B-148215, MAR. 16, 1962

B-148215, MAR. 16, 1962

TO MR. SIDNEY B. JACQUES:

ON FEBRUARY 13, 1962, REFERENCE OF: AUD/T:DJG, THE STATE DEPARTMENT SUBMITTED FOR OUR CONSIDERATION YOUR MEMORANDUM OF FEBRUARY 8, 1962, CONCERNING OUR DISALLOWANCE OF YOUR CLAIM FOR $71.62.

THE FACTS GIVING RISE TO YOUR CLAIM ARE REPORTED HERE AS FOLLOWS: EN ROUTE TO WASHINGTON, .C., FROM YOUR OVERSEAS POST AT ATHENS, GREECE, YOU STOPPED OFF AT CANNES, FRANCE, FOR THE PURPOSE OF TAKING ANNUAL LEAVE. WHILE IN CANNES YOU ORDERED AN AUTOMOBILE THROUGH AN INDEPENDENT DEALER IN THAT CITY. THE CANNES DEALER PLACED YOUR ORDER WITH ANOTHER DEALER IN PARIS, WHO--- AFTER SERVICING--- DELIVERED THE VEHICLE TO CANNES WHERE IT WAS USED BY YOU UNTIL THE EXPIRATION OF YOUR LEAVE. YOU DEPARTED CANNES FOR NEW YORK ABOARD THE S.S. CONSTITUTION. YOUR AUTOMOBILE WAS SHIPPED TO NEW YORK ABOARD THE SAME VESSEL AS ACCOMPANYING BAGGAGE AND WAS USED IN TRANSPORTING YOURSELF AND DEPENDENTS TO WASHINGTON.

ON DECEMBER 7, 1961, THE TRANSPORTATION AUDIT BRANCH OF THE STATE DEPARTMENT SUSPENDED $71.62 FROM THE AMOUNT CLAIMED BY YOU TO BE DUE INCIDENT TO YOUR TRAVEL AND TRANSPORTATION BETWEEN ATHENS AND WASHINGTON. THE AMOUNT APPROVED--- SO FAR AS THE SHIPMENT OF YOUR AUTOMOBILE IS CONCERNED--- REPRESENTED THE ESTIMATED COST OF SHIPPING YOUR AUTOMOBILE, IN PART ON THE BASIS OF OCEAN FREIGHT RATES, FROM PARIS TO NEW YORK VIA LE HAVRE. THE STATE DEPARTMENT LIMITED THE SHIPMENT TO OCEAN FREIGHT RATES BECAUSE SHIPMENT OF AN AUTOMOBILE AS ACCOMPANYING BAGGAGE IS NOT AUTHORIZED BY THE FOREIGN SERVICE TRAVEL REGULATIONS. OUR CLAIMS DIVISION --- UPON REVIEW--- HELD THAT 180 FSTR 5.23, PRECLUDED PAYMENT OF THE AMOUNT CLAIMED BECAUSE THE COST FOR SHIPMENT IN THE MANNER USED AND BY WAY OF THE ROUTE USED, EXCEEDED THE COST FOR SHIPMENT BY OCEAN FREIGHT RATES OVER THE MOST DIRECT ROUTE BETWEEN PARIS AND NEW YORK.

SECTION 5.23 PROVIDES IN PERTINENT PART AS FOLLOWS:

"WHEN A NEW AUTOMOBILE HAS BEEN PURCHASED FROM THE MANUFACTURER OR MANUFACTURER'S AGENT, AUTHORIZED EXPENSES SHALL INCLUDE:

A. SHIPMENT OF THE ASSEMBLED VEHICLE FROM THE FACTORY TO SHIPSIDE IN THE COUNTRY OF MANUFACTURE AND TO THE EMPLOYEE'S POST, CONSIGNED TO THE EMPLOYEE OR MEMBER OF HIS FAMILY, OR HIS AGENT * * *.

"PROVIDED, THAT NO EXPENSE SHALL BE ALLOWABLE IN EXCESS OF THE COST OF TRANSPORTATION BETWEEN THE AUTHORIZED POINTS OF ORIGIN AND DESTINATION OR BETWEEN THE FACTORY SITE AND THE AUTHORIZED DESTINATION, WHICHEVER INVOLVES THE LESSER COST.'

