B-149651, AUG. 16, 1962

B-149651: Aug 16, 1962

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OWENS IS PART OWNER OF CHICAMACOMICO ENTERPRISES. THE PROPERTY IS LOCATED WITHIN THE BOUNDARIES OF THE CAPE HATTERAS NATIONAL SEASHORE RECREATIONAL AREA. WAS DEPOSITED ON HIS ADJOINING MOTEL PROPERTY. YOU STATE THAT FUNDS APPROPRIATED TO THE NATIONAL PARK SERVICE ARE NOT AVAILABLE FOR EXPENDITURE FOR WORK PERFORMED ON PRIVATE PROPERTY. WHICH THE CLAIMANT CONTENDS WAS FROM THE PROPERTY ADMINISTERED BY THE NATIONAL PARK SERVICE. WAS NOT DEPOSITED ON HIS PROPERTY THROUGH ANY NEGLIGENCE ON THE PART OF THE GOVERNMENT OR ITS EMPLOYEES. WAS THE RESULT OF AN ACT OF GOD. AS FOLLOWS: "THE MOST DISASTROUS WINTER COASTAL STORM ON RECORD WAS EXPERIENCED ALONG THE ATLANTIC SEABOARD OF THE UNITED STATES.

B-149651, AUG. 16, 1962

TO MR. W. A. MEANERHAN, AUTHORIZED CERTIFYING OFFICER, NATIONAL PARK SERVICE:

YOUR LETTER OF JULY 25, 1962, WITH ENCLOSURES, TRANSMITTED HERE BY LETTER DATED AUGUST 2, 1962, A7627-ABF, FROM THE CHIEF, ACCOUNTING OPERATIONS, NATIONAL PARK SERVICE, REQUESTS A DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT A VOUCHER IN FAVOR OF ROLAND D. OWENS FOR $2,862. THE BILL IN SUPPORT OF THE VOUCHER COVERS REIMBURSEMENT OF THE COST INCURRED IN "REMOVING SAND BELONGING TO THE NATIONAL PARK SERVICE" FROM HIS PROPERTY.

THE FACTS AS REPORTED IN YOUR LETTER AND IN THE ENCLOSURES TRANSMITTED THEREWITH INDICATE THAT MR. OWENS IS PART OWNER OF CHICAMACOMICO ENTERPRISES, INC., WHICH INCLUDES A MOTEL AT RODANTHE, NORTH CAROLINA. THE PROPERTY IS LOCATED WITHIN THE BOUNDARIES OF THE CAPE HATTERAS NATIONAL SEASHORE RECREATIONAL AREA, ADMINISTERED BY THE NATIONAL PARK SERVICE UNDER THE DIRECTION OF THE SECRETARY OF THE INTERIOR. AS A RESULT OF THE GREAT ATLANTIC COAST STORM DURING MARCH 1962, A LARGE AMOUNT OF SAND, WHICH MR. OWENS CONTENDS BELONGED TO THE LANDS ADMINISTERED BY THE NATIONAL PARK SERVICE, WAS DEPOSITED ON HIS ADJOINING MOTEL PROPERTY.

MR. OWENS REQUESTED THE NATIONAL PARK SERVICE TO CLEAR ITS SAND FROM HIS PROPERTY. THE REQUEST NOT HAVING BEEN COMPLIED WITH, HE PROCEEDED TO REMOVE THE SAND FROM HIS PROPERTY, AND CLAIMS REIMBURSEMENT IN THE AMOUNT OF $2,862 FOR THE EXPENSE HE INCURRED INCIDENT THERETO.

YOU STATE THAT FUNDS APPROPRIATED TO THE NATIONAL PARK SERVICE ARE NOT AVAILABLE FOR EXPENDITURE FOR WORK PERFORMED ON PRIVATE PROPERTY, EXCEPT AS PROVIDED BY SPECIFIC AUTHORITY. YOU FURTHER STATE THAT THE SAND, WHICH THE CLAIMANT CONTENDS WAS FROM THE PROPERTY ADMINISTERED BY THE NATIONAL PARK SERVICE, WAS NOT DEPOSITED ON HIS PROPERTY THROUGH ANY NEGLIGENCE ON THE PART OF THE GOVERNMENT OR ITS EMPLOYEES, BUT WAS THE RESULT OF AN ACT OF GOD. ON THE BASIS OF THESE FACTS YOU EXPRESS DOUBT AS TO THE PROPRIETY OF PAYING THE VOUCHER AND RECOMMEND THAT THE CLAIM BE DISALLOWED.

