MARCH 1, 1924, 3 COMP. GEN. 566

MARCH 1, 1924, 3 COMP. GEN. 566

FOREIGN JUDGMENTS - EMERGENCY FLEET CORPORATION JUDGMENTS AGAINST VESSELS OF THE SHIPPING BOARD AND EMERGENCY FLEET CORPORATION RENDERED BY FOREIGN COURTS CAN BE PAID ONLY BY THE GENERAL ACCOUNTING OFFICE. THE PAYMENT OF SUCH JUDGMENTS BY DISBURSING OFFICERS PRIOR TO AUTHORIZATION BY THE GENERAL ACCOUNTING OFFICE IN ORDER TO PREVENT THE ARREST OF THE VESSELS OR TO SAVE INTEREST CHARGES IS CONTRARY TO LAW AND UNAUTHORIZED.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 1, 1924:

THERE IS BEFORE THIS OFFICE FOR SETTLEMENT CLAIM OF THE UNITED STATES SHIPPING BOARD, EMERGENCY FLEET CORPORATION (SYMBOL NO. 93926) FOR $3,290.23, REPRESENTING AMOUNT PAID OUT TO SATISFY A JUDGMENT RENDERED AUGUST 29, 1923, BY THE ADMIRALTY DIVISION OF THE ENGLISH HIGH COURT OF JUSTICE IN THE CASE OF THE OWNERS OF THE STEAMSHIP GRANTLEY V. THE OWNERS OF THE STEAMSHIP LAKE FARMINGDALE, ARISING OUT OF COLLISION IN THE MARAMICHI RIVER SEPTEMBER 10, 1919.

ON AUGUST 7, 1923, THE SHIPPING BOARD AT A MEETING ADOPTED THE FOLLOWING RESOLUTION:

RESOLVED, THAT THE TREASURER OF THE EMERGENCY FLEET CORPORATION BE AUTHORIZED AND DIRECTED TO PAY FOREIGN ADMIRALTY JUDGMENTS OUT OF THE FUNDS OF THE CORPORATION, AND AFTER MAKING SUCH PAYMENT TO PRESENT THE JUDGMENTS TO THE COMPTROLLER GENERAL WITH A VIEW TO SECURING REIMBURSEMENT THEREFOR. IF THE COMPTROLLER GENERAL SHALL RULE THAT REIMBURSEMENT CAN NOT BE MADE, THE MATTER SHOULD FURTHER BE BROUGHT TO THE ATTENTION OF THE BOARD BY THE TREASURER, FOR THE BOARD'S CONSIDERATION.

AND FURTHER DIRECTED THAT THE TREASURER OF THE EMERGENCY FLEET CORPORATION ADVISE THE CHAIRMAN OF ALL OUTSTANDING FOREIGN ADMIRALTY JUDGMENTS.

IN ACCORDANCE WITH THIS RESOLUTION, THE JUDGMENT WAS PAID FROM FUNDS IN THE POSSESSION OF A DISBURSING OFFICER OF THE CORPORATION, SYMBOL NO. 93926, SEPTEMBER 11, 1923. IN THIS PARTICULAR CASE IT IS REPORTED BY THE SHIPPING BOARD THAT PROMPT PAYMENT OF THE JUDGMENT IN LONDON WAS IMPERATIVE ON ACCOUNT OF THE DECLARED INTENTION TO ARREST THE VESSEL WHILE IN PORT AT CALCUTTA AND ACCEPTANCE OF SERVICE BECAME NECESSARY IN ORDER TO PREVENT THE CONSEQUENT DELAY TO THE SHIP.

