A-18045, DECEMBER 2, 1927, 7 COMP. GEN. 363

A-18045: Dec 2, 1927

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SEAMEN - MEDICAL TREATMENT - TRANSPORTATION TO THE UNITED STATES WHERE CONDITIONS ARE SUCH THAT THE CONSULAR OFFICERS OF THE UNITED STATES CAN NOT PROCURE PROMPT MEDICAL AND HOSPITAL TREATMENT AND SUBSISTENCE FOR AMERICAN SEAMEN AT THE EXPENSE OF THE MASTER OR OWNER OF THE VESSEL UPON WHICH THE SEAMAN LAST SERVED. UPON DISCHARGE OF AMERICAN SEAMEN BEFORE CONSULAR OFFICERS OF THE UNITED STATES IN FOREIGN PORTS FOR ANY REASON EXCEPT DESERTION THE RETURN OF THE SEAMEN TO THE UNITED STATES MUST BE ARRANGED FOR AT THE EXPENSE OF THE MASTERS OR OWNERS OF THE VESSEL FROM WHICH THE SEAMEN ARE DISCHARGED. WILL ASSIST IN ESTABLISHING MORE SATISFACTORY AND UNIFORM PROCEDURE IN SUCH CASES. FOR CONVENIENCE IN REPLYING AND FOR REFERENCE EACH PROPOSITION UPON WHICH THE DEPARTMENT DESIRES AN OPINION FROM YOUR OFFICE IS MADE A SEPARATE NUMBERED PARAGRAPH.

A-18045, DECEMBER 2, 1927, 7 COMP. GEN. 363

SEAMEN - MEDICAL TREATMENT - TRANSPORTATION TO THE UNITED STATES WHERE CONDITIONS ARE SUCH THAT THE CONSULAR OFFICERS OF THE UNITED STATES CAN NOT PROCURE PROMPT MEDICAL AND HOSPITAL TREATMENT AND SUBSISTENCE FOR AMERICAN SEAMEN AT THE EXPENSE OF THE MASTER OR OWNER OF THE VESSEL UPON WHICH THE SEAMAN LAST SERVED, RELIEF MAY BE FURNISHED AT THE EXPENSE OF THE UNITED STATES AND PAYMENT MADE THEREFOR FROM THE APPROPRIATION FOR THE RELIEF OF AMERICAN SEAMEN. UPON DISCHARGE OF AMERICAN SEAMEN BEFORE CONSULAR OFFICERS OF THE UNITED STATES IN FOREIGN PORTS FOR ANY REASON EXCEPT DESERTION THE RETURN OF THE SEAMEN TO THE UNITED STATES MUST BE ARRANGED FOR AT THE EXPENSE OF THE MASTERS OR OWNERS OF THE VESSEL FROM WHICH THE SEAMEN ARE DISCHARGED, IF POSSIBLE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, DECEMBER 2, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 29, 1927, AS FOLLOWS:

THE DEPARTMENT ACKNOWLEDGES YOUR LETTER OF MAY 9, 1927 (A-18045), CONCERNING THE AUTHORITY OF CONSULAR OFFICERS TO FURNISH RELIEF AND TRANSPORTATION TO SEAMEN DISCHARGED IN FOREIGN PORTS ON ACCOUNT OF ILLNESS OR INJURY.

THIS DEPARTMENT DOES NOT SEEK TO PLACE THE BURDEN OF FORMULATING ADMINISTRATIVE POLICIES UPON YOUR OFFICE, BUT YOUR COOPERATION IN ADVISING THE DEPARTMENT OF THE INTERPRETATION WHICH YOUR OFFICE PLACES UPON CERTAIN WELL-ESTABLISHED PRINCIPLES, WHEN APPLIED TO THE SITUATIONS HEREINAFTER STATED, WILL ASSIST IN ESTABLISHING MORE SATISFACTORY AND UNIFORM PROCEDURE IN SUCH CASES. FOR CONVENIENCE IN REPLYING AND FOR REFERENCE EACH PROPOSITION UPON WHICH THE DEPARTMENT DESIRES AN OPINION FROM YOUR OFFICE IS MADE A SEPARATE NUMBERED PARAGRAPH.

