B-4764, AUGUST 28, 1939, 19 COMP. GEN. 300

B-4764, AUGUST 28, 1939, 19 COMP. GEN. 300

PAY - OFFICERS AND ENLISTED MEN OF WRECKED, ETC. VESSELS - EFFECT OF SECTIONS 1574 AND 1575, REVISED STATUTES THE PURPOSE OF SECTIONS 1574 AND 1575, REVISED STATUTES, WHICH PROVIDE THAT THE PAY OF OFFICERS AND MEN OF ANY VESSEL OF THE UNITED STATES, SEPARATED FROM THEIR VESSEL BECAUSE OF HER TAKING BY AN ENEMY, WRECK, LOSS, OR DESTRUCTION, SHALL GO ON AND BE PAID THEM UNDER THE CONDITIONS THEREIN STATED UNTIL THEIR EXCHANGE, DISCHARGE, OR DEATH, WAS TO GIVE A RIGHT TO THE NORMAL PAY ARISING FROM THEIR APPOINTMENT OR ENLISTMENT WHICH OTHERWISE WOULD HAVE TERMINATED, AND NOT TO CONTINUE A RIGHT TO A SPECIAL ALLOWANCE OR ADDITIONAL PAY--- SUCH AS SUBMARINE DUTY PAY--- PAYABLE ONLY FOR THE RENDITION OF A PARTICULAR SERVICE. 5 COMP. DEC. 221, DISTINGUISHED. DECISION B-4764, JULY 21, 1939, 19 COMP. GEN. 90, AMPLIFIED AND AFFIRMED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, AUGUST 28, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 31, 1939, REQUESTING FURTHER CONSIDERATION OF DECISION OF JULY 21, 1939, AND INVITING ATTENTION TO SECTIONS 1574, REVISED STATUTES (34 U.S.C. 951), AS APPARENTLY HAVING APPLICATION TO THE QUESTION BUT WHICH WERE NOT REFERRED TO IN THE FORMER SUBMISSION OR IN THE DECISION.

THE QUESTION FOR DETERMINATION IN SAID DECISION WAS WHETHER THE SURVIVING OFFICERS AND ENLISTED MEN OF THE U.S.S. SQUALUS ARE ENTITLED TO SUBMARINE DUTY PAY PENDING SALVAGE OPERATIONS OF THAT VESSEL WHICH SANK MAY 23, 1939, AND UNTIL DATE THE VESSEL IS DECOMMISSIONED OR THE OFFICERS AND ENLISTED MEN ARE FORMALLY DETACHED THEREFROM. THE DECISION WAS TO THE EFFECT THAT THERE IS NO PROVISION OF LAW EXTENDING THE RIGHT TO ADDITIONAL PAY FOR SUBMARINE DUTY TO OFFICERS AND ENLISTED MEN FOR ANY PERIOD DURING WHICH IT IS IMPOSSIBLE FOR THEM ACTUALLY TO PERFORM SERVICE ON BOARD THE SUBMARINE TO WHICH ATTACHED, AS IN THIS CASE.

SECTION 287, REVISED STATUTES (34 U.S.C. 954, CONFERS CERTAIN AUTHORITY ON THE ACCOUNTING OFFICERS OF THE GOVERNMENT WITH REFERENCE TO THE SETTLEMENT OF THE ACCOUNTS OF PETTY OFFICERS, SEAMEN, AND OTHERS, NOT OFFICERS, ON BOARD ANY VESSEL IN THE EMPLOY OF THE UNITED STATES WHICH BY ANY CASUALTY, OR IN ACTION WITH THE ENEMY, HAS BEEN OR MAY BE SUNK OR OTHERWISE DESTROYED, TOGETHER WITH THE ROLLS AND PAPERS NECESSARY TO THE EXACT ASCERTAINMENT OF THE SEVERAL ACCOUNTS OF THE SAME AT THE DATE OF SUCH LOSS. FOR REASONS WHICH ARE APPARENT, THAT SECTION IS NOT REGARDED AS HAVING ANY APPLICATION TO THE QUESTION HERE INVOLVED.

