B-30645, JANUARY 7, 1943, 22 COMP. GEN. 611

B-30645: Jan 7, 1943

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AUTHORIZING HIM TO CONSIDER AND PAY "CLAIMS FOR DAMAGES (OTHER THAN SUCH AS ARE OCCASIONED BY VESSELS OF THE NAVY). FOR WHICH DAMAGE OR LOSS MEN IN THE NAVAL SERVICE OR MARINE CORPS ARE FOUND TO BE RESPONSIBLE.' 6 COMP. WILL NO LONGER BE FOLLOWED. 1943: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 25. THESE CLAIMS ARE NOT COGNIZABLE UNDER THE ACT OF DECEMBER 28. SECS. 215-217) FOR THE REASON THAT THE OPERATORS AT THE TIME WERE NOT ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT. SETTLEMENTS WITH THE PRIVATE OWNERS OF THE DAMAGED VEHICLES TO THE EXTENT THAT THEIR DAMAGE WAS NOT COVERED BY INSURANCE HAVE BEEN MADE UNDER THE AUTHORITY GRANTED BY THE ACT OF JULY 11. VIZ: "CLAIMS ARISING FROM NEGLIGENCE OF MEN IN THE NAVAL SERVICE OR MARINE CORPS NOT ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT STILL ARE FOR SETTLEMENT UNDER THE ACT OF JULY 11.

B-30645, JANUARY 7, 1943, 22 COMP. GEN. 611

DAMAGE CLAIMS - SUBROGATION SUBROGATED CLAIMS OF INSURANCE COMPANIES ARISING OUT OF DAMAGE TO PRIVATE PROPERTY BY MEMBERS OF THE NAVAL SERVICE OR MARINE CORPS, NOT ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT, MAY BE CONSIDERED AND PAID BY THE SECRETARY OF THE NAVY UNDER THE ACT OF JULY 11, 1919, AUTHORIZING HIM TO CONSIDER AND PAY "CLAIMS FOR DAMAGES (OTHER THAN SUCH AS ARE OCCASIONED BY VESSELS OF THE NAVY), TO AND LOSS OF PRIVATELY OWNED PROPERTY, OCCURRING SUBSEQUENT TO APRIL 6, 1917, WHERE THE AMOUNT OF THE CLAIM DOES NOT EXCEED $500, FOR WHICH DAMAGE OR LOSS MEN IN THE NAVAL SERVICE OR MARINE CORPS ARE FOUND TO BE RESPONSIBLE.' 6 COMP. GEN. 770, TO THE CONTRARY, WILL NO LONGER BE FOLLOWED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, JANUARY 7, 1943:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 25, 1942, JAG: S: MFL: AGA, AS FOLLOWS:

THE NAVY DEPARTMENT HAS HAD PRESENTED TO IT FOR PAYMENT A NUMBER OF SUBROGATED CLAIMS OF INSURANCE COMPANIES GROWING OUT OF AUTOMOBILE ACCIDENTS BETWEEN THE COMPANY'S INSURED AND OPERATORS OF NAVY VEHICLES. THESE CLAIMS ARE NOT COGNIZABLE UNDER THE ACT OF DECEMBER 28, 1922 (42 STAT. 1066; 31 U.S.C. SECS. 215-217) FOR THE REASON THAT THE OPERATORS AT THE TIME WERE NOT ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT.

SETTLEMENTS WITH THE PRIVATE OWNERS OF THE DAMAGED VEHICLES TO THE EXTENT THAT THEIR DAMAGE WAS NOT COVERED BY INSURANCE HAVE BEEN MADE UNDER THE AUTHORITY GRANTED BY THE ACT OF JULY 11, 1919 (41 STAT. 132; 34 U.S.C. SEC. 600) AS CONSTRUED IN DECISION OF THE COMPTROLLER GENERAL OF NOVEMBER 19, 1930 (10 COMP. GEN. 229) IN THE FOLLOWING LANGUAGE, VIZ:

"CLAIMS ARISING FROM NEGLIGENCE OF MEN IN THE NAVAL SERVICE OR MARINE CORPS NOT ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT STILL ARE FOR SETTLEMENT UNDER THE ACT OF JULY 11, 1919 AS THEY WERE PRIOR TO THE ENACTMENT OF THE ACT OF DECEMBER 28, 1922.'