IT IS UNDERSTOOD THAT THE INTENT OF CONGRESS IN ENACTING R.S. 4581 WAS TO ASSURE THE PROPER CARE AND REPATRIATION OF SEAMEN DISCHARGED IN FOREIGN PORTS FOR ILLNESS OR INJURY, AND THAT A CONSULAR OFFICER IS AUTHORIZED TO EXTEND RELIEF FROM GOVERNMENT FUNDS UNDER THE FOLLOWING CIRCUMSTANCES, NOTWITHSTANDING THERE IS A PRIMARY LIABILITY ON THE PART OF THE VESSEL THEREFOR:

(1) WHEN A SEAMAN IS IN CRITICAL CONDITION FROM ILLNESS OR INJURY AND ANY DELAY IN HIS TREATMENT ON SHORE SERIOUSLY ENDANGERS HIS LIFE OR PERMANENT DISABILITY, A CONSULAR OFFICER MAY, IF THE VESSEL AND ITS OWNERS REFUSE TO MAKE SUITABLE ARRANGEMENTS, CAUSE THE SEAMAN TO BE GIVEN NECESSARY TREATMENT FROM THE FUND FOR THE RELIEF AND PROTECTION OF SEAMEN. THE CONSULAR OFFICER SHOULD OFFER SATISFACTORY PROOF THAT SUCH AN EMERGENCY EXISTED AND SHOULD REPORT THE FACTS TO THE DEPARTMENT IN ORDER TO PERMIT THE GOVERNMENT TO SEEK REIMBURSEMENT FROM THE VESSEL IF CONSIDERED EXPEDIENT (29 OP.ATTY.GEN. 54);

(2) CONSULAR OFFICERS SHOULD LIKEWISE OBTAIN PROMPT TREATMENT FOR SEAMEN UNDER THE CONDITIONS OUTLINED IN (1) WHERE THE VESSEL IS UNABLE TO DO SO; (A) BECAUSE IT IS WITHOUT FUNDS; (B) BECAUSE LOCAL AUTHORITIES WILL NOT PERMIT THE SEAMEN LANDED, OR LOCAL HOSPITALS AND PHYSICIANS WILL NOT UNDERTAKE THE TREATMENT, UNLESS THE CONSULAR OFFICERS ASSUME RESPONSIBILITY THEREFOR;

(3) WHEN IT IS NECESSARY FOR A CONSULAR OFFICER TO ASSUME RESPONSIBILITY FOR THE PROMPT TREATMENT OF SEAMEN AS SET FORTH IN (1) AND (2), AND THE VESSEL IS PRIMARILY LIABLE THEREFOR, THE CONSULAR OFFICER IS JUSTIFIED IN REFUSING TO DISCHARGE THE SEAMEN, IN WHICH CASE THEY CAN ONLY BE RELIEVED AT GOVERNMENT EXPENSE IF DESTITUTE, AND THE SHIP'S PAPERS MAY BE HELD PENDING SATISFACTORY ARRANGEMENTS BY THE VESSEL. HOWEVER, IN EVENT OF THE VESSEL'S CONTINUED REFUSAL OR INABILITY, THE CONSULAR OFFICER SHOULD EXERCISE REASONABLE DISCRETION IN REGARD TO DELAYING THE DEPARTURE OF THE VESSEL, PARTICULARLY IN THE CASE OF PASSENGER VESSELS. (SEE YOUR LETTER TO THIS DEPARTMENT DATED MAY 9, 1927 (A-18045).)

IT IS RESPECTFULLY REQUESTED THAT YOU ADVISE THIS DEPARTMENT WHETHER THE STATEMENTS IN THE ABOVE PARAGRAPHS NUMBERED (1), (2), AND (3) ARE IN ACCORD WITH YOUR INTERPRETATION OF SECTION 4581 OF THE REVISED STATUTES OF THE UNITED STATES. THE FOLLOWING PARAGRAPH NUMBERED (4) REQUESTS YOU TO AMPLIFY AN OPINION RENDERED BY YOUR OFFICE IN REGARD TO THE SAME CLASS OF CASES.

(4) IN YOUR LETTER TO THIS DEPARTMENT DATED FEBRUARY 12, 1926 (5 COMP. GEN. 623), THE LAST PARAGRAPH, YOU HAVE CITED THE CASE OF THE ALECTOR, 203 FED.REP. 1007 AND 15 COMP. GEN. 740, AS AUTHORITY FOR THE STATEMENT THAT WHEN AN AMERICAN SEAMAN IS DISCHARGED ON ACCOUNT OF INCAPACITY CAUSED BY INJURIES RECEIVED AS A RESULT OF HIS OWN WILFUL MISCONDUCT AND DISOBEDIENCE OF ORDERS, OR BECAUSE OF DISEASE ARISING FROM HIS OWN VICES OR GROSS INDISCRETION, THE SHIP IS NOT LIABLE FOR THE CURE AND MAINTENANCE AFTER DISCHARGE. WITH RESPECT TO THE OBLIGATION OF REPATRIATION IN SUCH CASES, YOU INDICATE THAT THE VESSEL OR OWNING COMPANY MAY STILL BE RESPONSIBLE. WILL YOU PLEASE INDICATE WHETHER IN MAKING TIS DISTINCTION IT IS YOUR VIEW THAT INCAPACITY CAUSED BY WILFUL MISCONDUCT AND DISOBEDIENCE OF ORDERS, OR DISEASE ARISING FROM VICES OR GROSS INDISCRETION, WILL NEVER RELIEVE THE VESSEL OR OWNING COMPANY OF THE OBLIGATION OF REPATRIATION, OR IF THE OBLIGATION MIGHT IN CERTAIN CASES BE TERMINATED, AS INDICATED IN THE FOLLOWING CASES: 18 FED.REP. 605; 111 FED.REP. 550; FED. CASES NO. 14057 (OPINION OF JUSTICE BETTS); FED. CASES NO 10262.

THE DEPARTMENT DESIRES TO INSTRUCT CONSULAR OFFICERS IN RESPONSE TO INQUIRIES REGARDING THE MATTERS UPON WHICH YOUR OPINION HAS BEEN REQUESTED. THESE QUESTIONS ARE DAILY OCCURRENCES IN LARGE SHIPPING CENTERS, AND YOUR ASSISTANCE IN THE PREMISES WILL BE APPRECIATED.

ASSUMING THAT PARAGRAPHS 1, 2, AND 3 OF THE PROPOSED REGULATIONS RELATE SOLELY TO THE QUESTION OF FURNISHING MAINTENANCE OR MEDICAL AND HOSPITAL TREATMENT, THEY WOULD APPEAR TO BE IN ACCORD WITH THE DECISIONS OF THIS OFFICE. IT IS, OF COURSE, THE DUTY OF THE CONSUL TO SEE THAT RELIEF IS PROMPTLY FURNISHED SICK OR INJURED OR DESTITUTE SEAMEN, AND THE FURNISHING OF SUCH RELIEF SHOULD NOT BE DELAYED UNREASONABLY NOR FOR SUCH TIME AS MIGHT ENDANGER THE LIFE OR RESULT IN ADDITIONAL SUFFERING ON THE PART OF THE SEAMEN.

