A-92313, MAY 12, 1938, 17 COMP. GEN. 931

A-92313: May 12, 1938

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SEIZED BY THE CUSTOMS AUTHORITIES FOR VIOLATION OF THE TARIFF LAWS FOR WHICH A FINE WAS SUBSEQUENTLY IMPOSED. WAS NOT SENT TO THE PUBLIC STORES AS REQUIRED BY THE CUSTOMS REGULATIONS BUT WAS ALLOWED TO REMAIN ON THE DOCK BY THE EMPLOYEES OF THE CUSTOMS SERVICE. A PORTION WAS MYSTERIOUSLY LOST. THE CLAIM FOR ITS VALUE IS ONE FOR DAMAGES. AS THE VALUE OF 20 FLASKS OF QUICKSILVER SAID TO HAVE BEEN LOST OR STOLEN WHILE IN THE CUSTODY OF THE UNITED STATES CUSTOMS SERVICE. THE CLAIM ORIGINALLY WAS PRESENTED TO THE BUREAU OF CUSTOMS. WAS TRANSMITTED TO THIS OFFICE FOR DIRECT SETTLEMENT. THE CLAIM IS REFERRED TO YOUR OFFICE UNDER THE PROVISIONS OF THE ACT OF APRIL 10. INASMUCH AS IT CONTAINS SUCH AN EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF CONGRESS. * * * THE FACTS ARE AS FOLLOWS: THE 20 FLASKS OF QUICKSILVER INVOLVED WERE PART OF A SHIPMENT OF 150 FLASKS WHICH ARRIVED AT THE PORT OF NEW YORK ON THE S.S.

A-92313, MAY 12, 1938, 17 COMP. GEN. 931

CUSTOMS SERVICE - WRONGFUL ACTS OF EMPLOYEES - GOVERNMENT LIABILITY FOR PRIVATE PROPERTY LOSSES WHERE MATERIAL, SEIZED BY THE CUSTOMS AUTHORITIES FOR VIOLATION OF THE TARIFF LAWS FOR WHICH A FINE WAS SUBSEQUENTLY IMPOSED, WAS NOT SENT TO THE PUBLIC STORES AS REQUIRED BY THE CUSTOMS REGULATIONS BUT WAS ALLOWED TO REMAIN ON THE DOCK BY THE EMPLOYEES OF THE CUSTOMS SERVICE, AT THE REQUEST AND FOR THE APPARENT BENEFIT OF THE CLAIMANT, AND A PORTION WAS MYSTERIOUSLY LOST, THE CLAIM FOR ITS VALUE IS ONE FOR DAMAGES, GROWING OUT OF THE WRONGFUL ACT OF THE EMPLOYEES, WHICH MAY NOT BE ALLOWED BY THE GENERAL ACCOUNTING OFFICE, THERE BEING NO APPROPRIATION AVAILABLE FOR THE PAYMENT OF SUCH CLAIMS, NOR REPORTED TO THE CONGRESS UNDER THE PROVISIONS OF THE ACT OF APRIL 10, 1928, 45 STAT. 413, AS A CLAIM CONTAINING "SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY" AS TO BE DESERVING OF ITS CONSIDERATION.

DECISION BY ACTING COMPTROLLER GENERAL ELLIOTT, MAY 12, 1938:

ROURA AND FORGAS, INC., NEW YORK, PRESENTED A CLAIM IN THE AMOUNT OF $1,400, AS THE VALUE OF 20 FLASKS OF QUICKSILVER SAID TO HAVE BEEN LOST OR STOLEN WHILE IN THE CUSTODY OF THE UNITED STATES CUSTOMS SERVICE, NEW YORK, N.Y.

THE CLAIM ORIGINALLY WAS PRESENTED TO THE BUREAU OF CUSTOMS, TREASURY DEPARTMENT, BY ATTORNEYS FOR THE CLAIMANT, AND WAS TRANSMITTED TO THIS OFFICE FOR DIRECT SETTLEMENT, TOGETHER WITH THE CASE HISTORY, MATERIAL PAPERS AND REPORTS AND A STATEMENT IN PART AS FOLLOWS:

AS THERE APPEARS TO BE NO APPROPRIATION UNDER THE CONTROL OF THE BUREAU OF CUSTOMS FROM WHICH THE CLAIM OF BAILEY AND MULLER (ATTORNEYS REPRESENTING ROURA AND FORGAS, INC.) MAY BE PAID, THE CLAIM IS REFERRED TO YOUR OFFICE UNDER THE PROVISIONS OF THE ACT OF APRIL 10, 1928 (U.S.C., TITLE 31, SEC. 236), INASMUCH AS IT CONTAINS SUCH AN EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF CONGRESS. * * *

THE FACTS ARE AS FOLLOWS: THE 20 FLASKS OF QUICKSILVER INVOLVED WERE PART OF A SHIPMENT OF 150 FLASKS WHICH ARRIVED AT THE PORT OF NEW YORK ON THE S.S. MANARGO AT THE MUNSON STEAMSHIP LINE, ON NOVEMBER 12, 1936. ACCORDING TO A LETTER OF SEPTEMBER 29, 1937, FROM ATTORNEYS FOR THE CLAIMANT, THE SHIPMENT ORIGINATED IN SPAIN AND WAS TRANSSHIPPED FROM HABANA, CUBA. UPON ARRIVAL IN NEW YORK THE 150 FLASKS WERE SEIZED AND DETAINED BY THE UNITED STATES CUSTOMS SERVICE UNDER SECTION 592 OF THE REVENUE ACT OF JUNE 17, 1930, 46 STAT. 750, FOR THE REASON, AS STATED IN THE SAID LETTER OF SEPTEMBER 29, THAT NO MARK AS TO THE PORT OR COUNTRY OF ORIGIN WAS CONTAINED THEREON. IT IS REPORTED THAT A CONFERENCE WAS HELD AT THE OFFICE OF THE COLLECTOR OF CUSTOMS AT THE PORT OF NEW YORK, AT WHICH ALL OF THE IMPORTER'S REPRESENTATIVES WERE PRESENT. AT SAID CONFERENCE THE IMPORTER'S REPRESENTATIVES OBJECTED TO SENDING THE ENTIRE SHIPMENT TO THE CUSTOMS SEIZURE ROOM ON THE GROUND THAT, IN THE EVENT THE SHIPMENT WAS RELEASED, CONSIDERABLE EXPENSE INCIDENT TO TRANSFER OF THE FLASKS TO THE CUSTOMS SEIZURE ROOM WOULD BE INCURRED BY THE IMPORTER. THEREFORE, WITH THE CONCURRENCE OF THE CUSTOMS AGENTS ASSIGNED TO THE INVESTIGATION, IT WAS DECIDED TO PLACE THE MERCHANDISE ON THE DOCK UNDER CONSTANT SUPERVISION OF CUSTOMS GUARDS (LETTER OF NOVEMBER 23, 1937, FROM THE BUREAU OF CUSTOMS, TREASURY DEPARTMENT, TO THIS OFFICE). IT IS STATED FURTHER THAT CUSTOMS GUARDS AND COMPANY GUARDS (STEAMSHIP COMPANY) WERE DETAILED TO WATCH THE QUICKSILVER AND THAT "EVERY EFFORT WAS TAKEN BY THE CUSTOMS AND STEAMSHIP COMPANY" TO GUARD THE SHIPMENT (REPORT OF AUGUST 19, 1937, OF JAMES J. LYNCH, CUSTOMS AGENT). THE FORFEITURE INCURRED WAS MITIGATED BY THE BUREAU OF CUSTOMS TO PAYMENT OF THE SUM OF $1,354.95 UNDER THE PROVISIONS OF SECTION 618 OF THE TARIFF ACT OF 1930. WHEN THE SHIPMENT WAS RELEASED UPON THE PAYMENT OF THE FINE, ON OR ABOUT FEBRUARY 26, 1937, IT WAS DISCOVERED THAT 20 FLASKS OF QUICKSILVER WERE MISSING,"APPARENTLY STOLEN.'

