B-151022, MAY 29, 1963, 42 COMP. GEN. 660

B-151022: May 29, 1963

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PROHIBITING ACCEPTANCE AT THE LOADING PORT OF A VEHICLE FROM AN AGENT OF A MEMBER WHO DID NOT HAVE PHYSICAL POSSESSION OF THE VEHICLE BEFORE HIS DEPARTURE TO THE UNITED STATES. 1963: REFERENCE IS MADE TO YOUR LETTER OF MARCH 1. WAS AMENDED AS FOLLOWS: "SHIPMENT AUTHORIZED FOR FOREIGN MANUFACTURED RENAULT. ONLY" IS AMENDED TO READ "SHIPMENT AUTHORIZED FOR FOREIGN MANUFACTURED POC. YOU STATE THAT THE CAR IN QUESTION WAS ORDERED INITIALLY ON MAY 20. THAT THE ORDER WAS RECONFIRMED ON AUGUST 17. THAT THE CAR WAS NOT DELIVERED PRIOR TO YOUR RETURN TO THE UNITED STATES UNDER THE ORDERS OF AUGUST 16. UPON BEING ADVISED BY SERGEANT MILLER THAT THE CAR WAS NOT ACCEPTED BY PORT OFFICIALS IN JAPAN FOR SHIPMENT TO THE UNITED STATES ON THE BASIS OF YOUR POWER OF ATTORNEY.

B-151022, MAY 29, 1963, 42 COMP. GEN. 660

TRANSPORTATION - AUTOMOBILES - MILITARY PERSONNEL - FOREIGN MADE AUTOMOBILE THE COST OF SHIPPING A PRIVATELY OWNED FOREIGN AUTOMOBILE PURCHASED AFTER MAY 7, 1961, BY COMMERCIAL VESSEL WHEN PORT OFFICIALS REFUSED TO ACCEPT IT ON THE BASIS OF THE POWER OF ATTORNEY ISSUED TO HIS AGENT BY AN AIR FORCE OFFICER REASSIGNED TO THE UNITED STATES PRIOR TO DELIVERY OF THE AUTOMOBILE MAY NOT BE REIMBURSED TO THE OFFICER, PARAGRAPH 5802, AIR FORCE MANUAL 75-4A PROHIBITING SHIPMENT OF FOREIGN AUTOMOBILES PURCHASED OVERSEAS AFTER MAY 7, 1961, VIA GOVERNMENT FACILITIES, OR REIMBURSEMENT FOR SHIPMENT BY COMMERCIAL FACILITIES AT PERSONAL EXPENSE, AND PARAGRAPH 5804 REQUIRING SHIPPING OFFICER ARRANGEMENTS FOR ENTITLEMENT TO SHIPMENT, PURSUANT TO 46 U.S.C. 1241 (C) AT GOVERNMENT EXPENSE, AND PARAGRAPH 5804 REQUIRING SHIPPING OFFICER ARRANAGEMENTS FOR ENTITLEMENT TO SHIPMENT, PURSUANT TO 46 U.S.C. 1241/C) AT GOVERNMENT EXPENSE ON COMMERCIAL AMERICAN VESSELS, AND PROHIBITING ACCEPTANCE AT THE LOADING PORT OF A VEHICLE FROM AN AGENT OF A MEMBER WHO DID NOT HAVE PHYSICAL POSSESSION OF THE VEHICLE BEFORE HIS DEPARTURE TO THE UNITED STATES; THEREFORE, IN THE ABSENCE OF AN ADMINISTRATIVE DETERMINATION THAT THE BEST INTERESTS OF THE GOVERNMENT AND THE OFFICER WOULD BE SERVED BY SHIPMENT AT A LATER DATE BY AGENTS OF THE GOVERNMENT, THE PORT AUTHORITIES PROPERLY REFUSED TO ACCEPT THE OFFICER'S CAR FROM HIS AGENT AFTER HIS DEPARTURE TO THE UNITED STATES.

