A-12486, FEBRUARY 12, 1926, 5 COMP. GEN. 623

A-12486: Feb 12, 1926

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IS THAT OF THE VESSEL ON WHICH HE WAS SERVING WHEN BECOMING ILL OR DISABLED. TRANSPORTATION IS NOT TO BE BORNE BY THE UNITED STATES UNLESS THE CONSULAR OFFICER IS UNABLE TO REQUIRE THAT IT BE PROVIDED BY THE VESSEL OR THE OWNER OR OPERATOR THEREOF. THE QUESTION OF WHETHER THE SEAMAN SHOULD BE DISCHARGED IN ANY PARTICULAR CASE IS NOT FOR DETERMINATION BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT. IS THERE ANY ACTION WHICH THE CONSULAR OFFICER SHOULD TAKE BEYOND REPORTING THE CASE TO THE DEPARTMENT? (D) IN CASE IT IS PRACTICABLE TO REPATRIATE THE SEAMAN BY THE SAME VESSEL UPON WHICH HE SERVED OR A VESSEL OF THE SAME COMPANY. SHOULD THE EXPENSES OF HIS MAINTENANCE FROM THE TIME HE IS DISCHARGED FROM THE HOSPITAL TO THE TIME HE DEPARTS FOR THE UNITED STATES BE PAID BY THE UNITED STATES.

A-12486, FEBRUARY 12, 1926, 5 COMP. GEN. 623

RELIEF OF AMERICAN SEAMEN THE RESPONSIBILITY FOR THE CARE AND MAINTENANCE AT A FOREIGN PORT AND THE RETURN TO A PORT IN THE UNITED STATES OF AN AMERICAN SEAMAN BECOMING ILL OR DISABLED WHILE IN THE SERVICE OF AN AMERICAN VESSEL PRIOR TO DISCHARGE, OR AFTER DISCHARGE IF NOT DUE TO HIS MISCONDUCT, IS THAT OF THE VESSEL ON WHICH HE WAS SERVING WHEN BECOMING ILL OR DISABLED, THE MANNER OF ENFORCING SUCH LIABILITY BEING A MATTER FOR ADMINISTRATIVE DETERMINATION. THE EXPENSE OF SUCH CARE, MAINTENANCE, AND TRANSPORTATION IS NOT TO BE BORNE BY THE UNITED STATES UNLESS THE CONSULAR OFFICER IS UNABLE TO REQUIRE THAT IT BE PROVIDED BY THE VESSEL OR THE OWNER OR OPERATOR THEREOF. THE DISCHARGE OF AN AMERICAN SEAMAN BEFORE A CONSULAR OFFICER AT A FOREIGN PORT RELIEVES THE OWNER OR OPERATOR OF THE VESSEL FROM LIABILITY FOR WAGES AFTER THE DISCHARGE BUT DOES NOT AFFECT THE QUESTION OF LIABILITY FOR CARE, MAINTENANCE, AND TRANSPORTATION TO THE UNITED STATES. THE QUESTION OF WHETHER THE SEAMAN SHOULD BE DISCHARGED IN ANY PARTICULAR CASE IS NOT FOR DETERMINATION BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, FEBRUARY 12, 1926:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF DECEMBER 28, 1925, REQUESTING DECISION OF SEVERAL QUESTIONS PRESENTED BY THE AMERICAN CONSUL AT YOKOHAMA, JAPAN, IN HIS DISPATCH TO YOU DATED NOVEMBER 7, 1925, AS FOLLOWS:

(1) IN CASE A SEAMAN BECOMES ILL OR DISABLED, THROUGH NO PROVABLE FAULT OF HIS OWN WHILE IN THE SERVICE OF AN AMERICAN VESSEL:

(A) HAS AN AMERICAN CONSULAR OFFICER, BEFORE DISCHARGING THE SEAMAN, A RIGHT TO REQUIRE THE VESSEL OR ITS AGENTS TO ASSUME THE EXPENSES OF THE SEAMAN'S HOSPITALIZATION?

