B-7033, JANUARY 8, 1940, 19 COMP. GEN. 621

B-7033, JANUARY 8, 1940, 19 COMP. GEN. 621

DAMAGES - PRIVATE PROPERTY - RIVERS AND HARBORS WORKS CLAIMS FOR DAMAGES TO PERSONAL PROPERTY NOT EXCEEDING $500 AND NOT CAUSED BY NEGLIGENCE OF ANY GOVERNMENT OFFICER OR EMPLOYEE, WHEN OCCASIONED IN CONNECTION WITH RIVERS AND HARBORS WORKS, ARE FOR PAYMENT BY A DISBURSING OFFICER UNDER THE PROVISIONS OF SECTION 9 OF THE ACT OF JUNE 5, 1920, 41 STAT. 1015, BUT SUCH PAYMENTS MAY NOT BE MADE FROM FUNDS ALLOCATED TO PROJECTS FROM EMERGENCY RELIEF APPROPRIATIONS WHICH MADE NO PROVISION FOR PAYMENT OF DAMAGES, AND WHICH WERE EXPRESSLY ALLOCATED ON CONDITION THAT ALL CLAIMS FOR DAMAGES TO PERSONAL PROPERTY INCIDENT TO THE CONSTRUCTION UNDERTAKEN BE ASSUMED BY THE LOCAL INTERESTS INVOLVED. THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066, AUTHORIZING THE HEADS OF DEPARTMENTS TO CONSIDER, ASCERTAIN, ADJUST, AND DETERMINE PRIVATE PROPERTY DAMAGE CLAIMS IN AMOUNTS NOT TO EXCEED $1,000 CAUSED BY NEGLIGENCE OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT, SUPERSEDES SECTION 9 OF THE ACT OF JUNE 5, 1920, 41 STAT. 1015, WITH RESPECT TO ALL CLAIMS FOR DAMAGES INCIDENT TO RIVER AND HARBOR WORKS CAUSED BY SUCH NEGLIGENCE, AND SUCH CLAIMS ARE NOT FOR PAYMENT BY A DISBURSING OFFICER BUT SHOULD BE CERTIFIED TO THE CONGRESS FOR AN APPROPRIATION IN ACCORDANCE WITH THE SUPERSEDING ACT.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO MAJ. THEODORE WYMAN, JR., UNITED STATES ARMY, JANUARY 8, 1940:

THERE HAS BEEN RECEIVED BY REFERENCE FROM THE CHIEF OF ENGINEERS, PHOTOSTATIC COPY OF YOUR LETTER OF MAY 3, 1938, READING AS FOLLOWS:

1. HEREWITH NOTICES OF EXCEPTION FROM THE GENERAL ACCOUNTING OFFICE DISALLOWING PAYMENTS MADE ON THE FOLLOWING VOUCHERS:

CHART VOUCHER DATE

NO. (1936) PAYEE AMOUNT ACCOUNT OF- - -----------------------------------

4415 MAY --- EINER GUNNERS --------- $10.19 ST LT. C. R.

5726 JUNE -- JOHN O. TATUM JONES, C.E.,

( TATMAN). ----------- 7.50 SYMBOL 96 168.

564 JULY -- HARRY H. HANSEN ------- 215.00

2. PAYMENTS CITED ABOVE COVER REIMBURSEMENT FOR DAMAGES TO PERSONAL PROPERTY PER AUTHORITY OF THE SECRETARY OF WAR ATTACHED TO EACH VOUCHER.

