B-173122, OCT 8, 1971, 51 COMP GEN 201

B-173122, OCT 8, 1971, 51 COMP GEN 201

STATUTES OF LIMITATION - CLAIMS - TRANSPORTATION - ADMINISTRATIVE DELAYS - CLAIMS BARRED CLAIMS FOR TRANSPORTING SHIPMENTS UNDER GOVERNMENT BILLS OF LADING THAT WERE NOT PRESENTED FOR PAYMENT TO THE UNITED STATES GENERAL ACCOUNTING OFFICE (GAO) WITHIN 3 YEARS OF THE DATES ON WHICH THE CLAIMS ACCRUED PURSUANT TO SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED (49 U.S.C. 66), BY REASON OF DELAYED HANDLING IN THE DEPARTMENTS INVOLVED ARE BARRED AND MAY NOT BE CONSIDERED FOR PAYMENT. A CAUSE OF ACTION FOR TRANSPORTATION CHARGES AGAINST THE UNITED STATES ACCRUES UNDER SECTION 322 UPON THE COMPLETION OF THE TRANSPORTATION SERVICE AND THE STATUTE OF LIMITATION BEGINS TO RUN FROM THE DATE OF DELIVERY TO THE CONSIGNEE, AND THE FILING OF A CLAIM WITH SOME OTHER AGENCY OF THE GOVERNMENT DOES NOT SATISFY THE REQUIREMENTS OF THE ACT. WHERE THE RUNNING OF THE 3-YEAR PERIOD IS IMMINENT, CLAIMS MAY BE FILED DIRECTLY WITH THE TRANSPORTATION DIVISION OF GAO.

TO THE SOUTHERN RAILWAY SYSTEM, OCTOBER 8, 1971:

WE REFER TO YOUR LETTER OF MAY 25, 1971, WITH ENCLOSURES, CONCERNING YOUR BILLS NO. F-66001 3/68 (OUR TK-927151) IN THE AMOUNT OF $4,001.15 AND NO. F-71501 4/68 (OUR TK-927152) IN THE AMOUNT OF $3,962.83, FOR TRANSPORTATION SERVICES PERFORMED IN CONNECTION WITH SHIPMENTS WHICH MOVED UNDER GOVERNMENT BILLS OF LADING NOS. A-5677785 DATED FEBRUARY 23, 1968, AND A-5677786 DATED MARCH 6, 1968, RESPECTIVELY.

YOU ASK US TO REVIEW THE ACTION TAKEN BY OUR TRANSPORTATION DIVISION AS REGARDS THESE CLAIMS IN VIEW OF THE CIRCUMSTANCES WHICH RESULTED IN THE DELAY OF CLAIMS REACHING THE GENERAL ACCOUNTING OFFICE. AFTER A THOROUGH STUDY OF THE RECORD, WE MUST CONCLUDE THAT THE ACTION TAKEN IN ADVISING YOU THAT SUCH CLAIMS WERE BARRED AND COULD NOT BE ALLOWED WAS THE ONLY PROPER DISPOSITION OF SUCH CLAIMS THAT COULD HAVE BEEN MADE UNDER THE APPLICABLE LAW AND REGULATIONS.

YOU STATE THAT YOUR BILL IN THE AMOUNT OF $4,001.15 (OUR TK-927151, GBL NO. A-5677785) WAS INCLUDED IN A MARCH 1968 BILL TO THE DEPARTMENT OF HIGHWAYS & TRAFFIC, PROCUREMENT (GOVERNMENT OF THE DISTRICT OF COLUMBIA), WASHINGTON, D.C., ALONG WITH FOUR OTHER ITEMS TOTALING $38,421.74; THAT THE BILL FOR $4,001.15 WAS DELETED FROM THE PAYMENT RECEIVED IN NOVEMBER 1968 WITH ADVICE THAT SUCH AMOUNT SHOULD BE BILLED TO THE DEPARTMENT OF INTERIOR, NATIONAL CAPITAL REGION; THAT YOU SO BILLED THE DEPARTMENT OF INTERIOR IN DECEMBER 1968; AND THAT YOU HAVE TRACED WITH THE DEPARTMENT OF INTERIOR THAT BILL AS WELL AS YOUR BILL IN THE AMOUNT OF $3,962.83 (OUR TK -927152, GBL NO. A-5677786) FOR PAYMENT MANY TIMES WITHOUT SUCCESS. YOU SAY THAT THE DEPARTMENT OF INTERIOR SHOULD NOT BE EXCUSED FROM ACCEPTING THEIR JUST RESPONSIBILITY FOR PAYMENT OF THESE BILLS BY FAILING TO ACT UNTIL AFTER THE STATUTORY PERIOD HAD EXPIRED.

