A-24169, SEPTEMBER 15, 1928, 8 COMP. GEN. 121

A-24169: Sep 15, 1928

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FROM WHERE THEY WERE SUBSEQUENTLY RETURNED TO THE PORT IN THE UNITED STATES WHENCE THEY HAD SAILED. THE PRICE TO BE PAID FOR THE SERVICES WAS NOT FIXED IN THE AGREEMENT. THE OWNER OF THE RELIEF BOAT IS ENTITLED TO RECOVER FROM THE UNITED STATES. WHEREIN HE WAS ALLOWED ONLY $20 ON HIS CLAIM OF $340 FOR SERVICES PERFORMED IN FEBRUARY. CLAIMANT CONTENDS THAT THE AMOUNT CLAIMED IS A FAIR AND REASONABLE CHARGE FOR THE SERVICES RENDERED WHICH HE HAS ITEMIZED AS FOLLOWS: TABLE. IS SET FORTH IN HIS AFFIDAVIT. OF WHICH THE FOLLOWING IS A TRUE AND CORRECT COPY: U.S. OF WHICH THE FOLLOWING IS A TRUE AND CORRECT COPY: U.S. IF CREW WISH RETURN KETCHIKAN SEND ON WATSON AND THEIR TRANSPORTATION WILL BE FURNISHED PURSER AT SEWARD.

A-24169, SEPTEMBER 15, 1928, 8 COMP. GEN. 121

SEAMEN, SHIPWRECKED AMERICAN - PAYMENT FOR RELIEF SERVICES UNDER PAROL AGREEMENT WHERE SHIPWRECKED SEAMEN FROM AN AMERICAN FISHING SCHOONER LOST AT SEA LANDED ON AN ISLAND IN ALASKA, AND THE COLLECTOR OF CUSTOMS AT JUNEAU, THROUGH A UNITED STATES COMMISSIONER, BY PAROL AGREEMENT CHARTERED A PRIVATE GAS MOTOR BOAT TO CARRY FOOD AND CLOTHING TO THE SEAMEN AND TO BRING THEM TO AN ALASKAN PORT, FROM WHERE THEY WERE SUBSEQUENTLY RETURNED TO THE PORT IN THE UNITED STATES WHENCE THEY HAD SAILED, AND THE PRICE TO BE PAID FOR THE SERVICES WAS NOT FIXED IN THE AGREEMENT, THE OWNER OF THE RELIEF BOAT IS ENTITLED TO RECOVER FROM THE UNITED STATES, UPON A SHOWING OF SATISFACTORY PERFORMANCE, THE FAIR AND REASONABLE VALUE OF THE SERVICES SO RENDERED. 7 COMP. GEN. 435, DISTINGUISHED.

DECISION BY COMPTROLLER GENERAL MCCARL, SEPTEMBER 15, 1928:

J. A. JOHNSON, OF KODIAK, ALASKA, ON AUGUST 6, 1928, REQUESTED REVIEW OF SETTLEMENT NO. 0181461, DATED JUNE 6, 1928, WHEREIN HE WAS ALLOWED ONLY $20 ON HIS CLAIM OF $340 FOR SERVICES PERFORMED IN FEBRUARY, 1928, WITH HIS GAS MOTOR BOAT OLIVE AND ITS CREW OF TWO MEMBERS, IN CARRYING SUPPLIES FROM KODIAK, ALASKA, TO PORT HOBRON AND KAGUYAK, KODIAK ISLAND, ALASKA, FOR THE RELIEF OF 10 SHIPWRECKED SEAMEN WHO HAD LANDED ON KODIAK ISLAND IN A LIFEBOAT FROM THE AMERICAN FISHING SCHOONER ALASKA, WHICH HAD BEEN LOST AT SEA, AND IN TRANSPORTING SAID SEAMEN TO KODIAK, ALASKA, IN HIS BOAT OLIVE, AT THE REQUEST OF THE UNITED STATES COMMISSIONER LOCATED AT KODIAK, ACTING FOR AND ON BEHALF OF THE COLLECTOR OF CUSTOMS AT JUNEAU, ALASKA.