SECTION 1574, REVISED STATUTES, PROVIDES:

WHEN THE CREW OF ANY VESSEL OF THE UNITED STATES ARE SEPARATED FROM SUCH VESSEL, BY MEANS OF HER WRECK, LOSS, OR DESTRUCTION, THE PAY AND EMOLUMENTS OF SUCH OF THE OFFICERS AND MEN AS SHALL APPEAR TO THE SECRETARY OF THE NAVY, BY THE SENTENCE OF A COURT-MARTIAL OR COURT OF INQUIRY, OR BY OTHER SATISFACTORY EVIDENCE, TO HAVE DONE THEIR UTMOST TO PRESERVE HER, AND, AFTER SAID WRECK, LOSS, OR DESTRUCTION, TO HAVE BEHAVED THEMSELVES AGREEABLY TO THE DISCIPLINE OF THE NAVY, SHALL GO ON AND BE PAID THEM UNTIL THEIR DISCHARGE OR DEATH.

THE PROVISIONS EMBODIED IN ARTICLE 21 OF THE ARTICLES FOR THE GOVERNMENT OF THE NAVY, SECTION 1624, REVISED STATUTES (34 U.S.C. 1200), REFERRED TO IN THE DECISION OF JULY 21, 1939, AND THE PROVISIONS OF SECTIONS 1574 AND 1575, REVISED STATUTES, WERE FIRST ENACTED MARCH 2, 1799, 1 STAT. 714, AND REENACTED APRIL 23, 1800, 2 STAT. 52, IN TERMS SUBSTANTIALLY THE SAME AS IN THE REVISED STATUTES, SECTIONS 3 AND 4 OF THE LATTER ACT READING AS FOLLOWS:

SEC. 3. AND BE IT FURTHER ENACTED, THAT IN ALL CASES, WHERE THE CREWS OF THE SHIP OR VESSELS OF THE UNITED STATES SHALL BE SEPARATED FROM THEIR VESSELS, BY THE LATTER BEING WRECKED, LOST OR DESTROYED, ALL THE COMMAND, POWER, AND AUTHORITY, GIVEN TO THE OFFICERS OF SUCH SHIPS OR VESSELS, SHALL REMAIN AND BE IN FULL FORCE AS EFFECTUALLY AS IF SUCH SHIP OR VESSEL WERE NOT SO WRECKED, LOST, OR DESTROYED, UNTIL SUCH SHIP'S COMPANY BE REGULARLY DISCHARGED FROM, OR ORDERED AGAIN INTO THE SERVICE OR UNTIL A COURT MARTIAL SHALL BE HELD TO INQUIRE INTO THE LOSS OF SUCH SHIP OR ESSEL; AND IF BY THE SENTENCE OF SUCH COURT OR OTHER SATISFACTORY EVIDENCE, IT SHALL APPEAR THAT ALL OR ANY OF THE OFFICERS AND MEN OF SUCH SHIP'S COMPANY DID THEIR UTMOST TO PRESERVE HER, AND AFTER THE LOSS THEREOF BEHAVED THEMSELVES AGREEABLY TO THE DISCIPLINE OF THE NAVY, THEN THE PAY AND EMOLUMENTS OF SUCH OFFICERS AND MEN, OR SUCH OF THEM AS SHALL HAVE DONE THEIR DUTY AS AFORESAID, SHALL GO ON UNTIL THEIR DISCHARGE OR DEATH; AND EVERY OFFICER OR PRIVATE WHO SHALL, AFTER THE LOSS OF SUCH VESSEL, ACT CONTRARY TO THE DISCIPLINE OF THE NAVY, SHALL BE PUNISHED AT THE DISCRETION OF A COURT MARTIAL, IN THE SAME MANNER AS IF SUCH VESSEL HAD NOT BEEN SO LOST.

SEC. 4. AND BE IT FURTHER ENACTED, THAT ALL THE PAY AND EMOLUMENTS OF SUCH OFFICERS AND MEN, OF ANY OF THE SHIPS OR VESSELS OF THE UNITED STATES TAKEN BY AN ENEMY, WHO SHALL APPEAR BY THE SENTENCE OF A COURT MARTIAL, OR OTHERWISE, TO HAVE DONE THEIR UTMOST TO PRESERVE AND DEFEND THEIR SHIP OR VESSEL, AND, AFTER THE TAKING THEREOF, HAVE BEHAVED THEMSELVES OBEDIENTLY TO THEIR SUPERIORS, AGREEABLY TO THE DISCIPLINE OF THE NAVY, SHALL GO ON AND BE PAID THEM UNTIL THEIR DEATH EXCHANGE, OR DISCHARGE.

