B-144623, APR. 3, 1961

B-144623, APR. 3, 1961

TO MRS. JESSIE LOLA MENENDEZ:

ON FEBRUARY 20, 1961, YOU REQUESTED US TO RECONSIDER OUR DECISION OF JANUARY 12, 1961, B-144623, TO YOU, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF $400.95, REPRESENTING THE COST OF OCEAN TRANSPORTATION OF YOUR HOUSEHOLD EFFECTS FROM THE CONTINENTAL UNITED STATES TO THE PHILIPPINES IN 1959, INCIDENT TO OVERSEAS EMPLOYMENT WITH THE DEPARTMENT OF THE AIR FORCE.

THE FACTS IN YOUR CASE WERE FULLY SET OUT IN YOUR DECISION OF JANUARY 12 AND NEED NOT BE REPEATED HERE. YOUR CLAIM FOR $400.95 WAS DISALLOWED IN THAT DECISION ON THE GROUNDS THAT YOU SHIPPED YOUR HOUSEHOLD EFFECTS BY A SHIP OF FOREIGN REGISTRY WHEN A VESSEL OF AMERICAN REGISTRY WAS AVAILABLE. THE DISALLOWANCE WAS PREDICATED UPON SECTION 901 OF THE MERCHANT MARINE ACT OF 1936 (49 STAT. 2015).

YOU SAY THAT YOU RECOGNIZE THE FACT THAT YOU INADVERTENTLY FAILED TO COMPLY WITH PROVISIONS OF THE MERCHANT MARINE ACT OF 1936, BUT THAT YOU USED YOUR ANNUAL LEAVE TO ACCOMPLISH A SHIPMENT WHICH WAS RIGHTLY THE RESPONSIBILITY OF THE DEPARTMENT OF THE AIR FORCE. AS A MATTER OF LAW THE MOVEMENT OF AN EMPLOYEE'S HOUSEHOLD GOODS AND EFFECTS IS NOT A GOVERNMENTAL FUNCTION AND WHEN THE GOVERNMENT THROUGH ITS REPRESENTATIVES ENTERS INTO SUCH TRANSACTIONS ON BEHALF OF AN EMPLOYEE IT DOES SO ONLY AS AN AGENT OF THE EMPLOYEE. YOU ALSO CONTEND THAT YOU SHOULD NOT BE CHARGED FOR THE SHIPMENT OF YOUR HOUSEHOLD GOODS BECAUSE THEY WERE SHIPPED BY YOU WITHOUT PRIOR ORDERS. YOUR CLAIM FOR THE COST OF THE OCEAN SHIPMENT OF YOUR HOUSEHOLD EFFECTS WAS DISALLOWED NOT BECAUSE THEY WERE SHIPPED PRIOR TO THE RECEIPT OF ORDERS BUT BECAUSE THEY WERE SHIPPED ON A VESSEL OF FOREIGN REGISTRY CONTRARY TO THE PROVISIONS OF THE MERCHANT MARINE ACT OF 1936.

IN SUPPORT OF YOUR CLAIM YOU OFFER AS NEW EVIDENCE THE FACT THAT MR. ROBERT T. ROBERSON, A FELLOW EMPLOYEE TRANSPORTED HIS HOUSEHOLD EFFECTS AND THE TRANSPORTATION WAS HANDLED BY GOVERNMENT TRANSPORTATION PERSONNEL. AS AUTHORITY FOR THAT SHIPMENT YOU CITE B-137605, DATED APRIL 2, 1958, 38 COMP. GEN. 653. YOU SAY THAT YOU WOULD HAVE BEEN ENTITLED TO THE SAME PRIVILEGES. IN 38 COMP. GEN. 653 WE HELD THAT OVERSEAS EMPLOYEES WHO DID NOT HAVE THEIR DEPENDENTS OR ALL OF THEIR AUTHORIZED HOUSEHOLD EFFECTS TRANSPORTED TO THE OVERSEAS STATION WITHIN THE TWO-YEAR PERIOD PROVIDED IN SECTION 5 OF EXECUTIVE ORDER NO. 9805, AS AMENDED, AND WHO, AFTER SERVING AN AGREED PERIOD OF SERVICE, EXECUTE A NEW EMPLOYMENT AGREEMENT FOR SERVICE AT THE SAME STATION MAY BE AUTHORIZED TRANSPORTATION FOR THE DEPENDENTS OR FOR ADDITIONAL HOUSEHOLD EFFECTS, WHICH WHEN COMBINED WITH THE AMOUNT PREVIOUSLY SHIPPED WILL NOT EXCEED THE AUTHORIZED MAXIMUM WEIGHT LIMITATION, FROM THE EMPLOYEE'S PLACE OF RESIDENCE IN THE UNITED STATES TO THE OVERSEAS STATION. THIS WAS ALL A MATTER OF RECORD WHEN OUR DECISION OF JANUARY 12, 1961, B-144623, TO YOU, WAS RENDERED AND WAS CONSIDERED AT THAT TIME. IT MAY WELL BE THAT REIMBURSEMENT FOR THE SHIPMENT OF YOUR EFFECTS TO YOUR OVERSEAS STATION COULD HAVE BEEN ALLOWED, AS WAS DONE IN THE CASE OF MR. ROBERTSON, HAD THE EFFECTS BEEN SHIPPED ON AN AMERICAN VESSEL.

SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, 49 STAT. 2015, 46 U.S.C. 1241 (A) PROVIDES THAT OFFICERS AND EMPLOYEES TRAVELING ON OFFICIAL BUSINESS OVERSEAS SHALL TRANSPORT HIS PERSONAL EFFECTS ON SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES. THE PROVISIONS OF SECTION 901 ARE FOR OBSERVANCE AT ALL TIMES, AND BY ALL OFFICERS AND EMPLOYEES OF THE FEDERAL GOVERNMENT. THE SECTION LEAVES US NO CHOICE BUT TO DENY CREDIT FOR ANY ALLOWANCE, WHEN AN AMERICAN SHIP IS AVAILABLE, FOR SHIPPING EXPENSES INCURRED ON A FOREIGN SHIP IN THE ABSENCE OF SATISFACTORY PROOF OF THE NECESSITY THEREFOR.

SINCE THERE IS NO BASIS IN THE RECORD PRESENTED FOR ALLOWANCE OF YOUR CLAIM FOR REIMBURSEMENT FOR TRANSPORTATION EXPENSES INCURRED FOR SHIPMENT ON A VESSEL OF FOREIGN REGISTRY, THE ACTION TAKEN IN OUR DECISION OF JANUARY 12, 1961, B-144623, TO YOU, DISALLOWING YOUR CLAIM WAS PROPER AND IS SUSTAINED. WE RECOGNIZE YOUR REASONS FOR FEELING AN INEQUITABLE RESULT OCCURS IN THIS ASE; HOWEVER, WE FIND NO AUTHORITY UNDER THE STATUTE FOR ALLOWANCE OF YOUR CLAIM.

IN RESPONSE TO YOUR QUESTION AS TO WHERE YOU MAY HAVE YOUR CASE REVIEWED, YOU ARE ADVISED THAT THE DECISIONS OF OUR OFFICE ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT AND THERE IS NO PROCEDURE PRESCRIBED FOR APPEALING FROM SUCH DECISIONS. HOWEVER, WE DIRECT YOUR ATTENTION TO THE PROVISIONS OF 28 U.S.C. 1346; ID. 1491, CONCERNING MATTERS COGNIZABLE IN THE DISTRICT COURTS OF THE UNITED STATES AND IN THE UNITED STATES COURT OF CLAIMS.