B-181333, MAR 26, 1975

B-181333, MAR 26, 1975

1. UPON REVIEW, TCD'S DETERMINATION THAT PART OF A CLAIM IS BARRED IS SUSTAINED WHERE CLAIM IS RECEIVED IN THE GENERAL ACCOUNTING OFFICE MORE THAN THREE YEARS AFTER THE CAUSE OF ACTION FIRST ACCRUED, 49 U.S.C. 66 (SUPP. III 1973), AND BECAUSE THERE IS NO AUTHORITY IN OFFICERS OR AGENTS OF THE UNITED STATES TO WAIVE PROVISIONS OF THE STATUTE. SEE CT. CASES CITED. 2. UPON REVIEW, TCD'S DISALLOWANCE OF A SIX PERCENT FUEL SURCHARGE IS SUSTAINED BECAUSE THE DATE OF ORIGINAL SHIPMENT DETERMINES THE APPLICABILITY OF THE SURCHARGE. SEE I.C.C. CASES CITED.

PARK CITIES VAN LINES, INC.:

PARK CITIES VAN LINES, INC. (PARK CITIES), IN EFFECT, REQUESTS REVIEW OF THE ACTION OF THE TRANSPORTATION AND CLAIMS DIVISION (TCD) OF THE GENERAL ACCOUNTING OFFICE ON ITS CLAIM FOR TRANSPORTATION CHARGES OF $2,655.92. ON A CERTIFICATE OF SETTLEMENT DATED NOVEMBER 14, 1974 (CLAIM NO. TK- 959861), TCD ALLOWED PARK CITIES $2,438 OF THE AMOUNT CLAIMED; IT DISALLOWED $52.32 SHOWN AS A SIX PERCENT SURCHARGE, AND IT DETERMINED THAT $165.60, REPRESENTING STORAGE-IN-TRANSIT CHARGES INCURRED BY THE GOVERNMENT ON A SHIPMENT OF HOUSEHOLD GOODS DURING 1969, WAS BARRED BY THE THREE-YEAR STATUTE OF LIMITATIONS IN 49 U.S.C. 66 (SUPP. III 1973).

PARK CITIES CONTENDS THAT THE SIX PERCENT SURCHARGE FOR ADDED FUEL COSTS SHOULD BE APPLIED TO THE TRANSPORTATION CHARGES, AND THAT THE PART OF THE CLAIM FOR STORAGE-IN-TRANSIT CHARGES IS NOT BARRED.

TCD CORRECTLY DETERMINED THAT THE PART OF THE CLAIM REPRESENTING STORAGE- IN-TRANSIT CHARGES OF $165.60 WAS BARRED FROM CONSIDERATION HERE BY SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66 (SUPP. III 1973).

THE HOUSEHOLD GOODS WERE SHIPPED FROM LONG BEACH, MISSISSIPPI, TO DALLAS, TEXAS, UNDER GOVERNMENT BILL OF LADING NO. F-0642622, DATED AUGUST 8, 1969. THEY WERE PLACED IN STORAGE-IN-TRANSIT AT PARK CITIES' WAREHOUSE IN DALLAS FOR A 90-DAY PERIOD FROM SEPTEMBER 19, 1969, UNTIL DECEMBER 18, 1969. AT THE END OF THIS PERIOD THE HOUSEHOLD GOODS WERE PLACED IN NON- TEMPORARY STORAGE UNTIL THEY WERE DELIVERED ON JULY 30, 1974, TO THE PROPERTY DISPOSAL OFFICE, CARSWELL AIR FORCE BASE, TEXAS. PARK CITIES' CLAIM FOR STORAGE-IN-TRANSIT CHARGES OF $165.60 WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON FEBRUARY 12, 1973.

SECTION 322 OF THE TRANSPORTATION ACT OF 1940, SUPRA, 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."

THE BILL OF LADING INDICATES THAT STORAGE-IN-TRANSIT WAS AUTHORIZED AT DESTINATION FOR A PERIOD OF 90 DAYS. THUS, THE LAST SERVICE PERFORMED FOR THE GOVERNMENT UNDER THE BILL OF LADING FOR WHICH THE GOVERNMENT WOULD BE OBLIGATED TERMINATED ON DECEMBER 18, 1969 (90 DAYS FROM SEPTEMBER 17, 1969). ON THAT DATE, DECEMBER 18, 1969, AT THE LATEST, PARK CITIES' CAUSE OF ACTION FOR CHARGES FOR 90 DAYS STORAGE-IN TRANSIT SERVICES ACCRUED. SINCE PARK CITIES' CLAIM FOR STORAGE-IN TRANSIT SERVICES ON THE BILL OF LADING WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON FEBRUARY 12, 1973, MORE THAN THREE YEARS LATER, AND SINCE NO PAYMENT OR REFUND WAS MADE IN CONNECTION WITH THAT BILL OF LADING WITHIN THE PRESCRIBED THREE-YEAR PERIOD, THE CLAIM IS BARRED FROM CONSIDERATION HERE BY THE THREE-YEAR STATUTE OF LIMITATIONS, 49 U.S.C. 66, SUPRA.