3. THE ALLOTMENT OF FUNDS " EMERGENCY RELIEF, WAR, RIVERS AND HARBORS, FLOOD CONTROL, ETC., 1935-1937" FROM THE APPROPRIATION PROVIDED BY THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935 WAS FOR THE PROSECUTION OF RIVER AND HARBOR WORKS, FLOOD-CONTROL WORK, ETC., UNDER THE SUPERVISION AND CONTROL OF THE CHIEF OF ENGINEERS ACTING PURSUANT TO AND UNDER THE AUTHORITY OF VARIOUS GENERAL AND SPECIAL STATUTES GOVERNING THE PROSECUTION OF SUCH WORKS. ATTENTION IS INVITED TO THE FACT THAT SECTION 9 OF THE RIVER AND HARBOR ACT OF JUNE 5, 1920 (41 STAT. 1015) AUTHORIZING THE CHIEF OF ENGINEERS, SUBJECT TO APPROVAL OF THE SECRETARY OF WAR, TO ADJUST AND SETTLE CERTAIN CLAIMS FOR DAMAGES SUSTAINED IN THE PROSECUTION OF RIVER AND HARBOR WORKS IS SUCH A STATUTE AND THAT IT AUTHORIZES THE SETTLEMENT OF SUCH CLAIMS AND THE PAYMENT THEREOF "* * * FROM THE APPROPRIATION DIRECTLY INVOLVED.' SINCE THE FUNDS QUESTIONED WERE ALLOTTED AND USED FOR THE PROSECUTION OF RIVER AND HARBOR WORKS, SINCE THE DAMAGE WAS SUSTAINED IN THE PROSECUTION THEREOF, AND SINCE THE CLAIM WAS ADJUSTED AND PAID AS SPECIFICALLY AUTHORIZED UNDER THE ACT OF JUNE 5, 1920, SUPRA, IT IS CONSIDERED THAT THE APPROPRIATION WAS PROPERLY CHARGED AND IT IS THEREFORE, REQUESTED THAT THE SUSPENSION BE REMOVED.

PAYMENT IN EACH CASE WAS MADE FROM THE APPROPRIATION "013028, EMERGENCY RELIEF, WAR, RIVERS AND HARBORS, FLOOD CONTROL, ETC., 1935 37, PROJECT NO. 13-130," AND CREDIT WAS DISALLOWED, IN EFFECT, FOR THE REASON THAT FUNDS ALLOCATED FROM THE APPROPRIATION PROVIDED BY THE EMERGENCY RELIEF APPROPRIATION ACT OF APRIL 8, 1935, 49 STAT. 115, ARE NOT AVAILABLE FOR REIMBURSEMENT FOR DAMAGES TO PERSONAL PROPERTY.

WITH REGARD TO THE PAYMENT OF $10.19 TO EINER GUNNERS, TRUCK DRIVER, AS REIMBURSEMENT OF COST OF ARTICLES OF CLOTHING, WORN AND DAMAGED, IT WAS ADMINISTRATIVELY DETERMINED THAT THE TRUCK WHICH GUNNERS WAS OPERATING SUDDENLY BROKE INTO FLAMES WHICH, AFTER A THOROUGH INVESTIGATION, WAS FOUND NOT TO HAVE BEEN THE RESULT OF FAULT OR NEGLIGENCE ON THE PART OF THE OPERATOR AND THAT THROUGH COOL-HEADEDNESS AND QUICK ACTION AND AT CONSIDERABLE PERSONAL RISK, THE OPERATOR SAVED THE DUMP TRUCK FROM COMPLETE DESTRUCTION AND WAS COMMENDED BY THE DISTRICT ENGINEER FOR HIS ACTION.

WITH REGARD TO THE PAYMENT OF $7.50 TO JOHN O. TATMAN FOR REIMBURSEMENT OF THE COST OF REPAIRING HIS CHRYSLER SEDAN, DAMAGED BY GOVERNMENT-OWNED FORD PICK-UP TRUCK NO. 2871, IT WAS ADMINISTRATIVELY DETERMINED BY INVESTIGATION THAT M. B. MAUPIN, THE DRIVER OF THE GOVERNMENT VEHICLE, WAS RESPONSIBLE FOR THE ACCIDENT IN THAT HE PULLED AWAY FROM THE CURB WITHOUT GIVING THE PROPER SIGNAL OR TAKING THE PROPER PRECAUTIONS AND IN SO DOING STRUCK AND DAMAGED THE CHRYSLER SEDAN TO THE EXTENT OF $7.50.

WITH REGARD TO THE PAYMENT OF $215 TO HARRY H. HANSEN IN SETTLEMENT OF CLAIM AGAINST THE UNITED STATES FOR DAMAGES TO HIS 1932 DEVAUX SEDAN WHICH WAS WRECKED ON DECEMBER 9, 1935, WHEN STRUCK AND CRUSHED BY A CRANE OWNED AND OPERATED BY THE LOS ANGELES ENGINEER DISTRICT, IT WAS ADMINISTRATIVELY DETERMINED THAT HANSEN'S CAR WAS PARKED ON A COUNTY ROAD AND IN A LOCATION WHERE EMPLOYEES HABITUALLY PARK AND THAT THE CAUSE OF THE ACCIDENT APPARENTLY WAS INEXPERIENCE ON THE PART OF THE CRANE OPERATOR WHO BECAME EXCITED WHEN THE CRANE SLIPPED OUT OF GEAR AND FAILED TO ALTER ITS COURSE DOWN THE HILL OR TO STOP ITS MOVEMENT.

IN FORWARDING THE CLAIMS TO THE SECRETARY OF WAR, THE CHIEF OF ENGINEERS, IN EACH CASE, STATED, IN EFFECT, THAT THE CLAIM IS WITHIN THE SCOPE OF THE ACT OF JUNE 5, 1920; THAT THE AMOUNT IS CONSIDERED REASONABLE; THAT THE CLAIMANT HAS AGREED TO ACCEPT THE AMOUNT IN FULL SETTLEMENT; AND THAT, THEREFORE, IT IS RECOMMENDED THAT AUTHORITY BE GRANTED TO PAY THE CLAIM FROM THE APPROPRIATION UNDER WHICH THE TRUCK OR VEHICLE WHICH CAUSED THE DAMAGE WAS BEING OPERATED. THE RECOMMENDATION IN EACH CASE WAS APPROVED BY THE SECRETARY OF WAR.

SECTION 9 OF THE ACT OF JUNE 5, 1920, 41 STAT. 1015, AMENDING SECTION 4 OF THE ACT OF JUNE 25, 1910, READS AS FOLLOWS:

THAT WHENEVER ANY VESSEL BELONGING TO OR EMPLOYED BY THE UNITED STATES ENGAGED UPON RIVER AND HARBOR WORKS COLLIDES WITH AND DAMAGES ANOTHER VESSEL, PIER, OR OTHER LEGAL STRUCTURE BELONGING TO ANY PERSON OR CORPORATION, AND WHENEVER, IN THE PROSECUTION OF RIVER AND HARBOR WORKS, AN ACCIDENT OCCURS DAMAGING OR DESTROYING PROPERTY BELONGING TO ANY PERSON OR CORPORATION, AND WHENEVER PERSONAL PROPERTY OF EMPLOYEES OF THE UNITED STATES, WHO ARE EMPLOYED ON OR IN CONNECTION WITH RIVER AND HARBOR WORKS, IS DAMAGED OR DESTROYED IN CONNECTION WITH THE LOSS, THREATENED LOSS, OR DAMAGE TO UNITED STATES PROPERTY, OR THROUGH EFFORTS TO SAVE LIFE OR TO PRESERVE UNITED STATES PROPERTY, THE CHIEF OF ENGINEERS SHALL CAUSE AN IMMEDIATE EXAMINATION TO BE MADE, AND IF, IN HIS JUDGMENT, THE FACTS AND CIRCUMSTANCES ARE SUCH AS TO MAKE THE WHOLE OR ANY PART OF THE DAMAGES OR DESTRUCTION A PROPER CHARGE AGAINST THE UNITED STATES, THE CHIEF OF ENGINEERS, SUBJECT TO THE APPROVAL OF THE SECRETARY OF WAR, SHALL HAVE AUTHORITY TO ADJUST AND SETTLE ALL CLAIMS FOR DAMAGES OR DESTRUCTION CAUSED BY THE ABOVE DESIGNATED COLLISIONS, ACCIDENTS, AND SO FORTH, IN CASES WHERE THE DAMAGE OR EXPENSE DOES NOT EXCEED $500, AND PAY THE SAME FROM THE APPROPRIATION DIRECTLY INVOLVED, AND TO REPORT SUCH AS EXCEED $500 TO CONGRESS FOR ITS CONSIDERATION.

THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066, PROVIDES:

THAT WHEN USED IN THIS ACT THE TERMS "DEPARTMENT AND ESTABLISHMENT" AND "DEPARTMENT OR ESTABLISHMENT" MEAN ANY EXECUTIVE DEPARTMENT OR OTHER INDEPENDENT ESTABLISHMENT OF THE GOVERNMENT; THE WORD "EMPLOYEE" SHALL INCLUDE ENLISTED MEN IN THE ARMY, NAVY, AND MARINE CORPS.

