1 Opinion of the Court Charges for services called for herein will be based upon the carrier's tariff rate lawfully on file with the CAB, applicable to the type of service rendered and effective at the time transportation is furnished. The plaintiff's applicable tariff at the time in question said, on its title page: Governed, except as otherwise provided herein, by Air Cargo Inc., Official Airfreight Rules Tariff No. 1-A, ATB No. 9, C.A.B. No. 13, Emery F. Johnson, Agent, revised pages thereto or reissues thereof. Rule No. 3.3 of Official Airfreight Rules Tariff No. 1-A said, in part: The liability of carrier, with respect to international transportation, shall be subject to the rules, relating to liability established by, and to all other provisions of The Convention for the Unification of Certain Rules Relating to International Transportation by Air, signed at Warsaw, October 12, 1929. Any provision of the tariff applicable to the shipment, or of the air waybill which is inconsistent with any provision of said Convention (except to the extent that Articles 12, 13 and 14 thereof are expressly varied by the terms of the air waybill) shall, to that extent, but only to that extent, be inapplicable to international transportation. The plaintiff urges that the requirement of item (q) in Article 8 was satisfied by the statement, quoted above, in its Charter Agreement with the Government, and the second document referred to in that document, and the third document referred to in the second document. We do not agree. The statement called for by item (q) is given great importance by the provision of Article 9 that if the carrier accepts goods without an agreement from the shipper that liability is limited, he is not entitled to the provisions of the Convention limiting liability. We think a shipper is entitled, under the Convention, to have his attention called, in understandable language, to this important waiver of what would, at least in this country, be his rights in the absence of the waiver. He may refuse to ship, if the carrier insists upon the waiver, or the carrier may refuse to carry, if the shipper refuses to waive. But the Convention is plain as to the consequences of the carrier's accepting the goods without the waiver. Opinion of the Court 145 C. Cls. Our conclusion is that the Government did not lose, by the application of the limited liability provisions of the Warsaw Convention, whatever right it had to recover from the plaintiff for the loss of its goods. The plaintiff says that, in any event, the Government lost whatever rights it may otherwise have had, by failing to bring suit for its loss within two years after the date of the loss. Articles 28 and 29 of the Warsaw Convention read as follows: Article 28 (1) An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court of the domicile of the carrier or of his principal place of business, or where he has a place of business through which the contract has been made, or before the court at the place of destination, (2) Questions of procedure shall be governed by the law of the court to which the case is submitted. Article 29 (1) The right to damage shall be extinguished if an action is not brought within 2 years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the transportation stopped. (2) The method of calculating the period of limitation shall be determined by the court to which the case is submitted. In the instant case the Government did not bring an action for damages within two years, or at all. Within two years from the time of the loss it advised the plaintiff that it was setting off its claim for damages against its debt to the plaintiff on the other account. When the plaintiff brought the instant suit on the other account, the Government, by way of answer, pleaded the setoff. By its amended answer, it made a counterclaim for $1,172.81, as we have recited above. The plaintiff points out that Article 29 says the right to damages shall be extinguished if an action is not brought within two years. The Government says that Article 29 has nothing to do with a case such as the instant one, in which the claimant has an opportunity to pay himself by offset, 1 Opinion of the Court and does so pay himself. In support of its contention, the Government cites United States v. Munsey Trust Co., 332 U.S. 234. That case held that the United States has the same right as any other creditor to apply money belonging to its debtor which it has in its hands to extinguish a debt which the debtor owes to it. The question, then, is whether a creditor, in a transaction arising under the Warsaw Convention, can decline to institute an action for damages and instead apply the claim as a setoff as the Government here attempts to do. Section 2508 of Title 28 of the United States Code confers upon this court the jurisdiction to hear and determine any setoff, counterclaim, claim for damages, or other demand on the part of the United States against a plaintiff asserting a claim against it. A setoff or counterclaim is, in its nature and effect, like an independent action by the defendant against the plaintiff, and, as a general rule, a party cannot avail himself of a claim as a setoff or counterclaim unless it is a legally subsisting cause of action upon which he could maintain an independent action. 80 C.J.S., Setoff and Counterclaim §§ 1, 25 and 26. A statute of limitations may be pleaded against a counterclaim or setoff. 