THE RECORD SHOWS THAT THE CONSIGNEE'S CERTIFICATE OF DELIVERY ON GOVERNMENT BILL OF LADING NO. A-5677785 WAS EXECUTED ON FEBRUARY 27, 1968, AND THE CONSIGNEE'S CERTIFICATE OF DELIVERY ON GOVERNMENT BILL OF LADING NO. A-5677786 WAS EXECUTED ON MARCH 8, 1968. THE BILLS FOR THE TRANSPORTATION SERVICES UNDER BOTH BILLS OF LADING WERE FORWARDED TO OUR TRANSPORTATION DIVISION BY LETTER OF MARCH 16, 1971, FROM THE NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR, AND WERE FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON MARCH 17, 1971. THE RECORD INDICATES THAT NO PAYMENT FOR SERVICES UNDER EITHER OF THE BILLS OF LADING IN QUESTION WAS MADE AND YOUR BILLS WERE RETURNED TO YOU ON APRIL 28, 1971, WITH ADVICE THAT THE CLAIMS ON SUCH BILLS WERE BARRED AND COULD NOT BE CONSIDERED FOR PAYMENT SINCE THEY WERE NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 3 YEARS OF THE DATES ON WHICH THE CLAIMS ACCRUED.

SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED IN 1958 BY PUBLIC LAW 85-762, 72 STAT. 860, 49 U.S.C. 66, SPECIFICALLY PROVIDES FOR PAYMENT OF TRANSPORTATION BILLS UPON PRESENTATION SUBJECT TO THE PROVISO:

*** THAT EVERY CLAIM COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE FOR CHARGES FOR TRANSPORTATION WITHIN THE PURVIEW OF THIS SECTION SHALL BE FOREVER BARRED UNLESS SUCH CLAIM SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN THREE YEARS (NOT INCLUDING ANY TIME OF WAR) FROM THE DATE OF (1) ACCRUAL OF THE CAUSE OF ACTION THEREON, OR (2) PAYMENT OF CHARGES FOR THE TRANSPORTATION INVOLVED, OR (3) SUBSEQUENT REFUND FOR OVERPAYMENT OF SUCH CHARGES, OR (4) DEDUCTION MADE PURSUANT TO THIS SECTION, WHICHEVER IS LATER.

A CAUSE OF ACTION FOR TRANSPORTATION CHARGES AGAINST THE UNITED STATES ACCRUES UPON THE COMPLETION OF THE TRANSPORTATION SERVICE, THAT IS, THE DATE OF DELIVERY TO THE CONSIGNEE, AND THE STATUTE OF LIMITATIONS BEGINS TO RUN FROM THAT DATE. UNITED STATES V WILDER, 13 WALL. 254 (U.S. 1871); ARKANSAS OAK FLOORING CO. V LOUISIANA & ARKANSAS RY. CO., 166 F. 2D 98 (1948), CERT. DENIED 334 U.S. 828; SOUTHERN PACIFIC CO. V UNITED STATES, 67 CT. CL. 414 (1929), CERT. DENIED 280 U.S. 567; ATLANTIC COAST LINE R. CO. V UNITED STATES, 66 CT. CL. 576 (1929); AND HUGHES TRANSPORTATION, INC. V UNITED STATES, 109 F. SUPP. 373 (1953).

IN THE PRESENT INSTANCE SHIPMENT UNDER BILL OF LADING NO. A-5677785 WAS DELIVERED TO THE CONSIGNEE ON FEBRUARY 27, 1968, AND THE SHIPMENT UNDER BILL OF LADING NO. A-5677786 WAS DELIVERED ON MARCH 8, 1968, AND SO FAR AS THE RECORD HERE DISCLOSES NO CHARGES WERE PAID ON EITHER SHIPMENT. THE CAUSES OF ACTION THEREFORE ACCRUED ON THOSE DATES OF DELIVERY. LIKEWISE, THE STATUTE OF LIMITATIONS BARRED THE CLAIMS ON FEBRUARY 27 AND MARCH 8, 1971, RESPECTIVELY, BUT THE CLAIMS WERE NOT RECEIVED IN OUR OFFICE UNTIL MARCH 17, 1971.

