A-7255, FEBRUARY 10, 1925, 4 COMP. GEN. 679

A-7255: Feb 10, 1925

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ADMIRALTY - COSTS WHEN UNITED STATES NOT A PARTY TO SUIT IN ADMIRALTY PROCEEDINGS IN WHICH THE UNITED STATES IS NOT A PARTY THE EXPENSES INCURRED IN CONNECTION WITH THE SAFE-KEEPING OF A LIBELED VESSEL. ARE NOT PAYABLE FROM PUBLIC FUNDS. 1925: I HAVE YOUR REQUEST OF DECEMBER 30. PRIOR TO THAT TIME THE ONLY PROVISION OF LAW PERTAINING TO THE COMPENSATION OF SHIPKEEPERS WAS SECTION 829. IT WAS HELD BY THE FORMER COMPTROLLER OF THE TREASURY. THAT IN CASES IN WHICH THE UNITED STATES IS NOT A PARTY. EXPENSES PAID BY MARSHALS TO OTHER THAN THEIR DEPUTIES FOR KEEPING PROPERTY ATTACHED ON MESNE PROCESS ARE NOT TO BE CHARGED BY THEM IN THEIR ACCOUNTS. THAT THE UNITED STATES IS NOT LIABLE FOR COSTS SO INCURRED. 6 COMP.

A-7255, FEBRUARY 10, 1925, 4 COMP. GEN. 679

ADMIRALTY - COSTS WHEN UNITED STATES NOT A PARTY TO SUIT IN ADMIRALTY PROCEEDINGS IN WHICH THE UNITED STATES IS NOT A PARTY THE EXPENSES INCURRED IN CONNECTION WITH THE SAFE-KEEPING OF A LIBELED VESSEL, SUCH AS COMPENSATION OF A SHIPKEEPER, ARE NOT PAYABLE FROM PUBLIC FUNDS, NOTWITHSTANDING AN ORDER FROM THE COURT DIRECTING THE PAYMENT OF SUCH FEES BY THE MARSHAL.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, FEBRUARY 10, 1925:

I HAVE YOUR REQUEST OF DECEMBER 30, 1924, (JDH 61-1874), FOR DECISION WHETHER THE COMPENSATION OF A SHIPKEEPER WHICH THE MARSHAL HAS BEEN ORDERED BY THE COURT TO PAY IN CONNECTION WITH THE SAFE KEEPING OF A LIBELED VESSEL, MAY BE PAID FROM THE APPROPRIATION IN THE ACT OF JANUARY 3, 1923, 42 STAT. 1083, FOR "SALARIES, FEES, AND EXPENSES OF MARSHALS, UNITED STATES COURTS," OR FROM ANY OTHER JUDICIARY APPROPRIATION. YOUR INQUIRY HAS PARTICULAR REFERENCE TO THE CASE OF JAMES BOWEN, PETER PETERSON, AND JOSEPH BERNIER V. STEAMER GLADSTONE, HER ENGINES, ETC., IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, IN WHICH THE VESSEL DID NOT SELL FOR SUFFICIENT TO SATISFY ALL CLAIMS. THE ATTORNEY FOR THE LIBELLANTS ASSERTS THAT THE SHIPKEEPER'S COMPENSATION SHOULD BE PAID FROM GOVERNMENT APPROPRIATIONS BY VIRTUE OF THE PROVISION IN THE ACT OF JANUARY 3, 1923, 42 STAT. 1083, AS FOLLOWS:

* * * PROVIDED, THAT THERE SHALL BE PAID HEREUNDER ANY NECESSARY COST OF KEEPING VESSELS OR OTHER PROPERTY ATTACHED OR LIBELED IN ADMIRALTY IN SUCH AMOUNT AS THE COURT, ON PETITION SETTING FORTH THE FACTS UNDER OATH, MAY ALLOW * * *.

THIS IDENTICAL PROVISION HAS BEEN INSERTED IN THE APPROPRIATION ACTS FOR "SALARIES, FEES, AND EXPENSES OF MARSHALS, UNITED STATES COURTS," EACH YEAR BEGINNING WITH THE FISCAL YEAR 1919, 40 STAT. 683. PRIOR TO THAT TIME THE ONLY PROVISION OF LAW PERTAINING TO THE COMPENSATION OF SHIPKEEPERS WAS SECTION 829, REVISED STATUTES, WHICH ALLOWED AND LIMITED THE FEES PAYABLE TO MARSHALS---

FOR THE NECESSARY EXPENSES OF KEEPING BOATS, VESSELS, OR OTHER PROPERTY ATTACHED OR LIBELED IN ADMIRALTY, NOT EXCEEDING TWO DOLLARS AND FIFTY CENTS A DAY.