(B) SHOULD THE CONSULAR OFFICER DISCHARGE THE SEAMAN AND, AFTER DISCHARGE, PLACE HIM IN A HOSPITAL AT THE EXPENSE OF THE UNITED STATES WHEN THE VESSEL OR ITS AGENT CAN BE PERSUADED, EVEN UNDER PROTEST, TO ASSUME LIABILITY FOR HIS HOSPITALIZATION?

(C) IN CASE THE VESSEL OR AGENTS REFUSE TO ASSUME LIABILITY FOR HIS HOSPITALIZATION AND THE CONSULAR OFFICER DISCHARGES HIM AND PLACES HIM IN THE HOSPITAL AT THE EXPENSE OF THE UNITED STATES, IS THERE ANY ACTION WHICH THE CONSULAR OFFICER SHOULD TAKE BEYOND REPORTING THE CASE TO THE DEPARTMENT?

(D) IN CASE IT IS PRACTICABLE TO REPATRIATE THE SEAMAN BY THE SAME VESSEL UPON WHICH HE SERVED OR A VESSEL OF THE SAME COMPANY, SHOULD THE EXPENSES OF HIS MAINTENANCE FROM THE TIME HE IS DISCHARGED FROM THE HOSPITAL TO THE TIME HE DEPARTS FOR THE UNITED STATES BE PAID BY THE UNITED STATES, OR BY THE VESSEL UPON WHICH HE SERVED?

(E) IN CASE IT IS NOT PRACTICABLE TO REPATRIATE THE SEAMAN BY THE SAME VESSEL OR A VESSEL OF THE SAME COMPANY, WHO SHOULD ASSUME THE COST OF HIS REPATRIATION, AND WHO SHOULD ASSUME THE EXPENSES OF HIS MAINTENANCE AFTER LEAVING THE HOSPITAL?

(2) IN CASE A SEAMAN APPARENTLY THROUGH HIS OWN FAULT, BECOMES ILL OR DISABLED WHILE IN THE SERVICE OF AN AMERICAN VESSEL:

(A) DOES THE FACT THAT HE IS AT FAULT RELIEVE THE VESSEL UPON WHICH HE SERVES OF LIABILITY FOR HIS HOSPITALIZATION, MAINTENANCE, AND REPATRIATION?

(B) SHOULD THE CONSULATE ASSUME FULL LIABILITY FOR ALL EXPENSES OF HOSPITALIZATION, MAINTENANCE, AND REPATRIATION?

(C) SHOULD A SEAMAN DISCHARGED ON ACCOUNT OF VENEREAL DISEASE BECOMES A CHARGE UPON THE CONSULATE OR UPON THE VESSEL?

SECTION 4577, REVISED STATUTES, MAKES IT THE DUTY OF THE CONSULAR OFFICERS TO PROVIDE, AT THE EXPENSE OF THE UNITED STATES, FOR SUBSISTENCE AND RETURN TO THE UNITED STATES OF AMERICAN SEAMEN FOUND DESTITUTE WITHIN THEIR DISTRICTS.

SECTION 4580, REVISED STATUTES, AS AMENDED BY THE ACT OF JULY 26, 1884, 23 STAT. 54, PROVIDES:

UPON THE APPLICATION OF THE MASTER OF ANY VESSEL TO A CONSULAR OFFICER TO DISCHARGE A SEAMAN, OR UPON THE APPLICATION OF ANY SEAMAN FOR HIS OWN DISCHARGE, IF IT APPEARS TO SUCH OFFICER THAT SAID SEAMAN HAS COMPLETED HIS SHIPPING AGREEMENT, OR IS ENTITLED TO HIS DISCHARGE UNDER ANY ACT OF CONGRESS OR ACCORDING TO THE GENERAL PRINCIPLES OR USAGES OF MARITIME LAW AS RECOGNIZED IN THE UNITED STATES, SUCH OFFICER SHALL DISCHARGE SAID SEAMAN, AND REQUIRE FROM THE MASTER OF SAID VESSEL, BEFORE SUCH DISCHARGE SHALL BE MADE, PAYMENT OF THE WAGES WHICH MAY THEN BE DUE SAID SEAMAN; BUT NO PAYMENT OF EXTRA WAGES SHALL BE REQUIRED BY ANY CONSULAR OFFICER UPON SUCH DISCHARGE OF ANY SEAMAN EXCEPT AS PROVIDED IN THIS ACT.