53 C.J.S., Limitations of Actions § 106. This court has had occasion to consider the problem of a statute of limitations as a bar to a counterclaim. Dugan & McNamara, Inc. v. United States, 130 C. Cls. 603; Canned Foods, Inc. v. United States, 135 C. Cls. 862, and Erie Basin Metal Products, Inc. v. United States, 138 C. Cls. 67. The case presently before the court involves not the problem of a statute of limitations but the problem of the extinguishment of the right itself. See Judge Yankwich's opinion in Adams v. Albany, 80 F. Supp. 876, 880, in which he cites instances in American law in which the expiration of the prescribed period within which suit may be brought has been held to extinguish the right and not merely bar the remedy. The language of Article 29 is plain and, if taken literally, plainly means that the passage of two years without suit extinguishes the claim. The original text of the Warsaw Convention was French, but neither party objects to the English translation which we have quoted. The document Opinion of the Court 145 C. Cls. being a writing accomplished by international agreement, an American court does not have the right to interpret it as freely as it might interpret an American statute or contract. As we have said, the Government brought no action on its claim within the two-year period prescribed by the Convention. If the Government had, within the two years, put the matter in litigation by making a counterclaim, or asserting a setoff in an answer, in an action brought by the plaintiff, that might conceivably be regarded as the substantial equivalent of bringing an action. But the Government did none of these things within the two years. All that it did was to make up its mind to pay itself out of money otherwise due the plaintiff, record that decision on its account books, and advise the plaintiff of what it had done. These actions were in no sense the substantial equivalent of the lawsuit prescribed by the Convention. See Climatic Rainwear Co. v. United States, 115 C. Cls. 520, 553. Although the Government can withhold money, as it did here, such unilateral action by the Comptroller General is subject to judicial review as shown by the Munsey Trust Co. and Climatic Rainwear decisions, already cited. In the instant case, we cannot review the validity of the claim which the Government is trying to use as an offset because that claim has been extinguished by the passage of time. A case similar in its essentials to the instant one is Grace Line, Inc. v. United States (CA 2), 255 F. 2d 810. In that case the Court refused to allow the Government to offset against the libelant's claim an amount owing to the Government under an earlier and unrelated transaction. That decision rested upon two grounds. One was that admiralty jurisdiction extends only to setoffs arising out of the same transaction upon which the libel is based. The other ground was that the claim arising under the prior transaction was time-barred by the one-year statute of limitations embodied in the bills of lading in that transaction and in the Carriage of Goods by Sea Act, incorporated by reference into those bills of lading. The court, in a well-reasoned opinion by Judge Medina, held that the Comptroller General's unilateral withholding of money belonging to the libelant did not toll the statute of limitations and there was, 1 Syllabus therefore, no "legally enforceable claim" which the Government could use as an offset. The case presently before the court differs from the Grace Line case in one respect. In Grace Line, the prior claim was already time-barred at the time the Comptroller General withheld the money, whereas here the earlier claim was extant at the time of the withholding but that claim for damages became barred and the right extinguished prior to the time the plaintiff instituted this action. This distinction is, we believe, immaterial. The earlier claim was not only stale but nonexistent at the time the Government tried to apply it as an offset to the plaintiff's cause of action. It may be that this holding will force the Government to institute judicial proceedings whenever it has a claim for damages arising under the Warsaw Convention, even though it has in its hands money belonging to its debtor with which it could pay itself. We agree with the Second Circuit, in the Grace Line case, that such a requirement is not unduly onerous, and, in this case we feel it is necessary in order to carry out the purpose of Article 29 of the Warsaw Convention to protect parties from stale claims. The defendant's motion for a summary judgment is denied. The plaintiff's motion for a summary judgment is granted and a judgment will be entered for the plaintiff in the amount of $65,987.10. It is so ordered. LARAMORE, Judge; WHITAKER, Judge, and JONES, Chief Judge concur. PRISCILLA P. EDGAR v. THE UNITED STATES [No. 197-57. Decided February 11, 1959] ON PLAINTIFF'S AND DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT Civilian pay; dismissal; estoppel by judgment.—In an action to recover civilian pay lost on account of alleged wrongful discharge from Government service, where the issue of procedural defect (failure to exhaust administrative remedies) had been decided adversely to plaintiff in a suit for reinstatement in the United States District Court for the District of Columbia, it is held that the judgment of the District Court on that |