SEC. 2. THAT AUTHORITY IS HEREBY CONFERRED UPON THE HEAD OF EACH DEPARTMENT AND ESTABLISHMENT ACTING ON BEHALF OF THE GOVERNMENT OF THE UNITED STATES TO CONSIDER, ASCERTAIN, ADJUST, AND DETERMINE ANY CLAIM ACCRUING AFTER APRIL 6, 1917, ON ACCOUNT OF DAMAGES TO OR LOSS OF PRIVATELY OWNED PROPERTY WHERE THE AMOUNT OF THE CLAIM DOES NOT EXCEED $1,000, CAUSED BY THE NEGLIGENCE OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT. SUCH AMOUNT AS MAY BE FOUND TO BE DUE TO ANY CLAIMANT SHALL BE CERTIFIED TO CONGRESS AS A LEGAL CLAIM FOR PAYMENT OUT OF APPROPRIATIONS THAT MAY BE MADE BY CONGRESS THEREFOR, TOGETHER WITH A BRIEF STATEMENT OF THE CHARACTER OF EACH CLAIM, THE AMOUNT CLAIMED, AND THE AMOUNT ALLOWED: PROVIDED, THAT NO CLAIM SHALL BE CONSIDERED BY A DEPARTMENT OR OTHER INDEPENDENT ESTABLISHMENT UNLESS PRESENTED TO IT WITHIN ONE YEAR FROM THE DATE OF THE ACCRUAL OF SAID CLAIM.

SEC. 3. THAT ACCEPTANCE BY ANY CLAIMANT OF THE AMOUNT DETERMINED UNDER THE PROVISIONS OF THIS ACT SHALL BE DEEMED TO BE IN FULL SETTLEMENT OF SUCH CLAIM AGAINST THE GOVERNMENT OF THE UNITED STATES.

SEC. 4. THAT ANY AND ALL ACTS IN CONFLICT WITH THE PROVISIONS OF THIS ACT ARE HEREBY REPEALED.

PRESIDENTIAL LETTER, NO. 75, DATED JULY 10, 1935, REQUESTED THE SECRETARY OF THE TREASURY TO TRANSFER $13,869,000 FROM THE APPROPRIATION MADE AVAILABLE BY THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935, APPROVED APRIL 8, 1935, TO THE WAR DEPARTMENT, CORPS OF ENGINEERS, FOR PURPOSES AS INDICATED BELOW:

FOR THE IMPROVEMENT OF RIVERS AND HARBORS, POWER, FLOOD CONTROL, AND OTHER RELATED PROJECTS AND DEVELOPMENTS AND FOR THE PREVENTION OF SHORE EROSION IN ACCORDANCE WITH THE ATTACHED SCHEDULE OF PROJECTS. SUBJECT TO THE APPLICATION OF TITLE III OF THE TREASURY AND POST OFFICE APPROPRIATION ACT, FISCAL YEAR 1934, TO THE ACQUISITION OF ARTICLES, MATERIALS, AND SUPPLIES FOR USE IN CARRYING OUT SUCH PROJECTS ( O.P. NO. 13-130 TO 13- 143).

IN THE ATTACHED SCHEDULE OF ALLOTMENTS THERE IS ALLOCATED $1,545,000 FOR CONSTRUCTION OF A CONCRETE CHANNEL, SYCAMORE WASH, AND TO INCREASE THE CAPACITY OF THE CONCRETE CONDUIT, VERDUGO WASH, LOCATED AT GLENDALE AND LOS ANGELES, CALIF., UNDER OFFICIAL PROJECT 13-130. THERE ARE ALSO ALLOCATED $944,000 FOR CONSTRUCTION OF REINFORCED CONCRETE CONDUITS, ALHAMBRA WASH (OFFICIAL PROJECT 13-137); $1,175,000 FOR THE CONSTRUCTION OF A DEBRIS BASIN AND PERMANENT CHANNEL, EATON WASH, JUST ABOVE NORTH AVENUE IN THE CITY OF PASADENA TO RIO HONDO, PASADENA (OFFICIAL PROJECT 13 -139); AND $594,000 TO CONSTRUCT A SEMI-ELLIPTICAL CONDUIT FROM SANTA MONICA NEAR WILSHIRE BOULEVARD TO THE PACIFIC OCEAN, KENTOR CANYON, LOS ANGELES (OFFICIAL PROJECT 13-142). THESE PROJECTS WERE COMBINED WITH PROJECT 13-130 BY PRESIDENTIAL LETTER, NO. 1188, DATED DECEMBER 2, 1935, AND CONSOLIDATED INTO ONE PROJECT UNDER OFFICIAL PROJECT NO. 13-130.

THE ALLOTMENTS COVERED BY PRESIDENTIAL LETTER, NO. 75, ALLOCATED TO OFFICIAL PROJECTS 13-130 TO 13-143, INCLUSIVE, WERE MADE SUBJECT TO THE FOLLOWING STIPULATIONS:

THE ALLOCATION FOR ABOVE PROJECTS IS SUBJECT TO THE CONDITION THAT LOCAL INTERESTS ARE TO PROVIDE ALL RIGHTS-OF-WAY, ASSUME RESPONSIBILITY FOR THE MAINTENANCE AND OPERATION OF THE COMPLETED STRUCTURES, AND FOR ANY DAMAGES TO PRIVATE PROPERTY INCIDENT TO CONSTRUCTION, AND TO CONTRIBUTE THE SUM OF $3,600,000 TO THE COST OF CONSTRUCTION, THIS CONTRIBUTION TO BE ADVANCED DURING THE PROGRESS OF CONSTRUCTION IN PROPORTION TO THE EXPENDITURE MADE BY THE FEDERAL GOVERNMENT.

ADDITIONAL ALLOTMENTS OF $300,000, $1,000,000, $400,000, AND $385,000 WERE MADE TO OFFICIAL PROJECT 13-130 BY PRESIDENTIAL LETTERS, NOS. 1769, 1780, 1839, AND 1853, DATED JULY 2, JULY 9, AUGUST 31, AND SEPTEMBER 16, 1936, RESPECTIVELY.

ORDINARILY SUCH CLAIMS AS THAT OF EINER GUNNERS, ON VOUCHER 4415, FOR DAMAGES TO PERSONAL PROPERTY NOT CAUSED BY NEGLIGENCE OF ANY GOVERNMENT OFFICER OR EMPLOYEE, ARE FOR PAYMENT BY A DISBURSING OFFICER UNDER THE PROVISIONS OF THE ACT OF JUNE 5, 1920, WHEN THE DAMAGES WERE OCCASIONED IN CONNECTION WITH RIVER AND HARBOR WORKS, FROM FUNDS MADE AVAILABLE FOR SUCH WORK. IN THIS CASE, HOWEVER, THE FUNDS CHARGED WERE ALLOCATED TO PROJECTS FROM EMERGENCY RELIEF APPROPRIATIONS WHICH MADE NO PROVISION FOR THE PAYMENT OF DAMAGES AND EXPRESSLY ALLOCATED BY THE PRESIDENT ON CONDITION THAT ALL CLAIMS FOR DAMAGES TO PERSONAL PROPERTY INCIDENT TO THE CONSTRUCTION UNDERTAKEN BE ASSUMED BY THE LOCAL INTERESTS INVOLVED AND PAYMENT TO GUNNERS FROM THE APPROPRIATION CHARGED WAS NOT AUTHORIZED.

THE PAYMENTS TO TATMAN ON VOUCHER 5726 AND TO HANSEN ON VOUCHER 564 WERE FOR DAMAGES TO PERSONAL PROPERTY DUE TO THE NEGLIGENCE OF GOVERNMENT EMPLOYEES AND EVEN IF THE APPROPRIATION FROM WHICH PAYMENTS WERE MADE HAD PROVIDED FOR THE PAYMENT OF DAMAGES TO PERSONAL PROPERTY AND PAYMENT FOR DAMAGES HAD NOT BEEN PROHIBITED BY THE TERMS OF PRESIDENTIAL ALLOTMENT, SAID PAYMENTS WOULD NOT HAVE BEEN AUTHORIZED TO BE MADE BY A DISBURSING OFFICER FROM THE APPROPRIATION CHARGED BECAUSE THE ACT OF DECEMBER 28, 1922, HAD THE EFFECT OF SUPERSEDING THE ACT OF JUNE 5, 1920, WITH RESPECT TO ALL CLAIMS FOR DAMAGES INCIDENT TO RIVER AND HARBOR WORKS CAUSED BY THE NEGLIGENCE OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT AND THE CLAIMS SHOULD HAVE BEEN CERTIFIED TO THE CONGRESS FOR AN APPROPRIATION IN ACCORDANCE WITH SAID ACT OF DECEMBER 28, 1922. 4 COMP. GEN. 876; 11 COMP. GEN. 502; AND A-37446, JULY 22, 1931.

CREDIT FOR PAYMENT ON VOUCHERS 4415, 5726, AND 564 IS NOT AUTHORIZED AND THE ACTION TAKEN IN THE AUDIT MUST BE AND IS SUSTAINED.