FROM THE FOREGOING STATEMENT OF FACTS IT IS PLAIN THAT THE QUICKSILVER WAS SEIZED IN THE FIRST INSTANCE AS THE RESULT OF A VIOLATION OF THE TARIFF LAWS OF THE UNITED STATES FOR WHICH A FINE WAS ULTIMATELY IMPOSED; THAT IT WAS AT THE REQUEST AND FOR THE APPARENT BENEFIT OF THE CLAIMANT THAT THE SHIPMENT WAS HELD ON THE WHARF INSTEAD OF BEING SENT TO THE CUSTOMS SEIZURE ROOM; THAT IT WAS PROTECTED BY GUARDS OF THE CUSTOMS SERVICE AND THE STEAMSHIP COMPANY; AND THAT THE SOLE GROUND FOR THE CLAIM HERE PRESENTED IS THAT 20 FLASKS WERE FOUND TO BE MISSING, APPARENTLY HAVING BEEN STOLEN IN THE INTERIM PRESUMABLY BEING THE CRIMINAL ACT OF A PERSON OR PERSONS UNKNOWN.

CUSTOMS REGULATIONS, 1931, APPROVED BY THE SECRETARY OF THE TREASURY ON JANUARY 6, 1932, WERE ,PUBLISHED FOR THE INSTRUCTION AND GUIDANCE OF ALL OFFICES AND EMPLOYEES OF THE CUSTOMS," AND PROVIDED THAT "THESE REGULATIONS ARE TO BE STRICTLY OBSERVED AND FOLLOWED BY ALL CUSTOMS OFFICERS AND EMPLOYEES UNLESS COMPLIANCE THEREWITH BE EXPRESSLY WAIVED IN WRITING.' (SEE "ORDER OF PUBLICATION," P. III.) ARTICLE 1103 (B) OF SAID REGULATIONS PROVIDES:

SEIZING OFFICERS ARE REQUIRED TO SEND AT ONCE TO THE PUBLIC STORES ALL GOODS SEIZED BY THEM FOR VIOLATION OF LAW. * * *

THE REGULATIONS ISSUED BY THE SECRETARY OF THE TREASURY WERE BINDING UPON ALL OFFICERS AND EMPLOYEES OF THE CUSTOMS SERVICE AND PRESCRIBED THE LIMITS OF THEIR AUTHORITY. PANAMA REFINING CO. V. RYAN, 293 U.S. 388. WOULD APPEAR OBVIOUS THAT IN FAILING TO SEND THE SEIZED GOODS AT ONCE TO THE PUBLIC STORES, AS REQUIRED BY THE REGULATIONS, IN ACCEDING TO THE REQUEST OF THE IMPORTER THAT THE PRESCRIBED PROCEDURE BE NOT FOLLOWED, AND IN PERMITTING THE SEIZED GOODS TO REMAIN ON THE DOCK--- WHETHER GUARDED OR UNGUARDED--- THE EMPLOYEES OF THE CUSTOMS SERVICE WERE GUILTY OF A DIRECT AND CONCRETE VIOLATION OF APPLICABLE AND BINDING REGULATIONS IN WHICH VIOLATION THE CLAIMANT CONCURRED AND PARTICIPATED.

IT IS A PRINCIPLE OF LAW RECOGNIZED AND APPLIED IN NUMEROUS DECISIONS OF THE COURTS THAT THE UNITED STATES CANNOT BE HELD LIABLE FOR THE NONFEASANCE, MISFEASANCE, OR NEGLIGENCE OF ITS OFFICERS, EMPLOYEES, AND AGENTS. GERMAN BANK OF MEMPHIS V. UNITED STATES, 148 U.S. 573. THE CASE OF ROBERTSON V. SICHEL, 127 U.S. 507, APPEARS PECULIARLY IN POINT. THAT CASE, A TRUNK SEIZED AND HELD FOR APPRAISEMENT BY THE CUSTOMS AUTHORITIES AT THE PORT OF NEW YORK WAS NOT SENT TO THE PUBLIC STORES AS REQUIRED BY REGULATION, BUT WAS LEFT ON THE DOCK, WHERE IT WAS DESTROYED BY FIRE. IN AN ACTION SEEKING TO HOLD THE COLLECTOR OF THE PORT LIABLE FOR THE NEGLIGENCE OF THE SUBORDINATE INSPECTOR RESPONSIBLE FOR FAILURE TO SEND THE TRUNK TO THE PUBLIC STORES, THE SUPREME COURT COMPREHENSIVELY STATED THE RULE THAT THE GOVERNMENT IS NOT RESPONSIBLE FOR "THE MISFEASANCES, OR WRONGS, OR NEGLIGENCES, OR OMISSIONS OF DUTY OF THE SUBORDINATE OFFICERS OR AGENTS EMPLOYED IN THE PUBLIC SERVICE" AND HELD THE SAME RULE APPLICABLE TO "THE HEAD OF A DEPARTMENT OR OTHER SUPERIOR FUNCTIONARY.'

