B-162083, JAN. 14, 1969

B-162083: Jan 14, 1969

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WE WILL CONSIDER THESE LETTERS AS YOUR REQUEST FOR REVIEW OF THE SETTLEMENT CERTIFICATE OF MARCH 8. THE SETTLEMENT DISALLOWED YOUR CLAIM FOR THE FREIGHT CHARGES BECAUSE THERE WAS NO SATISFACTORY PROOF IN THE RECORD OF THE NECESSITY FOR USING A FOREIGN VESSEL TO SHIP THE PROPERTY FROM BALTIMORE. THE SHIP USED WAS THE SS CONCORDIA FOSS. YOU WERE ADVISED IN THE SETTLEMENT THAT CONSIDERATION WOULD BE GIVEN TO YOUR CLAIM FOR SERVICES OTHER THAN THE OCEAN FREIGHT CHARGES SHOULD YOU PRESENT PROPERLY SUPPORTED BILLS THEREFOR. THE REQUIREMENT THAT PERSONAL EFFECTS OF OFFICERS AND EMPLOYEES OF THE UNITED STATES BE TRANSPORTED ON AMERICAN FLAG VESSELS WHEN AVAILABLE 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 SUCH SHIPS ARE AVAILABLE * * * PROVIDED.

B-162083, JAN. 14, 1969

TO UNITED VAN LINES, INC.:

WE REFER TO YOUR LETTERS OF MARCH 19, 1968, AND SEPTEMBER 30, 1968, WITH ENCLOSURE, REGARDING YOUR BILL NO. 87-9005-66 FOR $318.20, REPRESENTING THE FREIGHT CHARGES ON A SHIPMENT OF 860 POUNDS OF THE HOUSEHOLD EFFECTS OF JAMES E. BALSITIS, AN EMPLOYEE OF THE DEPARTMENT OF STATE, FROM VIENNA, VIRGINIA, TO BAGHDAD, IRAQ, UNDER GOVERNMENT BILL OF LADING NO. C-8734052, DATED MARCH 11, 1966. WE WILL CONSIDER THESE LETTERS AS YOUR REQUEST FOR REVIEW OF THE SETTLEMENT CERTIFICATE OF MARCH 8, 1968 (TK-846305) ISSUED BY OUR TRANSPORTATION DIVISION. THE SETTLEMENT DISALLOWED YOUR CLAIM FOR THE FREIGHT CHARGES BECAUSE THERE WAS NO SATISFACTORY PROOF IN THE RECORD OF THE NECESSITY FOR USING A FOREIGN VESSEL TO SHIP THE PROPERTY FROM BALTIMORE, MARYLAND, TO BASRAH, IRAQ. THE SHIP USED WAS THE SS CONCORDIA FOSS, A NORWEGIAN VESSEL, WHICH SAILED FROM BALTIMORE ON APRIL 6, 1966, AND ARRIVED IN BASRAH ON MAY 25, 1966. YOU WERE ADVISED IN THE SETTLEMENT THAT CONSIDERATION WOULD BE GIVEN TO YOUR CLAIM FOR SERVICES OTHER THAN THE OCEAN FREIGHT CHARGES SHOULD YOU PRESENT PROPERLY SUPPORTED BILLS THEREFOR.

THE REQUIREMENT THAT PERSONAL EFFECTS OF OFFICERS AND EMPLOYEES OF THE UNITED STATES BE TRANSPORTED ON AMERICAN FLAG VESSELS WHEN AVAILABLE 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 SUCH SHIPS 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.' 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 BY LAW FROM CREDITING OR MAKING ANY ALLOWANCE FOR TRAVEL OR SHIPPING EXPENSES INCURRED THROUGH THE USE OF THE FOREIGN SHIP.

IN YOUR LETTER OF MARCH 19, 1968, YOU CONTEND, IN EFFECT, THAT BECAUSE MODE 4 (RESIDENCE-TO-RESIDENCE) SERVICE, FOR WHICH YOU HAD A THROUGH RATE, WAS ORDERED AND PERFORMED, YOU ARE ENTITLED TO CHARGE ACCORDING TO THAT RATE REGARDLESS OF THE KIND OF TRANSPORTATION USED. YOU HAVE HAD EXTENSIVE PREVIOUS EXPERIENCE IN HANDLING THE EFFECTS OF UNITED STATES EMPLOYEES AND THE FACT THAT YOU AND YOUR AGENTS KNEW THAT SUCH SHIPMENTS MUST MOVE ON AMERICAN FLAG VESSELS WHEN AVAILABLE IS EVIDENCED BY THE STATEMENT IN YOUR LETTER OF SEPTEMBER 30, 1968, THAT YOUR BROKER IN BALTIMORE, VANGUARD SHIPPING COMPANY, ADVISES THAT THE STATE DEPARTMENT MADE A VERBAL AUTHORIZATION OF FOREIGN FLAG TRANSPORTATION.