THE INSURANCE COMPANIES THAT HAD PAID FOR CERTAIN OF THE DAMAGE UNDER THE TERMS OF THEIR INSURANCE POLICIES NOW SEEK REIMBURSEMENT THEREFOR FROM THE UNITED STATES UNDER THE DOCTRINE OF SUBROGATION.

UNDER DATE OF MAY 26, 1927 (6 COMP. GEN. 770), THE COMPTROLLER GENERAL RULED THAT PAYMENT MIGHT NOT BE MADE TO INSURANCE COMPANIES UNDER THE AUTHORITY OF THE ACT OF JULY 11, 1919 ON THE GROUND THAT "THE BENEFITS OF THE STATUTE CONSTITUTE AN EXCEPTION TO THE COMMON LAW RULE THAT THE GOVERNMENT IS NOT RESPONSIBLE FOR THE TORTS OF ITS AGENTS. IT DISCLOSES NO INTENT TO REIMBURSE THOSE WHO BY REASON OF THEIR CONTRACTUAL LIABILITY HAVE MADE GOOD THE DAMAGE SUSTAINED FOR WHICH THERE MIGHT BE A CLAIM UNDER THE STATUTE BY THE INJURED PARTY.'

THIS DECISION WAS CITED BY SEVERAL OF THE EXECUTIVE DEPARTMENTS AS GROUNDS FOR REFUSING TO CERTIFY SUBROGATED CLAIMS OF INSURANCE COMPANIES TO THE CONGRESS UNDER THE ACT OF DECEMBER 28, 1922 (42 STAT. 1066; 31 U.S.C. SECS. 215-217). THE ATTORNEY GENERAL HOWEVER, IN AN OPINION OF JUNE 29, 1932 (36 OPS. ATTY. GEN. 553) HELD THAT UNDER PLAIN PRINCIPLES OF LAW THERE WAS NO LEGAL GROUND FOR DECLINING TO CERTIFY SUCH CLAIMS AND SUGGESTED THAT IN MAKING SUCH CERTIFICATION, THE ATTENTION OF THE CONGRESS BE DRAWN TO THE FACT THAT THEY WERE SUBROGATED CLAIMS OF INSURERS.

SAID OPINION WAS QUOTED IN DECISION OF THE COMPTROLLER GENERAL OF NOVEMBER 18, 1939 (19 COMP. GEN. 503), HOLDING THAT CLAIMS OF INSURANCE COMPANIES OR OTHER SUBROGEES OF PERSONS WHOSE PROPERTY HAD BEEN DAMAGED AS THE RESULT OF NEGLIGENCE OF EMPLOYEES OF THE WORK PROJECTS ADMINISTRATION ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT WERE PROPERLY FOR CONSIDERATION AND PAYMENT UNDER AN ACT AUTHORIZING SETTLEMENT OF "ANY CLAIM" OF THAT CHARACTER ARISING OUT OF THE OPERATIONS OF THAT ADMINISTRATION.

THE DECISION LAST MENTIONED WAS CITED AS AUTHORITY FOR A SUBSEQUENT RULING BY THE COMPTROLLER GENERAL OF OCTOBER 17, 1941 (21 COMP. GEN. 341), THAT AN INSURER UNDER THE WORKMEN'S COMPENSATION LAWS OF CALIFORNIA WAS ENTITLED TO SUBROGATION RIGHTS AGAINST THE POST OFFICE DEPARTMENT FOR INJURIES SUSTAINED BY AN EMPLOYEE OF THE INSURED.

THE OPINION OF THE ATTORNEY GENERAL AND THE TWO DECISIONS OF THE COMPTROLLER GENERAL ABOVE CITED CONSTRUED CASES IN WHICH THE NEGLIGENCE OF THE GOVERNMENT EMPLOYEES, FOR WHICH THE RIGHT OF SUBROGATION WAS SOUGHT, OCCURRED WHILE THE EMPLOYEES WERE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT.

IN THE CASES THE NAVY DEPARTMENT NOW HAS UNDER CONSIDERATION, THE SUBROGATION RIGHT IS ASSERTED IN CONNECTION WITH CLAIM FOR DAMAGE OCCURRING AT A TIME WHEN THE EMPLOYEE RESPONSIBLE FOR SUCH DAMAGE WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT. AS ABOVE NOTED THE CLAIMS OF THE OWNERS OF THE DAMAGED PROPERTY ARE PROPERLY FOR ADJUSTMENT UNDER THE ACT OF JULY 11, 1919, THE COMPTROLLER GENERAL'S DECISION OF NOVEMBER 19, 1930 SUPRA HAVING HELD THAT SAID ACT WAS SUPERSEDED BY THE ACT OF DECEMBER 28, 1922 ONLY AS TO CASES OF DAMAGE CAUSED BY NEGLIGENCE OF AN OFFICER OR EMPLOYEE OF THE GOVERNMENT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT.

