B-212359, DEC 27, 1983

B-212359: Dec 27, 1983

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DIGEST: ALTHOUGH THE SHIPMENT OF A DEPARTMENT OF DEFENSE EMPLOYEE'S PRIVATELY OWNED AUTOMOBILE WAS AUTHORIZED ON A FOREIGN-FLAG VESSEL ON THE EMPLOYEE'S TRAVEL ORDERS INCIDENT TO A TRANSFER. REIMBURSEMENT OF THE SHIPPING EXPENSES ON THE FOREIGN-FLAG VESSEL IS PRECLUDED UNDER SECTION 901 OF THE MERCHANT MARINE ACT OF 1936. WHICH REQUIRES JUSTIFICATION FOR THE USE OF A FOREIGN-FLAG VESSEL WHERE AMERICAN-FLAG VESSELS ARE AVAILABLE. LOWER COST AND CAPABILITY OF TRANSPORTING PASSENGERS AND AUTOMOBILES ON THE SAME VESSEL ARE NOT ADEQUATE REASONS FOR THE USE OF FOREIGN-FLAG VESSELS AND AS A RESULT THE EMPLOYEE IS RESPONSIBLE FOR THE EXPENSES INVOLVED EVEN THOUGH THE GOVERNMENT'S REPRESENTATIVE ERRONEOUSLY AUTHORIZED SHIPMENT.

B-212359, DEC 27, 1983

DIGEST: ALTHOUGH THE SHIPMENT OF A DEPARTMENT OF DEFENSE EMPLOYEE'S PRIVATELY OWNED AUTOMOBILE WAS AUTHORIZED ON A FOREIGN-FLAG VESSEL ON THE EMPLOYEE'S TRAVEL ORDERS INCIDENT TO A TRANSFER, REIMBURSEMENT OF THE SHIPPING EXPENSES ON THE FOREIGN-FLAG VESSEL IS PRECLUDED UNDER SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, 46 U.S.C. SEC. 1241(A) (1976), WHICH REQUIRES JUSTIFICATION FOR THE USE OF A FOREIGN-FLAG VESSEL WHERE AMERICAN-FLAG VESSELS ARE AVAILABLE. LOWER COST AND CAPABILITY OF TRANSPORTING PASSENGERS AND AUTOMOBILES ON THE SAME VESSEL ARE NOT ADEQUATE REASONS FOR THE USE OF FOREIGN-FLAG VESSELS AND AS A RESULT THE EMPLOYEE IS RESPONSIBLE FOR THE EXPENSES INVOLVED EVEN THOUGH THE GOVERNMENT'S REPRESENTATIVE ERRONEOUSLY AUTHORIZED SHIPMENT.

MARY C. GARLAND:

MAY AN EMPLOYEE WHOSE TRAVEL ORDERS AUTHORIZED SHIPMENT OF A PRIVATELY OWNED VEHICLE ON A FOREIGN-FLAG VESSEL BE REIMBURSED THE COST OF SUCH TRANSPORTATION? FN1 THE EMPLOYEE MAY NOT BE REIMBURSED THIS COST SINCE THE NECESSITY FOR USING A FOREIGN-FLAG VESSEL HAS NOT BEEN DEMONSTRATED.

A CIVILIAN PERSONNEL OFFICER AUTHORIZED MRS. MARY C. GARLAND, A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF DEFENSE, TO SHIP HER AUTOMOBILE ON THE QUEEN ELIZABETH II, A FOREIGN-FLAG VESSEL, INCIDENT TO MRS. GARLAND'S TRANSFER FROM MEN WITH HILL STATION, HARROGATE, ENGLAND, TO FORT MEADE, MARYLAND. WHEN THE FINANCE OFFICE REFUSED TO REIMBURSE THE COST OF SHIPPING HER AUTOMOBILE ON THE FOREIGN-FLAG VESSEL ON THE BASIS OF SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, SHE POINTED OUT THAT THE SHIPMENT WAS AUTHORIZED ON HER TRAVEL ORDERS, AND AS A RESULT SHE SHOULD BE ENTITLED TO REIMBURSEMENT.

SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, 46 U.S.C. SEC. 1241(A) (1976), PROVIDES THAT THE COMPTROLLER GENERAL SHALL NOT ALLOW EXPENDITURE OF GOVERNMENT FUNDS FOR FOREIGN-FLAG VESSELS WHERE AMERICAN FLAG VESSELS ARE AVAILABLE UNLESS THE NECESSITY FOR THE USE OF THE FOREIGN-FLAG VESSEL IS DEMONSTRATED. NO ONE ARGUES THAT AMERICAN-FLAG VESSELS WERE NOT AVAILABLE. HOWEVER, MRS. GARLAND STATES THE STATION'S PERSONNEL OFFICER, AFTER CONFERRING WITH THE FINANCE AND TRANSPORTATION OFFICERS, JUSTIFIED THE USE OF THE FOREIGN-FLAG VESSEL BECAUSE IT "*** WAS THE ONLY VESSEL AVAILABLE WHICH TRANSPORTS BOTH PEOPLE AND VEHICLES AND THAT THEREFORE THE REQUIREMENT OF USING A U.S. FLAG CARRIER WAS NOT IN EFFECT." HOWEVER, THAT REASON IS NOT SUFFICIENT SINCE JUSTIFICATION FOR USE OF A FOREIGN- FLAG VESSEL MAY NOT BE BASED UPON MERE INCONVENIENCE IN SECURING TRANSPORTATION IN VESSELS OF UNITED STATES REGISTRY, SHORT DELAYS IN AWAITING SUCH TRANSPORTATION, THE DESIRE TO ARRANGE CIRCUITOUS ROUTES FOR THE CONVENIENCE OF A TRAVELER, OR ANY SIMILAR REASON. PARAGRAPH C2205- 3(D) OF VOLUME 2, JOINT TRAVEL REGULATIONS. MATTER OF JAMISON, B-194940, JULY 18, 1979.

IN A SIMILAR CASE WE HELD THAT:

"THE FINANCIAL LIABILITY FOR USE OF A FOREIGN FLAG VESSEL BY AN EMPLOYEE IN THE ABSENCE OF A NEED FOR SUCH USE IS PLACED BY LAW UPON THE EMPLOYEE, AND EVEN IF THE GOVERNMENT'S REPRESENTATIVES ARE SHOWN TO HAVE ACTED ERRONEOUSLY IN THE MATTER, THERE EXISTS NO LEGAL BASIS FOR GRANTING RELIEF TO THE EMPLOYEE."

B-160229, NOVEMBER 7, 1966.

ACCORDINGLY, WHILE IT IS UNFORTUNATE THAT THE CIVILIAN PERSONNEL OFFICER ERRONEOUSLY AUTHORIZED ON THE TRAVEL ORDER THE TRANSPORTATION OF THE AUTOMOBILE ON A FOREIGN-FLAG VESSEL, WE HAVE NO ALTERNATIVE OTHER THAN TO DENY REIMBURSEMENT.

FN1 THE FINANCE AND ACCOUNTING OFFICER OF SPECIAL UNIT NUMBER 1, DEPARTMENT OF DEFENSE, SUBMITTED THIS QUESTION AS A REQUEST FOR AN ADVANCE DECISION.