THE SAME PROVISIONS WERE REENACTED IN SECTIONS 14 AND 15 OF THE ACT OF JULY 17, 1862, 12 STAT. 608, 609. WHEN THESE STATUTES WERE FIRST ENACTED OFFICERS AND MEN WERE NOT EMPLOYED IN THE NAVY FOR GENERAL SERVICE AS UNDER LAWS NOW IN FORCE BUT FOR SERVICE ON BOARD A PARTICULAR VESSEL. THE NUMBER OF OFFICERS AND CREW WAS PRESCRIBED FOR EACH VESSEL. THE PAY OF OFFICERS WAS PRESCRIBED BY STATUTE BUT THE PRESIDENT WAS AUTHORIZED TO FIX THE PAY OF PETTY OFFICERS, MIDSHIPMEN, SEAMEN, ORDINARY SEAMEN, AND MARINES. SEE ACT OF MARCH 27, 1794, 1 STAT. 350. SEAMEN AND MARINES WERE ENGAGED TO SERVE ON BOARD THE VESSEL FOR A PERIOD NOT EXCEEDING 1 YEAR BUT THE PRESIDENT COULD DISCHARGE THEM SOONER IF IN HIS JUDGMENT THEIR SERVICES COULD BE DISPENSED WITH (SEC. 10, ACT OF JULY 1, 1797, 1 STAT. 525) AND COULD EXTEND THEIR SERVICE BEYOND 1 YEAR IF THE VESSEL SHOULD THEN BE AT SEA. SEE ACT OF APRIL 27, 1798, STAT. 552.

ARTICLE 29 OF SECTION 1 OF THE ACT OF APRIL 23, 1800, 2 STAT. 48, PROVIDED IN PART AS FOLLOWS:

EACH COMMANDING OFFICER SHALL, WHENEVER A SEAMAN ENTERS ON BOARD, CAUSE AN ACCURATE ENTRY TO BE MADE IN THE SHIP'S BOOKS, OF HIS NAME, TIME, AND TERM OF HIS SERVICE; AND BEFORE SAILING TRANSMIT TO THE SECRETARY OF THE NAVY, A COMPLETE LIST OR MUSTER ROLL OF THE OFFICERS AND MEN UNDER HIS COMMAND, WITH THE DATE OF THEIR ENTERING, TIME AND TERMS OF THEIR SERVICE ANNEXED; AND SHALL CAUSE SIMILAR LISTS TO BE MADE OUT ON THE FIRST DAY OF EVERY SECOND MONTH, TO BE TRANSMITTED TO THE SECRETARY OF THE NAVY, AS OPPORTUNITIES SHALL OCCUR; ACCOUNTING IN SUCH LISTS OR MUSTER ROLLS, FOR ANY CASUALTIES WHICH MAY HAVE TAKEN PLACE SINCE THE LAST LIST OR MUSTER ROLL. * * *

IT IS APPARENT FROM THESE SEVERAL STATUTE ENACTMENTS THAT WITHOUT A PROVISION OF LAW TO THE EFFECT THAT IN CASE THE VESSEL IS WRECKED, LOST, OR DESTROYED THE PAY OR EMOLUMENTS OF THE OFFICERS AND MEN EMPLOYED TO RENDER SERVICE THEREON "SHALL GO ON UNTIL THEIR DISCHARGE OR DEATH," THEIR PAY AND EMOLUMENTS WOULD CEASE IMMEDIATELY IN THE EVENT OF WRECK, LOSS, OR DESTRUCTION OF THE VESSEL. THE EMPLOYMENT OF OFFICERS AND MEN ON NAVAL VESSELS AT THAT TIME WAS SIMILAR TO THAT OF MERCHANT SEAMEN. "UNDER GENERAL MARITIME LAW THE SEAMAN'S RIGHT TO WAGES IS LOST WITH HIS SHIP.' 56 C.J. 972. SEE, ALSO, HENOP V. TUCKER, FEDERAL CASE NO. 6368 AND DREW ET AL. V. POPE ET AL., FEDERAL CASE NO. 4080.

SECTION 4526, REVISED STATUTES (46 U.S.C. 593), PROVIDES:

IN CASES WHERE THE SERVICE OF ANY SEAMAN TERMINATES BEFORE THE PERIOD CONTEMPLATED IN THE AGREEMENT, BY REASON OF THE LOSS OR WRECK OF THE VESSEL, SUCH SEAMAN SHALL BE ENTITLED TO WAGES FOR THE TIME OF SERVICE PRIOR TO SUCH TERMINATION, BUT NOT FOR ANY FURTHER PERIOD. * * *

THIS STATUTE, IN FACT, CHANGES THE RULE AS DEVELOPED BY THE COURTS OF ADMIRALTY PRIOR TO ITS ENACTMENT.

