A-21129, JANUARY 25, 1928, 7 COMP. GEN. 435

A-21129: Jan 25, 1928

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WERE RESCUED OR PICKED UP AT SEA AND TRANSPORTED TO A FOREIGN PORT AND TURNED OVER TO THE UNITED STATES CONSULAR OFFICER. THE RESCUING VESSEL IS ONLY ENTITLED TO THE COMPENSATION FOR ITS SERVICES PROVIDED BY PARAGRAPH 290 OF THE CONSULAR REGULATIONS. THE MAXIMUM AMOUNT OF WHICH IS FIXED AT 50 CENTS PER DAY FOR EACH RESCUED SEAMAN FOR THE NUMBER OF DAYS REQUIRED IN TRANSPORTING THEM TO PORT. THERE IS NO LEGAL OBLIGATION ON THE UNITED STATES GOVERNMENT TO PAY THE RESCUING VESSEL FOR SUCH SERVICES ANY AMOUNT IN ADDITION THERETO ON ACCOUNT OF EXPENSES. WHICH WAS BURNED AT SEA ON JUNE 23. 322.00 THE FACTS RELATIVE TO THE SHIPWRECKED AMERICAN CREW AND THEIR RESCUE ARE SET FORTH IN THE AFFIDAVIT OF ERIC CORKUM.

A-21129, JANUARY 25, 1928, 7 COMP. GEN. 435

SEAMEN, SHIPWRECKED AMERICAN - RESCUE WHERE SEAMEN FROM AN AMERICAN FISHING SCHOONER, WRECKED OR DESTROYED BY FIRE, WERE RESCUED OR PICKED UP AT SEA AND TRANSPORTED TO A FOREIGN PORT AND TURNED OVER TO THE UNITED STATES CONSULAR OFFICER, THE RESCUING VESSEL IS ONLY ENTITLED TO THE COMPENSATION FOR ITS SERVICES PROVIDED BY PARAGRAPH 290 OF THE CONSULAR REGULATIONS, THE MAXIMUM AMOUNT OF WHICH IS FIXED AT 50 CENTS PER DAY FOR EACH RESCUED SEAMAN FOR THE NUMBER OF DAYS REQUIRED IN TRANSPORTING THEM TO PORT, AND THERE IS NO LEGAL OBLIGATION ON THE UNITED STATES GOVERNMENT TO PAY THE RESCUING VESSEL FOR SUCH SERVICES ANY AMOUNT IN ADDITION THERETO ON ACCOUNT OF EXPENSES, LOSS OF TIME, OR OTHERWISE.

DECISION BY COMPTROLLER GENERAL MCCARL, JANUARY 25, 1928:

THERE HAS BEEN PRESENTED TO THIS OFFICE FOR CONSIDERATION AND SETTLEMENT THE CLAIM OF THE BRITISH SCHOONER LUCILLE M. SMITH, ZWICKER AND CO. (LTD.), AGENTS, OF LUNENBURG, NOVA SCOTIA, IN THE SUM OF $322, FOR SERVICES PERFORMED, SUPPLIES FURNISHED, AND LOSSES SUSTAINED IN CONNECTION WITH ITS RESCUE OF 12 MEMBERS OF THE CREW OF THE AMERICAN FISHING SCHOONER FALMOUTH OWNED BY THE UNITED FISHERIES CO., WHICH WAS BURNED AT SEA ON JUNE 23, 1926, OFF SABLE ISLAND, NOVA SCOTIA.

THE CLAIM CONSISTS OF THE FOLLOWING THREE ITEMS: BOARD FOR 12 RESCUED MEMBERS OF THE CREW FOR 5 DAYS, COVERING DATE OF RESCUE AND THE DURATION OF THE TRIP FROM SABLE ISLAND TO LUNENBURG, NOVA SCOTIA, AT $1 PER MAN PER DAY ----- $60.00 TRANSPORTATION FOR 12 MEN FROM SABLE ISLAND TO LUNENBURG, NOVA SCOTIA ------------------------------- ----------------- 12.00 LOSS SUSTAINED AS A RESULT OF SAID RESCUE, 1 DAY'S FISHING TIME VALUED AT ----- ------------------------------------ ---- 250.00

