B-106864, FEB. 29, 1960

B-106864, FEB. 29, 1960

TO THE SECRETARY OF STATE:

ON FEBRUARY 1, 1960, THE ASSISTANT SECRETARY REQUESTED OUR REVIEW AND APPROVAL OF A PROPOSED REVISION OF 1 FSM III 151 TO ESTABLISH NEW STANDARDS AND GUIDELINES GOVERNING THE USE OF AMERICAN AND FOREIGN FLAG VESSELS FOR THE TRANSPORTATION OF FURNITURE, HOUSEHOLD AND PERSONAL EFFECTS OF FOREIGN SERVICE EMPLOYEES.

THE DEPARTMENT'S PRESENT REGULATIONS, 1 FSM III 151.3A, PROVIDE AS FOLLOWS:

"WHEN BOTH AMERICAN SHIPS AND FOREIGN SHIPS OPERATE DIRECTLY BETWEEN THE PORT NEAREST THE PLACE WHERE THE OFFICIAL TRAVEL ORIGINATES AND THE PORT NEAREST THE AUTHORIZED DESTINATION, SHIPMENT OF EFFECTS SHALL BE MADE ON AN AMERICAN SHIP.'

THE ASSISTANT SECRETARY SAYS THAT DURING RECENT YEARS THERE HAVE BEEN CERTAIN REDUCTIONS IN THE ACTUAL SERVICES OF AMERICAN FLAG FREIGHT CARRIERS AS DISTINGUISHED FROM PUBLISHED SCHEDULED SERVICES. THE DELAYS HAVE CAUSED UNDUE HARDSHIP FOR THE FOREIGN SERVICE PERSONNEL AND THEIR FAMILIES AND HAVE RESULTED IN INCREASED COSTS FOR DEMURRAGE AND TEMPORARY LODGING ALLOWANCES PAID BY THE DEPARTMENT. FURTHER, EXTENSIVE DAMAGE TO THE EFFECTS HAVE RESULTED FROM EXPOSURE TO THE WEATHER SINCE IN MANY CASES ADEQUATE STORAGE FACILITIES ARE NOT AVAILABLE. HE FURTHER SAYS THAT UNDER THE ABOVE-QUOTED PROVISION, WHEN A PUBLISHED SCHEDULE INDICATES THAT DIRECT AMERICAN FLAG SHIPS WILL BE OPERATING BETWEEN SPECIFIED PORTS, THE UNITED STATES DESPATCH AGENCIES AND THE FOREIGN SERVICE POSTS HAVE NO ALTERNATIVE BUT TO HOLD EFFECTS FOR AN AVAILABLE AMERICAN SHIP. FOR EXAMPLE, AN AMERICAN CARRIER WHICH OPERATES FROM THE WEST COAST OF THE UNITED STATES TO EUROPE HAS GONE MANY MONTHS WITHOUT OFFERING A SAILING, ALTHOUGH IT REGULARLY ADVERTISES "A VESSEL" FOR SPECIFIC DATES. DIRECT FOREIGN FLAG SERVICE WAS AVAILABLE DURING THIS PERIOD BUT COULD NOT BE USED.

SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, 49 STAT. 2015, 46 U.S.C. 1241 (A) READS AS FOLLOWS:

"ANY OFFICER OR EMPLOYEE OF THE UNITED STATES TRAVELING ON OFFICIAL BUSINESS OVERSEAS OR TO AND 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 REFOR.'

IN OUR DECISION OF FEBRUARY 1, 1952, 31 COMP. GEN. 351, TO YOUR DEPARTMENT, WE POINTED OUT THAT IN VIEW OF THE PURPOSE OF SECTION 901, ECONOMY ALONE GENERALLY MAY NOT BE RELIED UPON AS A BASIS FOR USING FOREIGN VESSELS. ALSO, IN OUR DECISION OF JULY 19, 1956, 36 COMP. GEN. 53, WE SAID THAT EVEN THOUGH SECTION 901 OF THE MERCHANT MARINE ACT OF 1936 REQUIRES THE USE OF VESSELS OF AMERICAN REGISTRY WHENEVER AVAILABLE, IT DOES NOT REQUIRE AN UNREASONABLE PROCEDURE TO BE FOLLOWED.

THE PROPOSED REVISION OF 1 FSM III 151 DEFINES THE TERM "AVAILABLE AMERICAN SHIP" AS AN AMERICAN SHIP ON WHICH SHIPPING SPACE IS OBTAINABLE WITHIN 10 CALENDAR DAYS OF THE DATE OF READINESS FOR TRANSPORTATION OF EFFECTS BY A USUAL SHIPPING ROUTE. ALSO, THE PROPOSED REVISION PROVIDES THAT IF A DIRECT AMERICAN SHIP IS NOT AVAILABLE WITHIN 10 DAYS AFTER THE DATE THE EFFECTS ARE READY FOR SHIPMENT A DIRECT FOREIGN SHIP MAY BE USED IF AVAILABLE WITHIN SUCH TIME LIMIT.

