A-24575, OCTOBER 17, 1928, 8 COMP. GEN. 194

A-24575: Oct 17, 1928

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DESTITUTE AMERICAN - TRANSPORTATION TO THE UNITED STATES - DESERTION WHERE TRANSPORTATION IS FURNISHED A DESTITUTE AMERICAN SEAMAN ON A VESSEL WHICH. WHERE AT THE TIME THE TRANSPORTATION WAS FURNISHED BOTH OF THE VESSELS BELONGED TO THE SAME COMPANY. THERE IS NO AUTHORITY FOR THE PAYMENT FOR SUCH TRANSPORTATION FROM PUBLIC FUNDS. UNSUPPORTED BY EVIDENCE THAT THE SEAMAN WAS REPORTED AS A DESERTER TO AN AMERICAN CONSULAR OFFICER WITHIN 48 HOURS AND A CERTIFICATE OF DESERTION BY THE CONSULAR OFFICER IN ACCORDANCE WITH CONSULAR REGULATIONS. IS NOT SUFFICIENT TO ESTABLISH DESERTION OR THAT THE COMPANY HAS BEEN RELIEVED OF LIABILITY TO RETURN THE SEAMAN TO THE UNITED STATES. WHEREIN WERE DISALLOWED ITS CLAIMS FOR THE TRANSPORTATION OF DESTITUTE SEAMEN M.

A-24575, OCTOBER 17, 1928, 8 COMP. GEN. 194

SEAMEN, DESTITUTE AMERICAN - TRANSPORTATION TO THE UNITED STATES - DESERTION WHERE TRANSPORTATION IS FURNISHED A DESTITUTE AMERICAN SEAMAN ON A VESSEL WHICH, AT THE TIME OF HIS DISCHARGE BELONGED TO THE SAME OWNER AS THAT ON WHICH HE LAST SERVED, AND WHERE AT THE TIME THE TRANSPORTATION WAS FURNISHED BOTH OF THE VESSELS BELONGED TO THE SAME COMPANY, THERE IS NO AUTHORITY FOR THE PAYMENT FOR SUCH TRANSPORTATION FROM PUBLIC FUNDS, THE OBLIGATION OF THE ONE VESSEL FOR SUCH TRANSPORTATION BEING THAT OF THE OTHER VESSEL. A COPY OF THE LOG OF A VESSEL CERTIFIED BY A UNITED STATES SHIPPING COMMISSIONER STATING THAT A SEAMAN HAD DESERTED THE VESSEL IN A FOREIGN PORT, UNSUPPORTED BY EVIDENCE THAT THE SEAMAN WAS REPORTED AS A DESERTER TO AN AMERICAN CONSULAR OFFICER WITHIN 48 HOURS AND A CERTIFICATE OF DESERTION BY THE CONSULAR OFFICER IN ACCORDANCE WITH CONSULAR REGULATIONS, IS NOT SUFFICIENT TO ESTABLISH DESERTION OR THAT THE COMPANY HAS BEEN RELIEVED OF LIABILITY TO RETURN THE SEAMAN TO THE UNITED STATES.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 17, 1928:

THE DOLLAR STEAMSHIP LINE HAS, BY THREE LETTERS DATED AUGUST 29, 1928, REQUESTED REVIEW OF SETTLEMENTS NO. 030550, DATED SEPTEMBER 1, 1925, MARCH 25, 1926, AND JULY 31, 1926, WHEREIN WERE DISALLOWED ITS CLAIMS FOR THE TRANSPORTATION OF DESTITUTE SEAMEN M. C. PEDERSEN, HARRY A. SCHOONBECK, AND GEORGE COLMAN.