PAYMENT OF FOREIGN JUDGMENTS AGAINST VESSELS OF THE UNITED STATES SHIPPING BOARD AND THE EMERGENCY FLEET CORPORATION IS CONTROLLED BY SECTIONS 7 AND 8 OF THE ACT OF MARCH 9, 1920, 41 AT., 527, AS FOLLOWS:

SEC. 7. THAT IF ANY VESSEL OR CARGO WITHIN THE PURVIEW OF SECTIONS 1 AND 4 OF THIS ACT IS ARRESTED, ATTACHED, OR OTHERWISE SEIZED BY PROCESS OF ANY COURT IN ANY COUNTRY OTHER THAN THE UNITED STATES, OR IF ANY SUIT IS BROUGHT THEREIN AGAINST THE MASTER OF ANY SUCH VESSEL FOR ANY CAUSE OF ACTION ARISING FROM, OR IN CONNECTION WITH, THE POSSESSION, OPERATION, OR OWNERSHIP OF ANY SUCH VESSEL, OR THE POSSESSION, CARRIAGE, OR OWNERSHIP OF ANY SUCH CARGO, THE SECRETARY OF STATE OF THE UNITED STATES IN HIS DISCRETION, UPON THE REQUEST OF THE ATTORNEY GENERAL OF THE UNITED STATES, OR ANY OTHER OFFICER DULY AUTHORIZED BY HIM, MAY DIRECT THE UNITED STATES CONSUL RESIDING AT OR NEAREST THE PLACE AT WHICH SUCH ACTION MAY HAVE BEEN COMMENCED TO CLAIM SUCH VESSEL OR CARGO AS IMMUNE FROM SUCH ARREST, ATTACHMENT, OR OTHER SEIZURE, AND TO EXECUTE AN AGREEMENT, UNDERTAKING, BOND, OR STIPULATION FOR AND ON BEHALF OF THE UNITED STATES, OR THE UNITED STATES SHIPPING BOARD, OR SUCH CORPORATION AS BY SAID COURT REQUIRED, FOR THE RELEASE OF SUCH VESSEL OR CARGO, AND FOR THE PROSECUTION OF ANY APPEAL; OR MAY, IN THE EVENT OF SUCH SUITS AGAINST THE MASTER OF ANY SUCH VESSEL, DIRECT SAID UNITED STATES CONSUL TO ENTER THE APPEARANCE OF THE UNITED STATES OR OF THE UNITED STATES SHIPPING BOARD, OR OF SUCH CORPORATION, AND TO PLEDGE THE CREDIT THEREOF TO THE PAYMENT OF ANY JUDGMENT AND COST THAT MAY BE ENTERED IN SUCH SUIT. THE ATTORNEY GENERAL IS HEREBY VESTED WITH POWER AND AUTHORITY TO ARRANGE WITH ANY BANK, SURETY COMPANY, PERSON, FIRM, OR CORPORATION IN THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS, OR IN ANY FOREIGN COUNTRY, TO EXECUTE ANY SUCH AFORESAID BOND OR STIPULATION AS SURETY OR STIPULATOR THEREON, AND TO PLEDGE THE CREDIT OF THE UNITED STATES TO THE INDEMNIFICATION OF SUCH SURETY OR STIPULATOR AS MAY BE REQUIRED TO SECURE THE EXECUTION OF SUCH BOND OR STIPULATION. THE PRESENTATION OF A COPY OF THE JUDGMENT ROLL IN ANY SUCH SUIT, CERTIFIED BY THE CLERK OF THE COURT AND AUTHENTICATED BY THE CERTIFICATE AND SEAL OF THE UNITED STATES CONSUL CLAIMING SUCH VESSEL OR CARGO, OR HIS SUCCESSOR, AND BY THE CERTIFICATE OF THE SECRETARY OF STATE AS TO THE OFFICIAL CAPACITY OF SUCH CONSUL, SHALL BE SUFFICIENT EVIDENCE TO THE PROPER ACCOUNTING OFFICERS OF THE UNITED STATES, OR OF THE UNITED STATES SHIPPING BOARD, OR OF SUCH CORPORATION, FOR THE ALLOWANCE AND PAYMENT OF SUCH JUDGMENTS: PROVIDED, HOWEVER, THAT NOTHING IN THIS SECTION SHALL BE HELD TO PREJUDICE OR PRECLUDE A CLAIM OF THE IMMUNITY OF SUCH VESSEL OR CARGO FROM FOREIGN JURISDICTION IN A PROPER CASE.

