A-23200, OCTOBER 26, 1928, 8 COMP. GEN. 211

A-23200: Oct 26, 1928

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WAS LEFT BEHIND UPON THE SAILING OF HIS VESSEL FROM A FOREIGN PORT. WHEREBY WAS DISALLOWED THE CLAIM OF THE OCEAN DOMINION STEAMSHIP CORPORATION FOR $54 FOR THE TRANSPORTATION OF WILLIAM BURNS. IT APPEARS THAT BURNS WAS THIRD ASSISTANT ENGINEER ON THE STEAMSHIP HAITI ON A PRIOR VOYAGE TO MARTINIQUE AND WAS LEFT BEHIND WHEN THE VESSEL PROCEEDED ON ITS VOYAGE. HE WAS SENT BACK TO THE UNITED STATES AS A DESTITUTE SEAMAN UNDER AN AGREEMENT BETWEEN THE AMERICAN CONSUL AT FORT DE FRANCE AND THE MASTER OF THE VESSEL. THE AGREEMENT WAS APPARENTLY BASED ON THE ASSUMPTION THAT BURNS WAS A DESERTER. THE RECORD DOES NOT DISCLOSE THAT HE WAS. THERE APPEARS THE FOLLOWING STATEMENT RELATIVE TO BURNS' BEING LEFT BEHIND ON A VOYAGE OF THE HAITI PRIOR TO THE TIME HE WAS TRANSPORTED BACK TO THE UNITED STATES: BURNS WAS THIRD ASSISTANT ENGINEER ON THE S.S.

A-23200, OCTOBER 26, 1928, 8 COMP. GEN. 211

SEAMEN, DESTITUTE AMERICAN - TRANSPORTATION BACK TO THE UNITED STATES WHERE AN AMERICAN SEAMAN OVERSTAYED HIS LEAVE, UNDER CIRCUMSTANCES NOT AMOUNTING TO DESERTION AS DEFINED IN THE CONSULAR REGULATIONS, AND WAS LEFT BEHIND UPON THE SAILING OF HIS VESSEL FROM A FOREIGN PORT, THE RESPONSIBILITY FOR HIS RETURN TO THE UNITED STATES DEVOLVES UPON THAT VESSEL AND MAY NOT BE AVOIDED BY A SUBSEQUENT CHANGE IN THE OWNERSHIP THEREOF.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 26, 1928:

REVIEW HAS BEEN REQUESTED OF SETTLEMENT 0233042, DATED MAY 14, 1928, WHEREBY WAS DISALLOWED THE CLAIM OF THE OCEAN DOMINION STEAMSHIP CORPORATION FOR $54 FOR THE TRANSPORTATION OF WILLIAM BURNS, AN AMERICAN SEAMAN, ON THE STEAMSHIP HAITI FROM FORT DE FRANCE, MARTINIQUE, TO NORFOLK, VA.

IT APPEARS THAT BURNS WAS THIRD ASSISTANT ENGINEER ON THE STEAMSHIP HAITI ON A PRIOR VOYAGE TO MARTINIQUE AND WAS LEFT BEHIND WHEN THE VESSEL PROCEEDED ON ITS VOYAGE. HE WAS SENT BACK TO THE UNITED STATES AS A DESTITUTE SEAMAN UNDER AN AGREEMENT BETWEEN THE AMERICAN CONSUL AT FORT DE FRANCE AND THE MASTER OF THE VESSEL.

THE AGREEMENT WAS APPARENTLY BASED ON THE ASSUMPTION THAT BURNS WAS A DESERTER, BUT THE RECORD DOES NOT DISCLOSE THAT HE WAS. IN A LETTER FROM THE AMERICAN CONSUL AT FORT DE FRANCE, MARTINIQUE, DATED SEPTEMBER 12, 1928, TO CLAIMANT, THERE APPEARS THE FOLLOWING STATEMENT RELATIVE TO BURNS' BEING LEFT BEHIND ON A VOYAGE OF THE HAITI PRIOR TO THE TIME HE WAS TRANSPORTED BACK TO THE UNITED STATES:

BURNS WAS THIRD ASSISTANT ENGINEER ON THE S.S. HAITI WHEN THAT VESSEL MAD ITS LAST VOYAGE TO THIS ISLAND AS THE PROPERTY OF THE COLOMBIAN LINE. WAS ALSO ON THAT VOYAGE (JANUARY 17, 1928) THAT HE WAS LEFT BEHIND HERE. FROM DIRECT PERSONAL KNOWLEDGE I KNOW THAT BURNS WAS INFORMED OF THE VESSEL'S SAILING HOUR BY THE CAPTAIN AND THAT HE WAS ALSO DIRECTED BY THE MASTER TO REPORT BACK ON BOARD FROM HIS SHORE LEAVE AT AN HOUR SUFFICIENTLY IN ADVANCE OF THE VESSEL'S SAILING TO PRECLUDE POSSIBILITY OF HIS BEING LEFT BEHIND. THE VESSEL DID NOT SAIL AHEAD OF THE HOUR WHICH HAD BEEN FIXED BY THE CAPTAIN AND INDICATED BY HIM TO THE ENGINEER. FACT THE VESSEL DID NOT SAIL UNTIL MORE THAN AN HOUR LATER.

THE SEAMAN ADMITTED TO ME THAT HE HAD BEEN INTOXICATED, HAD GONE TO SLEEP AND DID NOT HEAR THE VESSEL'S WHISTLE. HE AT NO TIME DENIED THAT HE HAD BEEN DULY INFORMED OF THE SAILING HOUR AND DID NOT ATTACH ANY BLAME TO THE MASTER IN REGARD TO HIS HAVING BEEN LEFT BEHIND.

DESERTION IS DEFINED IN SECTION 294, CONSULAR REGULATIONS, AS FOLLOWS:

DESERTION IS DEFINED TO BE THE QUITTING OF THE SHIP AND HER SERVICE BY ONE OF THE SHIP'S COMPANY WITHOUT LEAVE AND AGAINST THE OBLIGATION OF THE PARTY AND WITH AN INTENT NOT AGAIN TO RETURN TO THE SHIP'S DUTY. NEGLECT OR REFUSAL TO REJOIN THE SHIP AFTER AN ABSENCE WITH LEAVE WHEN ORDERED TO RETURN IS DESERTION; BUT IT IS NOT DESERTION WHEN A MARINER, THROUGH EXCESS OF INDULGENCE, OVERSTAYS HIS TIME OF LEAVE, AND WHEN HE HAS NOT REFUSED OR NEGLECTED TO COMPLY WITH AN ORDER TO RETURN; NOR WHEN THE SEAMAN LEAVES THE SHIP ON ACCOUNT OF CRUEL OR OPPRESSIVE TREATMENT, OR FOR WANT OF SUFFICIENT PROVISIONS IN PORT WHEN THEY CAN BE PROCURED BY THE MASTER, OR WHEN THE VOYAGE IS ALTERED IN THE ARTICLES WITHOUT CONSENT. FED.REP. 605; 39 ID. 624. * *

THE SEAMAN IN THE INSTANT CASE IS SAID TO HAVE BEEN INTOXICATED, TO HAVE GONE TO SLEEP AND NOT TO HAVE HEARD THE SHIP'S WHISTLE. THE CIRCUMSTANCES SET FORTH CLEARLY INDICATE THAT THE MARINER, THROUGH EXCESS OF INDULGENCE, OVERSTAYED HIS TIME OF LEAVE, BUT, ACCORDING TO THE ABOVE DEFINITION, UNDER SUCH CONDITIONS THERE WAS NO DESERTION. CONSEQUENTLY, THE TRANSPORTED SEAMAN NOT BEING PROPERLY REGARDED AS A DESERTER, RESPONSIBILITY FOR HIS RETURN TO THE UNITED STATES DEVOLVED ON THE VESSEL FROM WHICH HE OVERSTAYED HIS LEAVE, AND THAT RESPONSIBILITY COULD NOT BE AVOIDED BY A SUBSEQUENT CHANGE IN THE OWNERSHIP OF THE VESSEL.

FURTHERMORE, THERE IS NO EVIDENCE OF NOTICE BEING GIVEN TO THE CONSULAR OFFICER WITHIN 48 HOURS, OR OF A CERTIFICATE BY THE CONSULAR OFFICER MADE AT THE TIME SHOWING ACTUAL DESERTION, AS REQUIRED BY THE CONSULAR REGULATIONS. SEE 4 COMP. GEN. 390.