IN THE CLAIM FOR THE TRANSPORTATION OF M. C. PEDERSEN, IT APPEARS THAT HE LAST SERVED ON THE STEAMSHIP PRESIDENT CLEVELAND, AND THAT UNDER CONSULAR CERTIFICATE DATED JUNE 27, 1925, HE WAS TRANSPORTED TO THE UNITED STATES VIA THE STEAMSHIP PRESIDENT LINCOLN. THE AGREED RATE FOR THE TRANSPORTATION AS RECITED BY THE CONSULAR CERTIFICATE WAS $97.64 WHILE THE LOWEST PASSENGER RATE ON THE VESSEL WAS STATED TO BE $50 FOR THE VOYAGE. THE CLAIM WAS DISALLOWED FOR THE REASON THAT IT APPEARED THAT THE VESSEL ON WHICH THE TRANSPORTATION WAS FURNISHED AND THAT ON WHICH THE SEAMAN LAST SERVED WERE BOTH OWNED BY THE CLAIMANT COMPANY. IT NOW APPEARS THAT BOTH VESSELS INVOLVED WERE OWNED BY THE UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION PRIOR TO MAY 5, 1925, ON WHICH DATE THE OWNERSHIP THEREIN WAS TRANSFERRED TO THE DOLLAR STEAMSHIP LINE. THERE IS NO EVIDENCE OF RECORD SHOWING WHEN PEDERSEN WAS DISCHARGED OR HIS SERVICES TERMINATED ON THE STEAMSHIP PRESIDENT CLEVELAND, THAT IS, WHETHER PRIOR OR SUBSEQUENT TO MAY 5, 1925. FURTHERMORE, IT APPEARS THAT AT THE TIME THE SEAMAN WAS DISCHARGED THE TWO VESSELS BELONGED TO ONE OWNER, AND ALSO THAT AT THE TIME THE TRANSPORTATION WAS FURNISHED THEY BELONGED TO THE SAME COMPANY. THEREFORE THE OBLIGATION OF ONE OF THE VESSELS IN THE MATTER OF FURNISHING TRANSPORTATION TO THE SEAMAN WAS LIKEWISE THE OBLIGATION OF THE OTHER. UPON THE FACTS DISCLOSED NO ALLOWANCE CAN BE MADE ON THIS CLAIM.

IN CONNECTION WITH THE CASES OF HARRY A. SCHOONBECK, A MEMBER OF THE CREW OF THE STEAMSHIP PRESIDENT PIERCE, WHO WAS TRANSPORTED FROM HONG KONG TO SAN FRANCISCO VIA THE STEAMSHIP PRESIDENT WILSON, UNDER CONSULAR CERTIFICATE DATED OCTOBER 23, 1925, AND GEORGE COLMAN, A MEMBER OF THE CREW OF THE STEAMSHIP PRESIDENT TAFT, WHO WAS TRANSPORTED FROM SHANGHAI TO SAN FRANCISCO VIA THE STEAMSHIP PRESIDENT PIERCE, UNDER CONSULAR CERTIFICATE DATED APRIL 28, 1926, IT APPEARS THAT IN BOTH CASES COPIES OF THE LOGS OF THE VESSELS ON WHICH THE SEAMEN LAST SERVED, CERTIFIED BY THE UNITED STATES SHIPPING COMMISSIONER, SAN FRANCISCO, CALIF., STATING THAT THE SEAMEN INVOLVED HAD DESERTED FROM THEIR VESSELS AT HONG KONG AND SHANGHAI, RESPECTIVELY, WERE SUBMITTED AS EVIDENCE TO ESTABLISH THE CLAIMS COVERING THE TRANSPORTATION FURNISHED.

IN THIS CONNECTION ATTENTION IS INVITED TO SECTION 294, CONSULAR REGULATIONS, WHICH DEFINES DESERTION 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. WHERE A SEAMAN SIGNS ARTICLES FOR A VOYAGE, AGREEING TO GO TO THE PORT WHERE THE VESSEL IS LYING TO JOIN HER, AND FAILS TO DO SO, HE IS A DESERTER. 53 FED.REP. 551.

