B-176087, FEB 5, 1973

B-176087, FEB 5, 1973

TRANSPORTATION - PRIVATELY OWNED MOTOR VEHICLES-WATER-RAIL SERVICE DECISION AFFIRMING DENIAL OF AUTHORIZATION FOR TRANSPORTATION OF PRIVATELY OWNED MOTOR VEHICLES OF MEMBERS OF THE ARMED FORCES IN WATER RAIL SERVICE BETWEEN SEATTLE, WASH., AND ANCHORAGE, AK., AT GOVERNMENT EXPENSE UNDER 10 U.S.C. 2634. THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF 10 U.S.C. 2634 TO INDICATE THAT THE TERM "SHIPPING SERVICES" WAS MEANT TO BE ANYTHING MORE THAN THE SERVICES CUSTOMARILY PERFORMED BY OCEAN CARRIERS. ACCORDINGLY, CONSTRUCTION OF THIS STATUTE AS AUTHORIZING ADDITIONAL TRANSPORTATION ON LAND BY CARRIERS NOT ENGAGED IN NORMAL SHIPPING SERVICES CONTRAVENES 10 U.S.C. 2634'S OBVIOUS LEGISLATIVE INTENT.

TO MR. SECRETARY:

WE REFER TO LETTER OF OCTOBER 6, 1972, FROM DONALD W. BENNETT, CHIEF COUNSEL OF THE FEDERAL RAILROAD ADMINISTRATION, ASKING FOR RECONSIDERATION OF OUR DECISION OF AUGUST 7, 1972, B-176087. IN THAT DECISION, IT WAS CONCLUDED THAT TRANSPORTATION OF PRIVATELY OWNED MOTOR VEHICLES OF MEMBERS OF THE ARMED FORCES (POVS), IN WATER-RAIL SERVICE BETWEEN SEATTLE, WASHINGTON, AND ANCHORAGE, ALASKA, WAS NOT AUTHORIZED AT GOVERNMENT EXPENSE UNDER 10 U.S.C. 2634. IT WAS OUR OPINION THAT WATER-RAIL SERVICE PERFORMED JOINTLY BY ALASKA HYDRO-TRAIN AND THE ALASKA RAILROAD COULD NOT BE CHARACTERIZED AS AN AMERICAN SHIPPING SERVICE WITHIN THE MEANING OF THE STATUTE.

IT APPARENTLY IS MR. BENNETT'S OPINION THAT THE PORTION OF THE SERVICE PERFORMED BY THE ALASKA RAILROAD IS INCIDENTAL TO AND PART OF THE SHIPPING SERVICE PERFORMED BY ALASKA HYDRO-TRAIN. MR. BENNETT POINTS OUT THAT THE TERM "SHIPPING SERVICES" IS NOT DEFINED IN SECTION 2634, AND HE APPARENTLY IS OF THE VIEW THAT ANY INLAND SERVICE PERFORMED PRIOR OR SUBSEQUENT TO TRANSPORTATION BY WATER IS INCIDENTAL TO SUCH WATER TRANSPORTATION AND IS THUS AN AMERICAN SHIPPING SERVICE WITHIN THE MEANING OF THE STATUTE REGARDLESS OF WHO PERFORMS THE INLAND TRANSPORTATION.

UNDER THIS RATIONALE, POVS COULD BE TRANSPORTED AT GOVERNMENT EXPENSE TO OR FROM ANY POINT IN THE UNITED STATES PROVIDED SAME PART OF THE OVERALL SERVICE CONSISTED OF TRANSPORTATION BY WATER. THE AUTHORIZATION HAS NEVER BEEN ADMINISTERED IN THIS WAY AND TO DO SO WOULD INCREASE THE AGGREGATE COST OF TRANSPORTING POVS OUT OF ALL PROPORTION TO WHAT WE BELIEVE WAS THE LEGISLATIVE INTENT WHEN THE AUTHORIZATION WAS ENACTED.

AT ONE TIME, TRANSPORTATION OF POVS AT GOVERNMENT EXPENSE WAS NOT AUTHORIZED AT ALL. IT WAS BROUGHT TO THE ATTENTION OF THE CONGRESS, HOWEVER, THAT THE ARMED FORCES OFTEN OPERATED GOVERNMENT-OWNED VESSELS BETWEEN VARIOUS PORTS IN CIRCUMSTANCES WHERE SUCH VESSELS WERE NOT FULLY LOADED AND IT WAS SUGGESTED THAT THIS OTHERWISE UNUSED SPACE COULD BE USED FOR THE TRANSPORTATION OF POVS AT NO ADDITIONAL EXPENSE TO THE GOVERNMENT. CONSEQUENTLY, AT ONE TIME, STATUTORY AUTHORIZATIONS FOR TRANSPORTATION OF POVS AT GOVERNMENT EXPENSE WERE LIMITED TO TRANSPORTATION ON "A VESSEL OWNED BY THE UNITED STATES" OR ON "A GOVERNMENT-OWNED VESSEL."

THE STATUTORY AUTHORIZATION WAS LATER BROADENED TO INCLUDE TRANSPORTATION OF POVS AT GOVERNMENT EXPENSE BY PRIVATELY OWNED AMERICAN SHIPPING SERVICES OR BY FOREIGN-FLAG SHIPPING SERVICES IN CIRCUMSTANCES WHERE TRANSPORTATION BY GOVERNMENT VESSELS OR AMERICAN SHIPPING SERVICES WAS NOT AVAILABLE. THERE IS NOTHING IN THE HISTORY OF THESE LEGISLATIVE CHANGES TO INDICATE THAT THE TERM "SHIPPING SERVICES" WAS MEANT TO BE ANYTHING MORE THAN THE SERVICES CUSTOMARILY PERFORMED BY OCEAN CARRIERS. CONSTRUE THE STATUTE AS AUTHORIZING ADDITIONAL TRANSPORTATION BY LAND BY CARRIERS NOT ENGAGED IN THE PERFORMANCE OF AMERICAN OR FOREIGN-FLAG SHIPPING SERVICES WOULD CONTRAVENE NOT ONLY THE LANGUAGE OF THE STATUTE BUT THE OBVIOUS LEGISLATIVE INTENT.

THE TRANSPORTATION CONSIDERED IN OUR DECISION OF AUGUST 7, 1972, B 176087, CLEARLY WAS WATER-RAIL TRANSPORTATION PERFORMED JOINTLY BY ALASKA HYDRO-TRAIN AND THE ALASKA RAILROAD. AFTER RECONSIDERATION OF THIS MATTER, WE FIND NO VALID BASIS FOR CONCLUDING THAT THIS JOINT SERVICE WAS AN AMERICAN SHIPPING SERVICE WITHIN THE MEANING OF 10 U.S.C. 2634. CONSEQUENTLY, WE ADHERE TO OUR INITIAL CONCLUSION THAT PERFORMANCE OF THE SERVICE AT GOVERNMENT EXPENSE WAS NOT AUTHORIZED.