B-157782, JUN. 9, 1967

B-157782: Jun 9, 1967

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ATTORNEY: REFERENCE IS MADE TO YOUR LETTER OF JUNE 7. WAS PART OF A TOTAL CLAIM IN THE AMOUNT OF 12. BECAUSE THE EFFECTS WERE NOT SHIPPED ABOARD AN AMERICAN FLAG VESSEL AS REQUIRED BY SECTION 901 OF THE MERCHANT MARINE ACT OF 1936. YOU CONTEND THAT YOUR CLIENT WAS NOT AWARE OF THIS REQUIREMENT AND THAT IT WOULD BE UNJUST FOR HIM TO HAVE TO SUFFER THE CONSEQUENCES. THE REQUIREMENT TO WHICH YOU REFER IS STATUTORY. PROVIDES IN PERTINENT PART THAT: "ANY OFFICER OR EMPLOYEE OF THE UNITED STATES TRAVELING ON OFFICIAL BUSINESS OVERSEAS * * * SHALL TRAVEL AND TRANSPORT HIS PERSONAL EFFECTS ON SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES WHERE SUCHSHIPS ARE AVAILABLE * * * PROVIDED. THIS PROVISION IS MANDATORY.

B-157782, JUN. 9, 1967

TO PIERRE JULY, ATTORNEY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 7, 1966, ON BEHALF OF YOUR CLIENT, COMPAGNIE GENERALE DE TRANSPORTS, 6 RUE GUBERNATIS, NICE, FRANCE, IN WHICH YOU REQUEST REVIEW OF THE DISALLOWANCE OF 6,710.52 FRANCS (FRENCH CURRENCY) OF YOUR CLIENT'S CLAIM BY OUR SETTLEMENT CERTIFICATE OF JANUARY 14, 1966.

THE AMOUNT DISALLOWED, 6,710.52 FRANCS, WAS PART OF A TOTAL CLAIM IN THE AMOUNT OF 12,630.35 FRANCS. THE AMOUNT DISALLOWED REPRESENTS THE AMOUNT CLAIMED AS OCEAN FREIGHT FROM MARSEILLES, FRANCE, TO BALTIMORE, MARYLAND, UNITED STATES, IN CONNECTION WITH THE TRANSPORTATION OF THE HOUSEHOLD EFFECTS OF AN OFFICER OF THE UNITED STATES DEPARTMENT OF STATE, MR. GEORGE FURNESS, BECAUSE THE EFFECTS WERE NOT SHIPPED ABOARD AN AMERICAN FLAG VESSEL AS REQUIRED BY SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, 49 STAT. 2015, 46 UNITED STATES CODE 1241 (A). YOU CONTEND THAT YOUR CLIENT WAS NOT AWARE OF THIS REQUIREMENT AND THAT IT WOULD BE UNJUST FOR HIM TO HAVE TO SUFFER THE CONSEQUENCES.

THE REQUIREMENT TO WHICH YOU REFER IS STATUTORY, BEING CODIFIED AS 46 U.S.C. 1241 (A), AND PROVIDES IN PERTINENT PART THAT:

"ANY OFFICER OR EMPLOYEE OF THE UNITED STATES TRAVELING ON OFFICIAL BUSINESS OVERSEAS * * * SHALL TRAVEL AND TRANSPORT HIS PERSONAL EFFECTS ON SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES WHERE SUCHSHIPS ARE AVAILABLE * * * PROVIDED, THAT THE COMPTROLLER GENERAL OF THE UNITED STATES SHALL NOT CREDIT ANY ALLOWANCE FOR TRAVEL OR SHIPPING EXPENSES INCURRED ON A FOREIGN SHIP IN THE ABSENCE OF SATISFACTORY PROOF OF THE NECESSITY THEREFOR.'