THERE IS NO EVIDENCE IN THE INSTANT RECORD OF ANY NEGLIGENCE ON THE PART OF EMPLOYEES OF THE CUSTOMS SERVICE OTHER THAN THEIR FAILURE TO SEND THE SEIZED QUICKSILVER TO THE PUBLIC STORES, AS THE REGULATIONS REQUIRED. THAT IS TO SAY, THERE IS NO EVIDENCE THAT THE CUSTOMS GUARDS OR OTHER EMPLOYEES WERE GUILTY OF ANY NEGLIGENCE IN GUARDING THE QUICKSILVER WHILE UNDER THEIR PROTECTION ON THE WHARF IN NEW YORK. ON THE CONTRARY, IT IS REPORTED "IT APPEARS THAT THE DELIVERY CLERK COULD NOT ACCOUNT FOR THE DISAPPEARANCE OF THE FLASKS AS THEY WERE UNDER CONSTANT SUPERVISION. THE CUSTOMS AGENT STATES THAT EVERY EFFORT WAS TAKEN BY THE CUSTOMS AND THE STEAMSHIP COMPANY TO GUARD THE ABOVE SHIPMENT AND THAT THERE WAS NO WAY OF ASCERTAINING HOW THE 20 FLASKS DISAPPEARED" (LETTER OF NOVEMBER 23, 1937, CITED ABOVE). IT MAY BE ADDED THAT EVEN IF IT WERE SHOWN THAT THERE WAS NEGLIGENCE ON THE PART OF THE GUARDS AND THAT THE LOSS OR THEFT WAS ATTRIBUTABLE THERETO, THE FACT WOULD NOT ENTAIL ANY RESPONSIBILITY OR LEGAL LIABILITY ON THE UNITED STATES UNDER THE WELL-ESTABLISHED PRINCIPLES OF LAW CITED ABOVE.

BUT THE FACT THAT THE SHIPMENT WAS ALLOWED TO REMAIN ON THE WHARF OVER A SUBSTANTIAL PERIOD OF TIME, NOTWITHSTANDING THE CUSTOMS REGULATIONS REQUIRED THE SEIZING OFFICERS TO SEND AT ONCE TO THE PUBLIC STORES ALL GOODS SEIZED BY THEM FOR VIOLATION OF LAW, AFFORDS CONCLUSIVE EVIDENCE OF POSITIVE VIOLATION OF DUTY BY THE RESPONSIBLE EMPLOYEES OF THE CUSTOMS SERVICE. IN SUCH VIOLATION SAID EMPLOYEES, AS A MATTER OF COURSE, ACTED BEYOND THE SCOPE OF THEIR AUTHORITY AND THE CLAIM HERE PRESENTED IS ONE FOR DAMAGES GROWING OUT OF THE WRONGFUL ACT OF THE EMPLOYEES, AND ARISES FROM TORT RATHER THAN FROM CONTRACT. IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY, THE ACCOUNTING OFFICERS OF THE GOVERNMENT ARE NOT AUTHORIZED TO ENTERTAIN CLAIMS AGAINST THE UNITED STATES GROWING OUT OF THE WRONGFUL ACTS OF ITS OFFICERS, AGENTS, OR EMPLOYEES; AND THERE IS NO APPROPRIATION AVAILABLE FOR THE PAYMENT OF SUCH CLAIMS. HENCE, THE INSTANT CLAIM MAY NOT BE ALLOWED BY THIS OFFICE.

MOREOVER, SINCE THERE IS SHOWN TO BE NO LEGAL LIABILITY UPON THE UNITED STATES UNDER EXISTING LAW IN ANY EVENT IN THE INSTANT CASE,AND THE GOVERNMENT DERIVED NO BENEFIT FROM THE LOST QUICKSILVER, THE CLAIM DOES NOT, IN MY JUDGMENT, CONTAIN "SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS" AS ADMINISTRATIVELY SUGGESTED, AND THEREFORE IS NOT ONE PROPER FOR REPORTING TO THE CONGRESS BY THIS OFFICE UNDER THE PROVISIONS OF THE ACT OF APRIL 10, 1928, 45 STAT. 413. SEE A-89219, OCTOBER 20, 1937.