CLAIMANT CONTENDS THAT THE AMOUNT CLAIMED IS A FAIR AND REASONABLE CHARGE FOR THE SERVICES RENDERED WHICH HE HAS ITEMIZED AS FOLLOWS:

TABLE. USE OF GAS MOTOR BOAT, 4 DAYS AT $75 PER DAY --------------- --- $300.00 SERVICES OF THE CREW (2 MEN), 4 DAYS AT $5 EACH PER DAY -- ----- 40.00

-------- TOTAL AMOUNT OF CLAIM ------------------------------------------ 340.00

THE CLAIMANT'S STATEMENT OF FACTS RELATIVE TO HIS EMPLOYMENT TO TRANSPORT THE 10 SHIPWRECKED SEAMEN FROM PORT HOBRON AND KAGUYAK TO KODIAK, ALASKA, IN HIS GAS MOTOR BOAT OLIVE, THE SERVICES PERFORMED, AND THE CHARGES CLAIMED THEREFOR, IS SET FORTH IN HIS AFFIDAVIT, DATED JULY 20, 1928, AS FOLLOWS:

FEBRUARY 23RD, 1928, ABOUT 8.00 P.M., A. F. STOWE, THE U.S. COMMISSIONER RESIDING HERE, CALLED ME TO THIS OFFICE AND EXHIBITED TO ME A WIRELESS MESSAGE, OF WHICH THE FOLLOWING IS A TRUE AND CORRECT COPY:

U.S. NAVAL COMMUNICATION SERVICE

KODIAK, ALASKA, FEBRUARY 23RD, 1928

PORT HOBRON, ALASKA, 23RD.

UNITED STATES COMMISSIONER,

KODIAK, ALASKA:

HALIBUT SCHOONER ALASKA WRECKED ON SOUTHEAST END KODIAK ISLAND. SHIP TOTAL LOSS. STOP. CREW SAVED; EIGHT MEN AT KAGUYAK BAY; TWO AT PORT HOBRON. STOP. PLEASE SEND VESSEL TO PICK UP CREW STOPPING AT PORT HOBRON ON WAY. STOP. NO FOOD AT KAGUYAK; HELP NEEDED AT ONCE.

CONRAD PETERSEN,

MASTER, 2225.

THE SAID COMMISSIONER THEN TOLD ME TO HOLD MYSELF READY TO GO TO THE RESCUE OF THE EIGHT MEN AT KAGUYAK BAY ON THE MORNING TIDE. THE NEXT MORNING, BEFORE SAILING, HE SHOWED ME A WIRELESS MESSAGE FROM JOHN C. MCBRIDE, COLLECTOR OF CUSTOMS, OF WHICH THE FOLLOWING IS A TRUE AND CORRECT COPY:

U.S. NAVAL COMMUNICATION SERVICE

KODIAK, ALASKA, FEBRUARY 24TH, 1928

5 WUW-53 OB 1, EXT RUSH.

JUNEAU, ALS., 24TH.

COMMISSIONER, KODIAK, ALASKA:

YOUR ACTION APPROVED IN SENDING RELIEF VESSEL TO ASSISTANCE OF CREW SCHOONER ALASKA. STOP. WHEN CREW ARRIVES PLEASE FURNISH THEM WITH BOARD AND LODGING AT REASONABLE PRICE. STOP. IF CREW WISH RETURN KETCHIKAN SEND ON WATSON AND THEIR TRANSPORTATION WILL BE FURNISHED PURSER AT SEWARD. STOP. SEND ALL BILLS, IN DUPLICATE, HERE.

MCBRIDE, 1720.

I LEFT KODIAK HARBOR THE MORNING OF FEBRUARY 24TH, 1928, AND AFTER A PERILOUS VOYAGE ARRIVED AT PORT HOBRON THE NEXT A.M. THERE I WAS TOLD BY CONRAD PETERSEN, MASTER OF THE WRECKED SCHOONER ALASKA, THAT HE AND ANOTHER MEMBER OF HIS CREW HAD TAKEN THEIR LIVES IN THEIR HANDS AND HAD ROWED FROM KAGUYAK BAY TO PORT HOBRON IN A SMALL DORY BELONGING TO A NATIVE IN ORDER TO REACH THE PRIVATE WIRELESS STATION TO SEND A S.O.S. CALL TO KODIAK.

