A-69361, JUNE 2, 1938, 17 COMP. GEN. 1041

A-69361: Jun 2, 1938

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" IS NOT SO CLEARLY ESTABLISHED AS TO AUTHORIZE PAYMENT BY THE UNITED STATES TO A VESSEL OF PANAMA REGISTRY FOR THE TRANSPORTATION OF MAILS OF FOREIGN COUNTRIES. DISPATCHED FROM THE UNITED STATES TO PANAMA WHERE THE VESSEL WAS NOT UNDER CONTRACT WITH THE UNITED STATES FOR THE TRANSPORTATION OF SUCH MAILS NOR REQUIRED TO TRANSPORT THE FOREIGN MAIL INVOLVED UNDER THE ACT OF FEBRUARY 6. IS AS FOLLOWS: THERE IS TRANSMITTED HEREWITH A JOURNAL COVERING CERTIFICATION FOR PAYMENT TO THE UNITED FRUIT COMPANY OF AMOUNTS DUE FOR THE CONVEYANCE OF MAILS ORIGINATING IN SPAIN AND THE DOMINICAN REPUBLIC DURING THE PERIOD FROM NOVEMBER 1. WHICH AT THE TIME OF DISPATCH IT WAS ASSUMED WOULD BE CONVEYED UNDER THE FREE TRANSIT PROVISION OF THE CONVENTION OF THE POSTAL UNION OF THE AMERICAS AND SPAIN.

A-69361, JUNE 2, 1938, 17 COMP. GEN. 1041

TRANSPORTATION - FOREIGN MAILS ON VESSELS OF PANAMA REGISTRY - PAYMENT OF COSTS BY UNITED STATES THE OBLIGATION OF THE UNITED STATES UNDER THE INTERPRETATION OF THE ACTING POSTMASTER GENERAL, APPROVED BY THE PRESIDENT, OF THE CONVENTION OF THE POSTAL UNION OF THE AMERICAS AND SPAIN, AS OBLIGATING THE UNITED STATES "TO TRANSPORT FREE OF COST TO THE COUNTRY OF ORIGIN ALL THE MAILS * * * OF OTHER AMERICO-SPANISH COUNTRIES ADHERING TO THE CONVENTION * * * BY STEAMSHIPS OF AMERICAN REGISTRY UTILIZED BY THE UNITED STATES FOR THE TRANSPORTATION OF ITS OWN CORRESPONDENCE," AND UNDER THE TERMS OF THE UNANIMOUS AGREEMENT OF THE DELEGATES OF THE MADRID 1931 CONGRESS, THAT SUCH FREE TRANSPORTATION DID NOT APPLY "WHERE PAYMENT HAS TO BE MADE BY THE INTERMEDIARY COUNTRY FOR THE USE OF VESSELS FOREIGN TO ITS FLAG," IS NOT SO CLEARLY ESTABLISHED AS TO AUTHORIZE PAYMENT BY THE UNITED STATES TO A VESSEL OF PANAMA REGISTRY FOR THE TRANSPORTATION OF MAILS OF FOREIGN COUNTRIES, SIGNATORY TO THE CONVENTION, DISPATCHED FROM THE UNITED STATES TO PANAMA WHERE THE VESSEL WAS NOT UNDER CONTRACT WITH THE UNITED STATES FOR THE TRANSPORTATION OF SUCH MAILS NOR REQUIRED TO TRANSPORT THE FOREIGN MAIL INVOLVED UNDER THE ACT OF FEBRUARY 6, 1929, 45 STAT. 1153.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE POSTMASTER GENERAL, JUNE 2, 1938:

YOUR LETTER OF MAY 5, 1938, IS AS FOLLOWS:

THERE IS TRANSMITTED HEREWITH A JOURNAL COVERING CERTIFICATION FOR PAYMENT TO THE UNITED FRUIT COMPANY OF AMOUNTS DUE FOR THE CONVEYANCE OF MAILS ORIGINATING IN SPAIN AND THE DOMINICAN REPUBLIC DURING THE PERIOD FROM NOVEMBER 1, 1932, TO DECEMBER 31, 1934, ON VESSELS OF PANAMA REGISTRY, WHICH AT THE TIME OF DISPATCH IT WAS ASSUMED WOULD BE CONVEYED UNDER THE FREE TRANSIT PROVISION OF THE CONVENTION OF THE POSTAL UNION OF THE AMERICAS AND SPAIN.