SEC. 8. THAT ANY FINAL JUDGMENT RENDERED IN ANY SUIT HEREIN AUTHORIZED, AND ANY FINAL JUDGMENT WITHIN THE PURVIEW OF SECTIONS 4 AND 7 OF THIS ACT, AND ANY ARBITRATION AWARD OR SETTLEMENT HAD AND AGREED TO UNDER THE PROVISIONS OF SECTION 9 OF THIS ACT, SHALL, UPON THE PRESENTATION OF A DULY AUTHENTICATED COPY THEREOF, BE PAID BY THE PROPER ACCOUNTING OFFICERS OF THE UNITED STATES OUT OF ANY APPROPRIATION OR INSURANCE FUND OR OTHER FUND ESPECIALLY AVAILABLE THEREFOR; OTHERWISE THERE IS HEREBY APPROPRIATED, OUT OF ANY MONEY IN THE TREASURY OF THE UNITED STATES NOT OTHERWISE APPROPRIATED, A SUM SUFFICIENT TO PAY ANY SUCH JUDGMENT OR AWARD OR SETTLEMENT.

THE FIRST PART OF SECTION 7 PROVIDES SUFFICIENT AND AMPLE PROTECTION TO THE FOREIGN JUDGMENT CREDITORS IN THE MATTER OF FINAL PAYMENT OF THE JUDGMENT. THE PROCEDURE THERE PRESCRIBED SHOULD SATISFY ANY JUDGMENT CREDITOR; AND THE GUARANTIES THEREIN PROVIDED FOR PRECLUDE THE NECESSITY FOR ARREST OR DETENTION OF THE VESSEL IN ANY CASE. IN VIEW OF THESE EXPRESS PROVISIONS, INCLUDING THAT FOR EXECUTION OF INDEMNITY, ETC., IT IS NOT BELIEVED THAT A THREAT TO ARREST THE VESSEL COULD COMPEL THE IMMEDIATE PAYMENT OF THE JUDGMENT PRIOR TO ITS PROPER SETTLEMENT AS A CLAIM AGAINST THE UNITED STATES.

THE LAST PART OF SECTION 7 STIPULATES THE EVIDENCE THAT SHALL BE CONSIDERED SUFFICIENT FOR ALLOWANCE AND PAYMENT OF THE JUDGMENTS. IT IS NOTED IN THIS CASE THAT THE "CERTIFICATE OF THE SECRETARY OF STATE AS TO THE OFFICIAL CAPACITY OF SUCH CONSUL," I.E. THE OFFICIAL CAPACITY OF CHARLES L. DE VAULT, VICE CONSUL OF THE UNITED STATES, WHO CERTIFIED TO THE JUDGMENT ROLL, HAS NOT BEEN FURNISHED.

SECTION 8 OF THE ACT GOVERNS THE ACTUAL PAYMENT OF THE JUDGMENT CLAIMS, AND ITS PROVISIONS STIPULATE BUT ONE MEDIUM THROUGH WHICH PAYMENTS SHALL BE MADE, TO WIT,"BY THE PROPER ACCOUNTING OFFICERS OF THE UNITED STATES," AND ALSO INDICATE THE APPROPRIATIONS WHICH SHALL BE EXCLUSIVELY AVAILABLE FOR SUCH PAYMENTS. SEE 1 COMP. GEN., 481; 2 COMP. GEN., 751.