AS PREVIOUSLY INDICATED, THIS PROVISION IS MANDATORY, AND IN THE ABSENCE OF SATISFACTORY PROOF OF THE NECESSITY FOR THE USE OF A FOREIGN SHIP INSTEAD OF THE REQUIRED AMERICAN FLAG VESSEL, THE COMPTROLLER GENERAL IS PRECLUDED FROM CREDITING OR MAKING ANY ALLOWANCE FOR TRAVEL OR SHIPPING EXPENSE INCURRED THROUGH THE USE OF THE FOREIGN SHIP.

YOUR CONTENTION THAT YOUR CLIENT WAS NOT AWARE OF THE REQUIREMENT CONFLICTS WITH THE RECORD HERE WHICH INDICATES THAT THE COMPAGNIE GENERALE DE TRANSPORTS WAS FULLY COGNIZANT OF THE REQUIREMENT THAT AMERICAN FLAG VESSELS BE USED FOR THE TRANSPORTATION. THE RECORD SHOWS THAT YOUR CLIENT HAS SHIPPED EFFECTS FOR EMPLOYEES OF THE STATE DEPARTMENT AND OTHER UNITED STATES GOVERNMENT AGENCIES FOR THE PAST20 YEARS AND THE REGULATION CONCERNING THE USE OF AMERICAN FLAG VESSELS IS KNOWN BY THE COMPANY.

A LETTER DATED SEPTEMBER 16, 1964, FROM COMPAGNIE GENERALE DE TRANSPORTS TO THE AMERICAN CONSULATE AT NICE, A COPY OF WHICH SHOULD BE OF RECORD IN YOUR CLIENT'S FILES, STATES IN PERTINENT PART THAT:

"AN ERROR WAS MADE BY US IN SHIPPING THE VANS CONTAINING MR. FURNESS' EFFECTS ON A FRENCH FLAG VESSEL. THE SHIPMENT WAS MADE WHEN THE EXPERIENCED EMPLOYEE IN CHARGE OF OUR EXPORT SECTION WAS ON LEAVE. HIS REPLACEMENT FORGOT TO ADVISE THE SHIPPING AGENT IN MARSEILLE THAT SHIPMENT WAS TO BE MADE ON AN AMERICAN FLAG VESSEL.

"WE ARE VERY SORRY ABOUT THIS ERROR AND UNDERSTAND VERY WELL THE DEPARTMENT OF STATE'S POINT OF VIEW. UNFORTUNATELY THERE IS NOTHING WE CAN DO TO CORRECT THE ERROR NOW. HOWEVER, WOULD YOU PLEASE BE KIND ENOUGH TO INFORM THE OFFICE RESPONSIBLE FOR PAYING THE BILL THAT THIS IS THE FIRST TIME AN ERROR OF THIS SORT HAS BEEN MADE BY OUR COMPANY DURING THE TWENTY OR MORE YEARS WE HAVE SERVICED THE AMERICAN CONSULATE AT NICE.

"WE HAVE ARRANGED MANY SHIPMENTS ON AMERICAN FLAG VESSELS AND WILL PROBABLY HAVE OCCASION TO DO SO IN THE FUTURE ALSO.' MOREOVER, IT IS REPORTED THAT YOUR CLIENT WAS ORALLY INFORMED THAT THE SHIPMENT WAS TO BE MADE ON AN AMERICAN FLAG VESSEL.

THUS, WE CAN ONLY CONCLUDE THAT YOUR CLIENT WAS FULLY AWARE OF THE REGULATION AND REQUIREMENT CONCERNING THE USE OF AMERICAN FLAG VESSELS. ALSO, WHILE THE FAILURE TO USE AN AMERICAN FLAG VESSEL MAY NOT HAVE BEEN DELIBERATE AND MAY HAVE ARISEN THROUGH USE OR OVERSIGHT OF INEXPERIENCED PERSONNEL BY YOUR CLIENT, SUCH INCIDENTS DO NOT SATISFACTORILY PROVE THE NECESSITY OF THE USE OF A FOREIGN VESSEL FOR THE SHIPMENT.

ACCORDINGLY, THE SETTLEMENT DISALLOWING YOUR CLIENT'S CLAIM FOR 6,710.52 FRANCS COVERING THE OCEAN FREIGHT WAS PROPER AND IT IS SUSTAINED.