A-12377, JANUARY 30, 1926, 5 COMP. GEN. 557

A-12377, JANUARY 30, 1926, 5 COMP. GEN. 557

LEASES - DAMAGES TO PRIVATE PROPERTY A CLAIM FOR DAMAGES IN THE NATURE OF REIMBURSEMENT OF THE COST OF NECESSARY REPAIRS TO A TUGBOAT LEASED TO THE UNITED STATES UNDER A CONTRACT PROVIDING FOR RETURN TO THE OWNER IN GOOD NDITION,"WITH ALLOWANCE FOR USUAL WEAR AND DEPRECIATION," MUST BE DETERMINED UNDER THE SPECIFIC PROVISIONS OF THE CONTRACT. SUCH A PROVISION IN THE CONTRACT DOES NOT OF ITSELF RENDER THE UNITED STATES AN INSURER OF THE PROPERTY OR IN ANY WAY ENLARGE ITS COMMON-LAW LIABILITY AS A BAILEE TO EXERCISE ORDINARY DILIGENCE IN THE CARE OF THE PROPERTY, AND WHERE IT APPEARS FROM THE EVIDENCE SUBMITTED THAT THE INJURY DID NOT RESULT FROM THE FAILURE OF THE UNITED STATES OR ITS EMPLOYEES TO EXERCISE THAT DEGREE OF CARE REQUIRED OF A BAILEE, THERE IS NO AUTHORITY FOR PAYMENT OF A CLAIM FOR DAMAGES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, JANUARY 30, 1926:

I HAVE YOUR LETTER OF DECEMBER 16, 1925, REQUESTING DECISION WHETHER PAYMENT MAY BE MADE TO THE CROCKETT LAUNCH AND TUG BOAT CO. OF THE AMOUNT OF $100 FOR DAMAGES TO THE TUGBOAT BEAR WHILE UNDER LEASE AND IN USE BY THE BUREAU OF RECLAMATION, DEPARTMENT OF THE INTERIOR, DURING THE PERIOD FROM AUGUST 9, 1924, TO AUGUST 30, 1925, IN CONNECTION WITH INVESTIGATION OF UNDERGROUND CONDITIONS AT CERTAIN DAM SITES ON THE LOWER SACRAMENTO RIVER IN CALIFORNIA.

THE CONTRACT OF LEASE FOR THE TUG BOAT WAS DATED AUGUST 9, 1924, AND COVERED THE PERIOD FROM THAT DATE TO JUNE 30, 1925, BEING FURTHER EXTENDED TO AUGUST 30, 1925, BY SUPPLEMENTAL AGREEMENT DATED JUNE 30, 1925, WHICH MADE NO MATERIAL CHANGES IN THE PROVISIONS OF THE ORIGINAL CONTRACT.

ARTICLES 6 AND 7 OF THE CONTRACT PROVIDE:

6. THE OPERATOR OF THE BOAT TO BE EMPLOYED AND PAID BY THE UNITED STATES, BUT ONLY SUCH OPERATORS TO BE EMPLOYED AS ARE SATISFACTORY TO THE CONTRACTOR.

7. AT THE EXPIRATION OF THIS CONTRACT THE BOAT IS TO BE RETURNED TO THE CONTRACTOR AT CROCKETT, CALIFORNIA, IN AS GOOD CONDITION AS RECEIVED, WITH ALLOWANCE FOR USUAL WEAR AND DEPRECIATION.

THE ONLY EVIDENCE PRESENTED REGARDING THE CIRCUMSTANCES UNDER WHICH THE ALLEGED DAMAGES OCCURRED IS THE STATEMENT OF THE ENGINEER QUOTED IN YOUR SUBMISSION AS FOLLOWS:

ON AUGUST 25, 1924, IN DRILLING OPERATIONS IT WAS NECESSARY TO ANCHOR THE DRILL BARGE WITH FOUR LARGE ANCHORS, ONE AT EACH OF THE FOUR CORNERS. ANCHOR LINES WERE EACH ABOUT 800 FEET IN LENGTH. THE ANCHORS WERE PLACED BY THE TUG, THE PROCEDURE BEING AS FOLLOWS:

