A-56118, NOVEMBER 8, 1937, 17 COMP. GEN. 386

A-56118: Nov 8, 1937

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IT SHOULD BE AMENDED SO THAT THE CASES IN WHICH THE EXCEPTION IS TO BE APPLIED MIGHT BE MORE READILY ASCERTAINED. IS AS FOLLOWS: WITH REFERENCE TO YOUR LETTER OF AUGUST 11. YOUR ATTENTION IS INVITED TO THE FACT THAT IT WAS ALSO STATED IN THE LETTER ADDRESSED TO YOU ON MARCH 2. THAT AS IT IS STATED IN DECISION A-70834 OF MARCH 31. THAT ADMINISTRATIVE OFFICERS ARE NOT AUTHORIZED BY LAW TO "REQUEST REVIEW OF SETTLEMENTS OF THIS OFFICE FOR THE PURPOSE OF HAVING ADDITIONAL ALLOWANCES MADE TO CLAIMANTS. IT WAS RESPECTFULLY SUBMITTED IN THE LETTER ADDRESSED TO YOU ON NOVEMBER 17. WAS SPECIALLY UNDERTAKEN IN THE INSTANT CASE BY VIRTUE OF THE PROVISIONS OF PARAGRAPH 2 (E). IT WAS STATED IN YOUR LETTER DATED APRIL 1.

A-56118, NOVEMBER 8, 1937, 17 COMP. GEN. 386

POST OFFICE DEPARTMENT - MAILS - INSURANCE OF PROHIBITED ARTICLES - POSTAL CLERK'S NEGLIGENCE THE NEGLIGENCE OF A POST OFFICE CLERK IN FAILING TO ACQUAINT HIMSELF WITH THE PUBLISHED REGULATIONS OF THE POSTAL SERVICE AND HIS ACCEPTANCE OF A PROHIBITED ARTICLE FOR INSURANCE DOES NOT CONSTITUTE AN EXCEPTIONAL CIRCUMSTANCE WITHIN THE MEANING OF THE POSTAL REGULATION PROHIBITING PAYMENT OF INDEMNITY "FOR PARCELS WHICH CONTAIN PROHIBITED ARTICLES EXCEPT THOSE * * * FOR THE LOSS, RIFLING, OR DAMAGE OF WHICH LIMITED INDEMNITY MAY EXCEPTIONALLY BE PAID UNDER THE USUAL CONDITIONS," BUT THE MEANING OF THE REGULATION NOT BEING CLEAR, IT SHOULD BE AMENDED SO THAT THE CASES IN WHICH THE EXCEPTION IS TO BE APPLIED MIGHT BE MORE READILY ASCERTAINED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE POSTMASTER GENERAL, NOVEMBER 8, 1937:

YOUR LETTER OF OCTOBER 19, 1937, IS AS FOLLOWS:

WITH REFERENCE TO YOUR LETTER OF AUGUST 11, 1937, INITIALS P-MISC., YOUR ATTENTION IS INVITED TO THE FACT THAT IT WAS ALSO STATED IN THE LETTER ADDRESSED TO YOU ON MARCH 2, 1937, THAT NO ALLOWANCE WHATEVER HAD BEEN MADE IN CASE NO. 10921-CAN, AND THAT AS IT IS STATED IN DECISION A-70834 OF MARCH 31, 1936, CITED IN YOUR LETTER, THAT ADMINISTRATIVE OFFICERS ARE NOT AUTHORIZED BY LAW TO "REQUEST REVIEW OF SETTLEMENTS OF THIS OFFICE FOR THE PURPOSE OF HAVING ADDITIONAL ALLOWANCES MADE TO CLAIMANTS," IT DID NOT APPEAR THAT THE DECISION COULD PROPERLY BE APPLIED IN THIS INSTANCE.