REFERENCE IS ALSO MADE TO THE ANNUAL APPROPRIATION ACTS PROVIDING THE "EMERGENCY SHIPPING ND.' THE APPLICABLE STATUTE IN THIS CASE IS THE ACT OF FEBRUARY 13, 1923, 42 STAT., 1241. SUCH FUND IS MADE UP OF THREE PARTS AS FOLLOWS:

(A) THE AMOUNT ON HAND JULY 1, 1923, BUT NOT IN EXCESS OF THE SUMS SUFFICIENT TO COVER ALL OBLIGATIONS INCURRED PRIOR TO JULY 1, 1923, AND THEN UNPAID: (B) $50,000,000: PROVIDED, THAT NO PART OF THIS SUM SHALL BE USED FOR THE PAYMENT OF CLAIMS OTHER THAN THOSE RESULTING FROM THE CURRENT MAINTENANCE AND OPERATION OF VESSELS; (C) THE AMOUNT RECEIVED DURING THE FISCAL YEAR ENDING JUNE 30, 1924, FROM THE OPERATION OF SHIPS.

ANY FUNDS A DISBURSING OFFICER OF THE EMERGENCY FLEET CORPORATION MAY HAVE ON HAND MUST BE DERIVED FROM ONE OF THESE SOURCES. FUNDS DERIVED FROM ANY ONE OF THOSE SOURCES ARE EXPRESSLY PROHIBITED BY STATUTE FROM BEING USED FOR THE PAYMENT OF THESE JUDGMENT CLAIMS AS FOLLOWS, 42 AT., 1242:

NO PART OF THE SUM APPROPRIATED IN THIS ACT SHALL BE USED * * * TO PAY ANY FINAL JUDGMENT RENDERED IN ANY SUIT AUTHORIZED BY THE ACT ENTITLED "AN ACT AUTHORIZING SUITS AGAINST THE UNITED STATES IN ADMIRALTY, SUITS FOR SALVAGE SERVICES, AND PROVIDING FOR THE RELEASE OF MERCHANT VESSELS BELONGING TO THE UNITED STATES FROM ARREST AND ATTACHMENT IN FOREIGN JURISDICTIONS, AND FOR OTHER PURPOSES," APPROVED MARCH 9, 1920.

IN VIEW OF THIS SPECIFIC INHIBITION AND THE STIPULATION IN SECTION 7 THAT JUDGMENT CLAIMS ,SHALL * * * BE PAID BY THE PROPER ACCOUNTING OFFICERS OF THE UNITED STATES," I FEEL COMPELLED TO DISAPPROVE ANY GENERAL PROCEDURE BY WHICH DISBURSING OFFICERS OF THE EMERGENCY FLEET CORPORATION WILL BE AUTHORIZED TO USE AMOUNTS FROM THE EMERGENCY SHIPPING FUND IN THEIR POSSESSION FOR IMMEDIATE PAYMENT OF THESE JUDGMENTS, REIMBURSEMENT TO BE MADE FROM THE PROPER APPROPRIATION BY THIS OFFICE. IN SO HOLDING, I AM NOT UNMINDFUL OF THE POSSIBLE SITUATIONS IN EXCEPTIONAL CASES WHERE THERE MAY ARISE THE NECESSITY TO ADOPT THE PROCEDURE SET FORTH IN SECTION 7 OF THE CONTROLLING STATUTE RELATIVE TO EXECUTION OF INDEMNITY, ETC., AND IN ALL CASES, WHERE THE JUDGMENT SO PROVIDES, PAYMENT OF ADDITIONAL INTEREST TO DATE OF SETTLEMENT BY THE ACCOUNTING OFFICERS. SEE 3 COMP. GEN., 199.

IN THE PRESENT CASE, THE JUDGMENT HAVING BEEN PAID UNDER THE RESOLUTION ADOPTED BY THE CORPORATION, REIMBURSEMENT WILL BE AUTHORIZED BY SETTLEMENT AS REQUESTED IN FAVOR OF "THE UNITED STATES SHIPPING BOARD, EMERGENCY FLEET CORPORATION (SYMBOL NO. 93926).' BUT HEREAFTER THE PROCEDURE AUTHORIZED UNDER THE STATUTES AND AS INDICATED HEREIN MUST BE FOLLOWED.