TOTAL AMOUNT OF CLAIM -------------------------------- 322.00

THE FACTS RELATIVE TO THE SHIPWRECKED AMERICAN CREW AND THEIR RESCUE ARE SET FORTH IN THE AFFIDAVIT OF ERIC CORKUM, MASTER OF THE BRITISH SCHOONER LUCILLE M. SMITH, DATED JULY 7, 1927, WHICH IS ATTACHED TO THE CLAIM AS A PART THEREOF, AS FOLLOWS:

1. I WAS MASTER OF THE ABOVE-NAMED SCHOONER DURING THE FISHING SEASON OF 1926, AND DURING THE MONTH OF JUNE, 1926, WHILE I WAS MASTER OF SAID SCHOONER I AND THE REST OF THE FISHING CREW OF SAID SCHOONER, NUMBERING 24 MEN IN ALL, PROSECUTED THE CALLING OF FISHERMEN OFF SABLE ISLAND BANKS, AT WHICH TIME FISH WERE PLENTIFUL, AND AVERAGED FROM 100 QUINTALS TO 125 QUINTALS CATCH PER DAY. I AM INFORMED AND VERILY BELIEVE THAT OTHER FISHING VESSELS ON THE SAID FISHING GROUNDS IN THE SAID MONTH AVERAGED THAT AMOUNT.

2. EARLY IN THE MORNING OF THE 23RD DAY OF SAID JUNE, 1926, THE AMERICAN FISHING SCHOONER FALMOUTH, OF GLOUCESTER, MASSACHUSETTS, WAS SIGHTED BY ME ON FIRE, AND I AT ONCE PROCEEDED IN SAID SCHOONER LUCILLE M. SMITH TOWARD SAID BURNING SCHOONER, AND PREPARED IN THE USUAL MANNER FOR THE RESCUE OF ITS CREW, AND THE WHOLE OF SAID DAY WAS OCCUPIED BY SAID LUCILLE M. SMITH AND ITS CREW IN AND ABOUT THE RESCUE AND ACCOMMODATING OF THE CREW OF SAID FALMOUTH, NUMBERING 12 MEN IN ALL. TWELVE OF SAID FALMOUTH'S CREW WERE TAKEN ON BOARD OF THE LUCILLE M. SMITH AND THE FALMOUTH WAS ABANDONED IN A BURNING AND SINKING CONDITION.

3. OWING TO SAID 23RD DAY OF JUNE, 1926, HAVING BEEN OCCUPIED, AS SET FORTH IN THE PRECEDING PARAGRAPH HEREOF, THE FISHING OPERATIONS OF SAID SCHOONER LUCILLE M. SMITH AND HER CREW OF 24 MEN WERE ENTIRELY SUSPENDED, WHICH RESULTED IN A LOSS TO SAID VESSEL AND HER OWNERS AND CREW OF AT LEAST FIFTY QUINTALS OF FISH, ASSUMING THAT AVERAGE FISHING CONDITIONS AS TO PRESENCE OF FISH PREVAILED ON THAT DAY. THE WEATHER CONDITIONS WERE IDEAL, AND HAD IT NOT BEEN FOR THE FACTS REGARDING SAID SCHOONER FALMOUTH ABOVE SET FORTH, AT LEAST FIFTY QUINTALS OF FISH WOULD HAVE BEEN TAKEN BY THE LUCILLE M. SMITH.

4. AFTER RESCUING THE SAID TWELVE MEN OF SAID FALMOUTH CREW THE LUCILLE M. SMITH PROCEEDED TO LAHAVE, WHERE SHE ARRIVED ON THE 28TH DAY OF JUNE, 1926. VERY CALM WEATHER PREVAILED DURING SAID TIME, WHICH OCCASIONED SLOW PROGRESS OF SAID SCHOONER. SAID TWELVE MEMBERS OF SAID FALMOUTH'S CREW WERE AT ONCE FORWARDED BY ME TO BRIDGEWATER, NOVA SCOTIA, TO BE TAKEN CARE OF BY THE AMERICAN CONSULAR AGENT THERE.