QUESTION AS TO WHETHER THE SUBROGATION CLAIMS OF INSURANCE COMPANIES MAY LIKEWISE BE SETTLED UNDER THE 1919 ACT HAS ARISEN BY REASON OF THE DISCUSSION IN YOUR DECISION OF OCTOBER 17, 1941, TO THE EFFECT THAT "THERE WOULD BE NO BASIS FOR A CLAIM IN SUCH A CASE BY A PARTY AS SUBROGEE UNLESS THE DAMAGE WERE DUE TO NEGLIGENCE WITH WHICH THE GOVERNMENT WOULD BE CHARGEABLE WERE IT SUBJECT TO SUIT.' IN CERTAIN OF THE CLAIMS PRESENTLY FOR CONSIDERATION, THE GOVERNMENT VEHICLES WERE OPERATED AT THE TIME WITHOUT PERMISSION AND WITHOUT THE KNOWLEDGE OF THE SUPERIOR OFFICER OF THE OPERATOR AND NOT ON OFFICIAL BUSINESS. UNDER SUCH CONDITIONS, IT WOULD NOT APPEAR THAT THE GOVERNMENT WOULD BE CHARGEABLE WITH NEGLIGENCE IF SUBJECT TO SUIT.

ATTENTION IS INVITED HOWEVER TO THE REFERENCE BY THE ATTORNEY GENERAL IN HIS OPINION AND BY THE COMPTROLLER GENERAL IN DECISION OF NOVEMBER 18, 1939, SUPRA, THE PROVISIONS OF LAW IN THE ACT OF DECEMBER 28, 1922. SUBROGATED CLAIMS NOW BEING ALLOWABLE UNDER THE LATTER, IT WOULD SEEM THAT A SIMILAR CONSTRUCTION SHOULD APPLY TO THE FORMER ACT.

DUE TO THE DOUBT ENGENDERED BY THE DISCUSSION AS TO SUBROGATION RIGHTS BEING RESTRICTED TO CASES WHERE THERE WOULD HAVE EXISTED A LEGAL LIABILITY ON THE PART OF THE UNITED STATES EXCEPT FOR ITS SOVEREIGN IMMUNITY, THE FOLLOWING SPECIFIC QUESTION IS PRESENTED FOR DECISION:

MAY CLAIMS OF INSURANCE COMPANIES BE PAID OUT OF CURRENT APPROPRIATIONS UNDER THE AUTHORITY GRANTED BY THE ACT OF JULY 11, 1919, SUPRA, WHEN THE DAMAGE WAS CAUSED BY A MAN IN THE NAVAL SERVICE OR MARINE CORPS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT?

THE ACT OF JULY 11, 1919, 41 STAT. 132, PROVIDES:

* * * THAT THE SECRETARY OF THE NAVY IS AUTHORIZED TO CONSIDER, ASCERTAIN, ADJUST, DETERMINE, AND PAY THE AMOUNTS DUE IN ALL CLAIMS FOR DAMAGES (OTHER THAN SUCH AS ARE OCCASIONED BY VESSELS OF THE NAVY), TO AND LOSS OF PRIVATELY OWNED PROPERTY, OCCURRING SUBSEQUENT TO APRIL 6, 1917, WHERE THE AMOUNT OF THE CLAIM DOES NOT EXCEED $500, FOR WHICH DAMAGE OR LOSS MEN IN THE NAVAL SERVICE OR MARINE CORPS ARE FOUND TO BE RESPONSIBLE, ALL PAYMENTS IN SETTLEMENT OF SAID CLAIMS TO BE MADE OUT OF THE APPROPRIATION " PAY, MISCELLANEOUS.' * * *