IT WAS RESPECTFULLY SUBMITTED IN THE LETTER ADDRESSED TO YOU ON NOVEMBER 17, 1936, THAT THE RESPONSIBILITY OF THE GOVERNMENT, WITHIN THE MEANING OF THE DECISIONS OF GERMAN BANK V. UNITED STATES, 148 U.S. 573, 579; GIBBONS V. UNITED STATES, 75 U.S. 269, 274; AND UNITED STATES V. CUMMING, 130 U.S. 452, WAS SPECIALLY UNDERTAKEN IN THE INSTANT CASE BY VIRTUE OF THE PROVISIONS OF PARAGRAPH 2 (E), SECTION 121, PAGES 270-271 OF THE JULY, 1935, POSTAL GUIDE, IN EFFECT AT THE TIME OF MAILING.

IN A PRIOR CASE, NO. 10288-CAN, ELIMINATED FROM JOURNAL DATED JANUARY 15, 1935, IT WAS STATED IN YOUR LETTER DATED APRIL 1, 1935, INITIALS P-IND., THAT SINCE THE CONTENTS OF THE PARCEL WERE LISTED AMONG THOSE MENTIONED IN THE JULY 1934 POSTAL GUIDE, IN EFFECT AT THE TIME OF MAILING, AS PROHIBITED TRANSMISSION IN THE INSURED MAIL FOR OR FROM CANADA,"NO INDEMNITY CAN BE PAID (PAGE 258, ARTICLE 136, PAR. 2 (E), UNITED STATES OFFICIAL POSTAL GUIDE FOR JULY 1934).'

IT IS SPECIFICALLY STATED IN THE PROVISION CITED IN THE JULY 1934 GUIDE THAT NO INDEMNITY WILL BE PAID * * * (E) FOR PARCELS WHICH CONTAIN PROHIBITED ARTICLES. HOWEVER, THE PROVISION REFERRED TO WAS AMENDED IN THE JULY 1935 POSTAL GUIDE, NAMELY, PAR 2 (E), SECTION 121, PAGES 270-271, TO PROVIDE THAT LIMITED INDEMNITY MAY EXCEPTIONALLY BE PAID UNDER THE USUAL CONDITIONS IN THE CASE OF LOSS, RIFLING, OR DAMAGE OF INSURED PARCELS CONTAINING THE PROHIBITED ARTICLES ENUMERATED IN PAR. (S), PAGE 328, AND PAR. (B), PAGE 513. YOUR FURTHER VIEWS RESPECTING THE MATTER WILL, THEREFORE, BE MUCH APPRECIATED.

AS REGARDS THE LAST PARAGRAPH OF YOUR LETTER, IT WILL ALSO BE NOTED FROM THE LETTER OF NOVEMBER 17, 1936, THAT THE ADMINISTRATIVE ACTION OF THIS OFFICE IN NOTIFYING CLAIMANTS OF THE APPROVAL OR DISAPPROVAL OF CLAIMS FOR INDEMNITY SUBMITTED TO YOUR OFFICE FOR PREAUDIT OR DIRECT SETTLEMENT IS NOT UNDERTAKEN UNTIL FINAL ACTION HAS BEEN HAD BY THE ACCOUNTING OFFICERS. HOWEVER, THE CORRECT DATE OF THE LETTER MENTIONED FROM THE COMPTROLLER GENERAL IS AUGUST 21, 1934.

THE STATEMENT IN THE DECISION OF MARCH 31, 1936, A-70834, THAT "ADMINISTRATIVE OFFICERS ARE NOT AUTHORIZED BY LAW TO REQUEST REVIEW OF SETTLEMENTS OF THIS OFFICE FOR THE PURPOSE OF HAVING ADDITIONAL ALLOWANCES MADE TO CLAIMANT," CITED AS AUTHORITY THEREFOR PARAGRAPH 3, GENERAL REGULATIONS NO. 50, 5 COMP. GEN. 1059, WHICH PROVIDES THAT "REVIEW OF DISALLOWED CLAIMS SHOULD NOT BE ADMINISTRATIVELY REQUESTED EXCEPT IN THE INTEREST OF THE UNITED STATES.' AS THE CLAIMANT IN THE PRESENT CASE HAS NOT REQUESTED REVIEW AND IT DOES NOT APPEAR TO BE IN THE INTEREST OF THE UNITED STATES TO MAKE AN ALLOWANCE IN THE ABSENCE OF SUCH A REQUEST, THE CASE MUST BE CONSIDERED CLOSED.