ON ACCOUNT OF THE PREVALENCE OF A HIGH WIND AND A STORM AT SEA AND THE DANGEROUS COAST I WAS COMPELLED TO REMAIN AT PORT HOBRON UNTIL THE MORNING OF THE 26TH, WHEN I SAILED TO KAGUYAK BAY, PICKED UP THE EIGHT WRECKED SEAMEN, AND BROUGHT THEM TO KODIAK, ALASKA. I ALSO FURNISHED THEM WITH BOARD AT MY OWN EXPENSE DURING THE TRIP, WHICH CONSUMED TWO DAYS. I THEN TURNED THEM OVER INTO THE CARE AND CUSTODY OF SAID U.S. COMMISSIONER, WHO MADE ARRANGEMENTS FOR THEIR BOARD AND FOR CLOTHING AND ALSO FOR THEIR TRANSPORTATION TO THEIR HOME PORT, ALL OF WHICH LATTER BILLS I AM INFORMED, AND VERILY BELIEVE, HAVE BEEN ALLOWED BY THE GOVERNMENT.

THE $20.00 ALLOWED ME, THE CHECK FOR WHICH I AM RETURNING, WOULD NOT PAY FOR MORE THAN ONE-SIXTH OF THE OIL CONSUMED ON THE TRIP. MY ORIGINAL CHARGE WAS FOR $340.00, TO WIT: $75.00 PER DAY FOR THE USE OF MY BOAT AND MY OWN SERVICES AND $5.00 PER DAY EACH FOR THE TWO MEMBERS OF MY CREW, WHICH AMOUNT AND CHARGE HAS ALWAYS BEEN ALLOWED ME BY THE TERRITORIAL GOVERNMENT. MY BOAT WAS THE ONLY SEAWORTHY VESSEL IN KODIAK, AND IT IS MY BELIEF THAT THE EIGHT MEN ABOVE REFERRED TO WOULD HAVE LOST THEIR LIVES HAD I NOT GONE TO THEIR RESCUE.

THE FACTS RELATIVE TO THE SINKING OF THE AMERICAN HALIBUT FISHING SCHOONER ALASKA ON FEBRUARY 18, 1928, OFF THE COAST OF KODIAK ISLAND, ALASKA, AND THE LANDING OF THE SHIPWRECKED CREW AT THE INDIAN VILLAGE OF OF JOHN C. MCBRIDE, COLLECTOR, UNITED STATES CUSTOMS SERVICE, AT JUNEAU, ALASKA, DATED APRIL 3, 1928, AS FOLLOWS:

ACCORDING TO INFORMATION GIVEN THIS OFFICE BY U.S. COMMISSIONER A. F. STOWE, OF KODIAK, THE CREW OF THE ALASKA GOT ASHORE AT THE LITTLE INDIAN VILLAGE OF KAGUYAK AT 2 A.M., FEB. 19TH. THE VESSEL STRUCK IN A BLINDING SNOWSTORM AND FILLED SO QUICKLY THAT NONE OF THE CREW WERE ABLE TO SAVE ANY CLOTHING OTHER THAN THAT IN WHICH THEY WERE DRESSED, AND NO SHIP'S SUPPLIES. AS THERE WERE NO MEANS OF COMMUNICATION WITH THE OUTSIDE WORLD FROM KAGUYAK, SOME OF THE CREW SECURED THE SERVICES OF FISHERMEN TO ASSIST THEM ROWING A SKIFF TO PORT HOBRON, WHERE A CANNERY HAD A WIRELESS STATION BY WHICH THEY COMMUNICATED THE DISASTER TO THE U.S. COMMISSIONER AT KODIAK. THE MESSAGE TO THE COMMISSIONER STATED THE CREW AT KAGUYAK WERE WITHOUT NECESSARY FOOD OR CHANGE OF CLOTHING. HE THEREFORE IMMEDIATELY CHARTERED THE GAS BOAT OLIVE, OF KODIAK, AND SENT HER WITH SUPPLIES TO THE RELIEF OF THE CREW AND TO BRING THEM TO KODIAK. COMMISSIONER STOWE IMMEDIATELY WIRED THIS OFFICE FOR INSTRUCTIONS, AND HE WAS REQUESTED TO FURNISH LODGING AND SUBSISTENCE TO THE SHIPWRECKED MEN. THESE BILLS, THEREFORE, COVER SUPPLIES ORDERED BY COMMISSIONER STOWE AND SENT OUT ON THE RELIEF BOAT OLIVE; ALSO FOR SERVICES OF THE GA.S. OLIVE AND LABOR IN CONNECTION WITH THE RESCUE OF THESE SEAMEN, AS FOLLOWS:

CAPT. J. A. JOHNSON, 4 DAYS USE OF GA. S. OLIVE AND 4 DAYS WORK OF THE

CREW OF TWO MEN --------------------------------------------- $340.00

SECTIONS 4577, 4578, AND 4579, REVISED STATUTES, MAKES PROVISIONS FOR THE RELIEF AND TRANSPORTATION TO THE UNITED STATES OF AMERICAN SEAMEN WHO MAY BE FOUND DESTITUTE WITHIN ANY UNITED STATES CONSULAR DISTRICT IN FOREIGN COUNTRIES. SECTION 4526, REVISED STATUTES, AS AMENDED BY THE ACT OF DECEMBER 21, 1898, 30 STAT. 755, PROVIDES THAT SEAMEN WHOSE SERVICES TERMINATE BEFORE THE PERIOD CONTEMPLATED IN THEIR EMPLOYMENT AGREEMENT, BECAUSE OF THE LOSS OF THE VESSEL, SHALL BE CONSIDERED AS DESTITUTE SEAMEN WITHIN THE PROVISIONS OF SECTIONS 4577, 4578, AND 4579, REVISED STATUTES. PRIOR TO THE FISCAL YEAR 1887 ANNUAL APPROPRIATIONS WERE MADE FOR THE "RELIEF AND PROTECTION OF AMERICAN SEAMEN IN FOREIGN COUNTRIES," BUT BY THE ACT OF MAY 28, 1896, 29 STAT. 186, THE APPROPRIATION WAS EXTENDED SO AS TO INCLUDE RELIEF AND PROTECTION TO "SHIPWRECKED AMERICAN SEAMEN IN THE TERRITORY OF ALASKA.' THE APPROPRIATION FOR SUCH RELIEF OF SHIPWRECKED SEAMEN FOR THE FISCAL YEAR 1928, ACT OF FEBRUARY 24, 1927, 44 STAT. 1183, IS MADE IN THE FOLLOWING TERMS:

FOR RELIEF, PROTECTION, AND BURIAL OF AMERICAN SEAMEN IN FOREIGN COUNTRIES, IN THE PANAMA CANAL ZONE, AND IN THE PHILIPPINE ISLANDS, AND SHIPWRECKED AMERICAN SEAMEN, IN THE TERRITORY OF ALASKA, IN THE HAWAIIAN ISLANDS, IN PORTO RICO, AND IN THE VIRGIN ISLANDS, $100,000.

THE PROCEDURE OF ADMINISTERING RELIEF TO DESTITUTE AMERICAN SEAMEN IN FOREIGN COUNTRIES IS GOVERNED BY THE LAWS ABOVE REFERRED TO AND THE CONSULAR REGULATIONS BASED THEREON. GENERALLY, SUCH RELIEF IS FURNISHED BY THE UNITED STATES CONSULAR OFFICERS IN WHOSE DISTRICTS THE SEAMEN ARE FOUND, OR PAYMENT IS MADE TO THE PERSON FURNISHING RELIEF BY SETTLEMENT OF THE GENERAL ACCOUNTING OFFICE ON THE CONSULAR CERTIFICATES OR OTHER EVIDENCE ESTABLISHING THAT RELIEF HAS BEEN FURNISHED. THERE ARE NO CONSULAR OFFICERS IN THE TERRITORY OF ALASKA, BUT THE APPROPRIATION IS SPECIFICALLY AVAILABLE FOR THE RELIEF AND PROTECTION OF SHIPWRECKED AMERICAN SEAMEN IN ALASKA, AND THE PROCEDURE FOR FURNISHING SUCH RELIEF AND PROTECTION WOULD BE A MATTER FOR ADMINISTRATIVE REGULATION. 8 COMP. DEC. 545, 549.

