B-174885, JAN 28, 1972

B-174885, JAN 28, 1972

TRANSPORTATION - CLAIM ON GOVERNMENT BILL OF LADING - STATUTE OF LIMITATIONS DENIAL OF REQUEST BY TRANSPORT CLEARINGS INTERMOUNTAIN FOR RECONSIDERATION OF A DECISION BY THE TRANSPORTATION DIVISION WHICH DENIED A CLAIM FOR TRANSPORTATION CHARGES PURSUANT TO A CERTIFICATE IN LIEU OF A LOST GOVERNMENT BILL OF LADING. ALTHOUGH THE LATE SUBMISSION OF THE CLAIM MAY HAVE BEEN CAUSED BY ADMINISTRATIVE DELAYS, THE COMP. GEN. IS NOT AUTHORIZED TO WAIVE THE STATUTE OF LIMITATIONS, 49 U.S.C. 661, AND CONSIDERATION OF THE CLAIM ON ITS MERITS WOULD BE IN DIRECT VIOLATION OF THE LAW. ACCORDINGLY, THE ACTION OF TRANSPORTATION DIVISION MUST BE SUSTAINED.

TO MR. EARL J. GROTH:

WE HAVE RECEIVED YOUR LETTER OF JANUARY 3, 1972, IN WHICH, AS ATTORNEY FOR TRANSPORT CLEARINGS INTERMOUNTAIN, YOU REQUEST REVIEW OF THE ACTION OF OUR TRANSPORTATION DIVISION, WHICH, BY LETTER OF JULY 21, 1971, CLAIM TK- 929344, RETURNED BROWNING FREIGHT LINES' CLAIM PER BILL NO. 06-030503-68, IN THE AMOUNT OF $469.69 FOR TRANSPORTATION CHARGES PURSUANT TO CERTIFICATE IN LIEU OF LOST GOVERNMENT BILL OF LADING NO. D 4493703, ADVISING THAT CONSIDERATION OF SUCH CLAIM WAS BARRED BY SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED BY PUBLIC LAW 85-762, 49 U.S.C. 66. THIS MATTER WAS ALSO THE SUBJECT OF LETTER DATED NOVEMBER 4, 1971, T- SR-014625-ENP, FROM OUR TRANSPORTATION DIVISION TO TRANSPORT CLEARINGS INTERMOUNTAIN.

THE CITED ACT PROVIDES IN PERTINENT PART:

" *** 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., 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. V UNITED STATES, 66 CT. CL. 576 (1929); AND HUGHES TRANSPORTATION, INC. V UNITED STATES, 109 F. SUPP. 373 (1953).

THE RECORD SHOWS THAT A SHIPMENT OF MISCELLANEOUS FREIGHT, WEIGHING 7,887 POUNDS, WAS TRANSPORTED FROM MCCHORD AIR FORCE BASE, WASHINGTON, TO OGDEN, UTAH, UNDER GOVERNMENT BILL OF LADING NO. D-4493703, DATED DECEMBER 18, 1967, AND WAS DELIVERED AT DESTINATION BY BROWNING FREIGHT LINES ON JANUARY 3, 1968. THE CAUSE OF ACTION FOR THE FREIGHT CHARGES, THEREFORE, ACCRUED ON JANUARY 3, 1968, AND THE THREE-YEAR PERIOD OF LIMITATION SPECIFIED IN 49 U.S.C. 66 WOULD EXPIRE ON JANUARY 3, 1971, UNLESS EXTENDED BY PAYMENT, REFUND OR DEDUCTION PURSUANT TO SECTION 66.

YOU INDICATE THAT THE ORIGINAL BILL FOR FREIGHT CHARGES OF $469.69 WAS MAILED TO THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, ON MARCH 5, 1968, AND PAST DUE NOTICES WERE SENT ON MARCH 25, JULY 2, AUGUST 12 AND SEPTEMBER 12, 1968. ON SEPTEMBER 17, 1968, ALTHOUGH THE FREIGHT CHARGES HAD NOT BEEN PAID, AN AMOUNT OF $35.84 WAS DEDUCTED BY THE DEPARTMENT OF THE ARMY FROM AMOUNTS OTHERWISE PAYABLE TO BROWNING BECAUSE OF LOSS OR DAMAGE ON THE SUBJECT SHIPMENT, WHICH AMOUNT ON APRIL 29, 1969, WAS REFUNDED BY THE ARMY FINANCE CENTER TO BROWNING. FINALLY, BY LETTER OF FEBRUARY 13, 1970, THE FINANCE CENTER ADVISED THAT IT HAD NO RECORD OF RECEIPT OF THE ORIGINAL BILL OF LADING, AND SUGGESTED THAT A CERTIFICATE IN LIEU OF THE LOST GOVERNMENT BILL OF LADING BE SECURED AND THE FREIGHT CHARGES BE REBILLED. A CERTIFICATE IN LIEU OF THE LOST GOVERNMENT BILL OF LADING WAS SECURED AND, ON MARCH 4, 1970, THE FREIGHT CHARGES WERE REBILLED.

