B-181708, AUG 16, 1974

B-181708, AUG 16, 1974

CARRIER'S CAUSE OF ACTION FOR TRANSPORTATION CHARGES ACCRUED WHEN THE SERVICES WERE RENDERED, BUT WHERE CARRIER'S CLAIM WAS SUBMITTED TO GAO LATER THAN 3 YEARS FROM THE DATE OF ACCRUAL, THE CLAIM WAS PROPERLY BARRED UNDER SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66 (1970), NOTWITHSTANDING CARRIER'S ASSERTION THAT ITS CLAIM WAS SUBMITTED TO THE ARMY FINANCE CENTER WITHIN THE 3-YEAR PERIOD AND WAS THEN SUBJECT TO ADMINISTRATIVE DELAY, FOR CARRIER COULD HAVE FILED ITS CLAIM DIRECTLY WITH GAO AT ANY TIME WITHIN 3 YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. 4 C.F.R. 54.6(A) AND 54.6AA).

GEORGE O. SLATER, INC.:

GEORGE O. SLATER, INC. (CARRIER), A MOTOR CARRIER REGULATED BY THE INTERSTATE COMMERCE COMMISSION, REQUESTS REVIEW OF THE ACTION TAKEN BY THE U.S. GENERAL ACCOUNTING OFFICE'S TRANSPORTATION AND CLAIMS DIVISION (TCD), IN RETURNING ITS CLAIM FOR TRANSPORTATION CHARGES OF $451 BECAUSE THE CLAIM WAS BARRED FROM CONSIDERATION HERE BY SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66 (1970).

ON JUNE 24, 1969, A SHIPMENT OF HOUSEHOLD GOODS WAS TENDERED TO THE CARRIERS'S AGENT AT FOXBORO, MASSACHUSETTS, UNDER GOVERNMENT BILL OF LADING (GBL) NO. E-6650755. THE SHIPMENT WAS DELIVERED, ALSO ON JUNE 24, 1969, AT WARREN, RHODE ISLAND, WITH NO EXCEPTIONS NOTED.

THE CARRIER CLAIMS THAT THE ORIGINAL BILL OF LADING AND OTHER PAPERS PROPERLY SUPPORTING THE BILL WERE SUBMITTED TO THE FINANCE CENTER OF THE DEPARTMENT OF THE ARMY ON JUNE 27, 1969. THE ORIGINAL BILL OF LADING APPARENTLY WAS LOST, FOR, ON MARCH 13, 1972, THE CARRIER WAS INFORMED BY THE FINANCE CENTER THAT IT HAD NO INDICATION OF HAVING RECEIVED THE BILL OF LADING OR THE SUPPORTING PAPERS. THEY SUGGESTED THAT THE CARRIER OBTAIN A CERTIFICATE IN LIEU OF LOST GOVERNMENT BILL OF LADING (CIL) FROM THE ISSUING TRANSPORTATION OFFICER AND SUBMIT THE CIL WITH "ALL REQUIRED SUPPORTING DOCUMENTS." THE CIL WAS RETURNED TO THE CARRIER ON JULY 19, 1972, BECAUSE CERTAIN SUPPORTING DOCUMENTS HAD NOT BEEN PROVIDED. AGAIN WAS RETURNED ON OCTOBER 23, 1972, AND ON JANUARY 24, 1973, BECAUSE OF A LACK OF EVIDENCE AT THAT TIME OF ITS ATTEMPT TO OBTAIN THE SIGNATURE OF THE CONSIGNEE ON THE CIL.

ON MARCH 12, 1973, THE FINANCE CENTER FORWARDED THE CIL TO THE TCD AS A CLAIM FOR DIRECT SETTLEMENT. ALTHOUGH THE CLAIM THEN CONTAINED A LETTER FROM THE CARRIER INDICATING THAT THE CONSIGNEE HAD MOVED, THE FINANCE CENTER SENT THE CLAIM TO GAO BECAUSE THE CIL LACKED THE CONSIGNEE'S SIGNATURE.

THE TCD RETURNED THE CLAIM (NO. TK-960125) TO THE CARRIER ON MAY 31, 1973, BECAUSE IT HAD NOT BEEN RECEIVED BY GAO WITHIN 3 YEARS FROM THE DATE OF ACCRUAL OF THE CAUSE OF ACTION THEREON IN ACCORDANCE WITH SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66. THE CARRIER REQUESTED THE TCD TO RECONSIDER THE CLAIM BECAUSE OF ALLEGED ADMINISTRATIVE DELAYS IN THE HANDLING OF THE CLAIM, BUT IN A LETTER EXPALINING IN DETAIL THE REASONS THEREFOR, THE CARRIER AGAIN WAS DENIED RELIEF.

SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66 (1970), SPECIFICALLY PROVIDES FOR THE 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 WHEN THE SERVICES ARE RENDERED, I.E. IMMEDIATELY UPON THE DELIVERY OF THE PROPERTY. THE STATUTE OF LIMITATIONS BEGINS TO RUN FROM THAT DATE. BAGGETT TRANSPORTATION COMPANY V. UNITED STATES, 319 F.2D 864, 868 (CT. CL. 1963); BAKER V. CHAMBERLAIN MANUFACTURING CORPORATION, 356 F.SUPP. 1314 (N.D. I11. 1973). SEE ALSO, 49 U.S.C. 304A(4) (1970). THE GOVERNMENT'S LIABILITY FOR THE FREIGHT CHARGES INCIDENT TO THE SHIPMENT UNDER GBL NO. E-6650755, THEREFORE, ACCRUEDE ON JUNE 24, 1969. NO CLAIM WAS RECEIVED BY GAO UNTIL MARCH 16, 1973. THIS WAS MORE THAN THREE YEARS FROM THE DATE WITHIN WHICH A CLAIM COULD BE FILED.

FURTHERMORE, THERE IS NO DISCRETION OR AUTHORITY IN OFFICERS OR AGENTS OF THE UNITED STATES TO WAIVE THE PROVISIONS OF THE LAW ESTABLISHING THE THREE-YEAR STATUTE OF LIMITATIONS. SEE MUNRO V. UNITED STATES, 303 U.S. 36, 41 (1938); UNITED STATES V. GARBUTT OIL CO., 302 U.S. 528, 534 (1938); FINN V. UNITED STATES, 123 U.S. 227, 233 (1887). GAO WOULD BE IN DIRECT VIOLATION OF THE LAW IF IT WERE TO CONSIDER THIS CLAIM ON ITS MERITS.

THE CARRIER HAS SUGGESTED THAT IT SHOULD NOT BE HELD RESPONSIBLE FOR THE DELAY SINCE ITS CLAIM WAS PRESENTED TO THE ARMY WITHIN THE 3-YEAR PERIOD AND WAS THE SUBJECT OF CORRESPONDENCE BETWEEN THEM AND THE CARRIER DURING THAT PERIOD. HOWEVER, THE TERMS OF THE STATUTE CLEARLY PROVIDE THAT THE CLAIM MUST BE RECEIVED IN THE GAO. THE PUBLISHED REGULATIONS OF GAO, 4 C.F.R. 54.6AA), PROVIDE:

"*** THE FILING OF A CLAIM WITH SOME OTHER AGENCY OF THE GOVERNMENT WILL NOT MEET THE REQUIREMENT OF THIS STATUTE; THE CLAIM MUST BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 3 YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED."

THESE REGULATIONS ALSO CONTAIN THE FOLLOWING PERTINENT ADVICE, 4 C.F.R. 54.6(A):

"... A CLAIMANT MAY FILE A CLAIM DIRECT WITH THE TRANSPORTATION AND CLAIMS DIVISION, GENERAL ACCOUTNING OFFICE, PARTICULARLY IF THE APPLICABLE STATUTORY PERIOD OF LIMITATIONS IS ABOUT TO EXPIRE."

SHOULD THE CARRIER EXPERIENCE SIMILAR INSTANCES OF ADMINISTRATIVE DELAY IT COULD FOLLOW SUCH A PROCEDURE TO TOLL THE STATUTE OF LIMITATIONS FOR SUBMITTING A CLAIM TO GAO.

THE GAO OF COURSE CAN APPRECIATE THE CARRIER'S DISAPPOINTMENT AT BEING DENIED PAYMENT FOR A SERVICE IT APPEARENTLY RENDERED. HOWEVER, 49 U.S.C. 66 (1970) NOT ONLY BARS PAYMENTS OF CARRIER CLAIMS SUBMITTED AFTER THE STATUTE HAS RUN, BUT IT ALSO PRECLUDES OUR OFFICE FROM DEDUCTING ANY OVERCHARGES IN CARRIERS' BILLS AFTER THE EXPIRATION OF THE 3-YEAR LIMITATION PERIOD.