B-180509, JUN 11, 1974

B-180509, JUN 11, 1974

ALTHOUGH STATE DEPARTMENT EMPLOYEE STATES HE WAS OWNER AT TIME AUTOMOBILE WAS SHIPPED FROM FACTORY, HIS CLAIM FOR TRANSPORTATION COSTS OF NEW VEHICLE FROM GERMANY TO IRAN IS DISALLOWED SINCE HE HAD NOT PAID FULL PURCHASE PRICE, WHICH WAS NECESSARY TO PASS TITLE AND, THEREFORE, HE WAS NOT LEGAL OWNER OF VEHICLE AT TIME OF SHIPMENT AS REQUIRED BY SECTION 165.1, VOLUME 6, FOREIGN AFFAIRS MANUAL.

TO HENRY PRECHT:

THIS IS A RECONSIDERATION OF THE SETTLEMENT OF AUGUST 30, 1973, BY THE TRANSPORTATION AND CLAIMS DIVISION OF OUR OFFICE, WHICH DISALLOWED THE CLAIM OF MR. HENRY PRECHT, AN EMPLOYEE OF THE DEPARTMENT OF STATE, IN THE AMOUNT OF $565.15, FOR TRANSPORTATION EXPENSES OF A NEW AUTOMOBILE FROM MUNICH, GERMANY, TO TEHRAN, IRAN.

MR. PRECHT CLAIMED THE AFOREMENTIONED EXPENSE IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION FROM PORT LOUIS, MAURITIUS TO TEHRAN, IRAN, UNDER DEPARTMENT OF STATE TRAVEL AUTHORIZATION NO. 2-63032 DATED MARCH 13, 1972, WHICH AUTHORIZED THE SHIPMENT OF THE EMPLOYEE'S PRIVATELY OWNED VEHICLE. INSTEAD OF SHIPPING A VEHICLE FROM HIS OLD STATION, MR. PRECHT ORDERED A NEW BMW AUTOMOBILE FROM A LOCAL DEALER SHORTLY AFTER HIS ARRIVAL IN TEHRAN. THE RECORD INDICATES THAT THE EMPLOYEE MADE AN $800 DEPOSIT ON SEPTEMBER 14, 1972. UPON DELIVERY OF THE VEHICLE IN EARLY JANUARY 1973, THE EMPLOYEE RECEIVED A STATEMENT DATED JANUARY 2, 1973, FROM THE TEHRAN DEALER WHICH ITEMIZED THE COSTS OF THE VEHICLE, ACCESSORIES, TRANSPORTATION, INSURANCE AND DEALER PREPARATION. THE EMPLOYEE PAID THE BALANCE DUE OF $2,915.62 ON JANUARY 3, 1973. ON JANUARY 6, 1973, THE EMPLOYEE OBTAINED AN INVOICE FROM THE FREIGHT FORWARDER FOR TRANSPORTATION COSTS, WHICH HAD BEEN INCLUDED IN THE CHECK HE GAVE TO THE BMW TEHRAN DEALER. SUBSEQUENTLY, AN INVOICE (RECHNUNG) DATED JANUARY 22, 1973, WAS ISSUED BY THE BMW FACTORY IN MUNICH, AND FORWARDED TO MR. PRECHT.

TRANSPORTATION OF MOTOR VEHICLES FOR DEPARTMENT OF STATE OFFICERS AND EMPLOYEES IS AUTHORIZED UNDER 22 U.S.C. 1138 WHICH PROVIDES IN PERTINENT PART:

"SEC 1138. TRANSPORTATION OF MOTOR VEHICLES

"THE SECRETARY MAY, NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, TRANSPORT FOR OR ON BEHALF OF AN OFFICER OR EMPLOYEE OF THE SERVICE, A PRIVATELY OWNED MOTOR VEHICLE IN ANY CASE IN WHICH HE SHALL DETERMINE THAT WATER, RAIL, OR AIR TRANSPORTATION OF THE MOTOR VEHICLE IS NECESSARY OR EXPEDIENT FOR ALL OR ANY PART OF THE DISTANCE BETWEEN POINTS OF ORIGIN AND DESTINATION."

THE ABOVE-QUOTED STATUTE HAS BEEN IMPLEMENTED BY REGULATIONS PROMULGATED BY THE DEPARTMENT OF STATE IN VOLUME 6, FOREIGN AFFAIRS MANUAL (FAM). THIS REGARD, SECTION 165.1 IN EFFECT AT THE TIME THE VEHICLE IN QUESTION WAS SHIPPED PROVIDED AS FOLLOWS:

"165 PRIVATELY OWNED MOTOR VEHICLES

"165.1 AUTHORIZED TRANSPORTATION OF PRIVATELY OWNED MOTOR VEHICLES

"A TRAVEL AUTHORIZATION WHICH INCLUDES AUTHORITY FOR THE TRANSPORTATION OF EFFECTS CONSTITUTES AUTHORITY FOR THE TRANSPORTATION OF ONE MOTOR VEHICLE OWNED BY THE EMPLOYEE OR BY A MEMBER OF THE EMPLOYEE'S FAMILY WHEN SUCH TRANSPORTATION HAS BEEN DETERMINED TO BE NECESSARY OR EXPEDIENT, UNLESS PROHIBITED BY REGULATION OR ADMINISTRATIVE ACTION. NOT MORE THAN ONE MOTOR VEHICLE MAY BE TRANSPORTED TO A POST OF ASSIGNMENT, EXCEPT AS PROVIDED BY SECTIONS 165.3 AND 165.4."

