B-177454, MAR 9, 1973

B-177454, MAR 9, 1973

CIVILIAN PAY - TRAVEL EXPENSES - USE OF FOREIGN FLAG CARRIER - TRANSPORTATION REQUESTS DECISION ALLOWING IN PART THE CLAIM OF WILLIAM M. ESSARY FOR REIMBURSEMENT OF AIR FARES FOR CERTAIN TRAVEL PERFORMED AS AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY. USE OF A FOREIGN FLAG CARRIER MAY BE APPROVED WHERE A FLIGHT BY AN AMERICAN FLAG CARRIER IS NOT SCHEDULED TO ARRIVE IN TIME FOR THE CONDUCT OF OFFICIAL BUSINESS. SGTR, SECTION 3.6B(3)(A). ALSO, REIMBURSEMENT MAY BE MADE FOR TRAVEL FOR WHICH THERE WAS NOT SUFFICIENT TIME TO GET A TRANSPORTATION REQUEST (TR). JTR, VOL. 2, PARA. C6251. HOWEVER, WHERE THE CIRCUMSTANCES WHICH CAUSED THE FAILURE TO OBTAIN A TR ARE NOT AMONG THOSE PROVIDED FOR IN PARA. C6251, JTR, REIMBURSEMENT FOR SUCH TRAVEL MAY NOT BE MADE, EVEN IF THE EMPLOYEE WAS MISINFORMED BY A GOVERNMENT OFFICIAL AS TO THE NEED FOR A TR, SINCE THE GOVERNMENT IS NOT TO BE HELD LIABLE FOR THE ERRONEOUS ACTS OF ITS OFFICERS. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515 (1888).

TO MR. WILLIAM M. ESSARY:

WE REFER TO YOUR LETTER OF NOVEMBER 3, 1972, REFERENCE ESA 763:WME:JS, REQUESTING RECONSIDERATION OF THE DENIAL OF YOUR CLAIM FOR REIMBURSEMENT OF AIR FARES WHICH WAS DISALLOWED BY OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT CERTIFICATE DATED AUGUST 25, 1972, IN LIGHT OF THE ADDITIONAL INFORMATION PRESENTED.

YOUR CLAIM FOR REIMBURSEMENT OF THE AIR FARE ATTRIBUTABLE TO THE USE OF A FOREIGN FLAG CARRIER ON JANUARY 25, 1972, INCIDENT TO YOUR TRAVEL FROM TRIESTE, ITALY, TO LOS ANGELES, CALIFORNIA, WAS DISALLOWED ON THE ASSUMPTION THAT YOUR FLIGHT FROM MILAN, ITALY, COULD HAVE BEEN SCHEDULED VIA AN AMERICAN FLAG CARRIER AT 1200 IN SUFFICIENT TIME TO PERMIT YOUR ATTENDANCE AT A SCHEDULED MEETING THE FOLLOWING DAY. YOU POINT OUT THAT BECAUSE OF A REGULATION REQUIRING A MINIMUM OF 1-HOUR CONNECTION TIME FOR ALL OVERSEAS FLIGHTS AND BECAUSE OF THE FACT THAT YOUR FLIGHT FROM TRIESTE WAS SCHEDULED TO ARRIVE IN MILAN AT 1115, THE AIRLINES AGENT WOULD NOT BOOK YOU ON THE AMERICAN FLAG CARRIER DEPARTING AT 1200. YOU NOTE ALSO THAT YOUR FLIGHT FROM TRIESTE DID NOT ARRIVE IN MILAN UNTIL 1225, 25 MINUTES AFTER THE AMERICAN FLAG CARRIER'S DEPARTURE TIME. YOU REPORT THAT YOU WERE THUS OBLIGED TO FLY ON SWISSAIN VIA ZURICH, SWITZERLAND, TO NEW YORK, NEW YORK, IN ORDER TO ARRIVE IN LOS ANGELES IN TIME FOR YOUR SCHEDULED MEETING ON JANUARY 26.

WE HAVE VERIFIED THAT IN FACT THERE IS A 40-MINUTE CONNECTION TIME REQUIRED FOR OVERSEAS FLIGHTS, BUT THAT IN PRACTICE A LONGER CONNECTING TIME IS GENERALLY SCHEDULED. FURTHER IT APPEARS THAT THERE WERE NO AMERICAN FLAG CARRIERS SCHEDULED TO LEAVE MILAN LATER THAT DAY, NOR WERE THERE CONNECTING AMERICAN FLAG CARRIERS AVAILABLE AT ZURICH WHICH WOULD HAVE PERMITTED YOUR ARRIVAL IN LOS ANGELES BY JANUARY 26.

