B-146658, AUG. 30, 1961

B-146658, AUG. 30, 1961

TO COMMANDER PHILIP H. KLEPAK, USN:

REFERENCE IS MADE TO YOUR LETTER OF JULY 23, 1961, REQUESTING REVIEW OF SETTLEMENT DATED JULY 13, 1961, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF SHIPPING YOUR AUTOMOBILE FROM HAVANA, CUBA, TO NORFOLK, VIRGINIA, VIA PANAMA.

BY ORDERS DATED AUGUST 26, 1960, OFFICE OF THE U.S. NAVAL ATTACHE, AMERICAN EMBASSY, HAVANA, CUBA, AS AMENDED BY ORDERS OF JANUARY 10 AND 18, 1961, YOU WERE ORDERED EVACUATED FROM HAVANA, CUBA, ON JANUARY 4, 1961, AND DIRECTED TO PROCEED TO WEST PALM BEACH, FLORIDA, BY SURFACE TRANSPORTATION AND FROM THERE TO KEY WEST, FLORIDA, VIA GOVERNMENT VEHICLE FOR TEMPORARY DUTY. UPON COMPLETION OF THE TEMPORARY DUTY YOU WERE DIRECTED TO PROCEED TO NORFOLK, VIRGINIA, FOR ADDITIONAL TEMPORARY DUTY EN ROUTE TO U.S.S. STRONG (DD-758) FOR DUTY AS COMMANDING OFFICER. SUCH TRANSFER CONSTITUTED A PERMANENT CHANGE OF STATION. YOUR AUTOMOBILE WAS SHIPPED TO PANAMA ON THE S.S. ELEUTHERA, A FOREIGN FLAG VESSEL. THE WAS SHIPPED TO PANAMA ON THE S.S. KLEUTHERA, A FOREIGN FLAG VESSEL. THE COST OF THE SHIPMENT AMOUNTED TO $236 PLUS MONEY ORDER CHARGES OF $13.52 OR A TOTAL OF $249.52 WHICH YOU WERE REQUIRED TO PAY BEFORE THE VEHICLE COULD BE RELEASED FOR TRANSPORTATION TO THE UNITED STATES. YOUR CLAIM FOR REFUND OF THIS AMOUNT WAS DISALLOWED BY SETTLEMENT DATED JULY 13, 1961, FOR THE REASON THAT THE VEHICLE WAS SHIPPED ON A FOREIGN FLAG VESSEL.

IN YOUR PRESENT LETTER YOU SAY THE REASONS YOUR CLAIM WAS DISALLOWED WERE WELL KNOWN BY YOU AND THE SUPPLY CORPS OFFICERS WITH WHOM YOU DISCUSSED THE MATTER. HOWEVER YOU SAY THE CLAIM WAS SUBMITTED TO BE JUDGED UNDER THE GENERAL PROVISIONS WITH RESPECT TO LOSSES INCURRED BY EVACUATION IN THE LINE OF DUTY. IT APPEARS TO BE YOUR VIEW THAT YOUR CLAIM IS FOR ALLOWANCE FOR THE REASON THAT IF YOU HAD NOT EVACUATED YOUR CAR FROM HAVANA, CUBA, IT WOULD HAVE BEEN LOST AND THIS WOULD HAVE RESULTED IN A CLAIM AGAINST THE GOVERNMENT FOR A GREATER AMOUNT WHICH PROBABLY WOULD HAVE BEEN PAYABLE.

APPARENTLY YOU HAVE REFERENCE TO THE MILITARY PERSONNEL CLAIMS ACT OF 1945, AS AMENDED, AND NOW CODIFIED IN 10 U.S.C. 2732. THIS STATUTE AUTHORIZES THE SECRETARY OF A MILITARY DEPARTMENT UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE TO ALLOW CERTAIN CLAIMS FOR DAMAGES INCIDENT TO NONCOMBAT ACTIVITIES OF THE DEPARTMENT AND PROVIDES THAT SETTLEMENT OF SUCH CLAIMS WILL BE FINAL AND CONCLUSIVE. WE HAVE NO JURISDICTION IN SUCH MATTERS.

MOREOVER, THE JURISDICTION OF OUR OFFICE IS SUCH THAT WE MAY DIRECT THE PAYMENT OF CLAIMS FROM PUBLIC FUNDS ONLY IF SUCH PAYMENT IS AUTHORIZED BY LAW. WE HAVE FOUND NO LEGAL BASIS TO ALLOW YOU PAYMENT FOR TRANSPORTATION OF YOUR AUTOMOBILE ON A FOREIGN FLAG VESSEL, NOTWITHSTANDING THE EMERGENCY NATURE OF THE EVACUATION ORDERS PREVENTED YOU FROM ARRANGING FOR THE MOVEMENT OF YOUR VEHICLE ON AN AMERICAN FLAG VESSEL. AS WE EXPLAINED IN OUR SETTLEMENT OF JULY 13, 1961, THE PROVISIONS OF 10 U.S.C. 6157, AND OF THE ACT OF MAY 28, 1956, 70 STAT. 187, 46 U.S.C. 1241 (C), AMENDING SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, AS AMENDED, WHICH AUTHORIZE THE SHIPMENT OF MOTOR VEHICLES OF MEMBERS OF THE NAVAL SERVICE ON PERMANENT CHANGE OF STATION ON EITHER GOVERNMENT-OWNED VESSELS OR PRIVATELY OWNED AMERICAN SHIPPING SERVICES, WERE NOT INTENDED TO PERMIT THE SHIPMENT OF AUTOMOBILES ON OTHER THAN PRIVATELY OWNED AMERICAN FLAG VESSELS.

VIEWED IN THIS LIGHT WE HOPE YOU UNDERSTAND THAT THE FACT THAT YOU MAY HAVE SAVED THE GOVERNMENT FROM REIMBURSING YOU FOR THE LOSS OF YOUR AUTOMOBILE UNDER THE PROVISIONS OF 10 U.S.C. 2732 AFFORDS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

HENCE, SINCE THERE IS NO AUTHORITY FOR THE SHIPMENT OF AUTOMOBILES FOR MILITARY PERSONNEL ON FOREIGN FLAG VESSELS AT GOVERNMENT EXPENSE, AND SINCE THE CITED STATUTES MADE NO EXCEPTION TO COVER THE CIRCUMSTANCES SURROUNDING THE SHIPMENT IN YOUR CASE, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE ACTION PREVIOUSLY TAKEN ON YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF JULY 13, 1961, WAS CORRECT AND IS SUSTAINED.