B-126162, MAR. 16, 1956

B-126162, MAR. 16, 1956

TO BURLINGHAM, HUPPER AND KENNEDY, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTERS DATED OCTOBER 28, NOVEMBER 22, 1955, AND MARCH 5, 1956, AND A MEMORANDUM IN SUPPORT OF THE CLAIM OF MOORE- MCCORMACK LINES, INC., FOR DAMAGES IN THE AMOUNT OF $3,536.35 INCURRED BY THE SS MORMACISLE WHEN STRUCK BY ARMY BARGE BD-3022 WHILE AT ANCHOR IN ST. GEORGE'S HARBOR, NEWFOUNDLAND ON NOVEMBER 4, 1952.

THE DOCUMENTS YOU HAVE SUBMITTED INDICATE THAT THE CLAIMANT FILED NOTICE OF INTENT TO HOLD THE UNITED STATES LIABLE FOR THE DAMAGE WITH DEPARTMENT OF THE ARMY PERSONNEL STATIONED AT ST. GEORGE NINE DAYS AFTER THE DATE OF THE COLLISION, AND INTERMITTENT CORRESPONDENCE WAS EXCHANGED BETWEEN THE CLAIMANT AND VARIOUS OFFICES OF THE DEPARTMENT OF THE ARMY UNTIL JUNE 8, 1955, WHEN THE CLAIMANT WAS ADVISED THAT THE DEPARTMENT OF THE ARMY WAS NOT AUTHORIZED, UNDER THE ACT OF OCTOBER 20, 1951, 10 U.S.C. 1861-1866, AND IMPLEMENTING REGULATIONS AR 25-60, TO PAY MARITIME CLAIMS UNLESS SUCH CLAIMS WERE SUBMITTED AND SETTLED WITHIN TWO YEARS AFTER THE INCIDENT GIVING RISE TO THE CLAIM. IN VIEW OF THE REFUSAL OF THE DEPARTMENT OF THE ARMY TO PASS ON THE MERITS OF THE CLAIM, YOU INDICATE A BELIEF THAT THE CLAIM IS NOW PROPER FOR PRESENTATION TO THE GENERAL ACCOUNTING OFFICE AND ASK OUR CONSIDERATION OF THE MATTER, APPARENTLY UNDER THE PROVISIONS OF THE MERITORIOUS CLAIMS ACT, 31 U.S.C. 236.

THE ACT OF OCTOBER 20, 1951, AUTHORIZES THE SECRETARY OF THE ARMY TO CONSIDER AND ADJUST CLAIMS ARISING OUT OF DAMAGE CAUSED BY VESSELS OPERATED BY THE DEPARTMENT OF THE ARMY. THE DEPARTMENT OF DEFENSE HAS ADVISED THAT THIS STATUTE WAS BASED ON SIMILAR AUTHORITY GRANTED THE DEPARTMENT OF THE NAVY BY THE ACT OF JULY 3, 1944, 46 U.S.C. 797. UNDER THE LATTER STATUTE, THE DEPARTMENT OF THE NAVY PROMULGATED REGULATIONS, BASED ON THE TWO-YEAR PERIOD DURING WHICH SUIT MAY BE FILED AGAINST THE UNITED STATES UNDER THE PROVISIONS OF THE SUITS IN ADMIRALTY ACT, 46 U.S.C. 741 ET Q., AND THE PUBLIC VESSELS ACT, 46 U.S.C. 781 ET SEQ., WHICH LIMITED ADMINISTRATIVE SETTLEMENT TO A PERIOD OF TWO YEARS AFTER THE CLAIM AROSE. (SEE 32 CODE OF FEDERAL REGULATIONS 752.2, 1951 ED.) THE DEPARTMENT OF DEFENSE HAS INVITED OUR SPECIFIC ATTENTION TO A PORTION OF THE TESTIMONY APPEARING ON PAGES 12 AND 13 OF THE REPORTED HEARING ON H.R. 1764, 82D CONGRESS, BEFORE A SENATE SUBCOMMITTEE ON THE COMMITTEE ON ARMED SERVICES, WHICH INDICATES THAT THE NAVY'S INTERPRETATION OF THE LIMITATION IMPOSED BY THE PRIOR STATUTE WAS ADEQUATELY PRESENTED FOR CONSIDERATION OF THE SUBCOMMITTEE PRIOR TO PASSAGE OF THE ACT OF OCTOBER 20, 1951, UNDER WHICH AR 25-60 WAS PROMULGATED.

PRIOR TO THE ACT OF OCTOBER 20, 1951, THE ONLY RECOURSE THAT COULD BE HAD FOR DAMAGES IN A CASE SUCH AS UNDER CONSIDERATION WAS BY SUIT IN THE DISTRICT COURTS OF THE UNITED STATES. THE ACT IN QUESTION CONFERRING JURISDICTION UPON THE SECRETARY OF THE ARMY TO ADJUST AND SETTLE CLAIMS FOR DAMAGES OF THIS KIND DID NOT CONFER ANY AUTHORITY UPON OUR OFFICE FOR THE CONSIDERATION OF SUCH CLAIMS. 14 COMP. DEC. 309; 3 COMP. GEN. 24.

ONLY THOSE CLAIMS ARE CONSIDERED UNDER THE MERITORIOUS CLAIMS ACT WHICH OUR OFFICE WOULD TAKE ACTION AND ALLOW, BUT FOR THE FACT THAT THERE IS NO APPROPRIATION AVAILABLE FOR THEIR ADJUSTMENT. AS INDICATED ABOVE, WE ARE NOT AUTHORIZED TO EFFECT SETTLEMENT OF CLAIMS OF THE TYPE HERE INVOLVED. FURTHERMORE, THERE IS AN APPROPRIATION AVAILABLE TO THE DEPARTMENT OF THE ARMY FOR THE PAYMENT OF SUCH CLAIMS. THE IMPEDIMENT TO THE USE OF SUCH APPROPRIATION ARISES FROM THE DETERMINATION OF THE DEPARTMENT OF THE ARMY THAT YOUR CLAIM IS BARRED UNDER THE ACT OF OCTOBER 20, 1951, AND REGULATIONS ISSUED PURSUANT TO SAID ACT. IN THIS CONNECTION IT HAS LONG BEEN HELD THAT THE MERITORIOUS CLAIMS ACT WAS NOT INTENDED TO REVIVE CLAIMS BARRED BY STATUTORY OR VALID REGULATORY TIME LIMITATIONS. AS WAS STATED IN 14 COMP. GEN. 324:

"WHEN A TIME LIMIT ON FILING CLAIMS IS FIXED BY LAW OR BY A REGULATION PROPER FOR PROMULGATION IN THE ADMINISTRATION OF A LAW, IT IS TO BE ASSUMED, AS TO THE FIRST, THAT THE CONGRESS HAD REASON FOR ITS ACTION AND EXPECTS OBSERVANCE THEREOF, AND, AS TO THE SECOND, THAT IT HAS OPERATED UPON SIMILAR CLAIMS AND IT WOULD BE UNFAIR TO MAKE EXCEPTIONS--- AND ESPECIALLY, RETORACTIVELY EFFECTIVE. THE ACT OF APRIL 10, 1928, SUPRA, WAS NOT INTENDED FOR EMPLOYMENT AS A MEANS TO REVIVE CLAIMS BARRED BY STATUTORY OR REGULATORY LIMITATION.'

ACCORDINGLY, IN THE LIGHT OF THE FOREGOING, IT MUST BE CONCLUDED THAT WE ARE WITHOUT AUTHORITY TO SUBMIT THE PRESENT CLAIM TO CONGRESS UNDER THE ACT OF APRIL 10, 1928, AND YOUR REQUEST FOR SUCH ACTION MUST THEREFORE BE DENIED.