A-99196, NOVEMBER 29, 1938, 18 COMP. GEN. 487

A-99196: Nov 29, 1938

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FEES - CONSULAR NOTARIAL - REFUNDS - SERVICES RENDERED IN GOOD FAITH WHERE THERE IS NO ERROR ON THE PART OF THE GOVERNMENT OR DEFECTS IN ANY SERVICE RENDERED BY AN AMERICAN CONSUL IN CONNECTION WITH CERTIFICATES CONCERNING THE PURCHASE AND SCRAPPING OF VESSELS. REFUND OF THE FEES COLLECTED FOR THE SERVICES RENDERED IN GOOD FAITH IS NOT AUTHORIZED. THERE ALSO IS ENCLOSED A COPY OF A LETTER ON THIS SUBJECT FROM THE UNITED STATES MARITIME COMMISSION. APPEARED TO HAVE BEEN DUE TO THE REPRESENTATIVE'S MISUNDERSTANDING OF THE MARITIME COMMISSION'S REQUIREMENTS. IN VIEW OF PREVIOUS NOTARIAL SERVICES WHICH WERE PERFORMED IN THIS CASE THE COMMISSION APPEARS TO REGARD THE ADDITIONAL SERVICES AS UNNECESSARY.

A-99196, NOVEMBER 29, 1938, 18 COMP. GEN. 487

FEES - CONSULAR NOTARIAL - REFUNDS - SERVICES RENDERED IN GOOD FAITH WHERE THERE IS NO ERROR ON THE PART OF THE GOVERNMENT OR DEFECTS IN ANY SERVICE RENDERED BY AN AMERICAN CONSUL IN CONNECTION WITH CERTIFICATES CONCERNING THE PURCHASE AND SCRAPPING OF VESSELS, BUT AT MOST A MISUNDERSTANDING ON THE PART OF THE APPLICANT FOR THE SERVICE AS TO THE REQUIREMENTS OF THE UNITED STATES MARITIME COMMISSION, REFUND OF THE FEES COLLECTED FOR THE SERVICES RENDERED IN GOOD FAITH IS NOT AUTHORIZED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF STATE, NOVEMBER 29, 1938:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 8, 1938, AS FOLLOWS:

THE DEPARTMENT ENCLOSES A COPY OF A DISPATCH AND ITS ENCLOSURE FROM THE AMERICAN CONSUL AT SHEFFIELD, ENGLAND, RELATING TO THE DESIRE OF THOMAS W. WARD, LIMITED, THAT CERTAIN CONSULAR NOTARIAL FEES BE REFUNDED FOR THE REASON SET FORTH THEREIN. THERE ALSO IS ENCLOSED A COPY OF A LETTER ON THIS SUBJECT FROM THE UNITED STATES MARITIME COMMISSION.

THE ADDITIONAL NOTARIAL SERVICES WHICH ON AUGUST 30, 1938, A REPRESENTATIVE OF THOMAS W. WARD, LIMITED, REQUESTED THE CONSUL TO PERFORM, AS INDICATED BY THE CONSUL'S DESPATCH, APPEARED TO HAVE BEEN DUE TO THE REPRESENTATIVE'S MISUNDERSTANDING OF THE MARITIME COMMISSION'S REQUIREMENTS, AS INDICATED IN ONE OF THE ENCLOSURES. IN VIEW OF PREVIOUS NOTARIAL SERVICES WHICH WERE PERFORMED IN THIS CASE THE COMMISSION APPEARS TO REGARD THE ADDITIONAL SERVICES AS UNNECESSARY. THE DEPARTMENT WILL BE GLAD TO BE INFORMED WHETHER THE CONSUL MAY BE AUTHORIZED TO REFUND FEES.

THE CIRCUMSTANCES UNDER WHICH THE FEES IN QUESTION WERE COLLECTED ARE SET FORTH IN THE DESPATCH OF THE AMERICAN CONSUL AT SHEFFIELD, ENGLAND, DATED SEPTEMBER 2, 1938, AS FOLLOWS:

ON JUNE 22, 1938, A REPRESENTATIVE OF THOS. W. WARD, LIMITED, SHIPBREAKERS, CALLED AT THIS OFFICE TO EXECUTE FOR THE UNITED STATES MARITIME COMMISSION CERTIFICATES CONCERNING THE S.S. WESTERN BELLE AND WEST INDIAN, WHICH HAD BEEN PURCHASED BY THOS. W. WARD, LIMITED, FOR CONVERSION INTO SCRAP. THE CERTIFICATES WERE FORWARDED WITH A CERTIFICATE BY A LLOYD'S SURVEYOR AND WERE DESIGNED TO SHOW THAT THE VESSELS WERE IN FACT USED FOR SCRAP AND NOT FOR FURTHER SERVICE AS SHIPS. VICE CONSUL RAMSEY TOOK THE OATH OF HERBERT BERESFORD (OF THOS. W. WARD, LIMITED) TO THESE CERTIFICATES IN THE USUAL MANNER; AND THE CERTIFICATES WERE IN DUE COURSE SENT TO THE UNITED STATES MARITIME COMMISSION.

