B-150825, APR. 16, 1963

B-150825, APR. 16, 1963

TO EDWARD L. THOMAS, SK3, USN:

REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 30 AND MARCH 28, 1963, IN EFFECT REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED OCTOBER 22, 1962, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF SHIPPING YOUR AUTOMOBILE FROM BILBAO, SPAIN, TO NEW YORK, NEW YORK, INCIDENT TO YOUR RETURN FROM OVERSEAS.

BY ORDERS DATED APRIL 6, 1961, YOU WERE TRANSFERRED FROM U.S. NAVAL ACTIVITIES, SPAIN, MADRID, SPAIN, TO THE U.S.S. CAPRICORNUS (AKA-57) WHERE YOU WERE TO REPORT NOT LATER THAN APRIL 12, 1961, FOR DUTY. SINCE THE ORDERS DID NOT AUTHORIZE YOU TO SHIP YOUR AUTOMOBILE TO THE UNITED STATES AT GOVERNMENT EXPENSE, AND YOUR REQUEST FOR THAT AUTHORITY WAS REJECTED BY THE NAVY DEPARTMENT, YOU MADE YOUR OWN ARRANGEMENTS TO SHIP IT ON THE SS AMERICAN FORESTER, OWNED BY THE UNITED STATES LINES COMPANY. THE SETTLEMENT OF OCTOBER 22, 1962, DISALLOWED YOUR CLAIM FOR THE REASON THAT THE REGULATIONS DO NOT PROVIDE FOR REIMBURSING A MEMBER FOR THE COST OF SHIPPING HIS AUTOMOBILE ON A COMMERCIAL VESSEL AT HIS OWN EXPENSE. YOU SAY THAT YOUR COMMAND ADVISED YOU TO SHIP THE AUTOMOBILE AT YOUR OWN EXPENSE AND SUBSEQUENTLY SUBMIT A CLAIM FOR REIMBURSEMENT.

THE STATUTORY AUTHORITY FOR TRANSOCEANIC SHIPMENT AT GOVERNMENT EXPENSE OF PRIVATELY OWNED VEHICLES OF MEMBERS OF THE UNIFORMED SERVICES WAS ENLARGED BY THE ACT OF MAY 28, 1956, 70 STAT. 187, 46 U.S.C. 1241 (C), WHICH AMENDED SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, AS AMENDED, BY ADDING AT THE END THEREOF A NEW SUBSECTION READING AS FOLLOWS:

"/C) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, PRIVATELY OWNED AMERICAN SHIPPING SERVICES MAY BE UTILIZED FOR THE TRANSPORTATION OF MOTOR VEHICLES OWNED BY GOVERNMENT PERSONNEL WHENEVER TRANSPORTATION OF SUCH VEHICLES AT GOVERNMENT EXPENSE IS OTHERWISE AUTHORIZED BY LAW.'

THIS STATUTE IS NOT SELF-EXECUTING, BUT REQUIRED THAT IMPLEMENTING REGULATIONS BE ISSUED BY THE SECRETARIES OF THE SERVICES CONCERNED. THE FOLLOWING PERTINENT REGULATIONS FOR NAVAL PERSONNEL ARE FOUND IN BUREAU OF SUPPLIES AND ACCOUNTS MANUAL, VOLUME V:

"58300 AUTHORITY

"1. FOR MILITARY PERSONNEL AND COAST GUARD WHEN TRANSFERRED TO, FROM, OR BETWEEN OVERSEAS AREAS. TRANSPORTATION OF ONE PRIVATELY OWNED MOTOR VEHICLE OF MILITARY PERSONNEL OF THE NAVY, MARINE CORPS, ARMY, AIR FORCE, AND COAST GUARD UNIFORMED PERSONNEL SPECIFIED IN PAR. 58308 2 ORDERED TO MAKE A PERMANENT CHANGE OF STATION, TO, FROM, OR BETWEEN OVERSEAS AREAS OR TO A NONROTATED VESSEL OR UNIT WHICH IS BASED OVERSEAS MAY BE AUTHORIZED TO THE NEW STATION ON GOVERNMENT OWNED VESSELS OR ON PRIVATELY OWNED UNITED STATES FLAG COMMERCIAL VESSELS, FREE OF LOADING AND OCEAN TRANSPORTATION CHARGES UNDER THE PROVISION OF THIS PARAGRAPH. * * *

"58303 APPLICATION FOR SHIPMENT OF PRIVATELY OWNED AUTOMOBILES

"1. SUBMISSION OF APPLICATION

"A. AUTHORIZED SHIPPING ACTIVITIES. REQUESTS FOR THE SHIPMENT OF MOTOR VEHICLES WILL BE MADE BY THE OWNER ON A MOTOR VEHICLE SHIPMENT APPLICATION (DD FORM 828). * * * UNDER NO CIRCUMSTANCES WILL OWNERS SUBMIT APPLICATIONS DIRECTLY TO STEAMSHIP COMPANIES.'

