B-152042, OCT. 23, 1963

B-152042, OCT. 23, 1963

TO MR. WHITNEY J. LUMAS, JR.:

REFERENCE IS MADE TO LETTER OF AUGUST 31, 1963, ADDRESSED TO US BY MRS. SUSAN LUMAS REQUESTING RECONSIDERATION OF OUR DECISION TO YOU DATED AUGUST 23, 1963, B-152042, WHICH SUSTAINED THE DENIAL BY OUR CLAIMS DIVISION OF YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF TRANSPORTATION FOR YOUR DEPENDENTS BY ROYAL MAIL LINES FROM LONDON, ENGLAND, TO LOS ANGELES, CALIFORNIA, DURING THE PERIOD NOVEMBER 5 TO DECEMBER 2, 1962, INCIDENT TO YOUR SERVICE IN THE UNITED STATES NAVY.

YOU WERE ADVISED IN THE DECISION OF AUGUST 23, 1963, THAT SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, 49 STAT. 2015, AS AMENDED, 46 U.S.C. 1241 (A), PROVIDES THAT ANY OFFICER OR EMPLOYEE OF THE UNITED STATES TRAVELING ON OFFICIAL BUSINESS OVERSEAS SHALL TRAVEL ON SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES WHERE SUCH SHIPS ARE AVAILABLE UNLESS THE NECESSITY OF HIS MISSION REQUIRES THE USE OF A SHIP UNDER A FOREIGN FLAG, AND THAT THIS SECTION APPLIES WITH EQUAL FORCE TO TRAVEL PERFORMED BY DEPENDENTS. YOU WERE ALSO ADVISED THAT UNDER THE PROVISIONS OF 37 U.S.C. 406 THE TRANSPORTATION OF DEPENDENTS INCIDENT TO A MEMBER'S PERMANENT CHANGE OF STATION IS AUTHORIZED UNDER SUCH CONDITIONS AND LIMITATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED.

YOU WERE FURTHER ADVISED IN THE DECISION THAT PARAGRAPH 2150-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT WHERE THE AUTHORITY ISSUING TRAVEL ORDERS DETERMINES THAT THE USE OF VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES WOULD SERIOUSLY INTERFERE WITH OR PREVENT THE PERFORMANCE OF OFFICIAL BUSINESS, HE MAY AUTHORIZE THE USE OF VESSELS OR AIRCRAFT OF FOREIGN REGISTRY. A STATEMENT OF THIS DETERMINATION MUST BE CONTAINED IN OR APPENDED TO THE TRAVEL OR TRANSPORTATION ORDERS. NO SUCH DETERMINATION WAS MADE IN YOUR CASE. IT WAS ADMINISTRATIVELY REPORTED THAT DURING THE PERIOD INVOLVED, THE GOVERNMENT TRANSPORTATION WAS AVAILABLE FOR DEPENDENTS FROM PORT LYAUTEY, MOROCCO, YOUR OVERSEAS STATION, TO NEW YORK, NEW YORK, VIA MILITARY SEA TRANSPORTATION SERVICE, AND THAT GOVERNMENT TRANSPORTATION WAS AVAILABLE FROM PORT LYAUTEY, MOROCCO, TO NORFOLK, VIRGINIA, VIA MILITARY AIR TRANSPORT SERVICE. LAND TRAVEL FROM EITHER POINT OF DEBARKATION TO OAKLAND, CALIFORNIA, WOULD HAVE BEEN ON A REIMBURSABLE BASIS. YOU WERE ALSO ADVISED THAT PARAGRAPH 7000-8 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION EXCEPT FOR ANY PORTION OF TRAVEL PERFORMED BY A FOREIGN REGISTERED VESSEL OR AIRPLANE IF AMERICAN REGISTERED VESSELS OR AIRPLANES ARE AVAILABLE BY THE USUALLY TRAVELED ROUTE.

WE DID NOT INTEND TO IMPLY IN THE DECISION, AS MRS. LUMAS APPEARS TO BELIEVE, THAT SHE USED A FOREIGN REGISTERED VESSEL BECAUSE SHE WOULD NOT WAIT FOR NAVAL TRANSPORTATION TO THE UNITED STATES. WE WERE MERELY STATING THE FACTS AS GIVEN IN YOUR CLAIM THAT YOUR WIFE, BELIEVING YOU WERE NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS TO THE UNITED STATES, ARRANGED FOR AVAILABLE COMMERCIAL (BRITISH) TRANSPORTATION. SINCE THE APPLICABLE LAW AND REGULATIONS PROHIBIT REIMBURSEMENT FOR TRAVEL ON A VESSEL OF FOREIGN REGISTRY WE HELD THAT THERE IS NO AUTHORITY TO ALLOW YOUR CLAIM.

THE FACT THAT YOUR WIFE MAY HAVE BEEN IMPROPERLY ADVISED CONCERNING YOUR RIGHT TO REIMBURSEMENT FOR THE TRANSPORTATION OF YOUR DEPENDENTS AFFORDS NO BASIS FOR FAVORABLE CONSIDERATION BY US OF YOUR CLAIM. IN THE ABSENCE OF SPECIFIC AUTHORITY THEREFOR, THE UNITED STATES IS NOT LIABLE FOR THE ERRONEOUS ACTIONS OF ITS OFFICERS, AGENTS OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. SEE GERMAN BANK V. UNITED STATES, 148 U.S. 573; 19 COMP. GEN. 503; 22 COMP. GEN. 221.

WHILE WE APPRECIATE YOUR FEELINGS IN THIS MATTER WE ARE PRECLUDED BY THE LAW AND REGULATIONS FROM ALLOWING YOUR CLAIM.