WE RECOGNIZE THAT THE USE OF FOREIGN VESSELS FOR TRANSPORTATION OF EFFECTS MAY IN CERTAIN CASES BE JUSTIFIABLE EVEN THOUGH AMERICAN SHIPS ALSO OPERATE BETWEEN THE PORTS INVOLVED. THE EXAMPLE FURNISHED BY THE ASSISTANT SECRETARY IN HIS LETTER OF THE AMERICAN CARRIER OPERATING FROM THE WEST COAST OF THE UNITED STATES TO EUROPE, ADVERTISING VESSEL SAILINGS FOR SPECIFIC DATES WHEN IN FACT MANY MONTHS PASS WITHOUT OFFERING ACTUAL SAILINGS, IS A CASE WHICH COULD JUSTIFY SHIPMENT IN FOREIGN FLAG VESSEL IF AN AMERICAN VESSEL IS NOT AVAILABLE ON THE PUBLISHED SAILING DATE AND NO ASSURANCE CAN BE GIVEN BY THE CARRIER THAT ONE WOULD BE AVAILABLE WITHIN A REASONABLE TIME THEREAFTER. ALSO, THE EXAMPLE OF EXTENSIVE DAMAGE TO EFFECTS BECAUSE OF EXPOSURE TO WEATHER WHEN ADEQUATE FACILITIES ARE NOT AVAILABLE IS A CASE WHICH WOULD WARRANT SHIPMENT IN A FOREIGN FLAG VESSEL IF AN AMERICAN VESSEL IS NOT AVAILABLE WITHIN A REASONABLE TIME TO PREVENT SUCH DAMAGE. WE WOULD NOT OBJECT TO A CHANGE IN THE REGULATIONS TO PROVIDE FOR THE TRANSPORTATION OF HOUSEHOLD AND PERSONAL EFFECTS IN A FOREIGN VESSEL UNDER CIRCUMSTANCES SIMILAR TO THOSE STATED IN THE EXAMPLES REFERRED TO ABOVE SINCE THE FACTS APPEAR TO ESTABLISH "UNAVAILABILITY" OF VESSELS OF AMERICAN REGISTRY WITHIN THE PURVIEW OF THE STATUTE. WE DO NOT, HOWEVER, UNDERSTAND FROM THE ASSISTANT SECRETARY'S LETTER THAT THERE EXISTS SUCH GENERAL PROBLEM CONCERNING THE SHIPMENT OF HOUSEHOLD GOODS AS WOULD WARRANT THE ESTABLISHMENT OF ANY RULE OTHER THAN THAT THEY MAY BE SHIPPED WITH REASONABLE EXPEDITION.

SECTION 151.32 (B) OF THE PROPOSED REGULATIONS IS A RESTATEMENT OF THE GENERAL PROVISION NOW APPEARING IN 1 FSM III 151.3 (B). A SIMILAR PROVISION FORMERLY WAS IN 1 FSM III 131.43 (B), RELATING TO TRAVEL OF FOREIGN SERVICE PERSONNEL AND THEIR DEPENDENTS, WHICH SECTION HOWEVER, SINCE HAS BEEN MODIFIED. WE BELIEVE IT WOULD BE APPROPRIATE, THEREFORE, FOR YOUR DEPARTMENT TO REEXAMINE SECTION 151.32 (B) OF THE PROPOSAL WITH A VIEW TO A MODIFICATION TO CONFORM, IN CONCEPT, WITH 1 FSM III 131.43 (B).

FOR THOSE REASONS, AND SINCE VARIOUS SECTIONS OF THE PROPOSAL RELATE TO OR ARE DEPENDENT UPON THE SECTIONS DISCUSSED HEREIN, WE DO NOT FEEL WE SHOULD APPROVE ANY PART OF THE PROPOSED REGULATIONS AT THIS TIME.

IN THAT REGARD WE SUGGEST THAT DOUBTFUL OR TROUBLESOME CASES BE REFERRED HERE FOR CONSIDERATION AS IT IS ONLY BY THE EXAMINATION OF PARTICULAR FACTUAL SITUATIONS THAT SPECIFIC GUIDELINES, COMPATIBLE WITH SECTION 901 OF THE MERCHANT MARINE ACT, MAY BE EVOLVED.