A-33617, NOVEMBER 4, 1930, 10 COMP. GEN. 199

A-33617: Nov 4, 1930

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A CLAIM FOR SUCH DAMAGES IS NOT AUTHORIZED TO BE ADJUSTED AND SETTLED UNDER ANY APPROPRIATION THERETOFORE MADE EITHER AS A CLAIM FOR DAMAGES RESULTING FROM A TORT OR AS A CLAIM FOR COMPENSATION UNDER AN IMPLIED CONTRACT. WHERE IT IS DETERMINED THAT A DAMAGE CLAIM CONTAINS SUCH ELEMENTS OF EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS. REPRESENTING EXPENDITURES ALLEGED TO HAVE BEEN MADE BY IT AS A RESULT OF THE UNAUTHORIZED USE OF ITS SHIPYARD PIER NO. 4. WHICH IS ALLEGED TO HAVE REQUIRED CLAIMANT TO HIRE A TUGBOAT TO TOW A VESSEL (M. SAID UNITED STATES ENGINEER OFFICE FOUND IT NECESSARY TO DETACH ITS TUGBOAT SHAW WHICH WAS ACTING AS TENDER FOR THE DERRICK BOAT NO. 32 (UNDER LEASE TO THE U.S.

A-33617, NOVEMBER 4, 1930, 10 COMP. GEN. 199

DAMAGES - IMPLIED CONTRACTS - CLAIMS CONTAINING EQUITIES WHERE THE OWNER OF A SHIPYARD PIER SUSTAINS DAMAGES AS AN INDIRECT RESULT OF THE USE OF SAID PIER BY THE GOVERNMENT WITHOUT COMPENSATION OR SPECIFIC PERMISSION, A CLAIM FOR SUCH DAMAGES IS NOT AUTHORIZED TO BE ADJUSTED AND SETTLED UNDER ANY APPROPRIATION THERETOFORE MADE EITHER AS A CLAIM FOR DAMAGES RESULTING FROM A TORT OR AS A CLAIM FOR COMPENSATION UNDER AN IMPLIED CONTRACT. WHERE IT IS DETERMINED THAT A DAMAGE CLAIM CONTAINS SUCH ELEMENTS OF EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, IT MAY BE REPORTED TO THE CONGRESS UNDER THE PROVISIONS OF THE ACT OF APRIL 10, 1928, 45 STAT. 413.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 4, 1930:

THERE HAS BEEN PRESENTED TO THIS OFFICE FOR CONSIDERATION AND SETTLEMENT THE CLAIM OF THE SUN SHIPBUILDING AND DRY DOCK CO. FOR DAMAGES IN THE SUM OF $110, REPRESENTING EXPENDITURES ALLEGED TO HAVE BEEN MADE BY IT AS A RESULT OF THE UNAUTHORIZED USE OF ITS SHIPYARD PIER NO. 4, NEAR CHESTER, PA., ON JUNE 21, 22, AND 23, 1930, BY DERRICK BOAT NO. 32, LEASED AND OPERATED BY THE GOVERNMENT, WHICH IS ALLEGED TO HAVE REQUIRED CLAIMANT TO HIRE A TUGBOAT TO TOW A VESSEL (M. S. BIDWELL) OWNED BY THE SUN OIL CO. TO CLAIMANT'S SHIPYARD DOCK FOR REPAIRS AND TO EXPEND $110 TOWAGE FOR SUCH SERVICES.