WITH RESPECT TO PARAGRAPH 4, IT MAY BE STATED THAT THE COURT DECISIONS CITED BY YOU DID NOT PASS UPON THE RIGHTS OF THE SEAMEN THEREIN INVOLVED TO BE RETURNED TO THE UNITED STATES AT THE EXPENSE OF THE GOVERNMENT, BUT WERE CONFINED TO CERTAIN DISPUTED CLAIMS ASSERTED BY THE SEAMEN AGAINST THE MASTERS OR OWNERS OF THE VESSELS. WHILE AUTHORITY IS GRANTED BY STATUTE FOR THE RETURN OF SEAMEN TO THE UNITED STATES AT GOVERNMENT EXPENSE UNDER CERTAIN CIRCUMSTANCES, SUCH AUTHORITY DOES NOT AFFECT THE PRIMARY DUTY, RESPONSIBILITY, AND LIABILITY OF THE SHIPPING COMPANY OWNING OR OPERATING THE VESSEL ON WHICH THE SEAMEN LAST SERVED TO RETURN THE SEAMEN TO THE UNITED STATES. 3 COMP. GEN. 148; 4 ID. 118. SEE ALSO SECTION 295 OF THE UNITED STATES CRIMINAL CODE, 35 STAT. 1146. IRRESPECTIVE OF THE SEAMEN'S CONDUCT OR DISOBEDIENCE OF ORDERS THERE IS A DUTY DEVOLVING ON THE SHIPPING COMPANY TO RETURN TO THE UNITED STATES A SEAMAN THEN OR PREVIOUSLY IN ITS EMPLOY. A REASON FOR THIS IS THAT THE SEAMEN ARE ABROAD AS A RESULT OF THEIR CONNECTION WITH THE SHIPPING COMPANY, WHICH IS A PRIMARY AGENCY TO PREVENT THE SEAMEN FROM BECOMING A PUBLIC CHARGE IN A FOREIGN COUNTRY. FURTHERMORE, THE VESSEL IS BENEFITED, INDIRECTLY AT LEAST, BY THE RETURN OF SEAMEN TO PORTS OF THE UNITED STATES WHERE THEIR SERVICES ARE MORE READILY AVAILABLE FOR RESHIPPING ON AMERICAN VESSELS WHEN NEEDED. CONSEQUENTLY, IT IS ALWAYS THE DUTY OF THE CONSULAR OFFICER, IF PRACTICABLE, TO RETURN A SEAMAN TO THE UNITED STATES BY THE SAME SHIP ON WHICH HE LAST SERVED, OR ON ANOTHER AVAILABLE SHIP UNDER THE SAME PRIVATE OWNERSHIP OR CONTROL. AND WHEN THIS CAN BE DONE IT IS NOT APPARENT THAT THE COMPANY WOULD BE ENTITLED TO REIMBURSEMENT OR COMPENSATION FROM THE UNITED STATES UNLESS THE SEAMAN'S DISCHARGE WAS FOR DESERTION. A DISCHARGE BY REASON OF DESERTION BREECHES THE CONTRACT OF EMPLOYMENT AND RELIEVES THE MASTER OR OWNER OF THE VESSEL FROM THE DUTY OF RETURNING THE SEAMEN TO THE UNITED STATES FREE OF CHARGE. 3 COMP. GEN. 936; A-15119, AUGUST 3, 1926. IF IN ANY CASE A SEAMAN IS PLACED UPON A VESSEL TO BE RETURNED TO THE UNITED STATES BECAUSE HE HAD LAST SERVED ON A VESSEL OWNED OR OPERATED BY THE SAME COMPANY, AND THE OWNER OR MASTER CONTENDS THAT THE CIRCUMSTANCES UNDER WHICH THE SEAMAN WAS DISCHARGED WERE TANTAMOUNT TO A DESERTION WITHIN THE PURVIEW OF THE TWO DECISIONS LAST ABOVE CITED, THE CONSULAR OFFICER SHOULD NOT UNDERTAKE TO OBLIGATE THE UNITED STATES FOR THE EXPENSE OF THE RETURN TRANSPORTATION, BUT THE CONSULAR CERTIFICATE IN SUCH CASES SHOULD SHOW THE DISTANCE OF THE ROUTE OVER WHICH THE TRANSPORTATION IS TO BE FURNISHED AND THE LOWEST PASSENGER FARE ON THE VESSEL, AND SHOULD RECITE THAT THE VESSEL HAS AGREED TO RETURN THE SEAMEN FOR SUCH COMPENSATION, IF ANY, AS MAY BE ALLOWED BY THE COMPTROLLER GENERAL OF THE UNITED STATES.