THE ANCHOR WAS SUSPENDED IN THE WATER FROM THE STEM OF THE TUGBOAT BY A ROPE. THE BOAT WAS THEN RUN TO THE POINT WHERE IT WAS DESIRED TO PLACE THE ANCHOR, THE ANCHOR LINE IN THE MEANTIME BEING "PAID OUT" FROM THE HOISTING ENGINE ON THE BARGE. THE TWO LINES (ONE FROM TUG AND ONE FROM THE BARGE) WERE THEREFORE WORKING AGAINST ONE ANOTHER. ON THE OCCASION OF THE DAMAGE REFERRED TO, THE ANCHOR TWISTED WHEN LET GO OF BY THE LINE FROM THE TUG AND THE HEAVY ANCHOR ARM STRUCK THE BOAT BREAKING A SMALL HOLE IN ONE OF THE PLANKS. THE DAMAGE WAS SUSTAINED THROUGH NO FAULT OF THE BOAT NOR ITS OWNERS. THE ACCIDENT WAS ONE OF ANY NUMBER WHICH MIGHT OCCUR IN THE PERFORMANCE OF DIAMOND DRILLING THAT CANNOT BE FORESEEN AND THEREFORE AVOIDED. THE ANCHORS WERE PLACED IN THE SAME MANNER FOR A YEAR WITHOUT FURTHER ACCIDENT.

ON MARCH 25, 1925, THE BOAT WAS BEING DOCKED AT THE MUNICIPAL WHARF AT THE TOWN OF MARTINEZ. IT WAS MOVING SLOWLY AND CAUTIOUSLY AS IS NECESSARY ON APPROACHING A DOCK. THE PROPELLER STRUCK SOME SUBMERGED OBJECT, PRESUMABLY A WATER LOGGED TIMBER OR PILE, BENDING ONE OF THE PROPELLER BLADES IN SUCH MANNER THAT WHEN REVOLVING IT STRUCK AND CUT INTO THE HORN TIMBER. THE BOAT WAS IMMEDIATELY PUT IN DRY DOCK, AT WHICH TIME THE PROPELLER BLADE WAS STRAIGHTENED. THE HORN TIMBER WAS NOT DAMAGED TO THE EXTENT THAT THE BOAT COULD NOT BE USED AND RATHER THAN DELAY THE DRILLING OPERATIONS IT WAS DECIDED TO RUN THE BOAT IN ITS SLIGHTLY DAMAGED CONDITION.

THE DAMAGE WAS DUE TO NO FAULT OF THE BOAT, ITS OWNERS, OR THE OPERATOR. THE SUBMERGED OBJECT COULD NOT BE SEEN NOR AVOIDED OTHER THAN BY GOOD LUCK.

THE INTENT OF THE CONTRACTS OF AUGUST 9, 1924, AND JUNE 30, 1925, WAS TO COVER JUST SUCH ACCIDENTS AS HAPPENED. IT IS NOT BELIEVED THAT THE DAMAGE IN EITHER CASE CAN BE ATTRIBUTED TO ,USUAL WEAR AND DEPRECIATION.'

THERE IS PRESENTED A PURPORTED COPY OF A LETTER OF JAMES A. BRITTON, MANAGER OF THE CROCKETT ., MAKING CLAIM AGAINST THE UNITED STATES IN THE AMOUNT OF $100 AS A COMPROMISE AND SETTING FORTH AN ITEMIZED STATEMENT OF THE ACTUAL EXPENSE OF REPAIRING THE DAMAGES TO THE TUGBOAT, AMOUNTING TO $179.

IT IS SUGGESTED THAT THE UNITED STATES IS LIABLE FOR PAYMENT OF THE DAMAGES IN QUESTION UNDER PROVISIONS OF THE ACT OF MARCH 3, 1925, 43 STAT. 1166, FOR THE

* * * PAYMENT OF DAMAGES CAUSED TO THE OWNERS OF LANDS OR PRIVATE PROPERTY OF ANY KIND BY REASON OF THE OPERATIONS OF THE UNITED STATES, ITS OFFICERS OR EMPLOYEES, IN THE SURVEY, CONSTRUCTION, OPERATION, OR MAINTENANCE OF IRRIGATION WORKS, AND WHICH MAY BE COMPROMISED BY AGREEMENT BETWEEN THE CLAIMANT AND THE SECRETARY OF THE INTERIOR:

AND THERE IS ALSO PRESENTED A COMPROMISE AGREEMENT, SIGNED BY WALKER R. YOUNG, ENGINEER, BUREAU OF RECLAMATION, AND JAMES A BRITTON AS A MEMBER OF THE CLAIMANT FIRM, FIXING THE AMOUNT OF $100 TO BE ACCEPTED BY THE CLAIMANT IN FULL SETTLEMENT OF THE DAMAGES. SAID AGREEMENT IS PROPOSED FOR THE APPROVAL OF THE SECRETARY OF INTERIOR AS A COMPROMISE AGREEMENT WITHIN THE PROVISIONS OF THE ACT OF MARCH 3, 1925, 43 STAT. 1166.