ARTICLE 3 OF THE CONVENTION NAMED, COMMONLY KNOWN AS THE FREE TRANSIT PROVISIONS OF THE CONVENTION, IS AS FOLLOWS:

"1. THE GRATUITY OF TERRITORIAL, FLUVIAL, AND MARITIME TRANSIT IS ABSOLUTE IN THE TERRITORY OF THE POSTAL UNION OF THE AMERICAS AND SPAIN; CONSEQUENTLY, THE COUNTRIES WHICH FORM IT OBLIGATE THEMSELVES TO TRANSPORT ACROSS THEIR TERRITORIES AND TO CONVEY BY THE SHIPS OF THEIR REGISTRY OR FLAG WHICH THEY UTILIZE FOR THE TRANSPORTATION OF THEIR OWN CORRESPONDENCE, WITHOUT ANY CHARGE WHATSOEVER TO THE CONTRACTING COUNTRIES, ALL THAT WHICH THE LATTER SEND TO ANY DESTINATION.

"2. IN CASES OF REFORWARDING, THE CONTRACTING COUNTRIES ARE BOUND TO REFORWARD THE CORRESPONDENCE BY THE WAYS AND MEANS WHICH THEY UTILIZE FOR THEIR OWN DISPATCHES.'

UNDER THIS PROVISION THE COUNTRIES SIGNATORY TO THE CONVENTION AGREE TO TRANSPORT THROUGH THEIR TERRITORIES AND ON SHIPS OF THEIR REGISTRY, MAILS OF SIGNATORY COUNTRIES DISPATCHED TO ANY DESTINATION FREE OF CHARGE.

IN ACCORDANCE WITH THIS FREE TRANSIT PROVISION, THE UNITED STATES DISPATCHED FROM THE PORTS OF NEW YORK TO NEW ORLEANS ON VESSELS OF PANAMA REGISTRY, MAILS OF UNITED STATES ORIGIN, AND MAILS ORIGINATING IN THE SIGNATORY COUNTRIES OF SPAIN AND THE DOMINICAN REPUBLIC UNDER THE ASSUMPTION THAT THE POSTAL ADMINISTRATION OF PANAMA WAS OBLIGATED TO THE STEAMSHIP COMPANIES FOR THEIR CONVEYANCE.

AS A RESULT OF A DIFFERENCE OF INTERPRETATION OF THIS FREE-TRANSIT PROVISION AS BETWEEN THIS DEPARTMENT AND THE POSTAL ADMINISTRATION OF PANAMA; WHICH DIFFERENCE WAS NOT ADJUSTED UNTIL LATE IN 1934, THE POSTAL ADMINISTRATION OF PANAMA CONTENDS THAT THE FREE-TRANSIT PROVISIONS WERE NOT IN EFFECT BETWEEN OUR TWO COUNTRIES UNTIL JANUARY 1, 1935. THIS CONTENTION IS ACCEPTED BY THIS DEPARTMENT AND THE GENERAL ACCOUNTING OFFICE, POST OFFICE DEPARTMENT DIVISION, AND IN ACCORDANCE THEREWITH THE GENERAL ACCOUNTING OFFICE HAS AGREED TO ACCEPT FOR PAYMENT CERTIFICATIONS OF ACCOUNTS DUE THE STEAMSHIP COMPANY FOR MAILS OF UNITED STATES ORIGIN DISPATCHED FROM THE PORTS MENTIONED ON VESSELS OF PANAMA REGISTRY DURING THE PERIOD FROM NOVEMBER 1, 1932 TO DECEMBER 31, 1934, BUT HAS EXCEPTED FROM PAYMENT THE SERVICE PERFORMED DURING THAT PERIOD IN CONVEYING MAILS ORIGINATING IN SPAIN AND THE DOMINICAN REPUBLIC INCLUDED IN SUCH DISPATCHES.