5. THE FOREGOING AND ANNEXED ACCOUNT, MARKED "A" BY THE NOTARY PUBLIC BEFORE WHOM THIS DECLARATION IS MADE, REPRESENTS AS NEARLY AS POSSIBLE THE EXACT AMOUNTS OR VALUES EXPENDED OR LOST BY THE OWNERS OF THE SAID LUCILLE M. SMITH IN CONNECTION WITH AND ENTIRELY ON ACCOUNT OF THE CIRCUMSTANCES ATTENDANT UPON AND RESULTING FROM THE RESCUE OF THE MEN HEREINBEFORE REFERRED TO, TOGETHER WITH THE MINIMUM AMOUNT OF LOSS OCCASIONED TO SAID OWNERS BY REASON OF THE LOSS OF ONE DAY'S FISHING OPERATIONS, AND THE AMOUNT OF THREE HUNDRED AND TWENTY-TWO DOLLARS IS JUSTLY AND TRULY OWING TO SAID OWNERS AS ABOVE SET FORTH.

IT APPEARS THAT IN ACKNOWLEDGEMENT OF THE SERVICES RENDERED BY THE MASTER AND CREW OF THE RESCUING VESSEL, THE UNITED STATES, THROUGH ITS CONSULAR OFFICER AT HALIFAX, NOVA SCOTIA, IN NOVEMBER, 1926, REWARDED THE MASTER AND CREW OF THE LUCILLE M. SMITH, BY PAYMENT TO EACH A SUM OF MONEY RANGING FROM $5 TO $25, ACCORDING TO THE RANK AND MERIT OF THE RECIPIENT, AGGREGATING $200, WHICH SUMS ARE THE MAXIMUM REWARDS AUTHORIZED BY PARAGRAPH 328 OF THE CONSULAR REGULATIONS TO BE PAID TO THE MASTERS AND CREWS OF FOREIGN VESSELS IN RESCUING AMERICAN SEAMEN OR CITIZENS FROM SHIPWRECK OR OTHER CATASTROPHE AT SEA.

PARAGRAPH 290 OF THE CONSULAR REGULATIONS OF 1896, PROMULGATED BY THE PRESIDENT UNDER AUTHORITY OF SECTION 1752, REVISED STATUTES, PROVIDES:

WHEN AMERICAN SEAMEN, WHETHER TRANSPORTED FROM A PORT OR PLACE WHERE THERE IS NO CONSULAR OFFICER OR PICKED UP AT SEA, ARE LANDED AT A CONSULATE OF THE UNITED STATES, THE CONSULAR OFFICER IS AUTHORIZED TO PAY THE MASTER OF THE VESSEL IN WHICH THEY ARE TRANSPORTED A REASONABLE COMPENSATION FOR THE SERVICE, NOT EXCEEDING 50 CENTS PER DAY FOR EACH SEAMAN, AND TO INCLUDE THE SAME IN HIS ACCOUNT FOR RELIEF OF SEAMEN, FORWARDING A PROPER VOUCHER THEREWITH AND FURNISHING SATISFACTORY EXPLANATIONS AS TO THE CASE. THE NAMES OF THE SEAMEN AND THE NAMES OF THE VESSELS TO WHICH THEY LAST BELONGED MUST BE GIVEN, AND ALSO THE NUMBERS OF DAYS OCCUPIED IN THEIR TRANSPORTATION.

THE UNITED STATES CONSULAR OFFICER AT HALIFAX, NOVA SCOTIA, CONSIDERED THE MAXIMUM ALLOWANCE AUTHORIZED BY ABOVE-QUOTED PARAGRAPH 290 OF THE CONSULAR REGULATIONS AS INADEQUATE IN THIS CASE AND HAS MADE NO PAYMENT TO THE RESCUING VESSEL, ITS OWNERS OR AGENTS, FOR SERVICES PERFORMED IN CONNECTION WITH THE RESCUING OF THE CREW OF THE FALMOUTH AND IN TRANSPORTING THEM TO THE AMERICAN CONSULATE AT BRIDGEWATER, NOVA SCOTIA, BUT IN LIEU THEREOF HE HAS RECOMMENDED TO THE SECRETARY OF STATE, IN DISPATCH NO. 1010, DATED NOVEMBER 9, 1926, THAT PAYMENT BE MADE OF THE SUBMITTED CLAIM OF $322. SAID DISPATCH READS:

I, W. HENRY ROBERTSON, CONSUL GENERAL OF THE UNITED STATES OF AMERICA AT HALIFAX, NOVA SCOTIA, DO HEREBY CERTIFY TO MY BELIEF THAT A LARGER PAYMENT THAN THAT PRESCRIBED BY PARAGRAPH 290 OF THE CONSULAR REGULATIONS, ANNOTATED TO DECEMBER 31, 1922, SHOULD BE MADE TO THE MASTER OF THE BRITISH SCHOONER LUCILLE M. SMITH FOR THE RESCUE OFF CAPE SABLE ON JUNE 23, 1926, OF TWELVE MEMBERS OF THE CREW OF THE BURNED AMERICAN FISHING SCHOONER FALMOUTH, AS PER THE FOLLOWING STATEMENT OF ESTIMATED EXPENSES INCURRED BY THE LUCILLE M. SMITH FOR THE TRANSPORTATION AND SUBSISTENCE OF THE TWELVE MEN IN QUESTION, SAID STATEMENT BEING HEREBY FORWARDED FOR THE CONSIDERATION OF THE COMPTROLLER GENERAL AND FOR HIS DIRECT SETTLEMENT OF THE AMOUNTS, IF APPROVED.

AMOUNTS RECOMMENDED

FOR PAYMENT 1. FOR BOARD AND LODGING OF THE TWELVE MEN ON THE

LUCILLE M. SMITH FOR FIVE DAYS AT $1.00 PER

DAY FOR EACH MAN ------------------------------------ $60.00 2. FOR TRANSPORTATION OF SAID TWELVE MEN FROM SABLE

ISLAND TO LAHAVE AT $1.00 PER MAN ------------------- 12.00 3. FOR LOSS OF TIME AND CATCH OF THE LUCILLE M. SMITH,

AS EXPLAINED JUST BELOW ----------------------------- 250.00

TOTAL ----------------------------------------------- 322.00

THE LUCILLE M. SMITH ARRIVED AT LAHAVE ONE WEEK EARLIER THAN SHE WOULD HAVE ARRIVED THERE, HAD SHE NOT PICKED UP THE MEN FROM THE FALMOUTH. SHE WOULD HAVE GONE TO LAHAVE IN ANY EVENT TO DISCHARGE HER FISH, SHE ACTUALLY LOST NO TIME IN GOING THERE, EXCEPT THE ONE DAY OCCUPIED IN CONNECTION WITH THE ACTUAL RESCUE WORK, WHEN SHE WAS LYING TO AND AWAITING THE TRANSFER OF THE MEN, ARRANGING FOR THEIR ACCOMMODATION, ETC. FIFTY QUINTALS IS A JUST ESTIMATE OF ONE DAY'S PROBABLE CATCH OF FISH AND SUCH FISH WOULD BE WORTH ABOUT $5.00 PER QUINTAL ON ARRIVAL AT LAHAVE AND BEFORE BEING LANDED. THE LOSS OF CATCH DURING THE ONE DAY OF RESCUE WORK WOULD, THEREFORE, AMOUNT TO $250.00.

IT MIGHT BE ADDED, SPEAKING GENERALLY, THAT ALL OF THE CREW OF THE LUCILLE M. SMITH WERE CONSIDERABLY INCONVENIENCED AND INCOMMODED FOR FIVE DAYS ON ACCOUNT OF THE ADDITIONAL SLEEPING AND OTHER ACCOMMODATION REQUIRED BY TWELVE EXTRA MEN ON A SMALL VESSEL, AND IT WOULD SEEM THAT ALL DID THEIR SHARE TOWARDS MAKING THE MEN FROM THE FALMOUTH AS COMFORTABLE AS POSSIBLE. IT IS A MATTER OF APPRECIATION, ALSO, THAT CAPTAIN ERIC CORKUM OF THE LUCILLE M. SMITH HAS INFORMED OUR CONSULAR AGENT AT LUNENBURG THAT ALL OF HIS PERSONNEL WERE MUCH PLEASED WITH THE GENERAL MANNER AND BEHAVIOR OF THE RESCUED MEN WHOM THEY CONSIDERED EXEMPLARY IN ALL RESPECTS.