IN CONSTRUING THIS PROVISION OF SECTION 829, REVISED STATUTES, IT WAS HELD BY THE FORMER COMPTROLLER OF THE TREASURY, THAT IN CASES IN WHICH THE UNITED STATES IS NOT A PARTY, EXPENSES PAID BY MARSHALS TO OTHER THAN THEIR DEPUTIES FOR KEEPING PROPERTY ATTACHED ON MESNE PROCESS ARE NOT TO BE CHARGED BY THEM IN THEIR ACCOUNTS; THAT THE UNITED STATES IS NOT LIABLE FOR COSTS SO INCURRED. 6 COMP. DEC. 827; 7 ID. 203.

THE PROVISION FOR THE PAYMENT OF EXPENSES OF KEEPING VESSELS OR OTHER PROPERTY, QUOTED ABOVE FROM THE ACT OF JANUARY 3, 1923, WAS FIRST INSERTED IN THE ACT OF JULY 1, 1918, 40 STAT. 683, AT THE INSTANCE OF THE DEPARTMENT OF JUSTICE, AND A REFERENCE TO THE HEARINGS BEFORE THE SUBCOMMITTEE OF HOUSE COMMITTEE ON APPROPRIATIONS, PAGE 1496, DISCLOSES THE REASON FOR THIS PROVISION. THAT PORTION OF THE HEARING RELATING TO THIS PROVISION IS QUOTED HEREWITH:

MR. KENNARD. THE PRESENT LAW UNDER WHICH WE ARE OPERATING ALLOWS AN EXPENSE OF ONLY $2.50 PER DAY FOR KEEPING VESSELS ATTACHED IN ADMIRALTY, WHICH ALLOWS ONLY ONE GUARD AT $2.50 FOR 24 HOURS' WORK. THAT IS ALTOGETHER INADEQUATE COMPENSATION, AND WE HAVE TO HAVE MORE THAN ONE GUARD IN SUCH MATTERS UNDER THE PRESENT CIRCUMSTANCES. WHERE WE DO EMPLOY A NUMBER OF GUARDS OR PAY THEM A DIFFERENT RATE OF COMPENSATION, WE HAVE TO HAVE A SPECIAL TAXATION BY THE COURT AND APPROVAL BY THE PRESIDENT, WHICH BURDENS THE PRESIDENT WITH MATTERS HE OUGHT TO BE RELIEVED OF. THIS PROVISION OF LAW WAS ENACTED 60 OR 70 YEARS AGO, AND DOES NOT FIT THE PRESENT CIRCUMSTANCES AT ALL. THE PROVISION IS SECTION 829 OF THE REVISED STATUTES.

MR. MONDELL. WHAT IS THAT USED FOR?

MR. KENNARD. THAT IS $2.50 FOR A DAY OF 24 HOURS. THE COMPTROLLER HOLDS THAT THE LAW PROVIDES FOR ONE GUARD ONLY, AND YOU CAN SEE HOW INADEQUATE THAT WILL BE IN CASES WHERE WE HAVE TO SEIZE VESSELS THAT ARE INVOLVED IN THE GERMAN PROPAGANDA. THEREFORE, WE WOULD LIKE TO HAVE AUTHORITY TO EMPLOY GUARDS IN THE DISCRETION OF THE COURTS, AND PAY THEM OUT OF THIS APPROPRIATION, WITHOUT INVOLVING THE PRESIDENT IN THE MATTER.

THIS CLEARLY ESTABLISHES THAT THE PROVISION WAS INTENDED TO APPLY ONLY TO CASES IN WHICH THE UNITED STATES WAS AN INTERESTED PARTY AND THE PAYMENT OF FEES IN EXCESS OF THOSE AUTHORIZED BY SECTION 829, REVISED STATUTES, WAS NECESSARY FOR THE PROTECTION OF THE GOVERNMENT'S INTEREST.

ANSWERING YOUR QUESTION SPECIFICALLY YOU ARE INFORMED THAT YOU ARE NOT AUTHORIZED TO PAY FROM THE APPROPRIATION FOR "SALARIES, FEES, AND EXPENSES OF MARSHALS, UNITED STATES COURTS," OR ANY OTHER JUDICIAL APPROPRIATION, EXPENSES OF KEEPING VESSELS OR OTHER PROPERTY INVOLVED IN ADMIRALTY PROCEEDINGS IN WHICH THE UNITED STATES IS NOT AN INTERESTED PARTY.

THE APPARENT PURPOSE AND EFFECT OF THE COURT'S ORDER IN THE CASE MENTIONED IN YOUR SUBMISSION WERE TO AUTHORIZE THE MARSHAL TO PAY THE AMOUNT STATED IN THE ORDER FROM THE PROCEEDS OF SALE AS A PART OF THE COSTS OF THE PROCEEDINGS AND BEFORE MAKING ANY DISTRIBUTION TO THE LIBELLANTS. IT COULD NOT, UNDER CIRCUMSTANCES APPEARING, OPERATE TO IMPOSE A LIABILITY UPON THE UNITED STATES.