THE CLAIM FOR CHARGES FOR DELIVERY TO THE WAREHOUSE IS BARRED BECAUSE IT WAS NOT RECEIVED BY THE GAO WITHIN THREE YEARS FROM ACCRUAL OF THE CAUSE OF ACTION OR PAYMENT OF CHARGES FOR THE TRANSPORATION INVOLVED. ALTHOUGH THE CLAIM WAS MADE WITHIN THREE YEARS OF THE PAYMENT FOR DELIVERY FROM STORAGE, UNDER THE ABOVE CITED RULING, THE BILL OF LADING CONTRACT IS REGARDED AS SEVERABLE WITH THE NET RESULT THAT PAYMENT FOR DELIVERY FROM STORAGE DOES NOT PREVENT THE TOLLING OF THE LIMITATIONS STATUTE FOR THE DELIVERY TO STORAGE. IF THE COURT OF APPEALS REVERSES THE DECISION OF THE LOWER COURT, THE CLAIM WOULD THEN NOT BE BARRED BECAUSE IT WAS RECEIVED WITHIN THREE YEARS FROM THE DATE OF PAYMENT FOR STORAGE AND DELIVERY CHARGES.

TO JOHN F. IVORY STORAGE CO., INC.:

WE REFER TO YOUR LETTER DATED JUNE 2, 1970, WITH ENCLOSURES (AND TO LATER LETTERS), REQUESTING REVIEW OF OUR TRANSPORTATION DIVISION'S ACTION IN RETURNING AS BARRED BY SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66, YOUR BILL NO. 66-3154 FOR $1,197. THE BILL IS A CLAIM FOR LINE HAUL TRANSPORTATION AND ACCESSORIAL CHARGES FOR SERVICES FURNISHED IN MAY 1966 PURSUANT TO GOVERNMENT BILL OF LADING NO. C- 2767022.

YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON JANUARY 14, 1970, BY REFERENCE FROM THE UNITED STATES MARINE CORPS, AND IT WAS RETURNED TO YOU WITH A LETTER DATED MARCH 18, 1970, ADVISING YOU THAT CLAIMS COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE ARE FOREVER BARRED UNLESS RECEIVED IN THE OFFICE WITHIN THREE YEARS FROM THE DATE OF (1) ACCRUAL OF THE CAUSE OF ACTION THEREON, (2) PAYMENT OF CHARGES FOR THE TRANSPORTATION INVOLVED, (3) SUBSEQUENT REFUND OF OVERPAYMENT OF SUCH CHARGES, OR (4) DEDUCTION MADE PURSUANT TO THIS SECTION, WHICHEVER IS LATER; THE MARCH 18, 1970, LETTER CONCLUDED THAT SINCE YOUR CLAIM WAS NOT SO RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN THE THREE-YEAR STATUTORY PERIOD, IT WAS BARRED.

THE TRANSPORTATION DIVISIONS LETTER DATED MAY 22, 1970, IN SOMEWHAT GREATER DETAIL, SUSTAINED AND EXPLAINED ITS NOTICE TO YOU THAT THE CLAIM WAS BARRED AND COULD NOT BE ALLOWED. YOU THEN FILED YOUR REQUEST FOR REVIEW OF THE DIVISION'S ACTION.

THESE ARE THE FACTS: GOVERNMENT BILL OF LADING NO. C-2767022 AS SHOWN BY THE CERTIFICATE IN LIEU OF THE LOST ORIGINAL BILL OF LADING AUTHORIZED DOOR-TO-DOOR TRANSPORTATION OF THE HOUSEHOLD GOODS OF GUNNERY SERGEANT DON R. FOOT (FOGT) FROM VISTA, CALIFORNIA, TO GREENSBORO, NORTH CAROLINA, WITH 90 DAYS STORAGE IN TRANSIT (SIT) AT DESTINATION AND WITH AN OPTION TO EXTEND THE STORAGE PERIOD FOR AN ADDITIONAL 90 DAYS. THE PROPERTY WAS DELIVERED TO THE WINSTON SALEM BONDED WAREHOUSE AT WINSTON SALEM, NORTH CAROLINA, ON MAY 6, 1966. THE PERIOD OF AUTHORIZED SIT WAS EXTENDED AND THE PROPERTY WAS REMOVED FROM STORAGE ON OCTOBER 14, 1966. YOUR BILL NO. 66-3154 SUPP FOR $356.82, COVERING CHARGES FOR DELIVERY FROM WAREHOUSE, FOR STORAGE FROM MAY 6 TO OCTOBER 14, 1966, AND FOR WAREHOUSE HANDLING, WAS PAID ON JUNE 12, 1967, AND YOUR CLAIM FOR $1,197 FOR LINE HAUL TRANSPORTATION AND ACCESSORIAL CHARGES WAS RECEIVED HERE WITHIN THREE YEARS OF THAT PAYMENT.

