A-29832, JANUARY 2. 1930, 9 COMP. GEN. 263

A-29832: Jan 2, 1930

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PANAMA CANAL - DAMAGES TO NAVAL VESSELS PASSING THROUGH THE APPROPRIATION OF THE PANAMA CANAL PROVIDING FOR THE PAYMENT OF CLAIMS FOR DAMAGES TO VESSELS PASSING THROUGH THE LOCKS OF THE PANAMA CANAL IS NOT AVAILABLE FOR THE PAYMENT OF THE COSTS OF REPAIRS TO NAVAL VESSELS EVEN WHEN THE FACTS ESTABLISH THE RESPONSIBILITY OF THE PANAMA CANAL FOR THE DAMAGES. THE COSTS OF SUCH REPAIRS FOR DAMAGES TO NAVAL VESSELS ARE CHARGEABLE UNDER THE LAW TO THE SPECIFIC APPROPRIATION MADE UNDER THE BUREAU OF CONSTRUCTION AND REPAIR. 1930: I HAVE YOUR LETTER OF DECEMBER 10. REQUESTING DECISION ON A GENERAL QUESTION AS TO THE APPROPRIATION PROPERLY CHARGEABLE WITH THE COST OF REPAIRS TO NAVAL VESSELS DAMAGED WHILE PASSING THROUGH THE PANAMA CANAL WHERE THE FACTS ARE SUCH AS TO ESTABLISH THE RESPONSIBILITY OF THE PANAMA CANAL UNDER THE PROVISIONS OF SECTION 5 OF THE PANAMA CANAL ACT OF AUGUST 24.

A-29832, JANUARY 2. 1930, 9 COMP. GEN. 263

PANAMA CANAL - DAMAGES TO NAVAL VESSELS PASSING THROUGH THE APPROPRIATION OF THE PANAMA CANAL PROVIDING FOR THE PAYMENT OF CLAIMS FOR DAMAGES TO VESSELS PASSING THROUGH THE LOCKS OF THE PANAMA CANAL IS NOT AVAILABLE FOR THE PAYMENT OF THE COSTS OF REPAIRS TO NAVAL VESSELS EVEN WHEN THE FACTS ESTABLISH THE RESPONSIBILITY OF THE PANAMA CANAL FOR THE DAMAGES. THE COSTS OF SUCH REPAIRS FOR DAMAGES TO NAVAL VESSELS ARE CHARGEABLE UNDER THE LAW TO THE SPECIFIC APPROPRIATION MADE UNDER THE BUREAU OF CONSTRUCTION AND REPAIR, NAVY DEPARTMENT, PROVIDING FOR THE "WEAR, TEAR, AND REPAIR OF VESSELS AFLOAT.'

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JANUARY 2, 1930:

I HAVE YOUR LETTER OF DECEMBER 10, 1929, REQUESTING DECISION ON A GENERAL QUESTION AS TO THE APPROPRIATION PROPERLY CHARGEABLE WITH THE COST OF REPAIRS TO NAVAL VESSELS DAMAGED WHILE PASSING THROUGH THE PANAMA CANAL WHERE THE FACTS ARE SUCH AS TO ESTABLISH THE RESPONSIBILITY OF THE PANAMA CANAL UNDER THE PROVISIONS OF SECTION 5 OF THE PANAMA CANAL ACT OF AUGUST 24, 1912, 37 STAT. 563, AND THE PRESIDENT'S REGULATIONS MADE AND PROMULGATED IN PURSUANCE THEREOF, AND MORE PARTICULARLY WHETHER IN SUCH CASES THE COSTS OF SAID REPAIRS ARE PROPER CHARGES AGAINST THE PANAMA CANAL APPROPRIATION PROVIDING IN SPECIFIC TERMS FOR THE PAYMENT OF "CLAIMS FOR DAMAGES" TO VESSELS PASSING THROUGH THE LOCKS OF THE PANAMA CANAL AS AUTHORIZED BY THE PANAMA CANAL ACT.