WE NOTE THAT UNDER RULE 22(D) OF MOVERS' & WAREHOUSEMAN'S ASSOCIATION TARIFF NO. 44, MF-I.C.C. 66, INCORPORATED BY REFERENCE IN MOVERS' & WAREHOUSEMAN'S ASSOCIATION GOVERNMENT RATE TENDER I.C.C. NO. 1-V, IN EFFECT AT THE TIME THE SHIPMENT MOVED, THE CHARGES FOR STORAGE-IN TRANSIT COULD HAVE BEEN BILLED (A) UPON COMPLETION OF EACH 30-DAY PERIOD OF STORAGE, OR (B) AT THE TIME STORAGE-IN-TRANSIT WAS EFFECTED. THE RULE PROVIDES THAT SHIPMENTS COULD BE PLACED IN STORAGE-IN-TRANSIT ONE OR MORE TIMES FOR AN AGGREGATE PERIOD NOT TO EXCEED 60 DAYS, AND THAT WHEN NOT REMOVED FROM STORAGE-IN-TRANSIT AT THE EXPIRATION OF THE TIME LIMIT, LIABILITY AS A CARRIER TERMINATES, THE INTERSTATE CHARACTER OF THE SHIPMENT CEASES, AND THE WAREHOUSE IS CONSIDERED THE DESTINATION OF THE SHIPMENT. THUS, AFTER THE 90-DAY PERIOD OF STORAGE, THE WAREHOUSE BECAME THE FINAL DESTINATION OF THE SHIPMENT, AND THE PROPERTY BECAME SUBJECT TO THE RULES, REGULATIONS, AND CHARGES OF A WAREHOUSEMAN. THE GOVERNMENT'S OBLIGATION UNDER THE BILL OF LADING CONTRACT WAS THEREFORE ENDED AT THAT POINT. AND PARK CITIES COULD HAVE PRESENTED A CLAIM FOR THE STORAGE-IN- TRANSIT CHARGES WITHIN THE TIME SPECIFIED BY RULE 22(D) OR AT ANY TIME AFTER THE 90 DAY PERIOD AND WITHIN THE THREE-YEAR STATUTORY PERIOD.

FINALLY, 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. SEE UNITED STATES V. GARBUTT OIL CO., 302 U.S. 528 (1938); FINN V. UNITED STATES, 123 U.S. 227 (1887).

TCD CORRECTLY DISALLOWED THE PART OF THE CLAIM REPRESENTING THE SIX PERCENT FUEL SURCHARGE.

IT IS A FUNDAMENTAL RULE OF TRANSPORTATION LAW THAT THE DATE OF ORIGINAL SHIPMENT DETERMINES THE RIGHTS, PRIVILEGES AND OBLIGATIONS ATTACHING TO A SHIPMENT THROUGHOUT ITS TRANSPORTATION. IN INTERSTATE REMEDY CO. V. AMERICAN EXPRESS CO., 16 I.C.C. 436 (1909), THE INTERSTATE COMMERCE COMMISSION SAID, AT PAGES 438, 439:

"*** THE SHIPPER MUST KNOW AT THE TIME OF TENDER OF SHIPMENT FROM THE TARIFFS THEMSELVES WHAT RATE HE MUST PAY AND WHAT RIGHTS THEREUNDER HE MAY SECURE. IF THERE IS OFFERED TO HIM UNDER THE TARIFF A RIGHT OF STOPPING IN TRANSIT, RECONSIGNMENT, STORAGE, OR RETURN OF FREIGHT, HE IS ENTITLED TO THE USE OF SUCH PRIVILEGE, EVEN THOUGH IT MAY LATER BE CANCELLED OUT OF THE TARIFF BEFORE THE TIME ALLOWED FOR THE EXERCISE OF SUCH RIGHT HAS EXPIRED. THE DATE OF ORIGINAL SHIPMENT DETERMINES THE RIGHTS, PRIVILEGES, AND OBLIGATIONS ATTACHING TO THAT SHIPMENT THROUGHOUT ITS TRANSPORTATION; AND THIS MUST BE DETERMINED BY THE TARIFF IN FORCE UPON THAT DATE."

AND IN NORTHWESTERN GREASE WOOL CO. V. GREAT NORTHERN R.R., 278 I.C.C. 795, 799 (1950), THE COMMISSION HELD THAT "TARIFFS CANNOT BE GIVEN RETROACTIVE APPLICATION. THEY CANNOT BE MADE TO APPLY TO CONDITIONS OTHER THAN THOSE EXISTING UPON THE DATE OF THEIR EFFECTIVENESS." THEREFORE, THE DATE OF THE SHIPMENT, AUGUST 8, 1969, DETERMINES THE EFFECTIVENESS OF THE RATE, AND THIS DATE PRECEDES THE APPLICABILITY OF THE FUEL SURCHARGE BY APPROXIMATELY 3-1/2 YEARS. FURTHER, PARK CITIES' LETTER OF INSTRUCTION, SUBMITTED IN EVIDENCE, SUPPORTS THIS PREMISE AS IT STATES THAT THE SIX PERCENT SURCHARGE IS EFFECTIVE ON SHIPMENTS LOADING FROM THE RESIDENCE ON OR AFTER FEBRUARY 9, 1974.

THE CERTIFICATE OF SETTLEMENT DATED NOVEMBER 14, 1974, IS NOT OTHERWISE ALLEGED TO BE ERRONEOUS AND IT IS SUSTAINED.