HOWEVER, IN OUR LETTERS OF NOVEMBER 12, 1970, AND FEBRUARY 26, 1971, B- 169975, WE ADVISED YOU IN EFFECT THAT THE DEVELOPED RECORD SHOWS THAT OUR DECISION IN THIS CASE MIGHT DEPEND UPON THE FINAL DETERMINATION OF THE ISSUE IN UNITED VAN LINES V UNITED STATES, NOW PENDING IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, CIVIL NO. 23,589.

THE UNITED VAN LINES CASE CONCERNED A SIMILAR SHIPMENT TRANSPORTED UNDER A GOVERNMENT BILL OF LADING. AFTER THE GOODS WERE PLACED IN SIT, THE PLAINTIFF FILED A CERTIFICATE SHOWING THAT DURING THE PERIOD OF STORAGE AND UNTIL DELIVERY TO THE CONSIGNEE THE SHIPMENT WOULD REMAIN UNDER FULL CARRIER LIABILITY. THE HOUSEHOLD GOODS WERE DESTROYED BY FIRE ON JANUARY 13, 1963, DURING SIT. ON FEBRUARY 4, 1963, THE PLAINTIFF FILED A CLAIM FOR $549.28 FOR ITS SERVICES. THE CLAIM WAS PAID IN FULL ON FEBRUARY 21, 1963. BUT $549.28 WAS LATER DEDUCTED BY THE GOVERNMENT FROM AMOUNTS OTHERWISE DUE PLAINTIFF BECAUSE THE HOUSEHOLD GOODS WERE NEVER DELIVERED TO THE CONSIGNEE AND BECAUSE IT IS SETTLED LAW THAT FREIGHT CHARGES ARE NOT EARNED UNTIL THE GOODS ARE DELIVERED TO THE CONSIGNEE.

THE DISTRICT COURT HELD, HOWEVER, THAT THE BILL OF LADING CONTRACT IS SEVERABLE AND THAT SINCE UNITED VAN LINES DID DELIVER THE HOUSEHOLD GOODS TO THE WAREHOUSE, IT COMPLETED THAT PORTION OF THE SEVERABLE CONTRACT OF CARRIAGE AND THUS EARNED THE FREIGHT CHARGES. IF THE COURT OF APPEALS REVERSES THE DECISION OF THE LOWER COURT AND FINDS THAT THE SERVICES REQUIRED UNDER THE BILL OF LADING CONTRACT ARE NOT SEVERABLE AND IF THAT DETERMINATION BECOMES FINAL, YOUR CLAIM WOULD NOT BE BARRED BECAUSE IT WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN THREE YEARS FROM THE DATE OF PAYMENT FOR STORAGE AND DELIVERY OUT CHARGES. HOWEVER, UNDER THE DISTRICT COURT'S INTERPRETATION OF THE BILL OF LADING CONTRACT IN THE UNITED VAN LINES CASE AND ON THE PRESENT RECORD, WE BELIEVE WE MUST SUSTAIN THE ACTION OF OUR TRANSPORTATION DIVISION AND HOLD THAT CONSIDERATION OF YOUR CLAIM IS BARRED BY SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, SUPRA. IF THE DISTRICT COURT'S DECISION IS REVERSED AND SUCH REVERSAL BECOMES FINAL, WE WILL, AT YOUR REQUEST, GIVE YOUR CLAIM FURTHER CONSIDERATION.

THE PAPERS SUBMITTED WITH YOUR LETTER OF JUNE 2, 1970, ARE ENCLOSED.