SECTION 4581, REVISED STATUTES, AS AMENDED BY THE ACT OF DECEMBER 21, 1898, 30 STAT. 759, AND THE ACT OF MARCH 4, 1915, 38 STAT. 1185, READS AS FOLLOWS:

IF ANY CONSULAR OFFICER, WHEN DISCHARGING ANY SEAMAN, SHALL NEGLECT TO REQUIRE THE PAYMENT OF AND COLLECT THE ARREARS OF WAGES AND EXTRA WAGES REQUIRED TO BE PAID IN THE CASE OF THE DISCHARGE OF ANY SEAMAN, HE SHALL BE ACCOUNTABLE TO THE UNITED STATES FOR THE FULL AMOUNT THEREOF. * * * IF THE SEAMAN IS DISCHARGED BY VOLUNTARY CONSENT BEFORE THE CONSUL, HE SHALL BE ENTITLED TO HIS WAGES UP TO THE TIME OF HIS DISCHARGE BUT NOT FOR ANY FURTHER PERIOD. IF THE SEAMAN IS DISCHARGED ON ACCOUNT OF INJURY OR ILLNESS, INCAPACITATING HIM FOR SERVICE, THE EXPENSES OF HIS MAINTENANCE AND RETURN TO THE UNITED STATES SHALL BE PAID FROM THE FUND FOR THE MAINTENANCE AND TRANSPORTATION OF DESTITUTE AMERICAN SEAMEN.

PROVIDED, THAT AT THE DISCRETION OF THE SECRETARY OF COMMERCE, AND UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, IF ANY SEAMAN INCAPACITATED FROM SERVICE BY INJURY OR ILLNESS IS ON BOARD A VESSEL SO SITUATED THAT A PROMPT DISCHARGE REQUIRING THE PERSONAL APPEARANCE OF THE MASTER OF THE VESSEL BEFORE AN AMERICAN CONSUL OR CONSULAR AGENT IS IMPRACTICABLE, SUCH SEAMAN MAY BE SENT TO A CONSUL OR CONSULAR AGENT, WHO SHALL CARE FOR HIM AND DEFRAY THE COST OF HIS MAINTENANCE AND TRANSPORTATION, AS PROVIDED IN THIS PARAGRAPH.

THE PRIMARY DUTY, RESPONSIBILITY, AND LIABILITY FOR THE RETURN TO THE UNITED STATES OF AN AMERICAN SEAMAN WHO HAS BEEN DISCHARGED BEFORE A CONSULAR OFFICER BECAUSE OF INJURY OR DISABILITY INCAPACITATING HIM FOR DUTY, IS THAT OF THE SHIPOWNERS OR OPERATORS OF THE VESSEL UPON WHICH THE SEAMAN LAST SERVED. THE PRACTICAL EFFECT OF THE DISCHARGE OF THE SEAMAN IN SUCH CASES IS TO RELIEVE THE OWNERS OR OPERATORS OF A VESSEL OF LIABILITY FOR FUTURE WAGES ONLY AND DOES NOT SHIFT TO THE GOVERNMENT THE LIABILITY OR RESPONSIBILITY FOR THE CARE, MAINTENANCE, AND TRANSPORTATION OF SUCH SEAMAN TO A PORT OF THE UNITED STATES. 3 COMP. GEN. 729.

