B-143032, JUN. 23, 1960

B-143032, JUN. 23, 1960

TO JEWEL W. CLARK, ATC, USN, OFFICE OF THE NAVAL ATTACHE:

REFERENCE IS MADE TO YOUR LETTER OF MAY 12, 1960, REQUESTING REVIEW OF SETTLEMENT DATED APRIL 20, 1960, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF SHIPPING YOUR AUTOMOBILE FROM BASRAH, IRAQ, TO GENOA, ITALY, ON A FOREIGN FLAG VESSEL.

BY STANDARD TRANSFER ORDER NO. 3-58, DATED OCTOBER 27, 1958, YOU WERE TRANSFERRED FROM THE U.S. NAVAL ATTACHE, AMERICAN EMBASSY, BAGHDAD, IRAQ, TO THE U.S. NAVAL ATTACHE, ROME, ITALY, FOR DUTY, EFFECTIVE IMMEDIATELY. SUCH TRANSFER CONSTITUTED A PERMANENT CHANGE OF STATION. THE ORDERS CONTAINED A STATEMENT THAT "DEPENDENTS TRANSPORTATION PAID BY US STATE DEPT ON EMERG EVACUATION FROM BAGHDAD TO ROME.' THE ORDERS ALSO STATED THAT "ATC CLARK PRESENTLY ATTACHED ROME ON TAD.' THE RECORD SHOWS THAT THE CUSTOMS AND SHIPPING OFFICER AT THE AMERICAN EMBASSY, BAGHDAD, IRAQ, THROUGH THE SARKIES TRANSPORTATION COMPANY OF BAGHDAD, ARRANGED FOR THE SHIPMENT OF YOUR AUTOMOBILE ON THE S.S. CONCORDIA TAREK, A FOREIGN FLAG VESSEL, AND THAT SHIPMENT WAS MADE ON MARCH 12, 1959. THE RECORD CONTAINS A LETTER DATED AUGUST 25, 1959, FROM THE CUSTOMS AND SHIPPING OFFICER, AMERICAN EMBASSY, BAGHDAD, TO THE EFFECT THAT AMERICAN SHIPPING WAS NOT AVAILABLE FROM BASRAH TO GENOA DURING MARCH, AND THAT AMERICAN SHIPPING DOES NOT PLY BETWEEN THOSE PORTS. THE LETTER STATES THAT ALL U.S. EMBASSY CONSIGNMENTS LEAVING BASRAH FOR GENOA ARE SHIPPED ON FOREIGN FLAG VESSELS. THE COST OF SHIPMENT AMOUNTED TO $411.16, WHICH AMOUNT, YOU SAY, WAS PAID BY YOUR PERSONAL CHECK TO THE U.S. NAVAL ATTACHE, ROME, ITALY.

YOU CONTEND THAT YOU ARE ENTITLED TO HAVE YOUR AUTOMOBILE SHIPPED AT GOVERNMENT EXPENSE AND THAT YOU SHOULD NOT BE HELD RESPONSIBLE FOR THE ACTIONS OF THE AMERICAN EMBASSY AND THE NAVAL ATTACHE IN BAGHDAD FOR THE SHIPMENT ON A FOREIGN VESSEL. YOU ALSO SAY THAT YOU PAID THE SUM OF $125 FOR THE COST OF SHIPPING YOUR CAR FROM BAGHDAD TO BASRAH WHEN THE FORMER PRICE WAS ONLY $35.

THE RIGHT OF A MEMBER OF THE NAVAL SERVICE TO TRANSOCEANIC SHIPMENT OF HIS AUTOMOBILE IS GOVERNED BY THE PROVISIONS OF 10 U.S.C. 5167, AS FOLLOWS:

"NOTWITHSTANDING SECTION 73C OF TITLE 5, WHEN ANY MEMBER OF THE NAVAL SERVICE IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION, ONE MOTOR VEHICLE OWNED BY HIM FOR HIS PERSONAL USE MAY BE TRANSPORTED TO HIS NEW STATION ON A GOVERNMENT-OWNED VESSEL.'

