B-134829, FEB. 26, 1958

B-134829: Feb 26, 1958

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LTD.: REFERENCE IS MADE TO LETTER OF DECEMBER 18. THE PRINCIPAL FACTS GIVING RISE TO THE CLAIM ARE FULLY SET FORTH IN THE ABOVE SETTLEMENT AND WILL NOT BE REPEATED HERE. THE CLAIM IS ESSENTIALLY FOR A MARITIME TORT. AS INDICATED IN THE SETTLEMENT THE ONLY RECOURSE THAT COULD HAVE BEEN HAD FOR DAMAGES IN SUCH CASES PRIOR TO THE ENACTMENT OF THE ABOVE STATUTE WAS BY SUIT IN THE DISTRICT COURTS OF THE UNITED STATES. THE ACCOUNTING OFFICERS CONSISTENTLY HAVE HELD THAT WHERE THE CONGRESS HAS ESTABLISHED A SPECIFIC ADMINISTRATIVE PROCEDURE FOR ADJUSTMENT OF PARTICULAR CLAIMS AND CONFERRED EXCLUSIVE AUTHORITY TO MAKE FINAL SETTLEMENT THEREOF UPON SOME DESIGNATED OFFICIAL OR AGENCY. THIS OFFICE IS NOT AUTHORIZED TO TAKE ANY ACTION WITH RESPECT TO ADJUSTING OR SETTLING SUCH CLAIMS.

B-134829, FEB. 26, 1958

TO AMERICAN PRESIDENT LINES, LTD.:

REFERENCE IS MADE TO LETTER OF DECEMBER 18, 1957, FROM YOUR ATTORNEY, REQUESTING REVIEW OF SETTLEMENT OF NOVEMBER 15, 1957, WHICH DISALLOWED THE CLAIM OF THE AMERICAN PRESIDENT LINES, LTD. FOR $2,578.50 FOR DAMAGES SUSTAINED BY THE SS ALBION VICTORY ON JUNE 14, 1951, WHEN STRUCK BY THE UNITED STATES ARMY TUG ST-1366 AT PUSAN, KOREA.

THE PRINCIPAL FACTS GIVING RISE TO THE CLAIM ARE FULLY SET FORTH IN THE ABOVE SETTLEMENT AND WILL NOT BE REPEATED HERE.

THE ACTION TAKEN IN THE ABOVE SETTLEMENT CONCERNED YOUR CLAIM FILED UNDER THE ARMY'S MARITIME CLAIMS SETTLEMENT ACT OF OCTOBER 20, 1951, 65 STAT. 572, 10 U.S.C. 1861-1866 (NOW SUPERSEDED BY 10 U.S.C. 4801 4806) AND IMPLEMENTING REGULATION AR 25-60. THE CLAIM IS ESSENTIALLY FOR A MARITIME TORT, AND AS INDICATED IN THE SETTLEMENT THE ONLY RECOURSE THAT COULD HAVE BEEN HAD FOR DAMAGES IN SUCH CASES PRIOR TO THE ENACTMENT OF THE ABOVE STATUTE WAS BY SUIT IN THE DISTRICT COURTS OF THE UNITED STATES. THE STATUTE SPECIFICALLY CONFERRED JURISDICTION UPON THE SECRETARY OF THE ARMY TO SETTLE OR COMPROMISE CLAIMS FOR DAMAGES OF THIS KIND, AND CONFERRED NO AUTHORITY UPON OUR OFFICE TO CONSIDER SUCH CLAIMS. B-126162, APRIL 23, 1956; AND SEE 14 COMP. DEC. 309; 3 COMP. GEN. 22, 24. THE ACCOUNTING OFFICERS CONSISTENTLY HAVE HELD THAT WHERE THE CONGRESS HAS ESTABLISHED A SPECIFIC ADMINISTRATIVE PROCEDURE FOR ADJUSTMENT OF PARTICULAR CLAIMS AND CONFERRED EXCLUSIVE AUTHORITY TO MAKE FINAL SETTLEMENT THEREOF UPON SOME DESIGNATED OFFICIAL OR AGENCY, THIS OFFICE IS NOT AUTHORIZED TO TAKE ANY ACTION WITH RESPECT TO ADJUSTING OR SETTLING SUCH CLAIMS, PARTICULARLY WHEN TO DO SO WOULD OPERATE TO NULLIFY OR CIRCUMVENT THE STATUTORY OR REGULATORY LIMITATION PROMULGATED PURSUANT THERETO. 14 COMP. GEN. 324; 18 ID. 454; 32 ID. 272.

HERE THE ARMY, THE ONLY FORM OUTSIDE THE DISTRICT COURTS OF THE UNITED STATES AUTHORIZED BY THE CONGRESS TO CONSIDER MARITIME TORT CLAIMS AGAINST THAT DEPARTMENT, REFUSED PAYMENT OF YOUR CLAIM UNDER THE ABOVE ACT OF OCTOBER 20, 1951, AND THE IMPLEMENTING REGULATIONS (AR 25 60) BECAUSE THE CLAIM WAS NOT PRESENTED AND SETTLED WITHIN TWO YEARS AFTER THE ACCIDENT AS REQUIRED BY SUCH REGULATIONS. IT IS OUR VIEW THAT UNDER THE STATUTE REFERRED TO THAT ACTION, WHETHER RIGHT OR WRONG, IS FINAL SO FAR AS THE EXECUTIVE BRANCH OF THE GOVERNMENT IS CONCERNED.