SECTION 5 OF THE PANAMA CANAL ACT, SUPRA, AUTHORIZES THE PRESIDENT TO MAKE REGULATIONS GOVERNING THE OPERATION OF THE PANAMA CANAL AND THE PASSAGE AND CONTROL OF VESSELS THROUGH THE SAME, AND PROVIDES FURTHER AS FOLLOWS:

SUCH REGULATIONS SHALL PROVIDE FOR PROMPT ADJUSTMENT BY AGREEMENT AND IMMEDIATE PAYMENT OF CLAIMS FOR DAMAGES WHICH MAY ARISE FROM INJURY TO VESSELS, CARGO, OR PASSENGERS FROM THE PASSING OF VESSELS THROUGH THE LOCKS UNDER THE CONTROL OF THOSE OPERATING THEM UNDER SUCH RULES AND REGULATIONS. IN CASE OF DISAGREEMENT SUIT MAY BE BROUGHT IN THE DISTRICT COURT OF THE CANAL ZONE AGAINST THE GOVERNOR OF THE PANAMA CANAL. THE HEARING AND DISPOSITION OF SUCH CASES SHALL BE EXPEDITED AND THE JUDGMENT SHALL BE IMMEDIATELY PAID OUT OF ANY MONEYS APPROPRIATED OR ALLOTTED FOR CANAL OPERATION.

PURSUANT TO THE PROVISIONS OF THIS SECTION THE REGULATIONS PROMULGATED BY THE PRESIDENT UNDER EXECUTIVE ORDER OF SEPTEMBER 25, 1925, MADE THE FOLLOWING PROVISIONS WITH RESPECT TO DAMAGE TO VESSELS:

RULE 89. * * * UNDER THE PROVISIONS OF PARAGRAPH FOUR, SECTION FIVE, PANAMA CANAL ACT, THE PANAMA CANAL ASSUMES RESPONSIBILITY FOR INJURY TO VESSELS, CARGO, OR PASSENGERS DUE TO ACCIDENTS CAUSED BY THE PASSAGE OF THE VESSEL THROUGH THE LOCKS. THIS RESPONSIBILITY IS ASSUMED FROM THE TIME THE FIRST TOWING LINE IS MADE FAST ON BOARD BEFORE ENTRANCE AND CONTINUES UNTIL THE TOWING LINES ARE CAST OFF UPON DEPARTURE FROM THE LOCK CHAMBER. THIS RESPONSIBILITY, HOWEVER, HOLDS GOOD ONLY IN CASE THE VESSEL HAS COMPLIED WITH ALL REQUIREMENTS OF THESE RULES, AS WELL AS THE REGULATIONS ISSUED BY THE GOVERNOR, AND WHEN MOTIVE POWER, STEERING GEAR, AND ALL APPURTENANCES CONTROLLING THE SHIP FUNCTION PROPERLY. THE PANAMA CANAL WILL NOT BE RESPONSIBLE FOR DAMAGE TO ANY PROTRUSION BEYOND THE SIDE OF THE VESSEL, WHETHER SUCH PROTRUSION IS PERMANENT OR TEMPORARY IN CHARACTER.

RULE 90. * * * ALL CLAIMS FOR DAMAGES ARISING FROM AN ACCIDENT IN THE LOCKS TO A VESSEL OR ITS CARGO OR PASSENGERS SHALL BE ADJUSTED BY MUTUAL AGREEMENT WHEN PRACTICABLE BETWEEN THE PANAMA CANAL AND THE PASSENGER, OR THE OWNER, AGENT, OR UNDERWRITER OF THE VESSEL OR THE CARGO. IN CASE OF DISAGREEMENT, SUIT MAY BE BROUGHT BY THE CLAIMANT IN THE DISTRICT COURT OF THE CANAL ZONE AGAINST THE GOVERNOR OF THE PANAMA CANAL.