TO EDWIN C. BROTEMARKLE, MAY 29, 1963:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 1, 1963, REQUESTING REVIEW OF THE SETTLEMENT DATED FEBRUARY 4, 1963, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF SHIPMENT OF YOUR AUTOMOBILE OF FOREIGN MANUFACTURE BY COMMERCIAL VESSEL FROM YOKOHAMA, JAPAN, TO SAN FRANCISCO, CALIFORNIA, INCIDENT TO YOUR SERVICE AS AN OFFICER IN THE UNITED STATES AIR FORCE.

BY SPECIAL ORDER NO. A-810, HEADQUARTERS, 6100TH SUPPORT WING (PACAF), UNITED STATES AIR FORCE, APO 323, DATED AUGUST 28, 1961, SPECIAL ORDER NO. A-756 OF THAT COMMAND, DATED AUGUST 16, 1961, RELATING TO YOUR REASSIGNMENT FROM YOUR OVERSEAS STATION TO TRAVIS AIR FORCE BASE, CALIFORNIA, EFFECTIVE SEPTEMBER 1, 1961, WAS AMENDED AS FOLLOWS:

"SHIPMENT AUTHORIZED FOR FOREIGN MANUFACTURED RENAULT, 1960, ENGINE NUMBER 4774, ONLY" IS AMENDED TO READ "SHIPMENT AUTHORIZED FOR FOREIGN MANUFACTURED POC, VOLVO, 1961, ENGINE NUMBER AND SERIAL NUMBER 4P1800, ONLY.'

YOU STATE THAT THE CAR IN QUESTION WAS ORDERED INITIALLY ON MAY 20, 1960, AND THAT THE ORDER WAS RECONFIRMED ON AUGUST 17, 1961, BUT THAT THE CAR WAS NOT DELIVERED PRIOR TO YOUR RETURN TO THE UNITED STATES UNDER THE ORDERS OF AUGUST 16, 1961, NECESSITATING ITS RECEIPT BY A FRIEND, SERGEANT PAUL E. MILLER, THROUGH YOUR POWER OF ATTORNEY. UPON BEING ADVISED BY SERGEANT MILLER THAT THE CAR WAS NOT ACCEPTED BY PORT OFFICIALS IN JAPAN FOR SHIPMENT TO THE UNITED STATES ON THE BASIS OF YOUR POWER OF ATTORNEY, YOU INSTRUCTED HIM TO HAVE IT SHIPPED BY COMMERCIAL MEANS AT YOUR EXPENSE. YOUR CLAIM COVERING THE COST OF THAT SHIPMENT WAS DISALLOWED IN THE SETTLEMENT OF FEBRUARY 4, 1963 (UPON A CONSIDERATION THAT THE ACTUAL PURCHASE OF THE CAR WAS NOT EFFECTED UNTIL AFTER MARCH 7, 1961), UNDER REGULATIONS PROVIDING THAT VEHICLES OF FOREIGN MANUFACTURE PURCHASED OVERSEAS ON OR AFTER MARCH 7, 1961, MAY NOT BE SHIPPED VIA GOVERNMENT FACILITIES AND THAT REIMBURSEMENT FOR SHIPMENT OF VEHICLES BY COMMERCIAL FACILITIES AT PERSONAL EXPENSE IS NOT AUTHORIZED. YOU QUESTION THE AUTHORITY OF THE PORT AUTHORITIES TO REFUSE SHIPMENT OF YOUR CAR ON THE BASIS OF YOUR POWER OF ATTORNEY IN THE CIRCUMSTANCES INVOLVED.

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 REQUIRES THAT IMPLEMENTING REGULATIONS BE ISSUED BY THE SECRETARIES OF THE SERVICES CONCERNED. THIS RESPECT, PARAGRAPH 5802, AIR FORCE MANUAL 75-4-A, PROVIDES, GENERALLY, THAT PRIVATELY OWNED VEHICLES OF FOREIGN MANUFACTURE AND VEHICLES OF AMERICAN MANUFACTURE SOLD THROUGH FOREIGN CAR DEALERS MAY NOT BE SHIPPED VIA GOVERNMENT FACILITIES WHEN PURCHASED BY THE SPONSOR OR HIS DEPENDENTS OVERSEAS ON OR AFTER MARCH 7, 1961.