ON AUGUST 30, 1938, MR. BERESFORD AGAIN CALLED AT THE CONSULATE AND EXHIBITED A LETTER FROM THE UNITED STATES MARITIME COMMISSION REJECTING THE CERTIFICATES EXECUTED BEFORE VICE CONSUL RAMSEY AS INSUFFICIENT AND REQUIRING THE EXECUTION OF NEW CERTIFICATES BEFORE A NOTARY PUBLIC. COPY IS ENCLOSED.) HE ALSO PRESENTED NEW CERTIFICATES, SO EXECUTED, AND REQUESTED THEIR AUTHENTICATION, WHICH WAS PERFORMED. HE REQUESTED THE REMISSION OF FEES FOR THE NEW DOCUMENTS, ON THE GROUND THAT HE HAD PAID THE FIRST FEES (ON JUNE 22, 1938) IN GOOD FAITH, AND THAT THE SERVICES FOR WHICH HE HAD THEN PAID HAD BEEN FOUND UNSUITED FOR THE PURPOSE FOR WHICH INTENDED. THE REMISSION OF FEES WAS NOT GRANTED, SINCE I SAW NO REASON TO THINK THAT THE SERVICE OF JUNE 22, 1938, HAD BEEN RENDERED BY MISTAKE. WAS THE FIRST INSTANCE I HAVE EVER SEEN IN WHICH AN OATH TAKEN BEFORE A CONSULAR OFFICER HAS BEEN REJECTED AS INSUFFICIENT IN THE UNITED STATES, AND IT WAS PARTICULARLY SURPRISING, SINCE IT WAS A BRANCH OF THE GOVERNMENT THAT MADE THE REJECTION. THE ONLY EXPLANATION THAT OCCURS TO ME IS THAT THERE IS SOME SPECIAL LAW OR REGULATION APPLICABLE TO PURCHASES OF SHIPS BELONGING TO THE UNITED STATES GOVERNMENT CONCERNING WHICH THIS CONSULATE HAS NO INFORMATION.

IT WOULD BE APPRECIATED IF THE DEPARTMENT WOULD INFORM THIS CONSULATE,FOR ITS FUTURE GUIDANCE, RESPECTING THE PROVISIONS OF LAW OR REGULATIONS GOVERNING THE PERFORMANCE OF NOTARIAL SERVICES ON DOCUMENTS FOR THE UNITED STATES MARITIME COMMISSION. WITH THIS INFORMATION BEFORE IT, THE CONSULATE WOULD BE ABLE TO AVOID EMBARRASSMENTS SUCH AS THAT WHICH OCCURRED IN THIS CASE.

THE UNITED STATES MARITIME COMMISSION, IN LETTER OF OCTOBER 24, 1938, OFFERED THE FOLLOWING EXPLANATION OF THE INCIDENT WHICH HAD OCCURRED:

WE SINCERELY REGRET THE EMBARRASSMENT WHICH WAS CAUSED TO THE CONSUL AS A RESULT OF THE INCIDENT, BUT WOULD LIKE TO POINT OUT THAT THE ACTION OF THOMAS W. WARD, LTD., IN FURNISHING REVISED CERTIFICATES WAS WHOLLY VOLUNTARY. TO EXPLAIN THE POSITION OF THE MARITIME COMMISSION AND TO CLEAR UP THE APPARENT MISUNDERSTANDING, WE WILL OUTLINE VERY BRIEFLY THE FACTS OF THE CASE.

ON JUNE 22, 1938, THE CERTIFICATES COVERING THE SALE OF THE WESTERN BELLE AND WEST INDIAN WERE NOTARIZED BY THE AMERICAN VICE CONSUL AT SHEFFIELD. THESE CERTIFICATES WERE SUBMITTED AS EVIDENCE THAT THOMAS W. WARD, LTD., HAD FULFILLED THEIR OBLIGATIONS IN REGARD TO SCRAPPING TWO OUT OF THE THREE SHIPS SOLD TO THEM AND IN CONSEQUENCE WERE ENTITLED TO A REDUCTION OF $100,000.00 OF THE $150,000.00 BOND WHICH THEY FURNISHED TO SECURE PERFORMANCE OF THEIR CONTRACT. WHILE NOT AS COMPREHENSIVE AS MIGHT HAVE BEEN DESIRED, THESE CERTIFICATES WERE ACCEPTABLE TO THE COMMISSION, AND THE BOND WAS REDUCED TO $50,000.00.

