B-83229, APRIL 14, 1949, 28 COMP. GEN. 576

B-83229: Apr 14, 1949

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TRANSPORTATION - HOUSEHOLD EFFECTS - TRAVEL BETWEEN UNITED STATES AND ALASKA - USE OF FOREIGN VESSELS THE PERMISSION GRANTED BY 46 U.S.C. 1241 TO USE FOREIGN FLAG VESSELS FOR THE TRANSPORTATION OF PERSONAL EFFECTS OF EMPLOYEES TO OR FROM ANY OF THE "POSSESSIONS OF THE UNITED STATES" WHEN AN AMERICAN VESSEL IS NOT AVAILABLE HAS REFERENCE TO ALL LANDS OF THE UNITED STATES INCLUDING TERRITORIES. BY A FOREIGN FLAG VESSEL MAY BE REGARDED AS PERMITTED BY SAID STATUTE WHEN NO AMERICAN VESSEL IS AVAILABLE. THE CITED SECTIONS ARE. IN ANY OTHER VESSEL THAN A VESSEL BUILT IN AND DOCUMENTED UNDER THE LAWS OF THE UNITED STATES AND OWNED BY PERSONS WHO ARE CITIZENS OF THE UNITED STATES. OR VESSELS TO WHICH THE PRIVILEGE OF ENGAGING IN THE COASTWISE TRADE IS EXTENDED BY SECTION 13 OR 808 OF THIS TITLE: * * * SECTION 1241: ANY OFFICER OR EMPLOYEE OF THE UNITED STATES TRAVELING ON OFFICIAL BUSINESS OVERSEAS OR TO OR FROM ANY OF THE POSSESSIONS OF THE UNITED STATES SHALL TRAVEL AND TRANSPORT HIS PERSONAL EFFECTS ON SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES WHERE SUCH SHIPS ARE AVAILABLE UNLESS THE NECESSITY OF HIS MISSION REQUIRES THE USE OF A SHIP UNDER A FOREIGN FLAG: PROVIDED.

B-83229, APRIL 14, 1949, 28 COMP. GEN. 576

TRANSPORTATION - HOUSEHOLD EFFECTS - TRAVEL BETWEEN UNITED STATES AND ALASKA - USE OF FOREIGN VESSELS THE PERMISSION GRANTED BY 46 U.S.C. 1241 TO USE FOREIGN FLAG VESSELS FOR THE TRANSPORTATION OF PERSONAL EFFECTS OF EMPLOYEES TO OR FROM ANY OF THE "POSSESSIONS OF THE UNITED STATES" WHEN AN AMERICAN VESSEL IS NOT AVAILABLE HAS REFERENCE TO ALL LANDS OF THE UNITED STATES INCLUDING TERRITORIES, AND, THEREFORE, THE TRANSPORTATION OF AN EMPLOYEE'S HOUSEHOLD EFFECTS FROM A UNITED STATES PORT TO THE TERRITORY OF ALASKA, OR VICE VERSA, BY A FOREIGN FLAG VESSEL MAY BE REGARDED AS PERMITTED BY SAID STATUTE WHEN NO AMERICAN VESSEL IS AVAILABLE, WITHOUT REGARD TO THE PROHIBITION IN 46 U.S.C. 883 AGAINST THE USE OF OTHER THAN AMERICAN VESSELS IN TRANSPORTING MERCHANDISE BETWEEN THE UNITED STATES AND ITS TERRITORIES AND POSSESSIONS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, APRIL 14, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 24, 1949, REQUESTING A DECISION AS TO THE APPLICATION OF SECTIONS 883 AND 1241 OF TITLE 46 OF THE U.S.C. TO THE TRANSPORTATION OF THE HOUSEHOLD EFFECTS OF A FEDERAL EMPLOYEE BETWEEN THE CONTINENTAL UNITED STATES AND ALASKA.

THE CITED SECTIONS ARE, IN PERTINENT PART, AS FOLLOWS:

SECTION 883:

NO MERCHANDISE SHALL BE TRANSPORTED BY WATER, OR BY LAND AND WATER, ON PENALTY OF FORFEITURE THEREOF, BETWEEN POINTS IN THE UNITED STATES, INCLUDING DISTRICTS, TERRITORIES, AND POSSESSIONS THEREOF EMBRACED WIHIN THE COASTWISE LAWS, EITHER DIRECTLY OR VIA A FOREIGN PORT, OR FOR ANY PART OF THE TRANSPORTATION, IN ANY OTHER VESSEL THAN A VESSEL BUILT IN AND DOCUMENTED UNDER THE LAWS OF THE UNITED STATES AND OWNED BY PERSONS WHO ARE CITIZENS OF THE UNITED STATES, OR VESSELS TO WHICH THE PRIVILEGE OF ENGAGING IN THE COASTWISE TRADE IS EXTENDED BY SECTION 13 OR 808 OF THIS TITLE: * * *

SECTION 1241:

ANY OFFICER OR EMPLOYEE OF THE UNITED STATES TRAVELING ON OFFICIAL BUSINESS OVERSEAS OR TO OR FROM ANY OF THE POSSESSIONS OF THE UNITED STATES SHALL TRAVEL AND TRANSPORT HIS PERSONAL EFFECTS ON SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES WHERE SUCH SHIPS ARE AVAILABLE UNLESS THE NECESSITY OF HIS MISSION REQUIRES THE USE OF A SHIP UNDER A FOREIGN FLAG: 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.