YOUR SUBMISSION, HOWEVER, INDICATES THE NECESSITY FOR FURTHER CONSIDERATION OF THE AMENDMENT TO THE POSTAL REGULATIONS IN THE 1935 POSTAL GUIDE WHICH READS AS FOLLOWS:

2. NO INDEMNITY WILL BE PAID:

(E) FOR PARCELS WHICH CONTAIN PROHIBITED ARTICLES, EXCEPT THOSE ENUMERATED IN PARAGRAPH (S), PAGE 328, AND PARAGRAPH (B), PAGE 513, FOR THE LOSS, RIFLING, OR DAMAGE OF WHICH LIMITED INDEMNITY MAY EXCEPTIONALLY BE PAID UNDER THE USUAL CONDITIONS.

THE MEANING OF THIS AMENDMENT IS NOT CLEAR. IF IT BE THE INTENTION TO PAY INDEMNITY FOR THE LOSS OF ALL OF SUCH PROHIBITED ARTICLES UNDER THE USUAL CONDITIONS PERTAINING TO INDEMNITY FOR LOSS OF INSURED PARCELS, THERE WOULD SEEM TO BE NO OBJECT IN PROHIBITING THE INSURANCE OF SUCH ARTICLES. IF PAYMENT IS ONLY TO BE MADE "EXCEPTIONALLY" AS THE REGULATIONS WOULD INDICATE, THAT WORD SHOULD BE DEFINED OR AMPLIFIED SO THAT THE CASES IN WHICH THE EXCEPTION IS TO BE APPLIED MIGHT BE MORE READILY ASCERTAINED. THE CLAIM OF STUART ST. CLAIR FOR INDEMNITY FOR THE LOSS OF A WATCH VALUED AT $25 MAILED FROM COCOA, FLA., TO BARRIE, CANADA, IS ILLUSTRATIVE OF THE UNCERTAINTY WHICH ARISES IN SUCH CASES. IT IS ACKNOWLEDGED THAT THE INSURANCE OF THE WATCH WAS PROHIBITED UNDER THE REGULATION AND THE ONLY REASON GIVEN FOR ITS INSURANCE IS THE STATEMENT OF THE CLERK IN THE POST OFFICE AT COCOA, DATED MAY 21, 1936, TO THE EFFECT THAT WHILE HE KNEW THAT PRECIOUS STONES AND ARTICLES OF THAT NATURE SHOULD BE REGISTERED AND NOT INSURED HE WAS UNAWARE THAT WATCHES WERE INCLUDED IN THE LIST OF PROHIBITED ARTICLES FOR CANADA. IT IS A WELL-ESTABLISHED RULE THAT THE GOVERNMENT IS NOT RESPONSIBLE FOR THE NEGLIGENCE OR TORTS OF ITS EMPLOYEES. THE NEGLIGENCE OF THIS CLERK IN FAILING TO ACQUAINT HIMSELF WITH THE PUBLISHED REGULATIONS OF THE POSTAL SERVICE DOES NOT CONSTITUTE AN EXCEPTIONAL CIRCUMSTANCE AS THE ACCEPTANCE OF PROHIBITED ARTICLES FOR INSURANCE WOULD ALWAYS BE DUE TO SOME FAULT, NEGLIGENCE, OR MISFEASANCE OF THE CLERK OR OTHER EMPLOYEES ACCEPTING THE ARTICLES FOR INSURANCE. VIEW OF THE FOREGOING IT IS SUGGESTED THAT STEPS BE TAKEN TO CLARIFY THIS REGULATION BY APPROPRIATE AMENDMENT, AFTER WHICH ANY CLAIMS THAT HAVE NOT BEEN ACTED UPON BY THIS OFFICE MAY BE SUBMITTED FOR CONSIDERATION ACCOMPANIED BY A FULL STATEMENT OF THE CONDITIONS UNDER WHICH THEY WERE ACCEPTED FOR INSURANCE CONTRARY TO THE REGULATION.