INFORMAL ADVICE FROM THE MARITIME ADMINISTRATION INDICATES THAT THE SS STEEL ROVER SAILED FROM BALTIMORE ON APRIL 9, 1966, AND ARRIVED AT BASRAH ON JUNE 3, 1966. ALSO, THE SS SEAFARER LEFT BALTIMORE ON APRIL 5 AND ARRIVED IN BASRAH ON JUNE 28, 1966. THE DEPARTMENT OF STATE MUST HAVE CONSIDERED THAT OCEAN TRANSPORTATION ON ONE OF THESE AMERICAN FLAG VESSELS WOULD MEET THE REQUIREMENTS OF ITS EMPLOYEE BECAUSE IT ADDRESSED AN OPERATIONS MEMORANDUM, DATED MAY 12, 1966, TO THE AMERICAN EMBASSY AT BAGHDAD ADVISING IT THAT UNITED VAN LINES HAD REQUESTED PRIOR APPROVAL FROM THE DEPARTMENT TO USE A FOREIGN FLAG VESSEL AND THAT THE REQUEST WAS REFUSED BECAUSE OF THE AVAILABILITY OF AMERICAN FLAG VESSELS AT THE TIME.

WHILE THIS REPORT IS IN CONFLICT WITH YOUR STATEMENT THAT VERBAL AUTHORIZATION FOR FOREIGN FLAG TRANSPORTATION WAS GRANTED, YOU HAVE NOT FURNISHED ANY EVIDENCE AS TO THE NAME AND POSITION OF THE PARTY WHO MADE THE VERBAL AUTHORIZATION, AND, IN ANY EVENT, SUCH AUTHORIZATION WOULD HAVE TO BE SUPPORTED BY THE FACTS. WHEN AN AMERICAN VESSEL IS SCHEDULED TO SAIL WITHIN A FEW DAYS BEFORE OR AFTER THE FOREIGN VESSEL, THE AUTHORIZATION, IF MADE, SHOULD INCLUDE A SUBSTANTIAL AND FACTUAL EXPLANATION WHY TRANSPORTATION ON THE AMERICAN VESSEL IS NOT CONSIDERED "AVAILABLE.' WHERE THE FACTS REGARDING A CLAIM AGAINST THE UNITED STATES ARE IN DISPUTE, THIS OFFICE, IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE TO THE CONTRARY, ACCEPTS THE STATEMENT OF FACTS FURNISHED BY THE ADMINISTRATIVE OFFICE CONCERNED. 16 COMP. GEN. 325 (1936); 37COMP. GEN. 568 (1958).

WITH YOUR LETTER OF SEPTEMBER 30, YOU HAVE FURNISHED A STATEMENT DATED SEPTEMBER 18 AND SIGNED SEPTEMBER 23, 1968, BY THE HEAD, REPORTS AND RECORDS SECTION, CARGO DIVISION, MSTSLANT, THAT THE FOREIGN FLAG VESSEL WAS USED BECAUSE "NO AMERICAN FLAG VESSEL AVAILABLE.' THIS STATEMENT FROM AN EMPLOYEE OF THE MILITARY SEA TRANSPORTATION SERVICE IS NOT AN ACCEPTABLE JUSTIFICATION FOR USE OF A FOREIGN FLAG VESSEL IN TRANSPORTING THE HOUSEHOLD EFFECTS OF AN EMPLOYEE OF THE DEPARTMENT OF STATE. INDICATED IN THE LETTER TO YOU DATED MAY 31, 1968, FROM OUR TRANSPORTATION DIVISION, WHEN IT IS NECESSARY TO USE A FOREIGN FLAG VESSEL, A CARRIER SHOULD OBTAIN A SIGNED JUSTIFICATION FROM THE GOVERNMENT AGENCY MAKING THE SHIPMENT. PERSONS AUTHORIZED BY THE MILITARY SEA TRANSPORTATION SERVICE TO SIGN SUCH CERTIFICATIONS MAY DO SO ONLY IF THE SHIPMENT IS MADE BY A MILITARY AGENCY. ALSO, IT IS EXPECTED THAT THE JUSTIFICATION BE SUBMITTED WITH THE BILL FOR THE SERVICES AND CERTAINLY NOT MORE THAN TWO YEARS LATER. SEE 5 GAO 3076.30.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED. HOWEVER, IF YOU SUBMIT TO OUR TRANSPORTATION DIVISION A RECEIPT OR OTHER EVIDENCE OF THE OCEAN FREIGHT PAID FOR THE SHIPMENT ON THE NORWEGIAN VESSEL, CONSIDERATION WILL BE GIVEN TO ALLOWANCE OF THE THROUGH RESIDENCE-TO- RESIDENCE CHARGES LESS THE OCEAN FREIGHT ON THE FOREIGN VESSEL.