THE ABOVE-QUOTED STATUTE AND REGULATION REQUIRE THAT THE VEHICLE TO BE TRANSPORTED AT GOVERNMENT EXPENSE BE OWNED BY THE EMPLOYEE AT THE TIME OF SHIPMENT. SEE 10 COMP. GEN. 268 (1930); B-175176, MARCH 31, 1972; AND B- 176295, AUGUST 4, 1972.

WHILE MR. PRECHT ADMITS THAT HE HAD NO INDICIA OF OWNERSHIP OF THE VEHICLE SUCH AS A TITLE OR A BILL OF SALE UNTIL AFTER HE HAD RECEIVED DELIVERY AND PAID THE FULL PURCHASE PRICE, HE CONTENDS HE WAS THE LEGAL OWNER OF THE VEHICLE AT THE TIME IT WAS HANDED OVER TO THE FREIGHT FORWARDER BY THE MANUFACTURER IN MUNICH, GERMANY. IN SUPPORT OF THIS CONTENTION, HE HAS OBTAINED A LETTER DATED JANUARY 11, 1974, FROM THE MANUFACTURER WHICH READS AS FOLLOWS:

"IN SEPTEMBER, 1972 MR. HENRY PRECHT PLACED AN ORDER FOR A BMW 2002 AND MADE A DOWN-PAYMENT AMOUNTING TO U$ 700, . THE CAR WAS MANUFACTURED IN ACCORDANCE WITH HIS REQUIREMENTS (COLOUR, EXTRAS, ETC.) AND SHIPPED AT HIS EXPENSE TO IRAN. AN INSURANCE FOR THE PERIOD OF TRANSPORTATION WAS ALSO ARRANGED ON HIS BEHALF AND WHEN THE SHIPMENT WAS EFFECTED MR. PRECHT PAID THE REST FOR THE CAR, TRANSPORT AND INSURANCE. PAPERS SHOWING THAT HE WAS THE OWNER OF THE CAR WERE BE GIVEN TO HIM ONLY IN JANUARY 1973 BUT COULD HAVE BEEN DONE ALREADY AT AN EARLIER DATE, I.E. MR. PRECHT WAS THE OWNER OF THE CAR WHEN IT LEFT OUR FACTORY IN MUNICH."

WE INTERPRET THE LAST SENTENCE OF THE ABOVE-QUOTED LETTER AS MERELY STATING THAT MR. PRECHT COULD HAVE BEEN THE OWNER OF THE AUTOMOBILE AT AN EARLIER TIME, FOR EXAMPLE, WHEN THE CAR LEFT THE FACTORY, IF HE HAD MADE FULL PAYMENT OF THE PURCHASE PRICE, SINCE WE UNDERSTAND THAT UNDER GERMAN LAW TITLE TO A VEHICLE SOLD UNDER THE CONDITIONS DESCRIBED IN THIS CASE DOES NOT PASS TO THE PURCHASER UNTIL THE FULL PURCHASE PRICE HAS BEEN PAID. MOREOVER, A STATEMENT THAT SOMEONE IS THE OWNER OF PROPERTY AT A GIVEN TIME CONSTITUTES A LEGAL CONCLUSION RATHER THAN A STATEMENT OF FACT AND, THEREFORE, IS NOT DISPOSITIVE OF THIS ISSUE. AMERICAN INDEMNITY CO. V. RICHLAND OIL CO., 273 F. SUPP. 702 (1967); WITZIG V. PHILIPS, 144 N.W. 2D 266 (1966); UNITED STATES V. JOHNS MANVILLE CORP., 245 F. SUPP. 74 (1965). THEREFORE, ON THE BASIS OF THE EVIDENCE IN THE PRESENT RECORD, WE ARE UNABLE TO CONCLUDE THAT MR. PRECHT WAS THE OWNER OF THE VEHICLE AT THE TIME OF SHIPMENT. HOWEVER, THE EMPLOYEE MAY BE ABLE TO ESTABLISH HIS OWNERSHIP OF THE VEHICLE AT THE TIME IT WAS DELIVERED TO THE FREIGHT FORWARDER BY PROVIDING DOCUMENTARY EVIDENCE SUCH AS: (1) A PRE-EXISTING SALES AGREEMENT INDICATING THAT TITLE WAS TO PASS AT THAT TIME, (2) A STATEMENT FROM THE INSURANCE COMPANY INDICATING THAT THE EMPLOYEE WAS THE LEGAL BENEFICIARY ON THE SHIPMENT POLICY IN THE EVENT OF LOSS OR DAMAGE DURING TRANSIT, (3) A STATEMENT FROM THE IRANIAN CUSTOMS OFFICE THAT THE EMPLOYEE WAS THE LEGAL OWNER OF THE VEHICLE WHEN IT FIRST ARRIVED IN IRAN, OR (4) EVIDENCE THAT NO INTERVENING PARTY HAD TITLE TO THE AUTOMOBILE BETWEEN THE MANUFACTURER AND THE EMPLOYEE.

ACCORDINGLY, IN LIGHT OF THE FOREGOING, IT IS DETERMINED THAT THE SETTLEMENT OF AUGUST 30, 1973, DISALLOWING MR. PRECHT'S CLAIM FOR $565.15 MUST BE SUSTAINED.