IN VIEW OF ALL OF THESE CIRCUMSTANCES, IT IS BELIEVED THAT THE FOREGOING ESTIMATES FOR REIMBURSEMENTS, TOTALLING $322.00, ARE JUST AND REASONABLE, AND IT IS HOPED THAT PAYMENT OF THE SAME DIRECT BY THE COMPTROLLER GENERAL MAY BE APPROVED AND EFFECTED WITH AS LITTLE DELAY AS POSSIBLE, THIS CONSULATE GENERAL BEING APPRISED OF THE RESULT.

IN THE INSTANT CASE THE AMERICAN SEAMEN, WHO WERE PICKED UP AT SEA BY A BRITISH VESSEL, WERE LANDED AT A PORT IN A FOREIGN COUNTRY WHERE THERE WAS A UNITED STATES CONSULAR OFFICER. INASMUCH AS THEY WERE NOT TRANSPORTED FROM A FOREIGN PORT OR PLACE WHERE THERE IS NO CONSULAR OFFICER OF THE UNITED STATES TO A PORT OF THE UNITED STATES, THE CASE IS NOT ONE FOR EXERCISE OF EQUITABLE JURISDICTION BY THE COMPTROLLER GENERAL UNDER SECTION 4579, REVISED STATUTES.

IN SO FAR AS THE UNITED STATES GOVERNMENT IS CONCERNED THERE WOULD APPEAR TO BE NO AUTHORITY FOR THE PAYMENT TO THE OWNER OR AGENT OF THE RESCUING VESSEL IN THIS CASE OF ANY SUM IN EXCESS OF THE COMPENSATION PROVIDED BY PARAGRAPH 290 OF THE CONSULAR REGULATIONS. 16 COMP. DEC. 523. SUCH FURTHER CLAIM AS THE RESCUING VESSEL MIGHT HAVE IN THE MATTER WOULD BE FOR ASSERTING AGAINST THE INDIVIDUALS RESCUED OR THE UNITED FISHERIES CO., OWNER OF THE VESSEL ON WHICH THE RESCUED MEN WERE SERVING AT THE TIME OF RESCUE.

THE EVIDENCE ESTABLISHES THAT THERE WERE 12 MEMBERS OF THE CREW OF THE AMERICAN FISHING SCHOONER FALMOUTH PICKED UP AT SEA, AFTER THE BURNING OF SAID VESSEL ON JUNE 23, 1926, IN THE VICINITY OF SABLE ISLAND BY THE BRITISH FISHING SCHOONER LUCILLE M. SMITH AND TRANSPORTED TO LAHAVE, NOVA SCOTIA, FROM WHERE THEY WERE SENT TO BRIDGEWATER, NOVA SCOTIA, AND TURNED OVER TO THE UNITED STATES CONSULAR OFFICER LOCATED THERE. THE LENGTH OF THE VOYAGE RETURNING SAID SHIPWRECKED CREW TO PORT WAS FIVE DAYS. THE MAXIMUM AMOUNT OF COMPENSATION AUTHORIZED BY PARAGRAPH 290 OF THE CONSULAR REGULATIONS FOR THE SERVICES PERFORMED BY CLAIMANT IS 50 CENTS PER DAY FOR EACH OF THE 12 RESCUED SEAMEN, FOR THE FIVE DAYS' VOYAGE, AMOUNTING TO $30. THERE IS NO LAW OR REGULATION AUTHORIZING THE PAYMENT FROM PUBLIC FUNDS OF ANY ADDITIONAL AMOUNT TO THE RESCUING VESSEL FOR ITS SERVICES.

ACCORDINGLY, THERE IS CERTIFIED AS DUE THE BRITISH SCHOONER LUCILLE M. SMITH, ZWICKER AND CO. (LTD.), AGENTS, THE SUM OF $30 FOR SERVICES PERFORMED IN CONNECTION WITH THE RESCUE OF THE CREW OF THE AMERICAN FISHING SCHOONER FALMOUTH, BURNED AT SEA, AND THEIR TRANSPORTATION FROM THE VICINITY OF SABLE ISLAND TO THE CONSULATE OF THE UNITED STATES AT BRIDGEWATER, NOVA SCOTIA, IN JUNE, 1926, FOR WHICH CHECK WILL ISSUE IN DUE COURSE.