A-24620, OCTOBER 13, 1928, 8 COMP. GEN. 181

A-24620: Oct 13, 1928

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DISPOSITION OF MONEY AND EFFECTS OF AMERICAN SEAMEN WHO HAVE DESERTED CONSULAR OFFICERS HAVE NO AUTHORITY TO DEMAND. AMERICAN SEAMEN WHO HAVE DESERTED. THE MASTER OF THE VESSEL SHOULD TRANSMIT SUCH MONEY AND/OR EFFECTS TO THE SHIPPING COMMISSIONER AT THE PORT WHERE THE VOYAGE OF THE VESSEL TERMINATES OR WHERE THE OWNERS HAVE THEIR PLACE OF BUSINESS. RELATIVE TO THE PROPER METHOD OF DISPOSING OF WAGES OF CHINESE SEAMEN WHO HAVE DESERTED FROM AMERICAN VESSELS OPERATING IN THE ORIENT. IT APPEARS THAT THE PRESENT PROCEDURE IS FOR THE CONSUL AT THE PORT WHERE THE ARTICLES OF THE DESERTING SEAMEN ARE CANCELED TO RECEIVE THE WAGES DUE SUCH SEAMEN AFTER DEDUCTION HAS BEEN MADE FOR ANY LOSS CLAIMED BY THE MASTER.

A-24620, OCTOBER 13, 1928, 8 COMP. GEN. 181

DISPOSITION OF MONEY AND EFFECTS OF AMERICAN SEAMEN WHO HAVE DESERTED CONSULAR OFFICERS HAVE NO AUTHORITY TO DEMAND, RECEIVE, OR COLLECT THE WAGES DUES, OR EFFECTS OF, AMERICAN SEAMEN WHO HAVE DESERTED. THE MASTER OF THE VESSEL SHOULD TRANSMIT SUCH MONEY AND/OR EFFECTS TO THE SHIPPING COMMISSIONER AT THE PORT WHERE THE VOYAGE OF THE VESSEL TERMINATES OR WHERE THE OWNERS HAVE THEIR PLACE OF BUSINESS, AND SAID COMMISSIONER SHOULD PAY OVER THE PROCEEDS, AFTER DEDUCTION OF ALL EXPENSES, TO THE DISTRICT JUDGE OF THE COURT HAVING JURISDICTION OVER THE PORT WHO, IN TURN, SHOULD DEPOSIT THE AMOUNT IN THE TREASURY TO BE COVERED IN AS A MISCELLANEOUS RECEIPT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, OCTOBER 13, 1928:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 28, 1928, FILE FA 19.6/1081, TRANSMITTING COPY OF A DISPATCH RECEIVED FROM THE AMERICAN CONSUL GENERAL AT SHANGHAI, CHINA, RELATIVE TO THE PROPER METHOD OF DISPOSING OF WAGES OF CHINESE SEAMEN WHO HAVE DESERTED FROM AMERICAN VESSELS OPERATING IN THE ORIENT. IT APPEARS THAT THE PRESENT PROCEDURE IS FOR THE CONSUL AT THE PORT WHERE THE ARTICLES OF THE DESERTING SEAMEN ARE CANCELED TO RECEIVE THE WAGES DUE SUCH SEAMEN AFTER DEDUCTION HAS BEEN MADE FOR ANY LOSS CLAIMED BY THE MASTER, AND THE DOUBT IN THE MATTER APPEARS TO BE AS TO WHETHER THE FUNDS SO RECEIVED SHOULD BE REMITTED TO A UNITED STATES DISTRICT COURT OR TO THE DEPARTMENT OF STATE.

SECTION 4596, REVISED STATUTES, AS AMENDED BY THE ACTS OF DECEMBER 21, 1898, 30 STAT. 760, AND MARCH 4, 1915, 38 STAT. 1166, STIPULATES THAT WHENEVER ANY SEAMEN WHO HAS BEEN LAWFULLY ENGAGED, OR ANY APPRENTICE TO THE SEA SERVICE, DESERTS, HE SHALL BE PUNISHED BY "FORFEITURE OF ALL OR ANY PART OF THE CLOTHES OR EFFECTS HE LEAVES ON BOARD AND OF ALL OR ANY PART OF THE WAGES OR EMOLUMENTS WHICH HE HAS THEN EARNED.' THE DISPOSAL OF FORFEITURES UNDER THIS STATUTE IS GOVERNED BY SECTION 4604, REVISED STATUTES, READING AS FOLLOWS:

ALL CLOTHES, EFFECTS, AND WAGES WHICH, UNDER THE PROVISIONS OF THIS TITLE, ARE FORFEITED FOR DESERTION, SHALL BE APPLIED, IN THE FIRST INSTANCE, IN PAYMENT OF THE EXPENSES OCCASIONED BY SUCH DESERTION, TO THE MASTER OR OWNER OF THE VESSEL FROM WHICH THE DESERTION HAS TAKEN PLACE, AND THE BALANCE, IF ANY, SHALL BE PAID BY THE MASTER OR OWNER TO ANY SHIPPING COMMISSIONER RESIDENT AT THE PORT AT WHICH THE VOYAGE OF SUCH VESSEL TERMINATES; AND THE SHIPPING COMMISSIONER SHALL ACCOUNT FOR AND PAY OVER SUCH BALANCE TO THE JUDGE OF THE CIRCUIT COURT WITHIN ONE MONTH AFTER THE COMMISSIONER RECEIVES THE SAME, TO BE DISPOSED OF BY HIM IN THE SAME MANNER AS IS PRESCRIBED FOR THE DISPOSAL OF THE MONEY, EFFECTS, AND WAGES OF DECEASED SEAMEN. WHENEVER ANY MASTER OR OWNER NEGLECTS OR REFUSES TO PAY OVER TO THE SHIPPING COMMISSIONER SUCH BALANCE, HE SHALL BE LIABLE TO A PENALTY OF DOUBLE THE AMOUNT THEREOF, RECOVERABLE BY THE COMMISSIONER IN THE SAME MANNER THAT SEAMEN'S WAGES ARE RECOVERED. IN ALL OTHER CASES OF FORFEITURE OF WAGES, THE FORFEITURE SHALL BE FOR THE BENEFIT OF THE MASTER OR OWNER BY WHOM THE WAGES ARE PAYABLE.