IT IS NOW URGED THAT THE CLAIM PROPERLY MAY BE CONSIDERED BY OUR OFFICE ON A CONTRACTUAL BASIS, ON THE THEORY THAT A STATEMENT BY THE MARINE CASUALTY INVESTIGATING OFFICER SHORTLY AFTER THE ACCIDENT, ACKNOWLEDGING THAT THE DAMAGE WAS CAUSED BY THE ARMY TUG ST-1366, CREATED A BINDING CONTRACTUAL OBLIGATION TO PAY. WE KNOW OF NO SUBSTANTIAL LEGAL SUPPORT FOR SUCH A THEORY; THE UNITED STATES CANNOT BE BOUND BY A CONTRACT MADE WITHOUT AUTHORITY OF LAW, AND THE ONLY STATUTORY AUTHORITY TO OBLIGATE THE UNITED STATES TO PAY FOR DAMAGE OF THE KIND HERE INVOLVED IS THAT VESTED IN THE SECRETARY OF THE ARMY BY THE ACT ABOVE REFERRED TO. EXCEPT AS TO CLAIMS FOR LESS THAN $1,000 THE AUTHORITY OF THE SECRETARY IN THAT RESPECT CANNOT BE DELEGATED TO ANY SUBORDINATE OFFICER.

THE RECORD FURTHER SHOWS THAT YOUR CLAIM WAS REFERRED TO THE MILITARY SEA TRANSPORTATION SERVICE FOR CONSIDERATION AS ONE POSSIBLY COVERED BY THE CHARTER PARTY. ON NOVEMBER 13, 1956, THE MILITARY SEA TRANSPORTATION SERVICE NOTIFIED YOUR COMPANY THAT THE CLAIM WAS NOT COGNIZABLE UNDER THE CHARTER PARTY; AND THEREAFTER, APPARENTLY UPON RECEIPT OF NOTICE THAT THE CLAIM COULD NOT BE PAID UNDER THE ARMY'S MARITIME CLAIMS SETTLEMENT AUTHORIZATION AND IMPLEMENTING REGULATIONS, YOUR COMPANY APPEALED THE ACTION OF THE MILITARY SEA TRANSPORTATION SERVICE TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS PURSUANT TO THE STANDARD DISPUTES CLAUSE OF THE CHARTER PARTY. IT IS UNDERSTOOD THAT SUCH APPEAL PRESENTLY IS PENDING BEFORE THAT BOARD. SIMULTANEOUSLY, YOU FILED A CLAIM WITH OUR CLAIMS DIVISION, WHICH WAS DISALLOWED BY THE ABOVE-MENTIONED SETTLEMENT OF NOVEMBER 15, 1957.

THE "DISPUTES" CLAUSE IN THE CHARTER PARTY PROVIDES A COMPLETE ADMINISTRATIVE PROCEDURE TO BE FOLLOWED IN THE CASE OF ANY DISPUTE CONCERNING A QUESTION OF FACT ARISING UNDER THE CHARTER PARTY, AND THE DECISION OF THE HEAD OF THE DEPARTMENT OR HIS DULY AUTHORIZED REPRESENTATIVE UPON AN APPEAL TAKEN THEREUNDER IS FINAL AND CONCLUSIVE. FURTHERMORE, UNDER APPLICABLE COURT DECISIONS, THE DESIGNATED OFFICIALS ARE NOT ONLY AUTHORIZED BUT REQUIRED TO RENDER AN INDEPENDENT DECISION ON A FACTUAL DISPUTE ARISING UNDER THE CONTRACT OR CHARTER PARTY, AND THE SPECIFIC PROCEDURE PROVIDED FOR MUST FIRST BE EXHAUSTED BEFORE RELIEF CAN BE SOUGHT ELSEWHERE. SEE UNITED STATES V. CALLAHAN WALKER CO., 317 U.S. 56, 61; UNITED STATES V. BLAIR, 321 U.S. 730; AND UNITED STATES V. HOLPUCH CO., 328 U.S. 234. SINCE YOUR APPEAL FROM THE FINDINGS OF THE CONTRACTING OFFICER IS PRESENTLY PENDING BEFORE THE AUTHORIZED REPRESENTATIVE OF THE SECRETARY OF THE NAVY, YOUR CLAIM FOR RELIEF UNDER THE CHARTER PARTY IS NOT PROPERLY COGNIZABLE BY OUR OFFICE AT THIS TIME.

AS A MATTER OF INFORMATION IT MAY BE STATED THAT INSOFAR AS MATTERS OF FACT ARE CONCERNED, A DECISION OF THE HEAD OF THE DEPARTMENT UNDER THE STANDARD "DISPUTES" CLAUSE OF A CONTRACT IS FINAL AND CONCLUSIVE ON OUR OFFICE AND THE COURTS UNLESS THE DECISION MAY BE SAID TO BE FRAUDULENT, CAPRICIOUS, OR ARBITRARY, OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. SEE PUBLIC LAW 356, APPROVED MAY 11, 1954, 68 STAT. 81.

IN VIEW OF THE FOREGOING NO RELIEF ON THE CLAIM MAY BE GRANTED BY THIS OFFICE AT THIS TIME.