IT APPEARS FROM THE FACTS AS REPORTED TO THIS OFFICE IN CONNECTION WITH THE CLAIM, THAT THE CLAIMANT, SUN SHIPBUILDING AND DRY DOCK CO., FOR MANY YEARS HAS BEEN PERMITTING THE UNITED STATES ENGINEER OFFICE,WAR DEPARTMENT, TO USE ITS VACANT WHARVES OR PIERS IN THE VICINITY OF CHESTER, PA., WHEN NECESSARY, FOR TYING UP GOVERNMENT BOATS; THAT ON JUNE 21, 1930, SAID UNITED STATES ENGINEER OFFICE FOUND IT NECESSARY TO DETACH ITS TUGBOAT SHAW WHICH WAS ACTING AS TENDER FOR THE DERRICK BOAT NO. 32 (UNDER LEASE TO THE U.S. ENGINEER OFFICE), NECESSITATING THE TYING UP OF THE DERRICK BOAT NO. 32 TO SOME CONVENIENT WHARF OR PIER IN THE DELAWARE RIVER NEAR CHESTER, PA.; THAT SAID DERRICK BOAT NO. 32 ON JUNE 21, 1930, UPON ORDER OF ITS CAPTAIN, WAS TIED UP TO THE VACANT PIER NO. 4 OF SAID SUN SHIPBUILDING AND DRY DOCK CO. WITHOUT ANY PERMISSION FROM OR NOTICE TO THE SAID OWNER THEREOF, AND REMAINED AT SAID PIER UNTIL LATE AFTERNOON ON JUNE 23, 1930; THAT ON JUNE 22, 1930, THE VESSEL M. S. BIDWELL, OWNED BY THE SUN OIL CO., PURSUANT TO PRIOR ARRANGEMENTS WITH THE CLAIMANT SHIPBUILDING AND DRY DOCK COMPANY ATTEMPTED TO REACH THE SHIPYARD DOCK OF CLAIMANT COMPANY FOR REPAIRS BUT FOUND THAT TO BE IMPOSSIBLE ON ACCOUNT OF THE ANCHORED DERRICK BOAT NO. 32 AT SAID PIER NO. 4, AND IT WAS COMPELLED TO ANCHOR IN THE DELAWARE RIVER AND REMAIN UNTIL A TUGBOAT COULD BE PROCURED; THAT ON JUNE 23, 1930, A TUGBOAT WAS PROCURED TO MOVE THE VESSEL M. S. BIDWELL TO THE CLAIMANT'S SHIPYARD DOCK; AND THAT THE EXPENSES INCURRED AND PAID BY THE CLAIMANT COMPANY FOR SUCH TOWAGE SERVICES AMOUNTED TO $110.

IT THUS APPEARS THAT THE CLAIMANT SUSTAINED DAMAGES IN THE SUM OF $110 AS A RESULT OF THE USE, WITHOUT COMPENSATION OR SPECIFIC PERMISSION, OF ITS PIER NO. 4 BY THE GOVERNMENT LEASED AND OPERATED DERRICK BOAT NO. 32 ON JUNE 22 AND 23, 1930.

REGARDLESS OF WHETHER THE CLAIM IS FOR DAMAGES RESULTING FROM AN UNAUTHORIZED OR WRONGFUL ACT OF AN OFFICER, EMPLOYEE, OR AGENT OF THE GOVERNMENT IN MAKING USE OF THE PIER, OR FOR COMPENSATION AS UNDER AN IMPLIED CONTRACT FOR THE USE OF THE PIER, IT CAN NOT BE ADJUSTED AND PAID UNDER ANY APPROPRIATION HERETOFORE MADE.

VIEWING THE CLAIM AS FOR DAMAGES, AS ABOVE INDICATED, IT IS A WELL ESTABLISHED RULE THAT THE UNITED STATES IS NOT LIABLE FOR THE TORTS OF ITS OFFICERS OR AGENTS IN THE ABSENCE OF SPECIFIC LEGISLATION PROVIDING THEREFOR. SEE 1 COMP. GEN. 178; 5 ID. 461; 7 ID. 14; GIBBONS V. UNITED STATES, 8 WALL. 269; HART V. UNITED STATES, 95 U.S. 316; SIGBY V. UNITED STATES, 188 U.S. 400; AND THE WESTERN MAID,257 U.S. 419.

CONSIDERING THE CLAIM AS FOR COMPENSATION UNDER AN IMPLIED CONTRACT, THERE IS NO LAW OR APPROPRIATION UNDER WHICH THE GOVERNMENT COULD HAVE ENTERED INTO A CONTRACT TO REIMBURSE THE CLAIMANT FOR ANY DAMAGE THAT MIGHT RESULT DIRECTLY OR INDIRECTLY FROM THE GOVERNMENT'S USE OF THE PIER. HENCE, NO SUCH CONTRACT COULD ARISE BY IMPLICATION FROM SUCH USE.

THEREFORE, THE CLAIM MUST BE AND IS DISALLOWED.

HOWEVER, IN VIEW OF THE FACTS AND CIRCUMSTANCES AS SHOWN BY THE RECORD, I BELIEVE SAID CLAIM CONTAINS SUCH ELEMENTS OF EQUITY AS TO AUTHORIZE ITS BEING REPORTED TO THE CONGRESS UNDER THE PROVISIONS OF THE ACT OF APRIL 10, 1928, 45 STAT. 413, IN WHICH IT IS PROVIDED:

THAT WHEN THERE IS FILED IN THE GENERAL ACCOUNTING OFFICE A CLAIM OR DEMAND AGAINST THE UNITED STATES THAT MAY NOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM OR DEMAND IN THE JUDGMENT OF THE COMPTROLLER GENERAL OF THE UNITED STATES CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, HE SHALL SUBMIT THE SAME TO THE CONGRESS BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND HIS RECOMMENDATION THEREON.

ACCORDINGLY, THE CLAIM WILL BE REPORTED TO THE CONGRESS AT THE BEGINNING OF THE NEXT SESSION.