WHILE THE PROVISIONS OF LAW, SUPRA, AUTHORIZE AND REQUIRE THE CONSULAR OFFICER TO PROVIDE FOR THE CARE, MAINTENANCE, AND TRANSPORTATION TO THE UNITED STATES OF AN AMERICAN SEAMAN DISCHARGED BECAUSE OF INJURY OR DISABILITY INCAPACITATING HIM FOR SERVICE, SUCH PROVISIONS DO NOT RELIEVE THE MASTER OR OWNER OF THE VESSEL FROM WHICH DISCHARGED OF ANY LIABILITY OR RESPONSIBILITY IN THE MATTER. 3 COMP. GEN. 148; 4 ID. 118, 252.

ANSWERING YOUR QUESTIONS CATEGORICALLY YOU ARE ADVISED:

1. (A) FOR REASONS HEREINBEFORE STATED THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

(B) THE QUESTION AS TO WHEN OR WHETHER A SEAMAN SHOULD BE DISCHARGED IS NOT FOR DETERMINATION BY THIS OFFICE. A SEAMAN, WHETHER DISCHARGED OR NOT, SHOULD BE PLACED IN A HOSPITAL AT THE EXPENSE OF THE UNITED STATES ONLY WHEN IT IS SHOWN THAT IT IS IMPOSSIBLE FOR THE CONSULAR OFFICER TO COMPEL THE VESSEL TO ASSUME LIABILITY FOR THE HOSPITALIZATION.

(C) THE QUESTION AS TO WHAT ACTION SHOULD BE TAKEN BY A CONSULAR OFFICER TO COMPEL THE OWNERS OF THE VESSEL TO PAY FOR THE MAINTENANCE, SUBSISTENCE, ETC., OF THE DISABLED SEAMAN INVOLVES A MATTER OF ADMINISTRATION, NOT ONE PROPERLY FOR DETERMINATION BY THIS OFFICE.

(D) AND (E)WHEN A VESSEL OF THE SAME COMPANY AS WAS THAT BY WHICH THE SEAMAN WAS LAST EMPLOYED IS AVAILABLE FOR HIS TRANSPORTATION TO THE UNITED STATES, SUCH VESSEL SHOULD BE REQUIRED TO FURNISH HIM WITH THE NECESSARY MAINTENANCE REQUIRED FOR HIM WHILE AWAITING TRANSPORTATION TO THE UNITED STATES, WITHOUT COST TO THE UNITED STATES. WHERE IT IS IMPOSSIBLE TO REPATRIATE A DISCHARGED DISABLED SEAMAN BY HIS OWN VESSEL OR BY A VESSEL OF THE SAME COMPANY, THE COST OF TRANSPORTATION BY ANOTHER STEAMSHIP LINE AS WELL AS THE NECESSARY EXPENSES OF MAINTENANCE WHILE AWAITING TRANSPORTATION TO THE UNITED STATES IS PAYABLE FROM THE FUNDS APPROPRIATED FOR THE RELIEF AND PROTECTION OF AMERICAN SEAMEN. 4 COMP. GEN. 252. SEE ALSO ANSWER TO QUESTIONS 1 (A) AND (B).

2. (A) AND (B) ARE ANSWERED IN THE NEGATIVE. 14 COMP. DEC. 570; 15 ID. 348; 4 COMP. GEN. 248.

(C) IT HAS BEEN HELD THAT WHERE AN AMERICAN SEAMAN IS DISCHARGED 1HDR XXXXX00001-002 AFLITEDATA69160-000 ON ACCOUNT OF INJURIES RECEIVED AS A RESULT OF HIS OWN WILLFUL MISCONDUCT AND DISOBEDIENCE OF ORDERS, OR BECAUSE OF DISEASE ARISING FROM HIS OWN VICES OR GROSS INDISCRETION, THE SHIP IS NOT LIABLE FOR CARE AND MAINTENANCE AFTER DISCHARGE. THE ALECTOR, 263 FED.REP. 1007; 15 COMP. DEC. 740. BUT IN SUCH A CASE THE CONSULAR OFFICER SHOULD NEVERTHELESS PROVIDE FOR THE SEAMAN'S RETURN TO THE UNITED STATES, AND IN THIS CONNECTION SEE ANSWER TO QUESTIONS 1 (A), (B), (D), AND (E), SUPRA. ..END :