IN THE DECISION OF A FORMER COMPTROLLER GENERAL OF THE UNITED STATES 6 COMP. GEN. 770, IT WAS HELD, IN SUBSTANCE, THAT AN INSURER OF PROPERTY DAMAGED OR DESTROYED UNDER CIRCUMSTANCES COVERED BY THE ACT OF JULY 11, 1919, SUPRA, COULD NOT BE CONSIDERED A CLAIMANT ENTITLED TO PAYMENT UNDER SAID ACT. HOWEVER, IN TWO SUBSEQUENT DECISIONS, 19 COMP. GEN. 503, AND 21 ID. 341, CONSTRUING ACTS SUBSTANTIALLY SIMILAR--- INSOFAR AS CONCERNS THE NATURE OF THE CLAIMS AUTHORIZED TO BE PAID--- TO THE ACT HERE INVOLVED, IT WAS HELD THAT CLAIMS OF INSURANCE COMPANIES OR OTHER SUBROGEES ARE PROPER FOR PAYMENT THEREUNDER. ACCORDINGLY, THE PRESENT MATTER WILL BE CONSIDERED IN THE LIGHT OF THOSE MORE RECENT DECISIONS.

IT IS A WELL SETTLED RULE THAT, IN THE ABSENCE OF EXPRESS STATUTORY PROVISION THEREFOR, THE GOVERNMENT IS NOT LIABLE FOR LOSS OR DAMAGES RESULTING FROM THE NEGLIGENCE OR WRONGFUL ACTS OF ITS OFFICERS AND EMPLOYEES. HART V. UNITED STATES, 95 U.S. 316; GERMAN BANK V. UNITED STATES, 148 U.S. 573; BIGBY V. UNITED STATES, 188 U.S. 400. TO THE EXTENT THAT THE CONGRESS HAS SEEN FIT TO RELAX THIS RULE, IT HAS DONE SO BY SPECIFIC PROVISIONS OF LAW. FOR INSTANCE, THE STATUTE INVOLVED IN THE DECISION IN 19 COMP. GEN. 503--- SECTION 26 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1939, APPROVED JUNE 30, 1939, 53 STAT. 936- - PROVIDES:

THE COMMISSIONER AND THE NATIONAL YOUTH ADMINISTRATOR ARE AUTHORIZED TO CONSIDER, ASCERTAIN, ADJUST, DETERMINE, AND PAY FROM THE APPROPRIATION IN SECTION 1 OR SECTION 2 HEREOF ANY CLAIM ARISING OUT OF OPERATIONS THEREUNDER ACCRUING AFTER THE EFFECTIVE DATE OF THIS JOINT RESOLUTION ON ACCOUNT OF DAMAGE TO OR LOSS OF PRIVATELY OWNED PROPERTY CAUSED BY THE NEGLIGENCE OF ANY EMPLOYEE OF THE WORK PROJECTS ADMINISTRATION OR THE NATIONAL YOUTH ADMINISTRATION, AS THE CASE MAY BE, WHILE ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT. NO CLAIM SHALL BE CONSIDERED HEREUNDER WHICH IS IN EXCESS OF $500, OR WHICH IS NOT PRESENTED IN WRITING WITHIN ONE YEAR FROM THE DATE OF ACCRUAL THEREOF. ACCEPTANCE BY A CLAIMANT OF THE AMOUNT ALLOWED ON ACCOUNT OF HIS CLAIM SHALL BE DEEMED TO BE IN FULL SETTLEMENT THEREOF, AND THE ACTION UPON SUCH CLAIM SO ACCEPTED BY THE CLAIMANT SHALL BE CONCLUSIVE. WITH RESPECT TO THIS PROVISION OF LAW IT WAS STATED IN THE SAID DECISION:

* * * THE APPARENT PURPOSE OF SECTION 26 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1939 AND SECTION 20 IN THE PRIOR ACT WAS, AMONG OTHER THINGS, TO PARTIALLY REMOVE OR SURRENDER THIS IMMUNITY FROM LIABILITY SO AS TO PERMIT PAYMENT FROM FUNDS PROVIDED BY SAID ACT OF "ANY CLAIM" OF $500 OR LESS ARISING OUT OF THE OPERATIONS THEREUNDER AND INVOLVING DAMAGE TO OR LOSS OF PRIVATELY OWNED PROPERTY CAUSED BY NEGLIGENCE OF WORK PROJECTS ADMINISTRATION EMPLOYEES WHILE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT.