AS THE STEAMSHIP COMPANY CONCERNED STATES THAT THE COMPENSATION DUE FOR THIS SERVICE IS PRIMARILY AN OBLIGATION OF THE UNITED STATES POST OFFICE DEPARTMENT; THEY BEING REQUIRED TO CONVEY THE MAILS UNDER SECTION 2255 OF THE POSTAL LAWS AND REGULATIONS (18 U.S.C. 326, SUPP. V.), THEY COULD DOUBTLESS OBTAIN JUDGMENT FOR THE AMOUNT DUE IF SUIT WERE INSTITUTED BY THEM IN THE UNITED STATES COURT OF CLAIMS.

TO AVOID THE POSSIBILITY OF THE INSTITUTION OF SUCH SUIT, THIS DEPARTMENT DESIRES TO HAVE INCLUDED IN THE CERTIFIED CLAIMS FORWARDED TO CONGRESS FOR INCLUSION IN A DEFICIENCY APPROPRIATION, THE AMOUNT OF COMPENSATION DUE THE STEAMSHIP COMPANY FOR THE CONVEYANCE OF MAILS ORIGINATING IN SPAIN AND THE DOMINICAN REPUBLIC DURING THE PERIOD MENTIONED; WHICH AMOUNT IS APPROXIMATELY $6,400.00 CALCULATED AT THE RATES WHICH IT IS UNDERSTOOD WERE PAID BY THE POSTAL ADMINISTRATION OF PANAMA DURING THE PERIOD IN QUESTION.

THESE RATES, AS ASCERTAINED FROM THE POSTAL ADMINISTRATION OF PANAMA BY THE DIRECTOR OF POSTS OF THE CANAL ZONE, WERE $0.14 PER POUND FOR LETTERS AND POST CARDS, AND $0.0176 PER POUND FOR OTHER ARTICLES. HOWEVER, IF IT SHOULD LATER BE DETERMINED THAT THERE WAS NO RESPONSIBILITY ON THE PART OF THE POSTAL ADMINISTRATION OF PANAMA FOR THE CONVEYANCE OF THESE MAILS, THE AMOUNT DUE AT THE RATES PAID BY THIS DEPARTMENT WOULD BE APPROXIMATELY $11,400.00.

IF THE AMOUNTS DUE FOR THE CONVEYANCE OF THESE MAILS OF FOREIGN ORIGIN CAN BE PASSED SO AS TO INCLUDE THEM IN A DEFICIENCY APPROPRIATION, THIS OFFICE, IN ORDER TO INDEMNIFY ITSELF, CAN WITHHOLD PAYMENT TO THE POSTAL ADMINISTRATION OF PANAMA OF THE AMOUNT DUE ON PARCEL POST TRANSACTIONS WITH THAT ADMINISTRATION DURING THE FISCAL YEAR 1937, WHICH AMOUNTS TO APPROXIMATELY $13,000.00, SHOULD IT LATER BE DETERMINED THAT THE POSTAL ADMINISTRATION OF PANAMA IS OBLIGATED FOR THE CONVEYANCE OF THE MAILS MENTIONED INSTEAD OF THIS DEPARTMENT.

AS ABOVE STATED, IT IS DESIRED TO INCLUDE THE AMOUNT OF THE COMPENSATION FOR THESE MAILS OF FOREIGN ORIGIN IN A DEFICIENCY APPROPRIATION BEFORE THE ADJOURNMENT OF THE PRESENT CONGRESS.

AN EARLY DETERMINATION OF THE QUESTION WILL BE APPRECIATED.

YOUR LETTER OF NOVEMBER 24, 1936, FORWARDED TO THIS OFFICE AN INTERPRETATION OF THIS POSTAL CONVENTION, WHICH INTERPRETATION WAS APPROVED BY THE PRESIDENT OF THE UNITED STATES ON NOVEMBER 17, 1936, AND IS AS FOLLOWS:

INTERPRETATION OF CONVENTION OF THE POSTAL UNION OF THE AMERICAS

AND SPAIN--- NO. 2

IN ACCORDANCE WITH THE AUTHORITY GRANTED BY U.S.C. TITLE 5 SECTION 372, WHICH READS:

"FOR THE PURPOSE OF MAKING BETTER POSTAL ARRANGEMENTS WITH FOREIGN COUNTRIES, OR TO COUNTERACT THEIR ADVERSE MEASURES AFFECTING OUR POSTAL INTERCOURSE WITH THEM, THE POSTMASTER GENERAL, BY AND WITH THE ADVICE AND CONSENT OF THE PRESIDENT, MAY NEGOTIATE AND CONCLUDE POSTAL TREATIES OR CONVENTIONS, AND MAY REDUCE OR INCREASE THE RATES OF POSTAGE OR OTHER CHARGES ON MAIL MATTER CONVEYED BETWEEN THE UNITED STATES AND FOREIGN COUNTRIES: PROVIDED, THAT THE DECISIONS OF THE POSTMASTER GENERAL CONSTRUING OR INTERPRETING THE PROVISIONS OF ANY TREATY OR CONVENTION WHICH HAS BEEN OR MAY BE NEGOTIATED AND CONCLUDED SHALL, IF APPROVED BY THE PRESIDENT, BE FINAL AND CONCLUSIVE UPON ALL OFFICERS OF THE UNITED STATES.'

THE PROVISION IN SECTION 1, ARTICLE 3 OF THE CONVENTION OF THE POSTAL UNION OF THE AMERICAS AND SPAIN, WHICH READS:

"THE GRATUITY OF TERRITORIAL, FLUVIAL AND MARITIME TRANSIT IS ABSOLUTE IN THE TERRITORY OF THE POSTAL UNION OF THE AMERICAS AND SPAIN; CONSEQUENTLY, THE COUNTRIES WHICH FORM IT OBLIGATE THEMSELVES TO TRANSPORT ACROSS THEIR TERRITORIES AND TO CONVEY BY THE SHIPS OF THEIR REGISTRY OR FLAG WHICH THEY UTILIZE FOR THE TRANSPORTATION OF THEIR OWN CORRESPONDENCE, WITHOUT ANY CHARGE WHATSOEVER TO THE CONTRACTING COUNTRIES, ALL THAT WHICH THE LATTER MAY SEND TO ANY DESTINATION.'

IS FURTHER INTERPRETED AND CONSTRUED TO MEAN THAT, HAVING RATIFIED THE AFORESAID CONVENTION AFTER EXPRESS INSTRUCTIONS TO ITS DELEGATES TO THE THIRD (MADRID, 1931) PAN AMERICAN POSTAL CONGRESS TO CONCEDE COMPLETE GRATUITY OF TRANSIT BY SHIPS OF AMERICAN REGISTRY TO MAILS OF COUNTRIES OF THE PAN AMERICAN POSTAL UNION (NAME CHANGED TO "POSTAL UNION OF THE AMERICAS AND SPAIN" BY THE SAID MADRID 1931 CONGRESS), AS HEREINAFTER SET FORTH (I.E., IN TRANSLATION, FROM THE DOCUMENTS OF THE THIRD PAN AMERICAN POSTAL CONGRESS, MADRID 1931 MINUTES OF THE SEVENTH SESSION OF THE FIRST COMMITTEE), THE UNITED STATES OF AMERICA THUS ACCEPTED THE INTERPRETATION OF THE REST OF THE DELEGATIONS TO THAT CONGRESS AND OBLIGATED ITSELF TO TRANSPORT FREE OF COST TO THE COUNTRY OF ORIGIN ALL THE MAILS CONSISTING OF ARTICLES OF CORRESPONDENCE (LETTERS, POST CARDS, PRINTS, COMMERCIAL PAPERS, SAMPLES WITHOUT VALUE, AND SMALL PACKETS) OF OTHER AMERICO-SPANISH COUNTRIES ADHERING TO THE CONVENTION IN QUESTION (FOR ANY DESTINATION) BY STEAMSHIPS OF AMERICAN REGISTRY UTILIZED BY THE UNITED STATES FOR THE TRANSPORTATION OF ITS OWN CORRESPONDENCE, REGARDLESS OF WHETHER OR NOT THE CONVEYING STEAMSHIPS OF AMERICAN REGISTRY ARE THEN UNDER CONTRACT TO CARRY MAILS OF THE UNITED STATES OF AMERICA AND WHETHER OR NOT THE FOREIGN MAILS IN QUESTION ARE EMBARKED ON SUCH AMERICAN STEAMSHIPS AT A FOREIGN OR A UNITED STATES PORT AND WHETHER OR NOT SUCH MAILS EVER REACH A PORT OF THE UNITED STATES OR ANY UNITED STATES FEDERAL POSTAL AGENCY EN ROUTE TO THEIR DESTINATIONS.

