A-8724, APRIL 3, 1925, 4 COMP. GEN. 834

A-8724: Apr 3, 1925

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

UNTIL THE RIGHT OF APPEAL SHALL HAVE EXPIRED. 1925: THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE QUESTION WHETHER THE NEW ENGLAND STEAMSHIP CO. CONSENT OF THE UNITED STATES TO BE SUED BY REASON OF THE COLLISION WAS GIVEN IN THE ACT OF FEBRUARY 20. APPROPRIATION TO PAY THE AMOUNT OF THE DECREE WAS MADE IN THE SECOND DEFICIENCY ACT. THE FACTS IN THE MATTER ARE STATED IN A LETTER DATED JANUARY 6. THIS IS A SPECIAL ACT CASE. WAS STRUCK BY THE STEAMSHIP COMMONWEALTH. AS A RESULT OF WHICH BOTH VESSELS WERE DAMAGED. A LIBEL WAS FILED BY THE GOVERNMENT TO RECOVER ITS LOSSES AND BY AUTHORITY OF A SPECIAL ACT OF CONGRESS APPROVED FEBRUARY 20. THE CASE WAS TRIED AND IT WAS DETERMINED THAT THE COMMONWEALTH WAS AT FAULT FOR NAVIGATING AT TOO GREAT A SPEED IN FOG AND THE NEW HAMPSHIRE WAS AT FAULT FOR ANCHORING SO AS TO UNNECESSARILY TAKE UP SPACE IN THE CHANNEL.

A-8724, APRIL 3, 1925, 4 COMP. GEN. 834

PAYMENT OF CONSENT JUDGMENTS THE PROHIBITION IN THE ACT OF MARCH 4, 1925, 43 STAT. 1347, AGAINST THE PAYMENT OF ANY OF THE JUDGMENTS THEREIN APPROPRIATED FOR, UNTIL THE RIGHT OF APPEAL SHALL HAVE EXPIRED, DOES NOT PREVENT THE IMMEDIATE PAYMENT OF A JUDGMENT ON A COMPROMISE OR CONSENT DECREE FROM WHICH NO APPEAL CAN BE TAKEN.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 3, 1925:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE QUESTION WHETHER THE NEW ENGLAND STEAMSHIP CO. MAY BE PAID, PRIOR TO THE EXPIRATION OF TIME FOR APPEAL, THE SUM OF $10,160.70 AS THE AMOUNT OF A JUDGMENT OBTAINED BY DECREE DATED DECEMBER 31, 1924, OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AS DAMAGES SUSTAINED BY THE STEAMSHIP COMMONWEALTH WHEN IT COLLIDED WITH THE U.S.S NEW HAMPSHIRE. CONSENT OF THE UNITED STATES TO BE SUED BY REASON OF THE COLLISION WAS GIVEN IN THE ACT OF FEBRUARY 20, 1914, 38 STAT. 1244, AND APPROPRIATION TO PAY THE AMOUNT OF THE DECREE WAS MADE IN THE SECOND DEFICIENCY ACT, APPROVED MARCH 4, 1925, 43 STAT. 1347.

THE FACTS IN THE MATTER ARE STATED IN A LETTER DATED JANUARY 6, 1925, FROM THE DEPARTMENT OF JUSTICE TO THE SECRETARY OF THE TREASURY AND PUBLISHED IN HOUSE DOCUMENT NO. 632, SIXTY-EIGHTH CONGRESS, 2D SESSION, AS FOLLOWS:

I AM INCLOSING HEREWITH CERTIFIED COPY OF MODIFIED FINAL DECREE WHICH HAS BEEN ENTERED IN THE SOUTHERN DISTRICT OF NEW YORK IN THE ABOVE MATTER UNDER DATE OF DECEMBER 31, 1924.

THIS IS A SPECIAL ACT CASE. THE BATTLESHIP NEW HAMPSHIRE, WHILE ANCHORED DURING A FOG, WAS STRUCK BY THE STEAMSHIP COMMONWEALTH, AS A RESULT OF WHICH BOTH VESSELS WERE DAMAGED. A LIBEL WAS FILED BY THE GOVERNMENT TO RECOVER ITS LOSSES AND BY AUTHORITY OF A SPECIAL ACT OF CONGRESS APPROVED FEBRUARY 20, 1914, THE OWNERS OF THE COMMONWEALTH FILED A CROSS LIBEL TO RECOVER SUBSTANTIALLY $70,000 FOR DAMAGES SUFFERED BY THE COMMONWEALTH. THE CASE WAS TRIED AND IT WAS DETERMINED THAT THE COMMONWEALTH WAS AT FAULT FOR NAVIGATING AT TOO GREAT A SPEED IN FOG AND THE NEW HAMPSHIRE WAS AT FAULT FOR ANCHORING SO AS TO UNNECESSARILY TAKE UP SPACE IN THE CHANNEL, AND ACCORDINGLY THE COURT ORDERED THE DAMAGES AND COSTS DIVIDED. THIS DECREE WAS ENTERED OCTOBER 8, 1915. THE MATTER WAS THEN REFERRED TO A COMMISSIONER FOR THE ASSESSMENT OF DAMAGES, AND HIS REPORT WAS ADOPTED BY THE COURT.

THE SOLICITOR GENERAL AUTHORIZED AN APPEAL FROM THE DECISION OF THE DISTRICT COURT ON TWO GROUNDS: FIRST, QUESTION OF LIABILITY; SECOND, QUESTION OF INTEREST. THE DISTRICT COURT ALLOWED INTEREST FROM JANUARY 17, 1913, ALTHOUGH THE SPECIAL ACT UNDER WHICH THE CROSS LIBEL WAS FILED MADE NO MENTION OF INTEREST. BEFORE THE APPEAL WAS PERFECTED THE OWNERS OF THE COMMONWEALTH OFFERED TO CONCEDE TO THE GOVERNMENT THE AMOUNT OF INTEREST, APPROXIMATELY $4,000, PROVIDED THE APPEAL WAS WITHDRAWN. VIEW OF THE CONCESSION TO THE GOVERNMENT OF ABOUT $4,000, THE DEPARTMENT DETERMINED THAT THE APPEAL BE WITHDRAWN.

THE INCLOSED FINAL DECREE STATES THAT THE NEW ENGLAND STEAMSHIP CO., OWNERS OF THE STEAMSHIP COMMONWEALTH, SHALL RECOVER FROM THE UNITED STATES OF AMERICA THE SUM OF $10,160.70, WHICH SUM INCLUDES COSTS IN THE SUM OF $1,687.60. WE ARE FORWARDING THE FINAL DECREE TO YOU WITH THE REQUEST THAT SAME BE CERTIFIED TO CONGRESS FOR APPROPRIATION TO PAY THE AMOUNT OF THE DECREE. IN VIEW OF THE FACT THAT THIS IS A VERY OLD CASE, IT IS REQUESTED THAT THIS FINAL DECREE BE INCLUDED IN THE FIRST LIST OF DECREES WHICH ARE CERTIFIED BY YOU TO CONGRESS FOR PAYMENT.

THE ACT OF MARCH 4, 1925, 43 STAT. 1347, APPROPRIATED $20,795.69 TO PAY CERTAIN JUDGMENTS, INCLUDING THE JUDGMENT HERE IN QUESTION, WITH THE PROVISION THAT "NONE OF THE JUDGMENTS CONTAINED HEREIN SHALL BE PAID UNTIL THE RIGHT OF APPEAL SHALL HAVE EXPIRED.' SECTION 1008, REVISED STATUTES, AS AMENDED BY SECTION 11 OF THE CIRCUIT COURT OF APPEALS ACT OF MARCH 3, 1891, 26 STAT. 829, REQUIRES APPEALS TO THE CIRCUIT COURTS OF APPEALS TO BE EFFECTED WITHIN SIX MONTHS FROM THE DATE OF THE FINAL DECREE AND IN LETTER DATED MARCH 7, 1925, THE ATTORNEY GENERAL STATED THAT THE TIME FOR TAKING AN APPEAL HAD EXPIRED. THE QUESTION FOR DECISION IS THUS WHETHER THE DECREE ENTERED JANUARY 11, 1924, OR THE MODIFIED DECREE ENTERED DECEMBER 31, 1924, IS THE FINAL DECREE IN THIS CASE FROM WHICH THE SIX MONTHS' PERIOD FOR APPEAL BEGAN TO RUN AND IF THE LATTER, WHETHER THE JUDGMENT IN THIS CASE MAY BE PAID PRIOR TO THE EXPIRATION OF THE APPEAL PERIOD.

UNQUESTIONABLY THE MODIFIED DECREE OF DECEMBER 31, 1924, WAS THE FINAL DECREE IN THE CASE. HUME V. BOWIE, 148 U.S. 245; NEWCOMB V. BURBANK, 159 FED.REP. 483; WASHINGTON COUNTY V. MURRAY, 100 PACIF. 588. HOWEVER, SAID DECREE WAS A COMPROMISE, OR CONSENT DECREE AND NO APPEAL COULD BE TAKEN THEREFROM. SEE RAISIN CO. V. CHADDOCK, 173 FED.REP. 577; MCCAFFERTY CO. V. CELLULOID COMPANY, 104 FED.REP. 305; ELWELL V. FOSDICK, 134 U.S. 500; CRAWSHOY V. SOUTTER, 6 WALL. 739. THUS IT MAY BE SAID THAT THE RIGHT OF APPEAL HAS EXPIRED AND THERE IS NOTHING TO BE GAINED BY WITHHOLDING PAYMENT OF THE JUDGMENT FOR SIX MONTHS FROM DECEMBER 31, 1924. IT WILL NOT BE PRESUMED THAT THE CONGRESS INTENDED THE GENERAL PROHIBITION, WHICH IS USUALLY INSERTED IN ALL APPROPRIATIONS FROM THE PAYMENT OF JUDGMENTS, TO OPERATE TO DELAY PAYMENT FOR SIX MONTHS FROM DATE OF FINAL DECREE IN A CASE, SUCH AS THE INSTANT CASE, WHERE THE UNITED STATES DOES NOT HAVE THE RIGHT OF APPEAL AND WHEN THE ATTORNEY GENERAL OF THE UNITED STATES REPORTS THAT NO APPEAL WILL BE ATTEMPTED ON THE PART OF THE GOVERNMENT.

THE JUDGMENT IN THIS CASE WILL BE PAID IN REGULAR COURSE WITHOUT WAITING FOR THE EXPIRATION OF SIX MONTHS FROM THE DATE OF THE JUDGMENT.