Matter of: Orion Shipping and Trading Co., Inc. File: B-120853 Date: October 4, 1954

B-120853: Oct 4, 1954

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Gentlemen: Reference is made to your letters dated June 29. The claim was disallowed by settlement of this office dated June 1. 1954 and your letters will be considered as a request for review of said settlement. The claim was disallowed on the basis that the charter agreement. Under which the vessel was hired for the use of the United States. Since the claim is one sounding in tort. The claimant was advised that the General Accounting Office was without authority to allow such claim. Was ordered to proceed to Hunan. It was determined that such loss was not for the account of the charter pursuant to the provisions in the charter agreement concerning redelivery of the vessel. The claim was transmitted to the General Accounting Office for consideration under the act of April 10.

Matter of: Orion Shipping and Trading Co., Inc. File: B-120853 Date: October 4, 1954

Gentlemen:

Reference is made to your letters dated June 29, July 19, and August 11, 1954, relative to the claim of the States Cargo Carriers corporation for $2,500 as reimbursement for damages sustained by the S.S. Seasplendor in the evacuation of Marines from Hunan Korea, in December 1950. The claim was disallowed by settlement of this office dated June 1, 1954 and your letters will be considered as a request for review of said settlement.

The claim was disallowed on the basis that the charter agreement, under which the vessel was hired for the use of the United States, contained no provision making the Government responsible for the damage involved. Further, since the claim is one sounding in tort, the claimant was advised that the General Accounting Office was without authority to allow such claim.

The record indicates that the S.S. Seasplendor, while under time charter to the Military Sea Transportation Service, Department of the Navy, was ordered to proceed to Hunan, Korea, to pick up military equipment and a boatload of United States Marines. After the military passengers debarked at Pusan,, Korea, the ship's master reported damage to the staterooms and fixtures therein in the amount of $2,500. Since the charter agreement contained no provision which would authorize reimbursement to the vessel owner for this damage, it was determined that such loss was not for the account of the charter pursuant to the provisions in the charter agreement concerning redelivery of the vessel. Also, inasmuch as the Department of the Navy determined it had no authority of law under which it could settle a claim of the type and amount involved, the claim was transmitted to the General Accounting Office for consideration under the act of April 10, 1928, 45 Stat. 413, 31 U.S.C. 236, as an equitable and meritorious claim against the United States.

The records before this Office indicate that the charter agreement provided for the carriage of passengers but contained no provisions requiring the charter to make restitution for damages to the ship[ caused by the transportation of passengers. In the absence of such provisions, the less involved insofar as the contractual responsibilities are concerned, constitutes a risk which the Government does not assume by contrast, and consequently, must be considered to have been assumed by the owner. Furthermore, if the damage is imputable to the Government because of wrongful acts of its agents, the claim for any damages on account of such wrongful acts becomes one sounding in tort. In this connection the rule is well settled that the United States is not liable for the Tortious acts of its agents unless by statute it has assumed such liability. Se 54 Am. Jur., United States, sections 94 and 136; the Federal Tort Claims Act, 28 U.S.C. 2671, et seq.; and 14 Comp. Gen. 855!

In view of the rule above stated concerning the liability of the government for claims sounding in tort and of the procedures prescribed by Congress to be followed under the Federal Tort Claims Act, supra, this Office has concluded it has no jurisdiction in the settlement of tort claims arising in other Government agencies, nor may such claims be exported to the Congress under the Meritorious Claims Act of April 10, 1928, 45 Stat. 413, 31 U.S.C. 236, 13 Comp. Gen 406; 16 id. 642. Accordingly, there is no basis upon which the claim may be paid by this Office and the settlement of June 1, 1954, which disallowed the claim, is sustained

Very truly yours,

FRANK H. WEITZEL Acting Comptroller General of the United States