THIS INTERPRETATION HAS DUE REGARD TO THE MEMORANDUM RELATIVE TO GRATUITY OF TRANSIT WHICH WAS SIGNED (ON THEIR RETURN FROM MADRID) BY THE DELEGATES OF THE UNITED STATES TO THE AFORESAID MADRID 1931 CONGRESS, THAT IS, BY MR. W. IRVING GLOVER, THEN SECOND ASSISTANT POSTMASTER GENERAL AND MR. EUGENE R. WHITE, THEN DIRECTOR OF INTERNATIONAL POSTAL SERVICE. THE MEMORANDUM MENTIONED READS AS FOLLOWS:

"AFTER AN EXTENDED AND THOROUGH CONSIDERATION AND DISCUSSION OF THE FREE TRANSIT PROVISIONS (ARTICLE 3 OF THE CONVENTION OF THE AMERICAS AND SPAIN) THE DELEGATES OF THE MADRID CONGRESS WERE IN UNANIMOUS AGREEMENT THAT ALL THE TRANSPORTATION FACILITIES USED BY ANY ONE POSTAL ADMINISTRATION WHEREVER THEY MAY REACH ON LAND OR WATER ARE PLACED FREELY AT THE DISPOSITION OF THE ADMINISTRATIONS OF THE OTHER SIGNATORY COUNTRIES WITHOUT CHARGE, EXCEPT WHERE PAYMENT HAS TO BE MADE BY THE INTERMEDIARY COUNTRY FOR THE USE OF VESSELS FOREIGN TO ITS FLAG.'

HARLEE BRANCH,

ACTING POSTMASTER GENERAL

IT APPEARS FROM YOUR PRESENT SUBMISSION THAT PANAMA HAS DENIED LIABILITY FOR THE CARRIAGE OF THE MAIL IN QUESTION, BOTH FOR THE REASON THAT THE SERVICE WAS PERFORMED PRIOR TO JANUARY 1, 1935, AT A TIME WHEN THE UNITED STATES AND PANAMA DID NOT MAINTAIN RECIPROCAL FREE TRANSIT SERVICE UNDER THE CONVENTION, AND FOR THE FURTHER REASON THAT PANAMA INTERPRETS THE CONVENTION TO RELATE ONLY TO VESSELS OF PANAMA REGISTRY WHICH ARE ACTUALLY USED BY PANAMA FOR THE TRANSPORTATION OF ITS OWN MAILS. THIS INTERPRETATION DOES NOT APPEAR TO CONFLICT WITH THE INTERPRETATION OF YOUR DEPARTMENT QUOTED, SUPRA, THAT THE UNITED STATES "OBLIGATED ITSELF TO TRANSPORT FREE OF COST TO THE COUNTRY OF ORIGIN ALL THE MAILS * * * OF OTHER AMERICO-SPANISH COUNTRIES ADHERING TO THE CONVENTION IN QUESTION (FOR ANY DESTINATION) BY STEAMSHIPS OF AMERICAN REGISTRY UTILIZED BY THE UNITED STATES FOR THE TRANSPORTATION OF ITS OWN CORRESPONDENCE, REGARDLESS OF WHETHER OR NOT THE CONVEYING STEAMSHIPS OF AMERICAN REGISTRY ARE THEN UNDER CONTRACT TO CARRY MAILS OF THE UNITED STATES.' BUT BE THAT AS IT MAY, IT IS NOT UNDERSTOOD THAT THE ABOVE QUOTED PROVISIONS OF THE CONVENTION IMPOSE ANY LIABILITY UPON THE UNITED STATES TO FURNISH FREE TRANSIT OF MAILS OF FOREIGN COUNTRIES SIGNATORY TO THE CONVENTION WHEN THE SERVICE IS RENDERED UPON VESSELS NOT OF ITS OWN REGISTRY. NOTE IN THIS CONNECTION THE "UNANIMOUS AGREEMENT" HEREINBEFORE QUOTED "THAT ALL THE TRANSPORTATION FACILITIES USED BY ANY ONE POSTAL ADMINISTRATION WHEREVER THEY MAY REACH ON LAND OR WATER ARE PLACED FREELY AT THE DISPOSITION OF THE ADMINISTRATIONS OF THE OTHER SIGNATORY COUNTRIES WITHOUT CHARGE, EXCEPT WHERE PAYMENT HAS TO BE MADE BY THE INTERMEDIARY COUNTRY FOR THE USE OF VESSELS FOREIGN TO ITS FLAG.' IT APPEARS FROM THE RECORD THAT PANAMA HAS REFUSED NOT ONLY TO PAY FOR THE TRANSPORTATION OF THE MAILS ORIGINATING IN SPAIN AND THE DOMINICAN REPUBLIC; BUT, ALSO, HAS REFUSED FREE TRANSIT TO THE AMERICAN MAILS WHICH WERE TRANSPORTED UPON THE SAME VESSELS WITH THE FOREIGN MAIL, FOR THE REASON, AS STATED ABOVE, THAT PANAMA DID NOT USE THOSE VESSELS FOR ITS OWN MAIL SERVICE.