THE FACTS OF RECORD DISTINGUISH THE CLAIM UNDER CONSIDERATION HERE FROM THE ONE INVOLVED IN THE DECISION OF JANUARY 25, 1928, 7 COMP. GEN. 435, WHEREIN IT WAS HELD THAT A VESSEL RESCUING SEAMEN FROM A WRECKED OR ABANDONED AMERICAN FISHING SCHOONER, OR PICKING THEM UP AT SEA THEREAFTER, AND TRANSPORTING THEM TO A FOREIGN PORT AND TURNING THEM OVER TO THE UNITED STATES CONSULAR OFFICER, WAS ENTITLED TO ONLY THE COMPENSATION PROVIDED BY SECTION 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.

IN THE INSTANT CASE, IT APPEARS THAT THE UNITED STATES CUSTOMS SERVICE FURNISHED RELIEF AND PROTECTION TO THE 10 SHIPWRECKED SEAMEN FROM THE LOST AMERICAN FISHING SCHOONER ALASKA AFTER THEY HAD LANDED IN THEIR OWN LIFEBOAT ON KODIAK ISLAND, ALASKA, AND PRIOR TO THEIR BEING RETURNED TO SEATTLE, WASH., THE PORT FROM WHICH THEIR LOST VESSEL HAD SAILED. INQUIRY AT THE OFFICE OF THE DIRECTOR OF CUSTOMS, TREASURY DEPARTMENT, DISCLOSES THAT NO REGULATIONS OR GENERAL INSTRUCTIONS HAVE BEEN ISSUED TO THE OFFICERS OF THE UNITED STATES CUSTOMS SERVICE IN ALASKA RELATIVE TO THE RELIEF AND PROTECTION TO BE FURNISHED TO SHIPWRECKED SEAMEN IN ALASKA. THE PRACTICE GENERALLY OBSERVED BY THE OFFICERS OF THE CUSTOMS SERVICE THERE APPEARS TO BE TO RENDER NECESSARY RELIEF AND PROTECTION TO ALL SHIPWRECKED AMERICAN SEAMEN IN ALASKA AND TO ARRANGE FOR THEIR RETURN TO A UNITED STATES PORT, A REPORT OF THE MATTER BEING FORWARDED BY THE COLLECTOR OF CUSTOMS INVOLVED TO THE STATE DEPARTMENT, TOGETHER WITH A LIST OF THE NECESSARY EXPENSES INCURRED, IN ORDER THAT PAYMENT OF ALL CLAIMS IN CONNECTION THEREWITH FOR WHICH THE GOVERNMENT IS LIABLE MAY BE MADE FROM THE APPROPRIATION FOR RELIEF OF AMERICAN SHIPWRECKED SEAMEN IN ALASKA, WHICH APPROPRIATION IS UNDER THE ADMINISTRATIVE CONTROL OF THE STATE DEPARTMENT.

THE FACTS HERE SHOW THAT IMMEDIATELY UPON RECEIPT OF INFORMATION THAT THE SHIPWRECKED SEAMEN FROM THE LOST AMERICAN FISHING SCHOONER ALASKAHAD LANDED ON KODIAK ISLAND, ALASKA, THE UNITED STATES COMMISSIONER AT KODIAK COMMUNICATED WITH THE COLLECTOR OF CUSTOMS AT JUNEAU, ALASKA, WHO AUTHORIZED HIM TO SEND A RELIEF VESSEL TO BRING THE SHIPWRECKED SEAMEN TO KODIAK, ALASKA, AND TO FURNISH THEM WITH NECESSARY FOOD, CLOTHING, AND SHELTER, UNTIL THEY COULD BE RETURNED TO SEATTLE, WASH. ACCORDINGLY, SAID UNITED STATES COMMISSIONER CHARTERED FROM CLAIMANT HIS GAS MOTOR BOAT OLIVE, OF KODIAK, ALASKA, WITH ITS CREW OF TWO MEN, TO CARRY THE NECESSARY FOOD AND CLOTHING TO THE SHIPWRECKED SEAMEN AT PORT HOBRON AND KAGUYAK, ALASKA, AND TO BRING SUCH SEAMEN TO KODIAK, ALASKA. THE BOAT OLIVE, WITH THE SUPPLIES, LEFT KODIAK, ALASKA, ON FEBRUARY 24, 1928, AND WENT TO PORT HOBRON AND KAGUYAK, ALASKA, WHERE THE 10 SHIPWRECKED SEAMEN WERE WAITING, AND DELIVERED THE SUPPLIES TO THEM. THE RETURN VOYAGE TO KODIAK, ALASKA, WITH THE 10 SHIPWRECKED SEAMEN, WAS COMPLETED FEBRUARY 29, 1928. REQUIRED SIX DAYS FOR THE ROUND-TRIP VOYAGE INASMUCH AS THERE WERE DELAYS OF TWO DAYS ON ACCOUNT OF A STORM AT SEA WHILE THE RELIEF BOAT WAS AT PORT HOBRON AND KAGUYAK, ALASKA.