WHILE THE STATUTE AND REGULATIONS PROVIDE FOR TRANSOCEANIC SHIPMENT AT GOVERNMENT EXPENSE OF PRIVATELY OWNED VEHICLES ON COMMERCIAL AMERICAN VESSELS, BOTH THE STATUTE AND REGULATIONS CONTEMPLATE THAT ARRANGEMENTS FOR SUCH SHIPMENT WILL BE MADE BY THE APPROPRIATE SHIPPING OFFICER. NEITHER THE STATUTE NOR THE REGULATIONS CONTAIN ANY PROVISION FOR REIMBURSING A MEMBER WHO MAKES HIS OWN ARRANGEMENTS FOR SHIPPING HIS VEHICLE ON A COMMERCIAL VESSEL. THUS, ASIDE FROM THE FACT THAT YOUR ORDERS DID NOT AUTHORIZE THE SHIPMENT OF YOUR AUTOMOBILE AT GOVERNMENT EXPENSE, IT CLEARLY IS APPARENT FROM THE CITED REGULATIONS THAT ALL TRANSOCEANIC SHIPMENTS ON COMMERCIAL VESSELS ARE TO BE ARRANGED BY THE APPROPRIATE GOVERNMENT SHIPPING OFFICER AND NOT THE OWNER OF THE AUTOMOBILE. THE FACT THAT THE LAW DOES NOT SPECIFICALLY PROHIBIT REIMBURSEMENT DOES NOT PROVIDE A BASIS FOR PAYMENT OF YOUR CLAIM SINCE VALID STATUTORY REGULATIONS HAVE THE FORCE AND EFFECT OF LAW AND MAY NO MORE BE WAIVED THAN THE PROVISIONS OF THE STATUTE ITSELF. SEE 22 COMP. GEN. 895; 31 COMP. GEN. 193.

SINCE YOU WERE NOT AUTHORIZED TO MAKE PERSONAL ARRANGEMENTS FOR THE SHIPMENT OF YOUR AUTOMOBILE TO THIS COUNTRY AT GOVERNMENT EXPENSE AND THE APPROPRIATE NAVY SHIPPING OFFICER DID NOT ARRANGE FOR ITS SHIPMENT, YOU ARE NOT ENTITLED TO REIMBURSEMENT OF THE COSTS INVOLVED. NOR COULD YOUR RIGHT IN THE MATTER BE INCREASED ON THE BASIS THAT YOUR COMMAND ADVISED YOU TO SHIP THE AUTOMOBILE AT YOUR OWN EXPENSE AND SUBSEQUENTLY SUBMIT A CLAIM FOR REIMBURSEMENT CONTRARY TO THE REGULATIONS INVOLVED. IT IS WELL ESTABLISHED THAT, IN THE ABSENCE OF SPECIFIC STATUTORY PROVISIONS, THE UNITED STATES IS NOT LIABLE FOR NEGLIGENT ACTIONS OF ITS OFFICERS, AGENTS OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. GERMAN BANK V. UNITED STATES, 148 U.S. 573; 19 COMP. GEN. 503; 22 COMP. GEN. 221.

EVEN IF YOUR WERE ENTITLED TO REIMBURSEMENT OF THE COSTS OF TRANSPORTATION, IT WOULD SEEM THAT THE DEMURRAGE CHARGES FOR THE PERIOD YOUR AUTOMOBILE REMAINED ON THE PIER AT NEW YORK AFTER THE EXPIRATION OF FREE TIME WOULD NOT BE REIMBURSABLE AS SUCH CHARGES COULD NOT BE CONSIDERED AS RELATING TO THE "AMERICAN SHIPPING SERVICES" AUTHORIZED BY THE QUOTED PROVISIONS OF THE ACT OF MAY 28, 1956. SEE 39 COMP. GEN. 713; PARAGRAPH 58305, BUREAU OF SUPPLIES AND ACCOUNTS MANUAL, VOLUME V.

ACCORDINGLY, THE SETTLEMENT OF OCTOBER 22, 1962, WAS CORRECT AND IS SUSTAINED.