B-160229, NOV. 7, 1966

B-160229, NOV. 7, 1966

TO MR. JOHN T. ANDERSON:

YOUR LETTER OF OCTOBER 4, 1966, REQUESTS REVIEW OF OUR SETTLEMENT DATED JANUARY 14, 1965, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF SHIPPING YOUR AUTOMOBILE FROM BREMERHAVEN, GERMANY, TO BALTIMORE, MARYLAND, INCIDENT TO YOUR SEPARATION FROM THE DEPARTMENT OF THE AIR FORCE.

BY SPECIAL ORDER AB 41, DATED FEBRUARY 15, 1962, YOU WERE RELEASED FROM YOUR ASSIGNMENT WITH THE DEPARTMENT OF THE AIR FORCE AND AUTHORIZED TO TRAVEL TO WASHINGTON, D.C. FOR FURTHER EMPLOYMENT WITH THE DEPARTMENT OF AGRICULTURE. YOU WERE DIRECTED TO REPORT TO THE RHEIN MAIN AIR BASE ON MARCH 19, 1962, FOR AIR TRAVEL TO THE UNITED STATES. ALSO, YOU WERE AUTHORIZED TRANSPORTATION OF YOUR VOLKSWAGEN AUTOMOBILE VIA GOVERNMENT FACILITIES ON A SPACE-REQUIRED NONREIMBURSABLE BASIS.

ON MARCH 7, 1962, YOU PRESENTED YOUR TRAVEL AUTHORIZATION TO ONE CAPTAIN GLADWIN OF THE U.S. ARMY TRANSPORTATION CORPS, AS EVIDENCE OF YOUR ENTITLEMENT TO TRANSPORTATION OF YOUR AUTOMOBILE TO THE UNITED STATES. CAPTAIN GLADWIN, HOWEVER, ERRONEOUSLY REFUSED TO AUTHORIZE SHIPMENT OF YOUR VOLKSWAGEN VIA A GOVERNMENT VESSEL, CITING PARAGRAPH 5802 OF AIR FORCE MANUAL 75-4, WHICH PROHIBITS THE SHIPMENT VIA GOVERNMENT FACILITIES OF A FOREIGN MADE VEHICLE PURCHASED OVERSEAS ON OR AFTER MARCH 7, 1961. (THE DEPARTMENT OF THE AIR FORCE REPORTS THAT YOU WERE ENTITLED TO SHIPMENT OF YOUR AUTOMOBILE UNDER THE EXCEPTION STATED IN SUBSECTION B (1) OF PARAGRAPH 5802).

SINCE THE ARMY TRANSPORTATION CORPS REFUSED TO ACCEPT YOUR AUTOMOBILE FOR SHIPMENT TO THE UNITED STATES, ON MARCH 9, 1962, YOU EMPLOYED A LOCAL FREIGHT FORWARDING FIRM IN BREMERHAVEN TO ARRANGE FOR THE SHIPMENT OF YOUR AUTOMOBILE TO BALTIMORE.

OUR SETTLEMENT OF JANUARY 14, 1965, DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR THE REASON THAT THE SHIPMENT OF YOUR AUTOMOBILE FROM BREMERHAVEN TO BALTIMORE WAS ACCOMPLISHED BY MEANS OF A FOREIGN FLAG VESSEL IN CONTRAVENTION OF SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, AS AMENDED, 46 U.S.C. 1241 (A), WHICH PROVIDES:

"ANY OFFICER OR EMPLOYEE OF THE UNITED STATES TRAVELING ON OFFICIAL BUSINESS OVERSEAS OR TO OR 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 SUPPORT OF YOUR CLAIM, YOU STATE:

"* * * I HAD, AT THE TIME OF THE ARMY'S REFUSAL TO ACCEPT THE SHIPPING AUTHORIZATION FOR MOVEMENT OF MY CAR, ONLY TEN CALENDAR DAYS BEFORE REPORTING TO FRANKFURT, GERMANY, FOR AIR TRAVEL TO THE UNITED STATES. THIS VERY SHORT PERIOD AND THE REQUIREMENT TO HAVE MY CAR AS SOON AS POSSIBLE IN WASHINGTON LEFT NO OTHER ALTERNATIVE THAN THE USE OF THE CARRIER PROVIDING THE MOST EXPEDITIOUS DELIVERY OF MY VEHICLE TO BALTIMORE.'

WE NOTE THAT YOUR AUTOMOBILE ARRIVED IN THE PORT OF BALTIMORE ON APRIL 5, 1962.

THE TERM "NECESSITY" IN THE SECTION QUOTED ABOVE CONSISTENTLY HAS BEEN CONSTRUED BY OUR OFFICE AS MEANING OFFICIAL NEED OR THE NECESSITY OF THE MISSION, AND PERSONAL NECESSITY OF THE EMPLOYEE HAS NOT BEEN ACCEPTED AS JUSTIFYING THE USE OF FOREIGN FLAG VESSELS. HOWEVER, WE HAVE AUTHORIZED TRAVEL, IF OTHERWISE PROPER, ON SHIPS OF FOREIGN REGISTRY WHEN AMERICAN FLAG VESSELS WERE NOT AVAILABLE. IN THAT REGARD, WE HAVE BEEN ADVISED THAT AMERICAN FLAG VESSELS WERE SCHEDULED TO DEPART BREMERHAVEN ON MARCH 11, 16 AND 23, 1962, AND WERE SCHEDULED TO ARRIVE IN BALTIMORE ON MARCH 30, APRIL 7, AND APRIL 13, RESPECTIVELY. WE PRESUME THAT ANY ONE OF THE THREE VESSELS MENTIONED WOULD HAVE SERVED YOUR PERSONAL NEEDS.

WHILE THE RECORD DOES SHOW THAT AN ERROR WAS COMMITTED BY A REPRESENTATIVE OF THE GOVERNMENT IN THIS CASE, SUCH FACT HAS NO MATERIAL BEARING ON THE LEGAL ISSUE INVOLVED. THE FINANCIAL LIABILITY FOR USE OF A FOREIGN FLAG VESSEL BY AN EMPLOYEE IN THE ABSENCE OF A NEED FOR SUCH USE IS PLACED BY LAW UPON THE EMPLOYEE, AND EVEN IF THE GOVERNMENT'S REPRESENTATIVES ARE SHOWN TO HAVE ACTED ERRONEOUSLY IN THE MATTER, THERE EXISTS NO LEGAL BASIS FOR GRANTING RELIEF TO THE EMPLOYEE.