IT IS STATED IN YOUR LETTER THAT IN SO FAR AS CONCERNS THE AUTHORITY IN SECTION 5, SUPRA, TO BRING SUIT AGAINST THE GOVERNOR OF THE PANAMA CANAL YOUR DEPARTMENT MAKES NO QUESTION THAT IT IS INAPPLICABLE TO DAMAGES CAUSED TO NAVAL VESSELS, BUT THE WORD "VESSELS" AS USED IN THIS SECTION IN PROVIDING FOR THE PAYMENT OF DAMAGES BY AGREEMENT AND WITHOUT SUIT SHOULD RECEIVE THE SAME CONSTRUCTION AS THAT GIVEN IN THE SAME SECTION IN PROVIDING FOR REGULATIONS TO GOVERN THE CONTROL OF VESSELS IN THEIR PASSAGE THROUGH THE LOCKS AS TO WHICH THERE IS NO QUESTION THAT NAVAL VESSELS ARE INCLUDED.

WITH RESPECT TO THE QUESTION OF CHARGING THE PANAMA CANAL APPROPRIATION WITH THE COST OF REPAIRING NAVAL VESSELS, IT IS STATED FURTHER IN YOUR LETTER:

THIS DEPARTMENT IS FAMILIAR WITH THE DECISION OF THE ACCOUNTING OFFICERS IN CASES LIKE THE U.S.S. ALLIANCE (6 COMP. DEC. 74), AND THE U.S. DREDGE CULEBRA (6 COMP. GEN. 171), IN WHICH IT HAS BEEN DECIDED THAT THE COST OF REPAIRS RESULTING FROM COLLISION BETWEEN TWO VESSELS OPERATED BY DIFFERENT DEPARTMENTS OF THE GOVERNMENT CAN NOT BE CHARGED AGAINST THE APPROPRIATION OF THE DEPARTMENT CAUSING THE DAMAGE. SUCH CASES, HOWEVER, WOULD SEEM TO BE READILY DISTINGUISHABLE FROM THE PRESENT QUESTION ON THE GROUND THAT THERE THE APPROPRIATIONS OF THE RESPONSIBLE DEPARTMENTS WERE IN TERMS AVAILABLE ONLY FOR REPAIRS TO THEIR OWN VESSELS, UNDER WHICH CIRCUMSTANCES SECTION 3678, REVISED STATUTES, OPERATED TO PREVENT THE USE OF SUCH APPROPRIATIONS FOR REPAIRS TO VESSELS OF OTHER DEPARTMENTS; WHEREAS HERE CONGRESS PLAINLY INTENDED THAT REPAIRS TO VESSELS DAMAGED WHILE PASSING THROUGH THE PANAMA CANAL AND WHILE COMPLYING WITH THE PRESIDENT'S REGULATIONS GOVERNING THE PASSAGE OF ALL VESSELS THROUGH THE CANAL SHOULD BE ACCOUNTED FOR AS AN EXPENSE OF OPERATING THE PANAMA CANAL--- TO WHICH END AN APPROPRIATION HAS BEEN MADE FOR EXPENSES OF THE CANAL WHICH IN SPECIFIC TERMS APPLIES TO DAMAGES CAUSED VESSELS PASSING THROUGH THE LOCKS AND IN GENERAL TERMS COVERS DAMAGES OF WHATEVER NATURE AND HOWEVER ARISING IN THE OPERATION OF THE CANAL. * * *

AS STATED BY YOU, THE RULE IS WELL SETTLED THAT THE COST OF REPAIRS RESULTING FROM COLLISION, BETWEEN VESSELS OPERATED BY DIFFERENT DEPARTMENTS OF THE GOVERNMENT CAN NOT BE CHARGED AGAINST THE APPROPRIATION OF THE DEPARTMENT CAUSING THE DAMAGE WHEN THE DEPARTMENT OPERATING THE DAMAGED VESSEL HAS AN APPROPRIATION, EITHER GENERAL OR SPECIFIC, AVAILABLE FOR THE REPAIR OF THE SAME. IT IS WELL SETTLED, ALSO, BY A LONG LINE OF DECISIONS BY ACCOUNTING OFFICERS, THAT AMOUNTS RECOVERED AS DAMAGES FOR INJURY TO, OR LOSS OR DESTRUCTION OF VESSELS OF THE GOVERNMENT OR OTHER PUBLIC PROPERTY ARE NOT FOR CREDITING TO THE APPROPRIATION UNDER WHICH THE COSTS OF REPAIRS, PURCHASE, OR CONSTRUCTION, WERE MADE, BUT ARE MONEYS RECEIVED FOR THE USE OF THE UNITED STATES WITHIN THE MEANING OF SECTION 3617, REVISED STATUTES, AND AS SUCH ARE FOR DEPOSITING AND COVERING INTO THE TREASURY OF THE UNITED STATES AS MISCELLANEOUS RECEIPTS. 3 COMP. GEN. 808; 8 ID. 615, AND DECISIONS THEREIN CITED. SEE, ALSO, 22 COMP. DEC. 379.