BY SECTION 289 OF THE ACT OF MARCH 3, 1911, 36 STAT. 1167, THE CIRCUIT COURTS OF THE UNITED STATES WERE ABOLISHED AND THE POWERS AND DUTIES OF SUCH COURTS WERE TRANSFERRED TO THE UNITED STATES DISTRICT COURTS SO THAT THE SHIPPING COMMISSIONERS ARE NOW REQUIRED TO PAY OVER THE BALANCES REFERRED TO IN THE ABOVE QUOTED ACT TO THE JUDGES OF THE UNITED STATES DISTRICT COURTS.

IT IS SUGGESTED IN THE SUBMISSION THAT UNDER THE CIRCUMSTANCES INDICATED IN THE DESPATCH ACCOMPANYING YOUR LETTER, THE COLLECTIONS WHICH WOULD ORDINARILY BE MADE BY THE SHIPPING COMMISSIONERS BE MADE BY THE UNITED STATES CONSULS OR CONSULS GENERAL AND THE FUNDS COLLECTED BE TRANSMITTED AND ACCOUNTED FOR IN THE SAME MANNER AS THE WAGES DUE A DESERTER WHEN A VESSEL IS SOLD ABROAD.

THE QUESTION AS TO THE PROPER DISPOSITION OF WAGES OF A DESERTER FROM A VESSEL WAS CONSIDERED BY A FORMER ATTORNEY GENERAL OF THE UNITED STATES IN A LETTER ADDRESSED TO THE SECRETARY OF STATE ON JANUARY 28, 1875, 14 OP.ATTY.GEN. 520. IN SAID OPINION IT WAS HELD THAT A CONSUL HAS NO AUTHORITY TO DEMAND AND RECEIVE FROM THE MASTER OF A VESSEL THE MONEY AND EFFECTS BELONGING TO A DESERTER FROM SAID VESSEL, AND THAT IT IS ONLY IN CASE OF THE DEATH OF A SEAMAN AND UNDER THE CIRCUMSTANCES INDICATED IN THE SECOND DIVISION OF SECTION 4539, REVISED STATUTES, THAT ANY CONSULAR OFFICER IS AUTHORIZED TO REQUIRE THE MONEY, WAGES, ETC., OF A SEAMAN TO BE DELIVERED TO HIM. IT WAS FURTHER HELD THAT THE METHOD THAT SHOULD HAVE BEEN FOLLOWED BY THE MASTER OF THE VESSEL WAS TO TAKE CHARGE OF AND HOLD THE CLOTHES, EFFECTS, AND WAGES OF THE DESERTING SEAMAN UNTIL THE ARRIVAL OF THE VESSEL AT THE PORT WHERE THE VOYAGE WAS TERMINATED AND THERE DELIVER THE BALANCE OF THE FUNDS AND PROPERTY, AFTER DEDUCTING THE EXPENSES OCCASIONED BY THE DESERTION, TO THE SHIPPING COMMISSIONER, TO BE BY HIM PAID OVER TO THE JUDGE OF THE DISTRICT COURT HAVING JURISDICTION OVER THE PORT AT WHICH THE VOYAGE ENDED, OR WHERE THE VESSEL WAS OWNED, SAID COURT TO DISPOSE OF THE FUNDS BY TRANSMITTING THEM TO THE TREASURY TO BE DEPOSITED TO THE CREDIT OF THE FUND FOR THE RELIEF OF SICK, DISABLED, AND DESTITUTE SEAMEN.

THERE APPEARS TO BE NO AUTHORITY OF LAW FOR CONSULAR OFFICERS TO COLLECT FROM THE MASTERS OF VESSELS MONEY AND/OR EFFECTS OF DESERTERS FROM VESSELS, BUT SUCH MONEY AND/OR EFFECTS SHOULD BE DELIVERED BY THE MASTERS OF THE VESSELS, OR THE OWNERS THEREOF, TO A SHIPPING COMMISSIONER LOCATED EITHER AT THE PORT WHERE THE VOYAGE TERMINATES OR WHERE THE VESSEL IS OWNED. THE MONEYS ALREADY COLLECTED BY CONSULS OR CONSULS GENERAL SHOULD BE IMMEDIATELY TRANSMITTED TO THE DISTRICT JUDGE OF THE COURT HAVING JURISDICTION OVER THE PORT AT WHICH THE VOYAGE TERMINATED, OR HAVING JURISDICTION OVER THE OWNERS OF SAID VESSELS. A FULL EXPLANATION OF THE CIRCUMSTANCES SHOULD ACCOMPANY THE MONEY AND EFFECTS SO TRANSMITTED, AND THE DISTRICT JUDGE WILL REMIT THE NET PROCEEDS TO THE TREASURY FOR DEPOSIT IN THE TREASURY OF THE UNITED STATES AS MISCELLANEOUS RECEIPTS. SEE 1 COMP. GEN. 557.