83
(4) Continue the immunity of Panama Canal employees from personal liability for
vessel damage.
Assuming the corporation could sue and be sued, one effect of the 1950 act was to
give owners of vessels damaged in the canal outside the locks the right to sue the
entity operating the canal. We think this result is legally and commercially correct
and urge that this should be reinstituted.
The 1950 act's extension of liability for outside-the-locks claims to the governmen-
tal entity operating the canal is an accurate reflection of a properly perceived need
for a government body which operates in a commercial context to accept responsibil-
ity for the acts and omissions of its employees. Moreover, such extension is consist-
ent with the general trend of congressional action in recent years which has been
toward expansion rather than contraction of government liability with respect to
tort claims. Acceptance by the commission of responsibility for damages from inside-
the-locks incidents as set forth in both the 1950 and 1979 acts is a perfect example
of the principle that a government body functioning commercially should be liable
for its acts and omissions. The requirement of the 1979 act, however, that Congress
approve settlement of outside-the-locks claims exceeding $120,000 is an aberration
which effectively deflects from the commission a liability which should rest directly
there. Interposition of Congress between the claimant and the commission serves no
constructive purpose but rather only prolongs the settlement process to the detri-
ment of the injured party.
Unlike most, if not all other waterways, ports and harbors, in the Panama Canal,
the pilot is in complete control of the vessel. There is nothing advisory about his
functions as is the case in the ports and harbors of the continental Unted States.
Since the Panama Canal pilot is in complete control of the vessel during transit, we
do not see any basis for shielding the commission from liability as is accomplished
by the 1979 act. It is difficult to see how an argument that the commission should
not be responsible under the principle of respondent superior for the negligence of
the pilot when he is in complete control can be sustained. Section 105.6 of title 35,
Code of Federal Regulations (CFR) states: "the pilot assigned to a vessel shall have
control of the navigation and movement of such vessel." Furthermore, there is no
distinction, regulatory or otherwise, in pilot's duties and obligations inside and out-
side the locks. Of course, the pilot could be made to operate in an advisory capacity,
as in other waterways, but this raises a whole new set of problems, not the least of
which is that the pilots would not agree to such a change in their authority after all
these years. Nor would such a change be in the best interests of Panama Canal
transit maritime safety.
An examination of the situation in other canals in the world supports our conten-
tion:
(A) Suez Canal-This is a sea level canal with no locks whatsoever and, according
to the Suez rules of navigation, masters are held solely responsible for damages or
accidents from the handling or navigation of their vessels, but the masters are in
control.
(B) Kiel Canal-The german government has consented to be sued in connection
with casualties in the Kiel Canal.
(C) St Lawrence Seaway-The portion of the seaway lying in the United States is
operated by the St. Lawrence seaway development corporation under the act of May
13, 1954, as amended, 33 USC 983, et. seq. The U.S. government as sovereign has
consented to be sued (suits in Admiralty Act, 46 U.S.C. 741 et. seq., and Federal Tort
Claims Act, 28 U.S.C. 2672, 2679 and 1346(b)); the Seaway Corporation may be sued
in its corporate name (33 U.S.C. 984(a)(3) and is subject to the Federal Tort Claims
Act (Handley v. Tecon Corporation, 172 F. supp. 565 (1959); Federal Reserve Bank v.
Metrocentre Imp. Dist. 492 F. Supp. 353 at 355, 356 (1980); Breitbeck v. United States,
500 F. 2nd 556 at 559 (1974).)
(D) Cape Cod Canal-A toll free canal maintained by the Corps of Engineers with
tort claims handled by the Department of the Army under the provisions of the Fed-
eral Tort Claims Act, supra.
(E) Tennessee Valley Authority-TVA, like the Panama Canal Commission, may
sue or be sued in its corporate name, the corporation is generally liable for the neg-
ligence of its employees and judgements or amounts paid in settlement of claims are
paid out of funds available to that activity included as a cost of operation.
One final point, we certainly do not think that damage claims in excess of
$120,000 occurring outside the locks should be submitted to Congress for approval as
established by the 1979 act. Aside from the fact the U.S. Congress is not the proper
forum for the processing and adjudication of tort damage claims, the system estab-
lished does not lend itself to an expeditious resolution of these damage claims.