SUBSEQUENT TO JUNE 22, 1938, BUT PROBABLY BEFORE THOMAS W. WARD, LTD., RECEIVED OUR NOTIFICATION OF THE REDUCTION IN THEIR BOND, WHICH NOTIFICATION WAS DATED AUGUST 19, 1938, THE COMMISSION SENT OUT A NEW FORM OF AFFIDAVIT TO THE BUYERS WHICH, IT WAS FELT, WOULD MORE ADEQUATELY STATE THE INFORMATION NEEDED BY THE COMMISSION IN CONNECTION WITH THE FOREIGN SALE OF SHIPS FOR SCRAPPING. IT MAY HAVE BEEN THAT THOMAS W. WARD, LTD., HAVING RECEIVED THE NEW FORM OF AFFIDAVIT, BUT NOT HAVING RECEIVED THE COMMISSION'S NOTICE OF THE REDUCTION IN THEIR BOND, FELT IT NECESSARY TO EXECUTE THE SECOND SET OF CERTIFICATES IN CONNECTION WITH THE SCRAPPING OF THE WESTERN BELLE AND WEST INDIAN.

OUR LETTER DATED JULY 21, 1938, WHICH WAS SHOWN BY THOMAS W. WARD, LT., TO THE CONSUL, AND A COPY OF WHICH WAS ATTACHED TO HIS DESPATCH, WAS ONE OF SEVERAL LETTERS EXCHANGED WITH THOMAS W. WARD, LTD., RELATIVE TO THE FORM OF CERTIFICATE WE WOULD REQUIRE BEFORE DISCHARGING THEM FROM THE BOND WHICH THEY FURNISHED. THIS LETTER ANSWERED PARTICULARLY THEIR OBSERVATION IN A LETTER TO US DATED JULY 11, 1938, TO THE EFFECT THAT THEY UNDERSTOOD IT WOULD NOT BE NECESSARY TO HAVE SUCH CERTIFICATE SWORN TO BEFORE A NOTARY PUBLIC IF THERE WAS AN ATTESTATION BEFORE AN AMERICAN CONSUL. FOR OBVIOUS REASONS, WE REQUIRE THAT SUCH CERTIFICATES BE MADE UNDER OATH AND HAVE STIPULATED AS A MEANS OF ESTABLISHING THE AUTHENTICITY OF THESE INSTRUMENTS THAT THEY MUST BE AUTHENTICATED IN SOME MANNER BEFORE AN AMERICAN CONSUL. WE ALSO REQUIRE THE PRINCIPALS TO SUBMIT A CERTIFICATION BY A SURVEYOR FOR A RECOGNIZED CLASSIFICATION SOCIETY, BASED ON PHYSICAL INSPECTION, THAT THE VESSEL INVOLVED HAS BEEN DISMANTLED AND SCRAPPED. IS NOT MANDATORY THAT THESE LATTER CERTIFICATES BE MADE UNDER OATH, BUT WE DO REQUIRE THAT THEY BEAR A CONSULAR IDENTIFICATION.

IN VIEW OF THE CUSTOMARY PRACTICE OF HAVING CERTIFICATES OF THE CHARACTER DESCRIBED, NOTARIZED BY COMMERCIAL NOTARIES, WE DID NOT HAVE IN MIND THE POSSIBILITY THAT OUR PRINCIPALS MIGHT HAVE THEIR CERTIFICATES NOTARIZED BY A CONSULAR OFFICER, OR WE WOULD HAVE DIRECTED THAT IN SUCH INSTANCES THE NOTARIAL ACKNOWLEDGMENT ALONE WOULD BE SUFFICIENT.

THE ESTABLISHED RULE WITH RESPECT TO THE REFUND OF FEES COLLECTED FOR SERVICES RENDERED IN GOOD FAITH BY CONSULS ON THE REQUEST OF APPLICANTS FOR SUCH SERVICES IS THAT SUCH REFUND IS AUTHORIZED ONLY IN CASES WHERE THERE HAS BEEN A DEFECT IN THE SERVICE RENDERED OR WHERE SERVICE IS RENDERED UNNECESSARILY BECAUSE OF THE FAULT OR NEGLIGENCE OF AN OFFICER OR EMPLOYEE OF THE GOVERNMENT. SEE 3 COMP. GEN. 115; 10 ID. 35; 16 ID. 235.

THE CONSUL HAS NOT REQUESTED AUTHORITY TO MAKE ANY REFUND IN THE CASE; AND IN VIEW OF THE FACT THAT THIS CASE PRESENTS NO ERROR ON THE PART OF THE GOVERNMENT OR DEFECT IN ANY SERVICE RENDERED BY THE CONSUL, BUT AT MOST A MISUNDERSTANDING ON THE PART OF THE APPLICANT FOR THE SERVICE AS TO THE REQUIREMENTS OF THE MARITIME COMMISSION AS STATED IN YOUR LETTER, NO REFUND WOULD BE AUTHORIZED UNDER THE RULE STATED ABOVE.