B-162469, JUL. 3, 1968

B-162469, JUL. 3, 1968

TO RUYS AND COMPANY:

IN YOUR LETTER OF MARCH 26, 1968, FILE DE 31184/8, YOU REQUEST REVIEW OF THE DISALLOWANCE OF YOUR CLAIM PER BILLS NOS. DE-31184 AND DE-31186 IN THE AMOUNT OF 3,944.98 FRENCH FRANCS (APPROXIMATELY $798.66) FOR OCEAN FREIGHT ON HOUSEHOLD EFFECTS BELONGING TO MESSRS. RICHARD J. CORNISH AND EDWARD P. ALLEN, EMPLOYEES OF THE DEPARTMENT OF STATE, TRANSPORTED FROM MARSEILLE, FRANCE, TO BALTIMORE, MARYLAND, ABOARD THE GERMAN VESSEL MS HUGO RETZLAFF WHICH SAILED FROM MARSEILLE ON AUGUST 18, 1966.

WITH YOUR REQUEST FOR REVIEW YOU ALSO REFERRED TO YOUR CLAIMS PER BILLS NOS. DE-31185, DE-31187 AND DE-31188 IN THE AMOUNT OF 504.41 FRENCH FRANCS (APPROXIMATELY $105.04) FOR OCEAN FREIGHT ON THE UNACCOMPANIED BAGGAGE OF B. PRESTON ROOT III, J. E. BERNUM AND BRUCE WRINKLE, APPARENTLY FORMER PEACE CORPS EMPLOYEES OR VOLUNTEERS, WHICH BAGGAGE WAS ALSO TRANSPORTED ABOARD THE MS HUGO RETZLAFF OR THE MS A. VOLTA, AN ITALIAN VESSEL. HAVE BEEN UNABLE AT THIS TIME TO OBTAIN THE RECORDS CONCERNING THESE THREE SHIPMENTS. HOWEVER, THE CORRESPONDENCE RELATIVE TO THESE THREE BILLS HAS BEEN REFERRED TO OUR TRANSPORTATION DIVISION FOR CONSIDERATION AND SETTLEMENT AS A CLAIM. YOU WILL BE NOTIFIED BY THAT DIVISION OF THE ACTION TAKEN ON THESE THREE BILLS AFTER THE RECORDS HAVE BEEN RECEIVED AND CONSIDERED.

INFORMAL ADVICE FROM THE MARITIME ADMINISTRATION INDICATES THAT THE AMERICAN FLAG VESSEL SS EXPORT BUYER DEPARTED MARSEILLE, FRANCE, ON AUGUST 22, 1966, AND ARRIVED IN BALTIMORE, MARYLAND, ON SEPTEMBER 14, 1966, AND THE AMERICAN FLAG VESSEL SS EXPORT BUILDER DEPARTED MARSEILLE ON SEPTEMBER 14, 1966, AND ARRIVED IN BALTIMORE ON OCTOBER 18, 1966. THERE IS NO EVIDENCE IN THE RECORD TO SHOW THAT THE AMERICAN VESSELS WERE NOT AVAILABLE FOR THE SHIPMENT OF THE HOUSEHOLD EFFECTS OF MESSRS. CORNISH AND ALLEN (YOUR BILLS DE-31184 AND DE-31186) OR OF ANY OTHER NECESSITY FOR THE USE OF THE FOREIGN FLAG VESSEL.

YOU HAVE HAD EXTENSIVE PREVIOUS EXPERIENCE IN HANDLING THE EFFECTS OF UNITED STATES EMPLOYEES AND ADMIT THAT YOU ARE AWARE OF THE REQUIREMENT THAT SUCH SHIPMENTS MUST BE ON AMERICNA FLAG VESSELS WHEN AVAILABLE. EXTENUATION YOU ALLEGE THAT THERE WAS NO INTENT TO VIOLATE THE REQUIREMENT BUT THE EMPLOYEE WHO USUALLY DEALS WITH THE EXPORT OF U.S. GOVERNMENTAL SHIPMENTS WAS AWAY ON LEAVE AND HIS SUBSTITUTE, OWING TO AN OVERSIGHT, FAILED TO ADHERE TO THE STANDING INSTRUCTIONS ISSUED BY THE AMERICAN CONSULATE GENERAL STIPULATING SHIPPING VIA AMERICAN FLAG VESSELS. YOU ALSO INDICATE THAT SINCE THE SHIPMENTS IN QUESTION CONSISTED OF HOUSEHOLD AND PERSONAL EFFECTS FOR WHICH, ACCORDING TO YOUR EXPERIENCE, A QUICK FORWARDING IS REQUIRED, LOADING WAS EFFECTED ON THE FIRST STEAMER AVAILABLE; THAT IS, THE MS HUGO RETZLAFF (GERMAN FLAG) ON AUGUST 18, 1966. HOWEVER, THERE IS NO INDICATION IN THE RECORD OF ANY NEED OR REQUEST FOR EXPEDITED EMERGENCY SERVICE, AND AN AMERICAN VESSEL (THE SS EXPORT BUYER) WAS APPARENTLY AVAILABLE FOUR DAYS AFTER DEPARTURE OF THE FOREIGN SHIP UTILIZED.

SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, 46 U.S.C. 1241 (A) IS MANDATORY IN FORM AND PROVIDES FOR DISALLOWANCE OF TRAVEL OR SHIPPING EXPENSES INCURRED THROUGH THE USE OF FOREIGN SHIPS IN THE ABSENCE OF SATISFACTORY PROOF OF THE NECESSITY FOR USE OF THE FOREIGN SHIP; THAT IS, GENERALLY, THAT AMERICAN FLAG SHIPS EITHER WERE NOT AVAILABLE OR COULD NOT PERFORM THE SERVICES. WHILE THE FAILURE TO USE AN AMERICAN FLAG VESSEL MAY NOT HAVE BEEN DELIBERATE AND MAY HAVE ARISEN THROUGH USE OR OVERSIGHT OF INEXPERIENCED PERSONNEL, SUCH INCIDENTS DO NOT SATISFACTORILY PROVE THE NECESSITY OF THE USE OF A FOREIGN VESSEL. OUR OFFICE IS BOUND BY THE LAW, AND WE ARE PRECLUDED BY THE LAW FROM CREDITING OR MAKING ANY ALLOWANCE FOR TRAVEL OR SHIPPING EXPENSES INCURRED THROUGH THE USE OF A FOREIGN SHIP UNLESS IT CAN BE SHOWN THAT AMERICAN FLAG SHIPS WERE NOT AVAILABLE OR THAT THERE WAS SOME OFFICIAL NECESSITY FOR THE USE OF VESSELS OF OTHER COUNTRIES.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM FOR 3,944.98 FRENCH FRANCS MUST BE SUSTAINED.