IN YOUR MEMORANDUM OF FEBRUARY 8, 1962, TO THE TRANSPORTATION AUDIT BRANCH, YOU URGE THAT 180 FSTR 5.23 IS NOT APPLICABLE BECAUSE YOU PURCHASED YOUR AUTOMOBILE FROM AN INDEPENDENT DEALER AT CANNES RATHER THAN FROM A MANUFACTURER OR MANUFACTURER'S AGENT. WE AGREE THAT THE CITED REGULATION DOES NOT APPLY TO YOUR CASE. WE REACH THIS CONCLUSION BECAUSE: (1) THE SHIPMENT OF THE AUTOMOBILE BETWEEN PARIS AND CANNES WAS NOT A SHIPMENT TO YOUR POST AND, (2) INASMUCH AS YOU USED YOUR AUTOMOBILE AT CANNES, THE SHIPMENT BETWEEN CANNES AND NEW YORK WAS NOT A SHIPMENT OF A NEW AUTOMOBILE WITHIN THE MEANING OF THE REGULATIONS.

WE FEEL THAT THE REGULATION TO APPLY IN YOUR CASE IS THAT WHICH APPEARS AT 180 FSTR 5.21 WHICH ALSO PROVIDES FOR THE TRANSPORTATION OF A PRIVATELY OWNED AUTOMOBILE. SECTION 5.21 AUTHORIZES UNDER CERTAIN CONDITIONS THE TRANSPORTATION OF A PRIVATELY OWNED AUTOMOBILE FOR ALL OF THE DISTANCE BETWEEN POINTS OF ORIGIN AND DESTINATION. HOWEVER, NOTHING IN THAT SECTION SPELLS OUT THE MANNER OF SUCH SHIPMENT. WE UNDERSTAND IT IS PRACTICE OF THE DEPARTMENT TO LIMIT SHIPMENT ALLOWANCES TO THOSE AMOUNTS WHICH REFLECT THE OCEAN FREIGHT RATES IN THE ABSENCE OF SPECIAL AUTHORITY TO SHIP AN AUTOMOBILE AS ACCOMPANIED BAGGAGE.

WE NOTE THAT BY 180 FSTR 2.26, THE STATE DEPARTMENT RESERVES TO ITSELF THE AUTHORITY TO AUTHORIZE OR APPROVE ADDITIONAL PAYMENTS WHICH ARE NECESSARY OR EXPEDIENT, WHETHER OR NOT SPECIFICALLY PROVIDED FOR BY THE FOREIGN SERVICE TRAVEL REGULATIONS. IN THE ABSENCE OF SUCH A DETERMINATION, TO WHICH WE WOULD NOT OBJECT, NO AMOUNT IN EXCESS OF OCEAN FREIGHT SHIPMENT BETWEEN CANNES AND NEW YORK MAY BE ALLOWED. IN THAT REGARD, THE ACTION OF THE DEPARTMENT IN ALLOWING CREDIT FOR CONSTRUCTIVE TRANSPORTATION COSTS BETWEEN PARIS AND NEW YORK VIA LE HAVRE IS NOT UNDERSTOOD SINCE THAT ACTION APPARENTLY IS PREDICATED ON THE PROVISO TO SECTION 180 FSTR 5.23 WHICH, AS SAID ABOVE, IS NOT APPLICABLE TO YOUR CASE.

THE COST OF SHIPMENT BETWEEN PARIS AND CANNES REPRESENTS PART OF THE PURCHASE PRICE ASSESSED YOU BY THE INDEPENDENT DEALER IN CANNES AND CANNOT BE CHARGEABLE TO THE GOVERNMENT. THEREFORE, ON THE PRESENT RECORD THE CONCLUSION REACHED IN OFFICE SETTLEMENT OF JANUARY 30, 1962, IS SUSTAINED.

WE ARE FURNISHING THE CHIEF OF THE TRANSPORTATION AUDIT BRANCH OF THE STATE DEPARTMENT A COPY OF THIS DECISION AND REQUESTING THAT OFFICER TO HAVE YOUR ACCOUNT ADJUSTED ON THE BASIS OF SHIPMENT, AT THE APPLICABLE RATE, BETWEEN CANNES AND NEW YORK.