AFTER SEVERAL EXCHANGES OF CORRESPONDENCE, THE FINANCE CENTER AGAIN ADVISED, BY LETTER OF MARCH 15, 1971, THAT IT HAD NO RECORD OF THE ORIGINAL GOVERNMENT BILL OF LADING OR OF THE CERTIFICATE IN LIEU OF THE LOST BILL OF LADING, AND SUGGESTED THAT ANOTHER CERTIFICATE IN LIEU BE SECURED AND THE FREIGHT CHARGES AGAIN BE REBILLED. A SECOND CERTIFICATE IN LIEU OF THE GOVERNMENT BILL OF LADING WAS SECURED AND, ON APRIL 13, 1971, THE FREIGHT CHARGES WERE REBILLED. UNTIL THIS DATE, ALL OF THE CORRESPONDENCE WAS BETWEEN THE CARRIER OR ITS REPRESENTATIVES AND OFFICES OF THE DEPARTMENT OF THE ARMY. THIS BILLING WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON APRIL 30, 1971 - 3 YEARS 3 MONTHS AND 27 DAYS AFTER THE CAUSE OF ACTION ACCRUED. ADMITTEDLY, NO PART OF THE FREIGHT CHARGES WERE EVER PAID. THE ONLY DEDUCTION, ONE FOR LOSS OR DAMAGE IN TRANSIT, WAS NOT A DEDUCTION UNDER 49 U.S.C. 66. CONSEQUENTLY, NOTHING OCCURRED TO EXTEND THE PERIOD OF LIMITATIONS, AND THE CLAIM WAS BARRED BY THE TERMS OF PUBLIC LAW 85 762.

PRIOR TO THE 1958 AMENDMENT, CARRIER CLAIMS, LIKE OTHER CLAIMS COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE, WOULD BE CONSIDERED IF PRESENTED TO THAT OFFICE 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 MAY HAVE BECOME DESTROYED, LOST OR IMPRACTICABLE TO OBTAIN. DELIVERY OF THE SHIPMENT HERE INVOLVED WAS MADE MORE THAN THREE YEARS BEFORE YOUR CLAIM BASED THEREON WAS RECEIVED IN OUR OFFICE, WHICH IS AN INDEPENDENT OFFICE OF THE UNITED STATES ENTIRELY DISTINCT AND SEPARATE FROM THE DEPARTMENT OF THE ARMY, 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 CARBUTT 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 IN VIOLATION OF THE LAW IF WE UNDERTOOK TO CONSIDER YOUR CLAIM ON ITS MERITS.

WE ARE AWARE THAT CARRIERS SOMETIMES ENCOUNTER TIME-CONSUMING DELAYS IN PREPARING AND SUBMITTING THEIR CLAIMS. WE ALSO KNOW THAT AFTER BILLS ARE PRESENTED TO THE PAYING AGENCIES, THERE MAY OCCASIONALLY BE ADMINISTRATIVE DELAYS IN MAKING PAYMENT. TO WARN CARRIERS OF THE NEED TO PURSUE THEIR CLAIMS ACTIVELY AND TO REMEDY THIS SITUATION TO THE EXTENT POSSIBLE, OUR REGULATIONS POINT OUT THAT THE FILING OF A CLAIM WITH ANOTHER AGENCY DOES NOT MEET THE REQUIREMENTS OF SECTION 322 OF THE TRANSPORTATION ACT, 49 U.S.C. 66. THE CLAIM MUST BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN THREE YEARS OF ACCRUAL. 4 CFR 54.6AA). AND CLAIMANTS ARE ADVISED, IF THE APPLICABLE STATUTORY PERIOD OF LIMITATIONS IS ABOUT TO EXPIRE, THAT CLAIMS MAY BE FILED INITIALLY WITH THE TRANSPORTATION DIVISION OF THIS OFFICE, RATHER THAN WITH THE APPROPRIATE ADMINISTRATIVE OFFICE. 4 CFR 54.6. COMPARE UNITED STATES V UTZ, 80 FED. 848 (1897); KENNEDY V UNITED STATES, 79 FED. 893 (1897), AFFIRMED 95 FED. 127 (1899).

IN THE YEARS SINCE THE AMENDMENT TO SECTION 322 WAS ENACTED, OFFICIALS OF OUR TRANSPORTATION DIVISION, WHEN SPEAKING TO CARRIER ORGANIZATIONS AND PARTICIPATING IN CARRIER MEETINGS, HAVE EMPHASIZED THE NEED FOR ATTENTION TO THE TIME ELEMENT IN PURSUING CARRIER CLAIMS AND THE CARRIERS ARE REMINDED THAT CLAIMS - ALTHOUGH NOT THEN FULLY SUPPORTED - MAY BE FILED HERE TO TOLL THE STATUTE WHILE DEVELOPMENT OF SUPPORT FOR THE CLAIM CONTINUES.

THEREFORE, AS INDICATED, BROWNING FREIGHT LINES OR TRANSPORT CLEARINGS INTERMOUNTAIN COULD HAVE PROTECTED THE CLAIM, AND CAN PROTECT FUTURE CLAIMS BY BILLING 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 OF 49 U.S.C. 66 NOT ONLY BARS CARRIERS' CLAIMS NOT FILED IN THE GENERAL ACCOUNTING OFFICE WITHIN THE THREE-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.