YOU SUBMIT THAT THE PERMISSION IN SECTION 1241 (SECTION 901 OF THE MERCHANT MARINE ACT, 1936, 49 STAT. 2015) TO USE A FOREIGN FLAG VESSEL WHEN A VESSEL OF THE UNITED STATES IS NOT AVAILABLE CONSTITUTES AN EXCEPTION TO THE PROVISIONS OF SECTION 883 (SECTION 27 OF THE ACT OF JUNE 5, 1920, 41 STAT. 999, AS AMENDED), BUT INDICATE THAT A QUESTION EXISTS AS TO WHETHER THE EXCEPTION INCLUDES TRANSPORTATION OF HOUSEHOLD EFFECTS BETWEEN THE CONTINENTAL UNITED STATES AND ITS TERRITORIES SINCE THE SAID SECTION 1241 REFERS ONLY TO "POSSESSIONS.'

IN THE CASE OF PUERTO RICO V. SHELL COMPANY, 302 U.S. 253, THE SUPREME COURT OF THE UNITED STATED IN HOLDING THAT PUERTO RICO WAS WITHIN THE MEANING OF THE WORD " TERRITORY," AS USED IN SECTION 3 OF THE SHERMAN ANTI -TRUST ACT, 26 STAT. 209, MADE THE FOLLOWING COMMENT (PAGE 258): " WORDS GENERALLY HAVE DIFFERENT SHADES OF MEANING, AND ARE TO BE CONSTRUED IF REASONABLY POSSIBLE TO EFFECTUATE THE INTENT OF THE LAW MAKERS; AND THIS MEANING IN PARTICULAR INSTANCES IS TO BE ARRIVED AT NOT ONLY BY A CONSIDERATION OF WORDS THEMSELVES, BUT BY CONSIDERING, AS WELL, THE CONTEXT, THE PURPOSES OF THE LAW, AND THE CIRCUMSTANCES UNDER WHICH THE WORDS WERE EMPLOYED.'

FOLLOWING THE RATIONALE APPLIED IN SAID COURT DECISION IT IS NOT BELIEVED THAT THE CONGRESS BY OMITTING ANY REFERENCE TO " TERRITORIES" IN SECTION 901 OF THE MERCHANT MARINE ACT, 1936 (46 U.S.C. 1241), INTENDED TO RESTRICT THE APPLICATION OF THE ACT TO POSSESSIONS OTHER THAN DESIGNATED TERRITORIES. RATHER, IT IS BELIEVED THAT THE TERM "POSSESSIONS OF THE UNITED STATES" IS USED IN THAT STATUTE IN A COMPREHENSIVE SENSE AND EMBRACES ALL LANDS BELONGING TO THE UNITED STATES, REGARDLESS OF THEIR CLASSIFICATION AS " TERRITORIES" OR "POSSESSIONS.'

ACCORDINGLY, IF AN AMERICAN VESSEL IS NOT AVAILABLE FOR THE TRANSPORTATION OF A FEDERAL EMPLOYEE'S HOUSEHOLD EFFECT FROM A PORT IN THE UNITED STATES TO THE TERRITORY OF ALASKA, OR VICE VERSA, RESULTING IN THE UTILIZATION OF A FOREIGN VESSEL FOR THAT PURPOSE, YOU ARE ADVISED THAT THIS OFFICE WOULD VIEW SUCH ACTION AS BEING PERMITTED BY 46 U.S.C. 1241, AND NOT SUBJECT TO THE PROVISIONS OF 46 U.S.C. 883.

THE CONCLUSION HEREIN APPEARS IN LINE WITH THE TENOR OF THE PERTINENT PROVISIONS OF EXECUTIVE ORDER 9805, DATED NOVEMBER 25, 1946, REFERRED TO IN YOUR LETTER, IN RESPECT OF THE TRANSPORTATION OF HOUSEHOLD EFFECTS OF GOVERNMENT EMPLOYEES OUTSIDE THE CONTINENTAL UNITED STATES, DEFINED THEREIN AS THE 48 STATES AND THE DISTRICT OF COLUMBIA.