THE LAW IS WELL SETTLED THAT AN INSURANCE COMPANY WHICH PAYS VALID CLAIMS FOR LOSS OR DAMAGE TO PRIVATELY OWNED PROPERTY PURSUANT TO THE REQUIREMENTS OF AN INSURANCE CONTRACT WITH THE INJURED PARTY IS ENTITLED TO BE SUBROGATED TO THE RIGHTS OF THE INSURED AGAINST THE PERSON LEGALLY RESPONSIBLE FOR THE LOSS. SEE 33 C.J. 43, AND CASES THERE CITED. THERE IS NOTHING IN THE LANGUAGE OF THE PROVISION OF LAW HERE IN QUESTION NOR IN THE LEGISLATIVE HISTORY THEREOF TO INDICATE AN INTENTION THAT THIS RULE OF SUBROGATION SHOULD NOT APPLY WITH RESPECT TO CLAIMS FILED UNDER SAID PROVISION. * * *

ALSO, THE STATUTE CONSIDERED IN THE DECISION IN 21 COMP. GEN. 341--- ACT OF JUNE 16, 1921, AS AMENDED, 42 STAT. 63 (31 U.S.C. 224C/--- PROVIDES:

WHEN ANY DAMAGE IS DONE TO PERSON OR PROPERTY BY OR THROUGH THE OPERATION OF THE POST OFFICE DEPARTMENT IN ANY BRANCH OF ITS SERVICE AND SUCH DAMAGE IS FOUND BY THE POSTMASTER GENERAL UPON INVESTIGATION TO BE A PROPER CHARGE AGAINST THE UNITED STATES, THE POSTMASTER GENERAL IS INVESTED WITH POWER TO ADJUST AND SETTLE ANY CLAIM FOR SUCH DAMAGE WHEN HIS AWARD FOR SUCH DAMAGE IN ANY CASE DOES NOT EXCEED $500, AND THIS AUTHORITY SHALL HEREAFTER BE CONSTRUED AS EXTENDING TO CASES CAUSED BY THE NEGLIGENCE OF ANY OFFICER OR EMPLOYEE OF THE POST OFFICE DEPARTMENT OR POSTAL SERVICE ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT. IT WAS STATED IN THAT DECISION:

* * * BROADLY SPEAKING, THE DOCTRINE OF SUBROGATION EXTENDS TO ONE, WHO, BY REASON OF A LEGAL OBLIGATION TO DO SO, PAYS THE DEBT OF ANOTHER TO A THIRD PARTY. FOR A GENERAL DISCUSSION OF THE DOCTRINE OF SUBROGATION, SEE AETNA LIFE INSURANCE COMPANY V. MIDDLEPORT, 124 U.S. 534; PRAIRIE STATE BANK V. UNITED STATES, 164 U.S. 227; 60 CORPUS JURIS 694, ET SEQ. UNDER THE DOCTRINE AS APPLIED TO INSURERS, IT IS THE GENERAL RULE THAT WHERE AN INSURER UNDER A CONTRACT OF INDEMNITY PAYS HIS INSURED A LOSS CAUSED THE LATTER BY A THIRD PARTY, THE INSURER IS SUBROGATED TO THE RIGHTS OF THE INSURED AGAINST SUCH THIRD PARTY. SEE 33 CORPUS JURIS 43. ALSO, THE ACT HERE INVOLVED, AS AMENDED, IS NOT CONFINED TO THE CONSIDERATION OF CLAIMS BASED ON NEGLIGENCE BUT IS OF BROADER SCOPE IN THAT IT COVERS ANY CLAIM FOR DAMAGE TO PERSON OR PROPERTY NOT IN EXCESS OF $500 WHEN CAUSED UNDER CONDITIONS THEREIN MENTIONED AND FOUND BY THE POSTMASTER GENERAL UPON INVESTIGATION TO BE A "PROPER CHARGE" AGAINST THE UNITED STATES. IT WOULD SEEM CLEAR, THEREFORE, THAT IN THE CASE OF DAMAGE TO PERSON OR PROPERTY OCCURRING UNDER SUCH CIRCUMSTANCES AS TO MAKE A CLAIM THEREFOR BY THE PARTY SUSTAINING THE DAMAGE PROPERLY FOR CONSIDERATION AND ALLOWANCE UNDER THE ACT, WHETHER BASED ON NEGLIGENCE OR NOT, A PARTY WHO, BY REASON OF A LEGAL OBLIGATION TO DO SO, PAID SUCH DAMAGE TO THE PARTY SUSTAINING THE SAME, MAY BE REGARDED AS A PROPER CLAIMANT BY SUBROGATION. * * *

THE LEGAL PRINCIPLES CONSIDERED AND THE CONCLUSIONS REACHED IN THE TWO DECISIONS ABOVE QUOTED, APPEAR TO BE EQUALLY APPLICABLE TO THE PRESENT MATTER, SINCE HERE, AS THERE, THE ACT INVOLVED CONTAINS NOTHING SUPPORTIVE OF THE VIEW THAT THE GENERAL RULE OF SUBROGATION STATED IN SAID DECISIONS SHOULD NOT BE REGARDED AS APPLICABLE TO CLAIMS FILED UNDER SAID ACT.