REGULATIONS OF OUR OFFICE, 4 CFR 54.6A, SPECIFICALLY PROVIDE THAT THE FILING OF A CLAIM WITH SOME OTHER AGENCY OF THE GOVERNMENT WILL NOT MEET THE REQUIREMENTS OF THE STATUTE, THAT THE CLAIM MUST BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 3 YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED, AND 4 CFR 54.6, WHILE GENERALLY STATING THAT ACTION WILL BE EXPEDITED IF CLAIMANTS FILE THEIR CLAIMS WITH THE DEPARTMENT OR AGENCY OUT OF THE ACTIVITY OF WHICH IT AROSE, POINTS OUT THAT A CLAIMANT MAY FILE A CLAIM DIRECT WITH THE TRANSPORTATION DIVISION, GENERAL ACCOUNTING OFFICE, PARTICULARLY IF THE APPLICABLE STATUTORY PERIOD OF LIMITATION IS ABOUT TO EXPIRE. COMPARE UNITED STATES V UTZ, 80 FED. 848 (1897); KENNEDY V UNITED STATES, 79 FED. 893 (1897), AFFIRMED 95 FED. 127.

PRIOR TO THE 1958 AMENDMENT, CARRIER CLAIMS, LIKE OTHER CLAIMS COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE, WOULD BE CONSIDERED IF PRESENTED WITHIN 10 YEARS AFTER THE CLAIMS FIRST ACCRUED. SEE 31 U.S.C. 71A. THE 1958 AMENDMENT WAS ENACTED DUE, IN LARGE PART, TO CARRIER SUPPORT FOR A REDUCED LIMITATION TO APPLY IN TRANSPORTATION ACCOUNTS. THE PURPOSE OF THE STATUTE IS TO TERMINATE CONTROVERSY AFTER A REASONABLE PERIOD OF TIME AND TO ASSURE THE GOVERNMENT AS WELL AS THE CARRIERS PROTECTION FROM OLD CLAIMS ON WHICH RECORDS HAVE BECOME DESTROYED, LOST, OR IMPRACTICABLE TO OBTAIN. DELIVERY OF THE SHIPMENTS HERE INVOLVED WAS ADMITTEDLY MADE MORE THAN 3 YEARS BEFORE YOUR CLAIMS BASED THEREON WERE RECEIVED IN OUR OFFICE, AND THERE IS NO DISCRETION OR AUTHORITY IN OFFICERS OR AGENTS OF THE UNITED STATES TO WAIVE THE PROVISIONS OF LAW ESTABLISHING THE THREE-YEAR STATUTE OF LIMITATIONS. COMPARE UNITED STATES V GARBUTT OIL CO., 302 U.S. 528 (1937); JOHN FINN V UNITED STATES, 123 U.S. 227 (1887); MUNRO V UNITED STATES, 303 U.S. 36 (1938). WE WOULD BE VIOLATING THE LAW IF WE UNDERTOOK TO CONSIDER YOUR CLAIMS ON THEIR MERITS.

WE APPRECIATE YOUR VIEW THAT THE CLAIMS SHOULD HAVE BEEN ACTED ON MORE PROMPTLY BY THE DEPARTMENT OF INTERIOR. HOWEVER, SINCE YOUR CLAIMS WERE NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 3 YEARS AS REQUIRED BY LAW, THE ACTION OF OUR TRANSPORTATION DIVISION IN RETURNING YOUR BILLS AND THEIR SUPPORTING PAPERS WITH ADVICE THAT THE CLAIMS WERE BARRED WAS THE ONLY DISPOSITION THAT COULD LEGALLY BE MADE OF THEM. ALSO, AS INDICATED IN THE REGULATIONS REFERRED TO ABOVE, YOUR SYSTEM COULD HAVE PROTECTED ITSELF AS TO THE INSTANT BILLS, AND CAN PROTECT ITSELF AS TO FUTURE BILLS BY FILING CLAIMS WITH THE TRANSPORTATION DIVISION, U.S. GENERAL ACCOUNTING OFFICE, WHERE THE RUNNING OF THE PERIOD OF LIMITATIONS IS IMMINENT. AS YOU MAY SEE, THE BARRING PROVISION, 49 U.S.C. 66, NOT ONLY BARS CARRIERS' CLAIMS NOT FILED IN THE GENERAL ACCOUNTING OFFICE WITHIN THE 3-YEAR LIMITATION PERIOD, BUT ALSO PRECLUDES OUR OFFICE FROM DEDUCTING, AFTER EXPIRATION OF SUCH PERIOD, OVERCHARGES IN CARRIERS' BILLS. ACCORDINGLY, THE ACTION OF OUR TRANSPORTATION DIVISION MUST BE AND IS SUSTAINED.