IT IS OBVIOUS THE PURPOSE OF THESE EARLY STATUTES, CARRIED INTO SECTION 1574, REVISED STATUTES, WAS TO CHANGE OR MODIFY THAT RULE SO FAR AS OFFICERS AND MEN OF THE NAVY WERE CONCERNED, UPON THE CONDITIONS FIXED IN THE STATUTE. THERE WAS NO PURPOSE TO CONTINUE A RIGHT TO A SPECIAL ALLOWANCE OR ADDITIONAL PAY, PAYABLE ONLY FOR THE RENDITION OF A PARTICULAR SERVICE, AND SO LIMITED; THE PURPOSE WAS TO GIVE A RIGHT TO THE NORMAL PAY ARISING FROM THE APPOINTMENT OR ENLISTMENT WHICH UNDER MARITIME LAW WOULD HAVE TERMINATED IN THE EVENT OF WRECK, LOSS OR DESTRUCTION OF THE VESSEL ON WHICH SERVING. THE CHANGED CONDITIONS FOR PAYMENT OF THE NORMAL PAY TO OFFICERS AND ENLISTED MEN OF THE NAVY NOW AND FOR SOME YEARS IN EFFECT CANNOT OPERATE TO EXTEND THE SCOPE, MEANING, OR PURPOSE OF SECTION 1574, REVISED STATUTES. THE PURPOSE OF SECTION 1575, REVISED STATUTES, AS ORIGINALLY ENACTED WAS THE SAME AS THAT OF SECTION 1574--- THAT IS, TO EXTEND THE RIGHT TO PAY AND EMOLUMENTS UNDER CONDITIONS AND FOR A PERIOD DURING WHICH THE LAW WOULD NOT OTHERWISE AUTHORIZE ANY PAY OR EMOLUMENTS. IN THIS CONNECTION SEE STRAUGHAM V. UNITED STATES, 1 CT. CLS. 324.

THE COMPTROLLER OF THE TREASURY IN 5 COMP. DEC. 221 (REFERRED TO IN THE SUBMISSION) RECOGNIZED THE RIGHT OF OFFICERS ATTACHED TO THE U.S.S. MAINE WHEN THAT VESSEL WAS DESTROYED IN HAVANA HARBOR, FEBRUARY 15, 1898, TO THEIR REGULAR SEA PAY AND RATIONS FOR THE PERIOD FOLLOWING THE DESTRUCTION OF THE VESSEL UNTIL THEY WERE FORMALLY DETACHED THEREFROM. THE LAW THEN IN FORCE, SECTION 1556, REVISED STATUTES, AUTHORIZED A SPECIFIC RATE OF PAY FOR EACH GRADE AND RANK "WHEN AT SEA," A DIFFERENT RATE OF PAY WHEN "ON LEAVE OR WAITING ORDERS.' THE PAY AND EMOLUMENTS RECOGNIZED AS PAYABLE AFTER THE DESTRUCTION OF THE MAINE IN THAT CASE WERE THE NORMAL PAY AND EMOLUMENTS PAYABLE TO THE OFFICERS ATTACHED THERETO.

ACCORDINGLY, IN VIEW OF THE HISTORY OF THE STATUTES LATER EMBODIED IN SECTION 1574, REVISED STATUTES, AND THEIR ORIGINAL PURPOSE, WHICH WAS TO CONTINUE ONLY THE NORMAL PAY AND EMOLUMENTS OF OFFICERS AND MEN, SECTION 1574, REVISED STATUTES, IS NOT DEEMED APPLICABLE SO AS TO CONTINUE SUBMARINE DUTY PAY TO THE SURVIVING OFFICERS AND MEN OF THE U.S.S. SQUALUS UNTIL THEIR FORMAL DETACHMENT THEREFROM. TO SO APPLY SECTION 1574, REVISED STATUTES, AS TO INCLUDE, IN THE "PAY AND EMOLUMENTS" THAT "SHALL GO ON AND BE PAID THEM UNTIL THEIR DISCHARGE OR DEATH," ADDITIONAL PAY FOR SUBMARINE DUTY WHICH IN ITS NATURE IS EXTRA PAY BASED ON ACTUAL "DUTY ABOARD A SUBMARINE OF THE NAVY" AND ACCRUES ONLY "WHILE SO SERVING" WOULD BE TO GIVE TO SAID STATUTE A MEANING AND PURPOSE NOT ORIGINALLY CONTEMPLATED AND NOT HERETOFORE RECOGNIZED IN THE APPLICATION OF THAT STATUTE. THEREFORE, YOU ARE ADVISED THAT THE CONCLUSION REACHED IN THE DECISION OF JULY 21, 1939, MAY NOT BE MODIFIED.