THE CONTENTION ADVANCED BY YOU THAT THE FIRST OF THE ABOVE RULES SHOULD NOT APPLY IN CASES OF DAMAGES TO NAVAL VESSELS INJURED WHILE PASSING THROUGH THE CANAL IS NOT READILY APPARENT. IT IS TRUE, AS YOU STATE, THAT IN THOSE CASES IN WHICH THE RULE APPLIES THE APPROPRIATION OF THE AGENCY CAUSING THE DAMAGE IS AVAILABLE TO PAY FOR REPAIRS TO ITS OWN VESSELS, BUT THAT IS ONLY ONE OF THE REASONS FOR THE APPLICATION OF THE RULE. ANOTHER REASON IS THE FACT THAT THE AGENCY OPERATING THE DAMAGED VESSEL HAS A SPECIFIC APPROPRIATION MADE BY LAW FOR THE REPAIRS, ETC., MADE TO ITS VESSELS, HENCE THE FURTHER RULE THAT ANY FUNDS COLLECTED AS DAMAGES TO PUBLIC PROPERTY ARE FOR COVERING INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.

IN CONNECTION WITH THE APPROPRIATION OF THE PANAMA CANAL, HEREINBEFORE REFERRED TO, THE PANAMA CANAL ACT, AND THE PRESIDENT'S REGULATIONS, IT SHOULD BE NOTED THAT ALL OF THEM REFER TO AND PROVIDE FOR THE PAYMENT OF "CLAIMS FOR DAMAGES" WHICH IS NOT TO BE CONSIDERED IN A MATTER SUCH AS HERE INVOLVED AS SYNONYMOUS TO PAYMENT FOR COSTS OF REPAIRS. NO DOUBT A CLAIM FOR DAMAGES ARISING FROM INJURIES TO VESSELS OF NECESSITY WILL INCLUDE THE COST OF REPAIRS AS ONE OF THE ITEMS, BUT SUCH FACT ONLY TENDS TO SHOW THAT THE LAW IN THE PRESENT MATTER DID NOT HAVE IN CONTEMPLATION FOR THE PAYMENT OF CLAIMS SUCH AS THOSE REFERRED TO IN YOUR SUBMISSION INCLUDING PAYMENT FOR COST OF REPAIRS ONLY. IN THIS CONNECTION IT HAS BEEN HELD THAT THERE CAN BE NO REIMBURSEMENT TO THE GOVERNMENT FOR THE DAMAGE TO OR LOSS OF ITS OWN PROPERTY. 22 COMP. DEC. 390.

UNDER THE NAVY DEPARTMENT THERE HAS BEEN PROVIDED, UNDER THE BUREAU OF CONSTRUCTION AND REPAIR, A SPECIFIC APPROPRIATION FOR THE "WEAR, TEAR, AND REPAIR OF VESSELS AFLOAT," AND THAT APPROPRIATION IS EXCLUSIVELY AVAILABLE FOR THE COST OF REPAIRING NAVAL VESSELS, WHETHER INJURED WHILE PASSING THROUGH THE PANAMA CANAL OR ELSEWHERE, OR WHETHER THE CAUSE THEREOF IS IMPUTABLE TO THE PANAMA CANAL OR TO OTHER AGENCIES EXCEPT THAT IN CASES OF PRIVATE AGENCIES RESPONSIBLE FOR THE DAMAGES, THE AMOUNTS RECOVERED ARE FOR COVERING INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.