THE ACT OF MAY 28, 1956, 70 STAT. 187, AMENDED SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, AS AMENDED, BY ADDING AT THE END THEREOF A NEW SUBSECTION READING AS FOLLOWS:

"/C) THAT NOTWITHSTANDING ANY OTHER PROVISION OF LAW, PRIVATELY OWNED AMERICAN SHIPPING SERVICES MAY BE UTILIZED FOR THE TRANSPORTATION OF MOTOR VEHICLES OWNED BY GOVERNMENT PERSONNEL WHENEVER TRANSPORTATION OF SUCH VEHICLES AT GOVERNMENT EXPENSE IS OTHERWISE AUTHORIZED BY LAW.'

IMPLEMENTING REGULATIONS RELATING TO THE TRANSPORTATION OF PRIVATELY OWNED MOTOR VEHICLES FOR NAVY PERSONNEL ARE CONTAINED IN PARAGRAPHS 58300 TO 58312, VOLUME V, BUREAU OF SUPPLIES AND ACCOUNTS MANUAL. PARAGRAPH 58300 OF THAT REGULATION PROVIDES THAT TRANSPORTATION OF ONE PRIVATELY OWNED MOTOR VEHICLE OF MILITARY PERSONNEL OF THE NAVY ORDERED TO MAKE A PERMANENT CHANGE OF STATION TO, FROM, OR BETWEEN OVERSEAS AREAS, MAY BE AUTHORIZED TO THE NEW STATION ON GOVERNMENT OWNED VESSELS OR ON PRIVATELY OWNED UNITED STATES FLAG COMMERCIAL VESSELS, FREE OF LOADING AND OCEAN TRANSPORTATION CHARGES. PARAGRAPH 58305 OF THE SAME REGULATIONS PROVIDES THAT THE EXPENSES INVOLVED IN DELIVERING A MOTOR VEHICLE TO AND REMOVING IT FROM A PORT WILL BE PAID BY THE OWNER, EXCEPT THAT NAVAL ACTIVITIES MAY ISSUE A SUFFICIENT QUANTITY OF GASOLINE WITHOUT CHARGE TO PERMIT THE REMOVAL OF THE AUTOMOBILE TO THE NEAREST SERVICE STATION.

PRIOR TO THE ACT OF MAY 28, 1956, THE ONLY WAY A MEMBER OF THE NAVAL SERVICE COULD SHIP HIS AUTOMOBILE AT GOVERNMENT EXPENSE INCIDENT TO A PERMANENT CHANGE OF STATION WAS ON A GOVERNMENT-OWNED VESSEL. THE ACT OF MAY 28, 1956, EXTENDED THAT AUTHORITY TO PRIVATELY OWNED ,AMERICAN SHIPPING SERVICES.' IT IS CLEAR FROM THE LEGISLATIVE HISTORY OF THE 1956 ACT, HOWEVER, THAT IT WAS NOT INTENDED TO PERMIT SUCH SHIPMENTS ON OTHER THAN PRIVATELY OWNED AMERICAN FLAG VESSELS. WE HAVE FOUND NO AUTHORITY EITHER EXPRESSED OR IMPLIED WHICH AUTHORIZES THE SHIPMENT OF AUTOMOBILES ON FOREIGN FLAG VESSELS AT GOVERNMENT EXPENSE IN SUCH CASES AND, WHILE IT APPEARS THAT YOUR AUTOMOBILE WAS SHIPPED UNDER UNUSUAL CIRCUMSTANCES, THE CITED STATUTES MAKE NO EXCEPTION TO COVER SUCH CASES.

ACCORDINGLY, THE ACTION TAKEN IN THE SETTLEMENT OF APRIL 20, 1960, MUST BE SUSTAINED.