THE CLAIM FOR SERVICES OF THE BOAT OLIVE AND ITS CREW IN CARRYING THE SUPPLIES FURNISHED BY THE GOVERNMENT TO THE 10 SHIPWRECKED SEAMEN AT PORT HOBRON AND KAGUYAK, ALASKA, AND IN TRANSPORTING THESE SEAMEN TO KODIAK, ALASKA, APPEARS TO HAVE ARISEN UNDER A PAROL AGREEMENT IN THE NATURE OF A CONTRACT IN WHICH ALL THE TERMS WERE AGREED TO BETWEEN THE PARTIES EXCEPTING THE AMOUNT OF COMPENSATION. THE SERVICES APPEAR TO HAVE BEEN PERFORMED IN A SATISFACTORY MANNER. IT HAS BEEN HELD BY THE COURTS AND BY DECISIONS OF THIS OFFICE THAT WHEN A PAROL CONTRACT HAS BEEN WHOLLY OR PARTIALLY PERFORMED ON ONE SIDE THE PARTY PERFORMING IS ENTITLED TO RECOVER THE FAIR VALUE OF HIS PROPERTY OR SERVICE AS UPON AN IMPLIED CONTRACT FOR A QUANTUM MERUIT. SEE CLARK V. UNITED STATES, 95 U.S. 539; ST. LOUIS HAY CO. V. UNITED STATES, 191 U.S. 159; 7 COMP. DEC. 365; 8 ID. 526; 9 ID. 700; AND 24 ID. 226. INASMUCH AS THE SERVICES CONTRACTED FOR WERE ACTUALLY PERFORMED AND THE GOVERNMENT RECEIVED THE BENEFIT THEREOF, THE CLAIMANT IS ENTITLED TO PAYMENT OF A FAIR AND REASONABLE PRICE FOR SUCH SERVICES. THE CLAIMANT HAS FIXED THE VALUE OF THE SERVICES PERFORMED UNDER THE PAROL CONTRACT AT $340, AND THE PAYMENT OF THAT AMOUNT FOR SUCH SERVICES HAS BEEN RECOMMENDED BY THE COLLECTOR OF CUSTOMS AT JUNEAU, ALASKA, AND APPROVED BY THE DEPARTMENT OF STATE. THE EVIDENCE APPEARS TO ESTABLISH THAT $340 IS A FAIR AND REASONABLE AMOUNT FOR THE SERVICES PERFORMED BY THE CLAIMANT FOR THE GOVERNMENT WITH HIS BOAT OLIVE AND ITS CREW DURING THE PERIOD OF FEBRUARY 24 TO 29, 1928, INCLUSIVE, AS ABOVE SET FORTH.

THEREFORE, UPON REVIEW, THE SETTLEMENT NO. 0181461, DATED JUNE 6, 1928, IS REVISED SO AS TO SHOW $340 DUE TO THE CLAIMANT, INSTEAD OF THE $20 THEREIN STATED, FOR THE SERVICES RENDERED.

THE TREASURER'S CHECK NO. 219768 FOR $20, WHICH ACCOMPANIED CLAIMANT'S REQUEST FOR REVIEW OF THE SETTLEMENT, WILL BE RETURNED TO THE CLAIMANT AND AN ADDITIONAL CHECK FOR $320 TO COVER THE AMOUNT HEREIN ALLOWED WILL ISSUE TO HIM IN DUE COURSE.