6
The Commission states that it is simply following prudent business
practice in establishing and maintaining a reserve to pay these claims
even though it does not now have the authority to pay them. The
Commission assumes that Congress, after reviewing the claims submitted
to it and perhaps making adjustments, will direct the Commission to
pay the claim out of Commission funds. It is unreasonable to expect,
the Commission asserts, that Congress either will decide not to pay
the claim at all or will vote to pay the claim out of the general
treasury. The Commission, therefore, must have the money available to
pay these claims when directed to do so, and must be setting aside
that money in the meantime.
The problem with this approach is that the clear statutory
language prohibits the Commission from adjusting or paying any
outside-the-locks claims exceeding $120,000. If the Commission has no
authority to pay such claims, it is arguable whether it has the
authority to collect money to pay them. Furthermore, the Commission's
assumptions about how Congress will dispose of claims forwarded to it
are conjecture. If Congress chooses to disallow or reduce one or all
of these claims, then the Commission has overcharged its customers to
that extent. Because of the doctrine of sovereign immunity, if
Congress rejects a claim, the claimant would not be able to sue on it.
See, e g., Compagnie Generale Transatlantique v. Governor of the
Panama Canal, 90 F.2d 225 (5th Cir. 1934).
C. Possible Amendments
The first option with regard to the claims issue, of course, is
not to make any change. The current statutory scheme is essentially
the same as that in place form 1940 to 1951. Inside-the-locks claims,
those for which the Commission has the clearest liability, are treated
under the current law as they have been since 1912. The Commission
has full authority to settle these claims without monetary limit and
the dissatisfied claimant may sue on the claim in federal court.
Outside-the-locks claims exceeding $120,000 are subject to
Congressional approval, not a new idea, but one that has not yet been
put to practical test. The current law is silent as to how Congress
should handle these claims, but this silence should not create
insurmountable problems.
Another option is to make the Commission immune from any claims,
or, more narrowly, from all outside-the-locks claims. This latter
option would be a return to the pre-1940 status quo, when vessels were
deemed to assume the risk of passage through the canal outside the
locks, and had no basis for any claim or legal action for damage
sustained there. Vessels using the canal would not be unprotected,
however, since insurance exists--and is currently in use by many
vessels--to cover such damage. This option would get the Commission
out of the insurance business, and the amounts now included in the
toll base for payment of claims could be used for other purposes or
eliminated and tolls reduced.