YOU INDICATE IN YOUR SUBMISSION THAT DOUBT IN THE MATTER IS ENGENDERED BY THE STATEMENT APPEARING IN THE DECISION IN 21 COMP. GEN. 341, AT PAGE 345, THAT "THERE IS NO BASIS FOR A CLAIM IN SUCH A CASE BY A PARTY AS SUBROGEE UNLESS THE DAMAGE WAS DUE TO NEGLIGENCE WITH WHICH THE GOVERNMENT WOULD BE CHARGEABLE WERE IT SUBJECT TO SUIT.' HOWEVER, THAT ASSERTION MUST BE READ IN CONJUNCTION WITH THE SENTENCE IMMEDIATELY PRECEDING IT, WHICH IS AS FOLLOWS: * * * IN THIS CONNECTION, HOWEVER, IT MAY BE SAID THAT NO SITUATION READILY SUGGESTS ITSELF WHICH MIGHT ARISE WHEREBY A CLAIM FOR DAMAGE TO PERSON OR PROPERTY ARISING FROM THE OPERATION OF A MAIL TRUCK COULD ARISE UNLESS BASED ON NEGLIGENCE--- EVEN THOUGH NOT ON THE PART OF THE OPERATOR OF THE TRUCK--- SINCE IT IS THE APPARENT PURPOSE AND INTENT OF THE ACT THAT SUCH A CLAIM WOULD BE FOR CONSIDERATION AND ALLOWANCE ONLY IF THE CIRCUMSTANCES WERE SUCH AS TO CREATE A LEGAL LIABILITY FOR SUCH DAMAGE WERE THE GOVERNMENT SUBJECT TO SUIT IN SUCH A MATTER. * * * HENCE, IT WILL BE SEEN THAT THE STATEMENT TO WHICH YOU REFER WAS MADE IN THE LIGHT OF THE PROVISIONS OF THE STATUTE THERE INVOLVED, NAMELY, THE ACT OF JUNE 16, 1921, AS AMENDED, 42 STAT. 63, SUPRA, UNDER WHICH THE CLAIMS FOR DAMAGES AUTHORIZED TO BE SETTLED ARE RESTRICTED TO THOSE RESULTING FROM AUTHORIZED ACTIVITIES OF THE POST OFFICE DEPARTMENT. IT IS IN THAT RESPECT ONLY THAT THE ACT OF JULY 11, 1919, SUPRA, DIFFERS FROM THE STATUTORY PROVISIONS INVOLVED IN THE DECISIONS IN 19 COMP. GEN. 503, AND 21 ID. 341, THE TERMS OF THE SAID ACT OF 1919 BEING SUFFICIENTLY BROAD TO AUTHORIZE THE SETTLEMENT OF CLAIMS FOR LOSS OR DAMAGE OCCASIONED BY MEN IN THE NAVAL SERVICE OR THE MARINE CORPS NOT ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT. SEE 10 COMP. GEN. 229.

SINCE THE PLAIN PURPOSE OF THE ACT IS THAT THE GOVERNMENT MAY ASSUME THE LIABILITY WHICH OTHERWISE WOULD REST ON THE MEMBERS OF THE NAVAL SERVICE OR MARINE CORPS, THE CIRCUMSTANCE THAT THE GOVERNMENT OTHERWISE WOULD NOT BE CHARGEABLE WITH NEGLIGENCE WERE IT SUBJECT TO SUIT IN THE CLASS OF CASES TO WHICH YOU REFER, WOULD NOT APPEAR TO PRECLUDE THE CONSIDERATION BY YOUR DEPARTMENT OF SUBROGATED CLAIMS UNDER THE SAID ACT OF JULY 11, 1919.

ACCORDINGLY, THE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE. THE DECISION, 6 COMP. GEN. 770, BEING IN CONFLICT WITH THE CONCLUSION REACHED HEREIN WILL NOT BE FOLLOWED HEREAFTER.