A-61587, NOVEMBER 12, 1935, 15 COMP. GEN. 397

A-61587: Nov 12, 1935

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RECEIPT OF WHICH WAS ACKNOWLEDGED JUNE 26. YOU ARE ADVISED THAT THERE HAS BEEN INVESTIGATED THE MATTER OF CLAIMS REPRESENTING EXCESS COST OF OPERATION. IS APPARENTLY URGED THAT THE PASSAGE OF THESE FOUR VESSELS THROUGH THE PANAMA CANAL WAS DELAYED IN ORDER TO PERMIT THE NORTHWARD PASSAGE OF THE UNITED STATES FLEET ON APRIL 23 AND 24. PURSUANT THERETO THERE WERE ISSUED AND APPROVED CERTAIN . ALTHOUGH THIS WILL BE A CONSIDERATION IN DETERMINING THE ORDER OF PASSAGE. RESPONSIBILITY FOR DEMURRAGE AND DELAYS: THE PANAMA CANAL WILL NOT BE RESPONSIBLE. IT IS A WELL-SETTLED PRINCIPLE OF LAW IN THIS COUNTRY THAT REGULATIONS ISSUED PURSUANT TO. LAW HAVE THE FORCE AND EFFECT OF LAW. IT HAS BEEN REPORTED BY THE GOVERNOR OF THE PANAMA CANAL THAT NO SHIP WHICH HAD ARRIVED AND HAD APPLIED FOR TRANSIT BEFORE THE FLEET WAS TRANSITED AFTER THE FLEET.

A-61587, NOVEMBER 12, 1935, 15 COMP. GEN. 397

PANAMA CANAL - VESSELS - DELAYS IN PASSAGE A CLAIM FOR DEMURRAGE, EXCESS COST OF OPERATION, ETC., IN CONNECTION WITH VESSELS ALLEGEDLY DELAYED IN PASSAGE THROUGH THE PANAMA CANAL TO PERMIT THE EARLIER PASSAGE OF OTHER VESSELS, DOES NOT REPRESENT EITHER A LEGAL OR EQUITABLE OBLIGATION AGAINST THE UNITED STATES.

COMPTROLLER GENERAL MCCARL TO PARKER AND PARKER, ESQUIRES, NOVEMBER 12, 1935:

REFERRING TO YOUR LETTER OF APRIL 22, 1935, RECEIPT OF WHICH WAS ACKNOWLEDGED JUNE 26, AND TO YOUR FURTHER LETTER OF AUGUST 16, 1935, YOU ARE ADVISED THAT THERE HAS BEEN INVESTIGATED THE MATTER OF CLAIMS REPRESENTING EXCESS COST OF OPERATION, ETC., OF THE BRITISH STEAMSHIPS SACRAMENTO VALLEY, INNERTON, GEDDINGTON COURT, AND TILSINGTON COURT DURING A PERIOD OF DELAY IN BEING PERMITTED TO PASS THROUGH THE PANAMA CANAL. IS APPARENTLY URGED THAT THE PASSAGE OF THESE FOUR VESSELS THROUGH THE PANAMA CANAL WAS DELAYED IN ORDER TO PERMIT THE NORTHWARD PASSAGE OF THE UNITED STATES FLEET ON APRIL 23 AND 24, 1934.

THE ACTS OF AUGUST 24, 1912, 37 STAT. 562, AND SEPTEMBER 21, 1922, 42 STAT. 1008 (SECTION 1318, TITLE 48, U.S. CODE), PROVIDED THAT THE PRESIDENT SHOULD MAKE, AND FROM TIME TO TIME AMEND, REGULATIONS GOVERNING THE OPERATION OF THE PANAMA CANAL "AND THE PASSAGE AND CONTROL OF VESSELS THROUGH THE SAME OR ANY PART THEREOF.' PURSUANT THERETO THERE WERE ISSUED AND APPROVED CERTAIN ,RULES AND REGULATIONS GOVERNING NAVIGATION OF THE PANAMA CANAL AND ADJACENT WATERS," RULES 5 AND 96 THEREOF HAVING BEEN BROUGHT TO ATTENTION OF R. CHAPMAN AND SON, SHIPOWNERS, AGENTS, AND BROKERS, IN LETTERS OF JUNE 26 AND OCTOBER 23, 1934, AND IN LETTER OF JULY 5, 1935, TO THE SHIPOWNERS CLAIMS BUREAU, INC., CONCERNING THESE VESSELS. SAID RULES MAY BE REQUOTED AS FOLLOWS:

RULE 5. ORDER OF DISPATCH OF VESSELS: THE CANAL AUTHORITIES MAY DISPATCH VESSELS THROUGH THE CANAL IN ANY ORDER AND AT ANY TIME THEY MAY SEE FIT. PRIORITY OF ARRIVAL AT A TERMINAL DOES NOT GIVE ANY VESSEL THE RIGHT TO PASS THROUGH THE CANAL AHEAD OF ANOTHER THAT MAY ARRIVE LATER, ALTHOUGH THIS WILL BE A CONSIDERATION IN DETERMINING THE ORDER OF PASSAGE.

RULE 96. RESPONSIBILITY FOR DEMURRAGE AND DELAYS: THE PANAMA CANAL WILL NOT BE RESPONSIBLE, NOR CONSIDER ANY CLAIMS, FOR DEMURRAGE OR DELAYS DUE TO LANDSLIDES, OR OTHER NATURAL CAUSES; NECESSARY CONSTRUCTION OR MAINTENANCE WORK ON CANAL LOCKS, TERMINALS, OR EQUIPMENT; OBSTRUCTIONS DUE TO ACCIDENTS; TIME NECESSARY FOR ADMEASUREMENT; CONGESTION OF TRAFFIC; OR FOR ANY REASON EXCEPT THOSE SPECIFICALLY SET FORTH IN THESE RULES.

IT IS A WELL-SETTLED PRINCIPLE OF LAW IN THIS COUNTRY THAT REGULATIONS ISSUED PURSUANT TO, AND IN ACCORDANCE WITH, LAW HAVE THE FORCE AND EFFECT OF LAW. SEE GRATIOT V. UNITED STATES, 4 HOWARD 80; UNITED STATES V. RIPLEY, 7 PETERS 18; AND UNITED STATES V. ELIASON, 16 PETERS 291. SEE ALSO CAHA V. UNITED STATES, 152 U.S. 211. THE FEDERAL LAW AND REGULATIONS GOVERNING THE TRANSIT OF VESSELS THROUGH THE PANAMA CANAL SPECIFICALLY NOTIFIED ALL CONCERNED THAT IN EVENT THEY SAW FIT TO AVAIL THEMSELVES OF THE OFFER OF THE FACILITIES IN REACHING THE PACIFIC OR ATLANTIC OCEAN, AS THE CASE MAY BE, INSTEAD OF SAILING AROUND SOUTH AMERICA, THE UNITED STATES WOULD NOT BE RESPONSIBLE FOR ANY DEMURRAGE AND DELAYS, AND THAT THE CANAL AUTHORITIES COULD DISPATCH VESSELS THROUGH THE CANAL IN ANY ORDER AND AT ANY TIME THEY MAY SEE FIT. MOREOVER, IT HAS BEEN REPORTED BY THE GOVERNOR OF THE PANAMA CANAL THAT NO SHIP WHICH HAD ARRIVED AND HAD APPLIED FOR TRANSIT BEFORE THE FLEET WAS TRANSITED AFTER THE FLEET.

UNDER THE CIRCUMSTANCES DISCLOSED, THE CLAIM FOR DEMURRAGE, ETC., ON BEHALF OF THESE FOUR VESSELS DOES NOT REPRESENT EITHER A LEGAL OR EQUITABLE OBLIGATION AGAINST THE UNITED STATES. ACCORDINGLY, THE CLAIM MUST BE, AND IS, DISALLOWED.