B-7552, DECEMBER 27, 1939, 19 COMP. GEN. 612

B-7552, DECEMBER 27, 1939, 19 COMP. GEN. 612

CONTRACTS - DAMAGES - ACTUAL - PERFORMANCE BEYOND CONTRACT REQUIREMENTS GOVERNMENT LIABILITY WHERE A CONTRACT FOR FURNISHING A SEAGOING TUG TO TOW A NAVAL VESSEL TO A DESIGNATED POINT AND TO ASSIST IN THE SINKING OF THE VESSEL, PROVIDED THAT THE UNITED STATES WOULD NOT BE RESPONSIBLE FOR DAMAGES TO THE TUG DUE TO CONDITIONS AT SEA OR FOULING OF THE TUG BY THE VESSEL, BUT THE TUG WAS DAMAGED IN PERFORMING SERVICES IN ADDITION TO THOSE COVERED BY THE CONTRACT, REQUIRED IN AN EMERGENCY AND REQUESTED BY THE NAVAL OFFICER IN CHARGE OF THE SINKING, CONTRACTOR'S CLAIM FOR REIMBURSEMENT ON ACCOUNT OF SUCH DAMAGES MAY BE PAID UPON THE BASIS OF AN IMPLIED CONTRACT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ACTING SECRETARY OF THE NAVY, DECEMBER 27, 1939:

I HAVE YOUR LETTER OF DECEMBER 7, 1939, AND ENCLOSURES, WHEREIN YOU REQUEST A DECISION AS TO WHETHER PAYMENT IS AUTHORIZED OF THE CLAIM OF MOLLERS' TOWAGES, LTD., IN THE SUM OF $188.01 ( SHANGHAI DOLLARS) ARISING OUT OF THE SINKING OF THE EX-U.S.S. MONOCACY ON FEBRUARY 10, 1939.

THE FACTS WITH RESPECT TO THE MATTER ARE SET FORTH IN SECOND ENDORSEMENT OF NOVEMBER 14, 1939, FROM LT. COMDR. HAROLD LARNER TO THE BUREAU OF SUPPLIES AND ACCOUNTS, AS FOLLOWS:

1. IT IS BELIEVED THAT THE CLAIM FOR COST OF REPAIRS OF DAMAGE SUFFERED BY THE S.T. PAULINE MOLLER WHILE ASSISTING IN THE SINKING OF THE U.S.S. MONOCACY IS JUST AND THAT SETTLEMENT SHOULD BE MADE. THE MONOCACY WAS TOWED TO SEA BY THE PAULINE MOLLER FOR SINKING ON THURSDAY, 9 FEBRUARY 1939. THE TOW DEPARTED FROM SHANGHAI, CHINA, AT APPROXIMATELY 10900 AND REACHED THE DESTINATION SPECIFIED IN THE CONTRACT AT APPROXIMATELY 2355, SAME DATE. UPON ARRIVAL AT THE DESTINATION A NAVY CREW WAS PLACED ABOARD THE MONACACY TO OPEN HER HATCHES AND SEA VALVES TO ALLOW THE VESSEL TO FILL AND SINK. UPON COMPLETION OF THIS WORK THE NAVY CREW RETURNED ABOARD THE PAULINE MOLLER AND THE MONACACY WAS CAST ADRIFT, IT BEING ESTIMATED THAT THE VESSEL WOULD SINK IN APPROXIMATELY THREE HOURS. THE PAULINE MOLLER THEN STOOD BY AT A SAFE DISTANCE WHERE THE BOARD COULD OBSERVE THE PROGRESS OF THE SINKING. AT 10300, 10 FEBRUARY 1939, OBSERVATIONS INDICATED THAT THE FREEBOARD OF THE VESSEL HAD NOT MATERIALLY CHANGED AND THAT SOMETHING HAD GONE WRONG. IT WAS, THEREFORE, DECIDED TO STAND BY UNTIL DAYLIGHT AND ATTEMPT TO PLACE AN INSPECTION PARTY ABOARD TO DETERMINE WHAT WAS WRONG. AT DAYLIGHT, WEATHER CONDITIONS HAD CHANGED TO SUCH AN EXTENT THAT IT WAS UNSAFE TO RISK SENDING A CREW ON BOARD THE MONOCACY, ALSO THAT VESSEL WAS DRIFTING. IMMEDIATE AND EXTREME MEASURES HAD TO BE TAKEN TO SINK THE VESSEL IN ORDER NOT TO ALLOW HER TO BECOME A DERELICT AND A MENACE TO NAVIGATION. I, THEREFORE, REQUESTED THE TUG CAPTAIN TO RAM THE MONOCACY SEVERAL TIMES AND TRY TO DESTROY HER WATERTIGHT INTEGRITY. THE CAPTAIN AGREED AND THE PAULINE MOLLER RAMMED THE MONOCACY SEVERAL TIMES BUT WITHOUT MUCH SUCCESS, ONLY A SLIGHT OPENING UP OF THE STRUCTURE ABOVE THE WATERLINE RESULTED. I THEN REQUESTED THE CAPTAIN TO ATTEMPT TO GET ALONGSIDE THE VESSEL AND PUMP WATER INTO HER, USING THE PAULINE MOLLER'S FIRE PUMP EQUIPMENT. THE CAPTAIN AGREED TO MAKE AN ATTEMPT BUT WEATHER CONDITIONS HAD BECOME SO SEVERE THAT THE PAULINE MOLLER'S PORT FENDER AFT WAS BADLY DAMAGED BY THE TWO VESSELS ROLLING TOGETHER AND THIS ATTEMPT WAS ABANDONED. THE CAPTAIN CALLED MY ATTENTION TO THE DAMAGE, STATING THAT THE WORK I HAD REQUESTED WAS OVER AND ABOVE THE REQUIREMENTS OF THE CONTRACT. I AGREED TO TAKE THE MATTER UP WITH THE NAVAL PURCHASING OFFICE, SHANGHAI, CHINA, AND ENDEAVOR TO OBTAIN COMPENSATION FOR THE DAMAGE INCURRED. LATER, IT BECAME NECESSARY FOR THE PAULINE MOLLER TO AGAIN RAM THE MONOCACY A NUMBER OF TIMES BEFORE SINKING WAS EFFECTED. DURING THE SINKING OPERATIONS THE TUG'S PERSONNEL RENDERED EVERY ASSISTANCE REQUESTED AND COOPERATED TO THE FULLEST EXTENT. A COMPLETE WRITTEN REPORT OF THE OPERATIONS WAS SUBMITTED BY THE BOARD TO CONDUCT THE SINKING OF THE MONOCACY TO THE COMMANDER IN CHIEF, ASIATIC FLEET, IN FEBRUARY 1939, WHICH WAS LATER FORWARDED TO THE NAVY DEPARTMENT.

2. IT IS CONSIDERED THAT THE CLAIM FOR PAYMENT FOR DAMAGES SUBMITTED BY THE MOLLERS' TOWAGES, LTD., IS FAIR AND JUST AND PAYMENT IS RECOMMENDED.

INSOFAR AS HERE PERTINENT THE CONTRACT REQUIRED THE CONTRACTOR TO FURNISH

SERVICES OF A SEAGOING TUG TO TOW THE EX-U.S.S. MONOCACY FROM THE U.S. NAVAL BUOYS IN WHANGPOO RIVER OFF THE FRENCH BUND, SHANGHAI, TO A POSITION, APPROXIMATELY 100 MILES FROM THE ABOVE-MENTIONED BUOYS, DESIGNATED AS LAT. 30 DEGREES 45 MINUTES NORTH, LONG. 123 DEGREES 5 MINUTES EAST AND UPON ARRIVAL AT THE DESIGNATED POINT TO STAND BY AND RENDER ASSISTANCE IN THE SINKING, IN DEEP WATER, OF THE EX-U.S.S. MONOCACY.

THE ABOVE SERVICES MUST INCLUDE THE FOLLOWING:

CONTRACTOR TO SUPPLY:

(A) NECESSARY TOWING EQUIPMENT.

(B) SMALL BOAT FOR CONVEYANCE TO AND FROM EX-U.S.S. MONOCACY

AT POINT OF SINKING.