THERE IS NOTED YOUR REFERENCE TO THE PROVISIONS OF THE ACT OF FEBRUARY 6, 1929, 45 STAT. 1153 (18 U.S.C. 326) WHICH READ:

EXCEPT AS OTHERWISE PROVIDED BY TREATY OR CONVENTION THE POSTMASTER GENERAL MAY REQUIRE THE TRANSPORTATION BY ANY STEAMSHIPS OF MAIL BETWEEN THE UNITED STATES AND ANY FOREIGN PORT AT THE COMPENSATION FIXED UNDER AUTHORITY OF LAW. UPON REFUSAL BY THE MASTER OR THE COMMANDER OF SUCH STEAMSHIP OR VESSEL TO ACCEPT THE MAIL, WHEN TENDERED BY THE POSTMASTER GENERAL OR HIS REPRESENTATIVE, THE COLLECTOR OR OTHER OFFICER OF THE PORT EMPOWERED TO GRANT CLEARANCE, ON NOTICE OF THE REFUSAL AFORESAID, SHALL WITHHOLD CLEARANCE UNTIL THE COLLECTOR OR OTHER OFFICER OF THE PORT IS INFORMED BY THE POSTMASTER GENERAL OR HIS REPRESENTATIVE THAT THE MASTER OR COMMANDER OF THE STEAMSHIP OR VESSEL HAS ACCEPTED THE MAIL OR THAT CONVEYANCE BY HIS STEAMSHIP OR VESSEL IS NO LONGER REQUIRED BY THE POSTMASTER GENERAL.

IT IS NOT UNDERSTOOD THAT THIS PROVISION OF LAW WAS INVOKED IN THIS INSTANCE TO COMPEL THE VESSELS OF THE UNITED FRUIT CO. TO TRANSPORT THE FOREIGN MAIL HERE INVOLVED, OR THAT THE UNITED STATES MADE ANY CONTRACT WITH SAID COMPANY FOR THE TRANSPORTATION OF SUCH MAILS. CONSEQUENTLY, I HAVE TO ADVISE THAT ON THE PRESENT RECORD LIABILITY OF THE UNITED STATES TO THE UNITED FRUIT CO. FOR THE TRANSPORTATION OF THESE FOREIGN MAILS ON VESSELS OF FOREIGN REGISTRY IS NOT SO CLEARLY ESTABLISHED AS TO WARRANT THIS OFFICE IN CERTIFYING THE CLAIM FOR ALLOWANCE, OR IN APPROVING THE AMOUNTS FOR REPORTING TO THE CONGRESS FOR A DEFICIENCY APPROPRIATION AS PROPOSED.