SECTIONS 300 AND 301 OF THE CONSULAR REGULATIONS PROVIDE AS FOLLOWS:

DESERTIONS TO BE NOTED ON CREW LIST.--- IT IS THE DUTY OF A MASTER, WHEN A DESERTION OCCURS, TO NOTE THE FACT ON THE LIST OF THE CREW/FORM NO. 33), AND TO HAVE THE DESERTION OFFICIALLY AUTHENTICATED AT THE PORT OR PLACE OF THE CONSULAR OFFICE WHERE IT TAKES PLACE, IF IT IS POSSIBLE; IF NOT, AT THE CONSULAR OFFICE AT THE PORT FIRST VISITED BY THE VESSEL AFTER THE DESERTION, IF IT SHALL HAVE OCCURRED IN A FOREIGN COUNTRY. IF THE VESSEL IS AT A PORT WHERE THERE IS A CONSULAR OFFICER, IT IS THE DUTY OF THE MASTER TO REPORT TO THE LATTER THE DESERTION OF A SEAMAN WITHIN 48 HOURS THEREAFTER. THIS PROVISION IS TO BE CONSTRUED IN CONNECTION WITH THE PROVISION THAT THE BOND GIVEN BY THE MASTER FOR THE RETURN OF THE SEAMAN SHALL NOT BE FORFEITED ON ACCOUNT OF HIS ABSCONDING, OF WHICH SATISFACTORY PROOF IS TO BE EXHIBITED TO THE COLLECTOR. (PARAGRAPH 205.)

DESERTIONS CONNIVED AT BY MASTERS.--- CONSULAR OFFICERS ARE ENJOINED TO TAKE EVERY PROPER MEASURE TO DISCOURAGE AND DEFEAT ANY PROCEEDINGS ON THE PART OF MASTERS UNDER WHICH SEAMEN ARE PERMITTED OR FORCED TO DESERT AND SUBSEQUENTLY COME UPON THE CONSULATE FOR RELIEF. AND WITH THIS VIEW THEY ARE FORBIDDEN TO CERTIFY THE DESERTION LIST OF ANY MASTER UNTIL IT IS SATISFACTORILY SHOWN THAT THE DESERTION WAS NOT CONSENTED TO OR ABETTED BY THE MASTER OR HIS OFFICERS OR WAS NOT MADE JUSTIFIABLE BY THE CONDUCT ON THEIR PART TOWARD THE SEAMEN. NO SEAMAN CAN BE SAID TO ABSCOND WHO OPENLY GOES OFF WITH THE CONSENT OF THE MASTER OR UNDER CIRCUMSTANCES SHOWING THE DESIRE OR INTENTION TO GET RID OF HIM. (24C.CLS.R. 160.) WHEN, THEREFORE, THE CONSULAR OFFICER IS SATISFIED THAT THE SEAMAN DID NOT ABSCOND OR THAT HE COULD HAVE BEEN RECLAIMED IF THE MASTER CHOSE TO MAKE AN EFFORT FOR THAT PURPOSE, HE IS INSTRUCTED TO DECLINE MAKING ANY CERTIFICATE WHICH WOULD FACILITATE THE MASTER IN EVADING THE OBLIGATION TO RETURN HIS CREW.--- E.O. OCT. 21, 1915; E.O. SEPT. 5, 1922.

NO EVIDENCE HAS BEEN PRESENTED TO ESTABLISH THAT NOTICE WAS GIVEN TO THE CONSULAR OFFICERS WITHIN 48 HOURS AFTER THE SEAMEN ARE ALLEGED TO HAVE DESERTED THEIR VESSELS, NOR HAVE CERTIFICATES OF THE CONSULAR OFFICERS MADE AT THE TIME SHOWING THE ACTUAL FACTS OF DESERTION OF THE SEAMEN, AS DEFINED BY THE CONSULAR REGULATIONS, BEEN FURNISHED. THE CERTIFIED COPIES OF THE LOGS OF THE VESSELS INVOLVED ARE INSUFFICIENT TO ESTABLISH THE DESERTION OR THAT THE CLAIMANT COMPANY HAS BEEN OTHERWISE RELIEVED OF LIABILITY TO RETURN THE SEAMEN TO THE UNITED STATES.

ACCORDINGLY, UPON REVIEW, THE SETTLEMENTS OF SEPTEMBER 1, 1925, MARCH 25, 1926, AND JULY 31, 1926, MUST BE, AND ARE, AFFIRMED.