IN REPORTING ON THE GREAT ATLANTIC COAST STORM OF MARCH 5 TO 9, 1962, DURING A HEARING HELD ON APRIL 4, 1962, BEFORE THE SUBCOMMITTEE ON OCEANOGRAPHY OF THE COMMITTEE ON MERCHANT MARINE AND FISHERIES, HOUSE OF REPRESENTATIVES, REGARDING "IMPROVEMENT OF STORM FORECASTING PROCEDURES" A REPRESENTATIVE OF THE UNITED STATES WEATHER BUREAU STATED, IN PERTINENT PART, AS FOLLOWS:

"THE MOST DISASTROUS WINTER COASTAL STORM ON RECORD WAS EXPERIENCED ALONG THE ATLANTIC SEABOARD OF THE UNITED STATES, MARCH 5 TO 9, 1962. THE COMPLEX, LOW-PRESSURE SYSTEM WHICH IS FORMED EAST OF FLORIDA, MARCH 4, MOVED NORTHWARD TO CAPE HATTERAS AND MERGED WITH A LESSER SYSTEM MOVING OUT OF THE MISSISSIPPI VALLEY. WINDS OF NEAR HURRICANE FORCE RAPIDLY DEVELOPED OFFSHORE AND GENERATED HUGE WAVES WHICH BATTERED THE NEW ENGLAND AND MID-ATLANTIC COAST FOR MORE THAN 36 HOURS. SWELLS, THE DECAYING REMNANTS OF WAVES FROM THE STORM, MOVED SOUTHWESTWARD TO THE FLORIDA EAST COAST, WHERE BEACHES AND EXPOSED STRUCTURES WERE HEAVILY DAMAGED. THE COMBINATION OF NORMALLY HIGH SPRING TIDES, THE ADDED ACCUMULATION OF WATER TRANSPORTED BY WINDS OF THE STORM, AND THE CASCADING OF HUGE WAVES AT THE SHORE CAUSED MAJOR FLOODING OF COASTAL PLAINS FROM CAPE COD TO HATTERAS, N.C. * * *"

ASSUMING THAT THE SAND LEFT ON THE CLAIMANT'S PROPERTY WAS SAND FROM THE ADJOINING LAND UNDER THE JURISDICTION OF THE NATIONAL PARK SERVICE, IT IS OBVIOUS THAT IT WAS NOT DEPOSITED ON SAID PROPERTY AS THE RESULT OF CARELESSNESS, NEGLIGENCE OR WRONGDOING OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT. ON THE CONTRARY, IT IS CLEAR THAT THE SAND DRIFTED OR WAS DEPOSITED ON THE CLAIMANT'S PROPERTY AS THE RESULT OF THE REFERRED-TO STORM OF HURRICANE FORCE, AN ACT OF GOD BEYOND THE CONTROL OF MAN.

IN 65 C.J.S., NEGLIGENCE, SECTION 21 (B), PAGE 432, IT IS SAID "NO ONE IS LIABLE FOR AN INJURY PROXIMATELY CAUSED BY AN ACT OF GOD, WHICH IS AN INJURY DUE DIRECTLY AND EXCLUSIVELY TO NATURAL CAUSES WITHOUT HUMAN INTERVENTION, WHICH COULD NOT HAVE BEEN PREVENTED BY THE EXERCISE OF REASONABLE CARE AND FORESIGHT * * *.' APPLYING THIS RULE OF LAW TO THE FACTS UNDER CONSIDERATION, WE CONCLUDE THAT THERE IS NO LEGAL LIABILITY ON THE PART OF THE GOVERNMENT TO REIMBURSE THE CLAIMANT FOR THE EXPENSE INCURRED IN REMOVING THE SAND FROM HIS PROPERTY, AND THAT THE EXPENSE RESTS WHERE IT FALLS.

FOR THE REASONS STATED, YOU ARE ADVISED THAT THE VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT.