90TH CONGRESS 2d Session } HOUSE OF REPRESENTATIVES REPORT {No. 1237 REFERENCE OF THE BILL (H.R. 9752) ENTITLED "A BILL FOR THE RELIEF OF DOUGLAS E. KENNEDY AND ALVIN B. BURT, JUNIOR" TO THE CHIEF COMMISSIONER OF THE COURT OF CLAIMS PURSUANT TO SECTIONS 1492 AND 2509 OF TILE 28, UNITED STATES CODE APRIL 1, 1968.-Committed to the Committee of the Whole House and ordered to be printed Mr. TENZER, from the Committee on the Judiciary, REPORT [To accompany H. Res. 1110] The Committee on the Judiciary, to whom was referred House Resolution 1110, a resolution to refer the bill (H.R. 9752) entitled "A bill for the relief of Douglas E. Kennedy and Alvin B. Burt, Junior" to the chief commissioner of the Court of Claims, pursuant to sections 1492 and 2509 of title 28, United States Code, having considered the same, report favorably thereon without amendment and recommend that the resolution do pass. PURPOSE The purpose of House Resolution 1110 is to refer H.R. 9752, a bill for the relief of Douglas E. Kennedy and Alvin B. Burt, Jr., to the chief commissioner of the Court of Claims under the congressional reference case provisions of sections 1492 and 2509 of title 28 of the United States Code. STATEMENT Sections 1492 and 2509 of title 28 of the United States Code authorize either House of Congress to refer bills to the chief commissioner of the Court of Claims. In proceedings authorized by these sections, the chief commissioner is authorized to designate a trial commissioner for the case and a panel of three commissioners of the court to serve as a reviewing body. The trial commissioner to whom a congressional reference case is assigned by the chief commissioner is to proceed in accordance with applicable rules to determine the facts of the case, including those relating to the matters specified in subsection (e) of section 2509 of title 28, which include the facts relating to delay or laches, facts bearing upon the question of whether the bar of any statute of limitation should be removed or claimed to excuse the claimant for not having resorted to any established legal remedy. The findings and conclusions of the trial commissioner shall be submitted by him, together with the record in the case, to the review panel of commissioners for review by it pursuant to rules which are to govern such proceedings. The panel has the authority to adopt or modify the findings or the conclusions of the trial commissioner. The panel is to submit its report to the chief commissioner for transmission to the House of Congress which originally referred the matter to him. The bill, H.R. 9752, which would be referred to the chief commissioner of the Court of Claims by House Resolution 1110, provides for payment of compensation to Douglas E. Kennedy, a photographer for the Miami Herald, and Alvin B. Burt, Jr., a former Latin American editor of that paper, for injuries they sustained in Santo Domingo, Dominican Republic, on May 6, 1965, when they were wounded by U.S. Marines while covering the civil strife then occurring in that country. At the subcommittee hearing conducted on the bill on February 8, 1968, the testimony showed that Mr. Kennedy and Mr. Burt had gone to the U.S. Embassy on the morning of the shooting and discussed their plans to gather news concerning the situation with the U.S. Ambassador and the commanding general of the U.S. forces in the Republic. At that time a formal cease-fire agreement was in in effect between the opposing elements in the country. At the subcommittee hearing on February 8, 1968, it was stated that the Ambassador and the general informed the newsmen that they could pass back and forth across the lines into the rebel zone. They were further advised that the U.S. military personnel at the various checkpoints had been instructed to give free access to newspapermen entering or leaving the area. In accordance with this information the two newsmen secured a Dominican taxi which was marked "Prensa" (Spanish for "press") and proceeded through a U.S. Marine checkpoint into rebel-held territory. After spending some time in this area, they proceeded back to the general area they had left and approached another Marine checkpoint. It was at this point that they encountered difficulty and where ultimately the Marines opened fire and the vehicle in which they were riding was raked with machinegun fire. Both Mr. Kennedy and Mr. Burt were seriously wounded. Mr. Kennedy was more severely wounded and he suffers a continuing disability as a result of his injuries. The committee has carefully considered this case including conflicts in the accounts of events submitted at the hearing and as outlined in the report of the Department of the Navy and has concluded that this is a matter which can be best resolved by the procedures provided for congressional reference cases. The quasi-judicial procedures which will be available in those proceedings will result in findings and conclusions which will give the Congress a full understanding of the facts and the issues. For these reasons, the committee recommends that the resolution, House Resolution 1110, be considered favorably. H.R. 1237 DEPARTMENTAL REPORT Hon. EMANUEL CELLER, DEPARTMENT OF THE NAVY, Chairman, Committee on the Judiciary, House of Representatives, Washington, D.C. MY DEAR MR. CHAIRMAN: Reference is made to your letter of May 16, 1967, to the Secretary of the Navy requesting comment on H.R. 9752, a bill for the relief of Douglas E. Kennedy and Alvin V. Burt, Jr. This bill would authorize payment of $75,000 to Douglas E. Kennedy, chief photographer of the Miami Herald, and $50,000 to Alvin V. Burt, Jr., former Latin American editor of the Miami Herald, in full satisfaction of their claims against the United States for personal injuries suffered by them on May 6, 1965, in Santo Domingo, Dominican Republic, when they were returning to the American zone of Santo Domingo from an authorized press trip and were wounded by machineguns fired by U.S. Marines. The records of this Department show that an investigation was conducted to inquire into the circumstances surrounding the accidental shooting of Mr. Burt and Mr. Kennedy. The investigation established that the two newsmen hired a privately owned civilian automobile, driven by a Dominican national, and proceeded into rebel territory to photograph a ship damaged by fire from U.S. Army personnel. Upon leaving the rebel area, the newsmen stopped to speak to a Dominican who was carrying a rifle. This was observed by the Marines manning Checkpoint Alpha, and the Marines believed the armed Dominican to be a rebel. The vehicle in which the newsmen were riding then approached to within 75 to 100 yards of Checkpoint Alpha, at which time one of the Marine sentries, who was standing about 50 yards in front of the barricade, signaled for the vehicle to stop. The vehicle had a sign with the word "Prensa" (which means "press" in Spanish) placed in the windshield. The letters on the sign were only 5 to 7 inches high, were not easily visible, and were not, in fact, observed by any of the Marines manning the checkpoint. The vehicle did not immediately stop at the sentry's signal, but finally did stop after the sentry repeated his signaling. After the vehicle stopped, the sentry directed the occupants to leave the vehicle by both voice commands and motions. The Dominican driver of the vehicle panicked and reversed the vehicle so rapidly that the tires squealed. At this same time approximately four rounds of sniper fire were received into the checkpoint. The Marines manning the checkpoint, observing the sniper fire, the erratic behavior of the vehicle, the previous conversation the occupants had had with an apparent rebel, and conscious of the possibility of the employment of ruses and deception by rebel forces to draw the Marines from their prepared positions, assumed that the sniper fire was being received from the vehicle in question or at least that the vehicle was being used as a part of a rebel attack. As a result of the foregoing, the Marines at the checkpoint opened fire on the vehicle, wounding Mr. Burt and Mr. Kennedy. In firing at the vehicle, the Marines at Checkpoint Alpha acted in accordance with their instructions, albeit under a mistake of fact. H.R. 1237 In order for a claim for such injuries to be payable under the Federal Tort Claims Act, as amended (28 U.S.C. 2671-2680), or under the Military Claims Act (10 U.S.C. 2733) it would be necessary to show that the injuries were the result of a negligent or wrongful act or omission of Marine personnel or otherwise incident to noncombat activities. It is the opinion of this Department that evidence here does not support a claim payable under either authority. While it is indeed regrettable that the incident occurred which resulted in the injuries to Mr. Kennedy and Mr. Burt, when these men ventured into rebel territory they were well aware of a very real possibility of injury or death. It may be noted that these men appeared to have been injured during the course of their employment and that compensation for such injuries is customarily provided by the employer either directly or indirectly by workmen's compensation benefits; the Department of the Navy is not informed whether such benefits have been paid in this case. In view of the above, the Department of the Navy is unable to support enactment of H.R. 9752. The Bureau of the Budget advises that, from the standpoint of the administration's program, there is no objection to the presentation of this report for the consideration of the committee. For the Secretary of the Navy. Sincerely yours, R. WRZESINSKI, Director, Legislative Division. O H.R. 1237 |