THE PROVISIONS OF THIS ACT FOR THE PAYMENT OF DAMAGES ARE GENERAL. THE INSTANT CASE, THE DAMAGES CLAIMED ARE IN THE NATURE OF A REIMBURSEMENT TO THE OWNER OF THE TUGBOAT FOR NECESSARY REPAIRS DUE TO ALLEGED UNUSUAL WEAR AND DEPRECIATION ON THE THEORY THAT IT WAS THE OBLIGATION OF THE UNITED STATES, UNDER THE PROVISION OF ARTICLE 7 OF THE CONTRACT, TO MAKE SUCH REPAIRS BEFORE THE TUGBOAT WAS RETURNED TO THE OWNER UPON TERMINATION OF THE CONTRACT. THEREFORE PAYMENT OF THE CLAIM IS NOT AUTHORIZED UNLESS IT CAN BE HELD THAT UNDER THE TERMS OF THE CONTRACT LEGAL LIABILITY FOR THE DAMAGE WAS PLACED UPON THE UNITED STATES.

UNDER THE CONTRACT, THE UNITED STATES BECAME SUBJECT TO NO GREATER LIABILITY THAN THAT OF A BAILEE, ITS RESPONSIBILITY BEING FOR THE EXERCISE OF ORDINARY DILIGENCE IN THE CARE OF THE PROPERTY BAILED. THE PROVISION IN THE CONTRACT FOR THE RETURN OF THE TUGBOAT "IN AS GOOD CONDITION AS RECEIVED, WITH ALLOWANCE FOR USUAL WEAR AND DEPRECIATION" DOES NOT RENDER THE UNITED STATES AN INSURER OR OTHERWISE ENLARGE ITS COMMON-LAW LIABILITY AS A BAILEE TO USE ORDINARY DILIGENCE IN THE CARE OF THE PROPERTY. CLARK V. UNITED STATES, 95 U.S. 539; MULVANEY V. KING PAINT MFG. CO., 256 FED.REP. 612. SUCH A PROVISION DOES NOT MAKE THE BAILEE LIABLE FOR INJURY TO THE PROPERTY WITHOUT HIS FAULT.

THERE IS NO SHOWING THAT THE TUGBOAT WAS PLACED TO OTHER THAN ITS INTENDED USE NOR THAT IT WAS USED OTHERWISE THAN AS CONTEMPLATED BY THE CONTRACTOR. THE CONTRACTOR RESERVED IN THE CONTRACT AND, IT MUST BE ASSUMED, EXERCISED THE RIGHT TO APPROVE THE OPERATOR PLACED IN CHARGE OF THE TUGBOAT BY THE UNITED STATES. THERE IS NO SHOWING OF A WANT OF ORDINARY CARE--- NO SHOWING OF NEGLIGENCE--- ON THE PART OF THE UNITED STATES OR ITS EMPLOYEES.

EVEN ASSUMING THAT THE FACTS WERE SUFFICIENTLY AND PROPERLY ESTABLISHED TO RAISE A PRESUMPTION OF NEGLIGENCE ON THE UNITED STATES FROM THE VERY NATURE OF THE DAMAGES, SUCH PRESUMPTION IS OVERCOME BY THE STATEMENT OF ENGINEER YOUNG, SHOWING, AS TO THE FIRST DAMAGE THAT,"THE ACCIDENT WAS ONE OF ANY NUMBER WHICH MIGHT OCCUR IN THE PERFORMANCE OF DIAMOND DRILLING THAT CAN NOT BE FORESEEN AND THEREFORE AVOIDED," AND AS TO THE SECOND DAMAGE THAT,"THAT DAMAGE WAS DUE TO NO FAULT OF THE BOAT, ITS OWNERS, OR THE OPERATOR. THE SUBMERGED OBJECT COULD NOT BE SEEN OR AVOIDED OTHER THAN BY GOOD LUCK.'

THE DAMAGES MUST BE REGARDED AS THOSE WHICH WERE CONTEMPLATED BY THE PARTIES AS DUE TO "USUAL WEAR AND DEPRECIATION," AND I HAVE TO ADVISE, THEREFORE, THAT PAYMENT OF THE CLAIM IS NOT AUTHORIZED.