SECTION 3.6B(3)(A) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PROVIDES THAT USE OF A FOREIGN FLAG CARRIER MAY BE AUTHORIZED OR APPROVED WHERE A FLIGHT BY AN AMERICAN FLAG CARRIER IS NOT SCHEDULED TO ARRIVE IN TIME FOR THE CONDUCT OF OFFICIAL BUSINESS. SINCE THERE WAS NO AMERICAN FLAG CARRIER WHICH WOULD HAVE PERMITTED THE SCHEDULING OF YOUR FLIGHT TO ARRIVE IN LOS ANGELES THE FOLLOWING DAY IN TIME FOR YOUR MEETING, USE OF A FOREIGN FLAG CARRIER WAS PERMISSIBLE.

REIMBURSEMENT OF YOUR CLAIM FOR AMOUNTS PAID FOR AIR TRAVEL FROM LOS ANGELES, CALIFORNIA, TO ATHENS, GREECE, ON FEBRUARY 2 AND 3, 1972, AND FOR TRAVEL FROM BARCELONA, SPAIN, TO WASHINGTON, D. C., ON MARCH 2, 1972, WAS REDUCED BY THE AMOUNT WHICH COMMERCIAL FARES THEREFORE EXCEEDED CATEGORY Z RATES, DUE TO YOUR FAILURE TO OBTAIN A GOVERNMENT TRANSPORTATION REQUEST (TR).

PARAGRAPH C 6251 OF THE JOINT TRAVEL REGULATIONS, VOLUME 2, IN EFFECT AT THE TIME OF YOUR TRAVEL, PROVIDED AS FOLLOWS:

C 6251 WHEN TRANSPORTATION REQUESTS ARE NOT AVAILABLE

IN AN EMERGENCY, WHEN TRANSPORTATION REQUESTS ARE NOT AVAILABLE, THE TRAVELER MAY PAY FOR THE TRANSPORTATION AND FILE A CLAIM FOR REIMBURSEMENT (SEE PAR. C9003-2), OR HE MAY TELEGRAPH OR TELEPHONE AN ADMINISTRATIVE OFFICIAL WHO DIRECTS TRAVEL TO REQUEST THAT A TRANSPORTATION REQUEST BE ISSUED TO COVER THE TRIP. THE TRANSPORTATION REQUEST WILL BE DEPOSITED BY THE ADMINISTRATIVE OFFICIAL WITH THE AGENT OF THE CARRIER AT THE POINT OF ISSUE. SUCH AGENT WILL BE ASKED TO TELEGRAPH THE AGENT FROM WHOM THE TICKET IS TO BE OBTAINED THAT A TRANSPORTATION REQUEST TO COVER THE TRAVEL HAS BEEN RECEIVED. THE LATTER AGENT WILL THEN FURNISH THE TICKET TO THE TRAVELER.

THE FACT THAT YOU WERE NOTIFIED OF THE NECESSITY FOR YOUR TRAVEL FROM BARCELONA TO WASHINGTON, D. C., ON THE NIGHT BEFORE YOU WERE REQUIRED TO TRAVEL AND THAT THERE WAS NOT SUFFICIENT TIME IN WHICH A TR COULD HAVE BEEN ISSUED HAS BEEN VERIFIED BY THE DEPARTMENT OF THE NAVY. IN VIEW THEREOF YOU MAY NOW BE REIMBURSED FOR THE FULL ECONOMY CLASS FARE FOR THAT TRAVEL, INCLUDING THE AMOUNT PAYABLE AS EXCESS BAGGAGE CHARGES.

THE CIRCUMSTANCES OF YOUR FAILURE TO OBTAIN A TR IN CONNECTION WITH YOUR FLIGHT FROM LOS ANGELES TO ATHENS, HOWEVER, ARE NOT CIRCUMSTANCES WHICH COME WITHIN THE REGULATION QUOTED ABOVE. WE REGRET THAT YOU WERE NOT MORE SUFFICIENTLY BRIEFED IN REGARD TO YOUR TRAVEL. IT IS WELL ESTABLISHED THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, THE UNITED STATES IS NOT LIABLE FOR THE NEGLIGENT OR ERRONEOUS ACTS OF ITS OFFICERS, AGENTS OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. ROBERTSON V. SICHEL, 127 U.S. 507, 515 (1888); GERMAN BANK V. UNITED STATES, 148 U.S. 573, 579 (1893); 19 COMP. GEN. 503 (1939); 22 ID. 221 (1942). ACCORDINGLY, THERE IS NO BASIS FOR ALLOWING YOU THE AMOUNT BY WHICH THE COST OF THE AIR FARE INVOLVED EXCEEDED THE RATE WHICH WOULD HAVE BEEN PAYABLE HAD A TR BEEN ISSUED.

WE HAVE RETURNED YOUR CLAIM TO OUR TRANSPORTATION AND CLAIMS DIVISION FOR PROCESSING IN ACCORDANCE WITH THE ABOVE AND A SETTLEMENT IN YOUR FAVOR WILL BE ISSUED IN DUE COURSE.