(C) FOOD AND SLEEPING ACCOMMODATION FOR A MAXIMUM OF THREE

MEMBERS OF THE U.S. NAVAL BOARD CONDUCTING THE SINKING.

IT WAS FURTHER AGREED THAT---

NEITHER THE GOVERNMENT OF THE UNITED STATES NOT (NOR) THE UNITED STATES NAVY ASSUMES ANY RESPONSIBILITY FOR DAMAGES INCURRED BY THE TUG OF THE SUCCESSFUL BIDDER DUE TO CONDITIONS AT SEA OR BY FOULING OF THE TUG BY THE EX-U.S.S. MONOCACY.

IT APPEARS THE CONTRACTOR HAS BEEN PAID THE STIPULATED CONTRACT PRICE OF $1,500 ( SHANGHAI DOLLARS) AND THE QUESTION NOW IS WHETHER IT MAY BE PAID THE ADDITIONAL SUM OF $188.01 ( SHANGHAI DOLLARS) FOR DAMAGES SUSTAINED BY THE CONTRACTOR'S TUG. THE OFFICER IN CHARGE, PURCHASING AND DISBURSING OFFICE, SHANGHAI, CHINA, HAS RECOMMENDED ALLOWANCE ON THE BASIS THAT SERVICES WERE PERFORMED BY THE CONTRACTOR IN ADDITION TO THOSE REQUIRED BY THE CONTRACT.

ALTHOUGH THE CONTRACTOR WAS REQUIRED TO "RENDER ASSISTANCE" IN THE SINKING IT WAS NOT REQUIRED TO ACTUALLY SINK THE SHIP AND, OBVIOUSLY, THE CONTRACT DID NOT CONTEMPLATE OR REQUIRE THAT THE TUG BE USED FOR THE PURPOSE OF RAMMING THE MONOCACY OR OF PUMPING WATER INTO HER. IT SEEMS CLEAR THAT THE RAMMING AND PUMPING OPERATIONS WERE OUTSIDE THE SCOPE OF THE CONTRACT AND--- BECAUSE OF THEIR NATURE AND OF THE LIKELIHOOD OF DAMAGE THEREBY BEING CAUSED TO THE TUG--- THE GOVERNMENT'S REQUEST THAT THE SHIP BE RAMMED AND THAT SHE BE SUNK BY PUMPING WATER INTO HER MIGHT REASONABLY BE CONSIDERED AS INCLUDING AN IMPLIED PROMISE TO PAY FOR ANY DAMAGE TO THE TUG RESULTING THEREFROM. INDEED, IT APPEARS THE NAVAL OFFICER IN CHARGE AGREED TO SEEK PAYMENT FOR THE DAMAGE, AND, PRESUMABLY UPON THE BASIS OF SUCH AGREEMENT, THE CONTRACTOR SUBSEQUENTLY RAMMED THE MONOCACY A NUMBER OF TIMES.

WHILE THE CONTRACT PROVIDED THAT THE UNITED STATES WOULD NOT ASSUME RESPONSIBILITY FOR DAMAGES INCURRED BY THE TUG DUE TO CONDITIONS AT SEA OR BY FOULING OF THE TUG BY THE MONOCACY, SUCH PROVISION DOES NOT PRECLUDE ALLOWANCE OF THE PRESENT CLAIM SINCE THE DAMAGE HERE INVOLVED WAS NOT DUE TO THOSE CONDITIONS BUT WAS DUE DIRECTLY TO THE PERFORMANCE IN AN EMERGENCY OF SERVICES REQUIRED IN ADDITION TO THE SERVICES COVERED BY THE CONTRACT.

UNDER THE CIRCUMSTANCES THIS OFFICE IS NOT REQUIRED TO OBJECT TO PAYMENT OF THE SUBJECT CLAIM, IF OTHERWISE PROPER, UPON THE BASIS OF AN IMPLIED CONTRACT AND AS IN FULL AND FINAL SETTLEMENT OF ANY AND ALL CLAIMS INCIDENT TO, RESULTING FROM, OR IN CONNECTION WITH THE SINKING OF THE MONOCACY.