WHILE THE STATUTE AND REGULATIONS PROVIDE FOR TRANSOCEANIC SHIPMENT AT GOVERNMENT EXPENSE OF PRIVATELY OWNED VEHICLES ON COMMERCIAL AMERICAN VESSELS, THEY CONTEMPLATE THAT ARRANGEMENTS FOR SUCH SHIPMENT WILL BE MADE BY THE APPROPRIATE SHIPPING OFFICER. PARAGRAPH 5804-D, AIR FORCE MANUAL 75-4A, PROVIDES "REIMBURSEMENT FOR SHIPMENT OF A POV AT PERSONAL EXPENSE IS NOT THORIZED.'

PARAGRAPH 5804 OF THE REGULATION, IN SETTING FORTH PROCEDURES FOR THE SHIPMENT OF PRIVATELY OWNED VEHICLES, PROVIDES THAT SUCH VEHICLES WILL NORMALLY BE DELIVERED TO THE LOADING PORT FOR SHIPMENT PRIOR TO THE DEPARTURE OF THE MEMBER AND HIS DEPENDENTS. AS AN EXCEPTION IT IS PROVIDED IN SUBPARAGRAPH A (2) (C), THAT VEHICLES TURNED OVER TO AN AGENT, ON OR BEFORE THE DEPARTURE OF THE MEMBER OR HIS DEPENDENTS, FOR DELIVERY TO THE PORT WILL BE ACCEPTED FOR SHIPMENT EVEN THOUGH THE AGENT DOES NOT ACTUALLY DELIVER IT UNTIL AFTER THE DEPARTURE OF THE PERSON ON WHOSE ORDERS THE VEHICLE IS BEING SHIPPED. HOWEVER, PHYSICAL POSSESSION OF THE VEHICLE BY THE OWNER PRIOR TO TURNING IT OVER TO THE AGENT CLEARLY IS CONTEMPLATED BY THAT PROVISION. CONSEQUENTLY, IT COULD HAVE NO APPLICATION IN YOUR CASE. THE ONLY OTHER EXCEPTION IN THE REGULATION TO THE REQUIREMENT FOR DELIVERY OF THE VEHICLE TO THE LOADING PORT PRIOR TO THE SPONSOR'S DEPARTURE IS PROVISION, WHEN CIRCUMSTANCES NOT THE FAULT OF THE OWNER PREVENT DELIVERY OF THE VEHICLE, THAT "AN EXCEPTION MAY BE AUTHORIZED WHEN THE COMMANDER OF THE APPROPRIATE USAF LOGISTIC CONTROL GROUP (OR WATER TRAFFIC COORDINATING OFFICE) OR MAJOR OVERSEA AIR COMMANDER DETERMINES THAT SUCH ACTION IS IN THE BEST INTERESTS OF THE AIR FORCE AND THE MEMBER.' SUCH PROVISION EXTENDS NO FURTHER THAN TO AUTHORIZE THE SHIPMENT OF THE VEHICLE AT A LATER DATE BY AGENTS OF THE GOVERNMENT ON THE BASIS OF AN EXPRESS DETERMINATION BY THE PROPER AUTHORITY. IN THE ABSENCE OF SUCH A DETERMINATION AND AUTHORIZATION, THE PORT AUTHORITIES IN JAPAN WERE WITHOUT AUTHORITY TO ACCEPT YOUR CAR FOR SHIPMENT TO THE UNITED STATES WHEN PRESENTED THERE BY SERGEANT MILLER, AND THEIR ACTION IN THE MATTER APPEARS TO HAVE BEEN PROPER AND REQUIRED IN THE CIRCUMSTANCES.

HOWEVER THAT MAY BE, THERE WOULD APPEAR TO BE NO AUTHORITY IN ANY EVENT UNDER THE CITED REGULATION FOR THE PAYMENT OF YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES OF SHIPPING YOUR CAR BY COMMERCIAL VESSEL AT PERSONAL EXPENSE. ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 4, 1963, IS SUSTAINED.