57
or passengers of the vessel. As I read the law-and I wish you
would clear this up for me-you don't really have to show that the
canal pilot was somehow negligent, that unless you have evidence
there was negligence, contributory negligence, not bad judgment or
something, but negligence, on the part of the master of the ship, its
crew, or its passengers, that the Commission is liable?
Mr. GIANELLI. Mr. Chairman, I wonder if we could have Mr.
Dwight McKabney, the General Counsel for the Commission, come
to the table? He is in the audience, and can assist in answering
some of these questions.
Mr. TAUZIN. Let me elaborate again. The difference between my
understanding and what I thought the question the gentleman
from New York was raising, he was asking the question, the Com-
mission is liable, upon a showing that the pilot, representing the
Commission on the vessel, did something wrong and the answer
was, well, it is almost correct, there are some variations to that.
My question is: Isn't it true that the Commission pilot may show
he hasn't done anything wrong or negligent, but unless you show
that the master, the crew, or the passengers did something to con-
tribute to the accident which something they did is considered neg-
ligent, unless you show that, the Commission is liable, whether or
not you show the Commission man was negligent or not?
Mr. McKABNEY. May I answer the question by saying with re-
spect to the accidents that occur in the locks, the Commission is a
virtual insurer of the vessel. Only if we can show that action or
omission by the vessel contributed to the accident is the amount of
the damages payable herself reduced.
Outside the locks, however, the regular admiralty rules of recov-
ery apply; and unless there is negligence on the part of the pilot,
the tug master, or some other employee of the Panama Canal Com-
mission or a negligent omission, then there is no liability. That is
the rule that was in effect prior to the treaty implementation and
it is the rule that is still applied in the settlement of claims by the
Commission.
Mr. LENT. Would the gentleman yield?
A followup to that, sir, is who makes that determination of negli-
gence and liability?
Mr. McKABNEY. Prior to October of 1979, it was made by the
Panama Company but was subject to judicial review. Since Septem-
ber of 1979, the out-of-locks cases are settled, if they are under
$120,000, by the Commission and the Commission's judgment on
that is final. So then it is the Commission that is making the deter-
mination as to whether there was negligence on the part of the em-
ployee.
With respect to those claims that are in excess of $120,000 that
have now gone to the Congress and that are in the process of being
prepared to be sent, the Congress itself is to make that determina-
tion, on the basis of the analysis and the recommendation of the
Panama Canal Commission. That, sir, is the way we read the stat-
ute.
Mr. TAUZIN. Let me reclaim. I am not sure I still understand
your answer.
In the memorandum I have on the law, it says that inside the
locks, the Commission employees exercise virtual total control.