B-142277, DEC. 6, 1960

B-142277, DEC. 6, 1960

TO JOHNSON AND HIGGINS:

YOUR LETTER OF OCTOBER 10, 1960, YOUR FILE NO. 4641-34A, REQUESTS RECONSIDERATION OF OUR DECISION DATED AUGUST 1, 1960, B-142277, DENYING YOUR CLAIM FOR GENERAL AVERAGE CONTRIBUTION FROM THE UNITED STATES IN THE AMOUNT OF $642.06 TOWARD LEGAL EXPENSES INCURRED IN ATTEMPTING UNSUCCESSFULLY TO BOTAIN RECOVERY FROM THE THEN TERRITORY OF HAWAII FOR UNSUCCESSFULLY TO OBTAIN RECOVERY FROM THE THEN TERRITORY OF HAWAII FOR WHILE ENTERING THE HARBOR AT HONOLULU ON AUGUST 19, 1954, SUCH STRANDING ALLEGEDLY BEING DUE TO THE NEGLIGENCE OF THE HONOLULU PILOT.

IN OUR DECISION OF AUGUST 1, 1960, B-142277, WE STATED THAT THERE WERE ONLY TWO POSSIBLE BASES ON WHICH LIABILITY OF THE GOVERNMENT FOR CONTRIBUTION TO THE EXPENSES IN QUESTION COULD BE OUNDED; THAT IS, A CONTRACT OR AGREEMENT TO THAT EFFECT BETWEEN THE GOVERNMENT AND THE SHIPOWNER OR THE GENERAL AVERAGE ADJUSTER, OR A DETERMINATION THAT THE EXPENSES WERE A PROPERLY ALLOWABLE CHARGE IN GENERAL AVERAGE. BOTH BASES WERE CAREFULLY EXAMINED IN RELATION TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND IT WAS DETERMINED THAT NO SUCH CONTRACT OR AGREEMENT EXISTED AND THAT THE LEGAL EXPENSES INVOLVED WERE NOT A PROPERLY ALLOWABLE CHARGE IN GENERAL AVERAGE. HENCE, YOUR CLAIM WAS DISALLOWED.

YOUR LETTER OF OCTOBER 10, 1960, EXPRESSLY ACKNOWLEDGES THAT THE EXPENSES IN QUESTION ARE NOT DIRECT GENERAL AVERAGE EXPENSES, THUS CONCURRING TO THAT EXTENT WITH OUR DECISION OF AUGUST 1, 1960. ALSO, SINCE NO ISSUE IS RAISED WITH REGARD TO OUR DETERMINATION THAT NO CONTRACT OR AGREEMENT RELATIVE TO THESE EXPENSES, EXPRESS OR IMPLIED, EXISTED, YOUR LETTER APPEARS TO CONSTITUTE AT LEAST TACIT AGREEMENT THEREWITH. YOUR CLAIM IS BASED SOLELY UPON THE CONTENTION THAT, IN THE CIRCUMSTANCES HERE INVOLVED, THE GOVERNMENT SHOULD CONTRIBUTE AS A MATTER OF SIMPLE EQUITY.

THE AUTHORITY OF THE GENERAL ACCOUNTING OFFICE TO SETTLE CLAIMS BY OR AGAINST THE GOVERNMENT IS CONTAINED IN THE PROVISIONS OF 31 U.S.C. 71. HOWEVER, OUR JURISDICTION THEREUNDER TO ALLOW CLAIMS AGAINST THE GOVERNMENT IS RESTRICTED TO CLAIMS WHICH CLEARLY ARE FOR PAYMENT IN ACCORDANCE WITH THE APPLICABLE STATUTES OR UNDER THE TERMS OF A VALID CONTRACT OR AGREEMENT EXECUTED PURSUANT TO LAW. WE HAVE NO AUTHORITY TO ALLOW CLAIMS ON THE BASIS OF EQUITY ALONE. SINCE THE ONLY BASES UPON WHICH LEGAL LIABILITY OF THE GOVERNMENT FOR THE EXPENSES IN QUESTION COULD HAVE BEEN FOUNDED HAVE BEEN CONSIDERED AND REJECTED IN OUR DECISION OF AUGUST 1, 1960, B-142277, THAT DECISION MUST BE SUSTAINED.