A-33672, OCTOBER 17, 1930, 10 COMP. GEN. 176

A-33672: Oct 17, 1930

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FOR DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF CHARLES W. MASS.THE REQUEST STATES THAT THE QUESTION FOR DECISION IS WITH REFERENCE TO WORK PERFORMED ON THE STEAMSHIP BRITANNIC ON SUNDAY. THE RATES OF COMPENSATION TO WHICH CUSTOMS OFFICERS AND EMPLOYEES WHO ARE ASSIGNED TO DUTY IN CONNECTION WITH LADING OR UNLADING AT NIGHT OR ON SUNDAY OR ON A HOLIDAY ARE FIXED UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF FEBRUARY 13. IT IS STATED THAT THE CLAIM FOR ADDITIONAL COMPENSATION IS MADE UNDER SECTION 12 OF THE PASSENGER ACT OF 1882. WHO SHALL MAKE THE EXAMINATION AND REPORT WHETHER THE PROVISIONS OF THE ACT HAVE BEEN COMPLIED WITH IN RESPECT TO SUCH VESSEL.

A-33672, OCTOBER 17, 1930, 10 COMP. GEN. 176

COMPENSATION - OVERTIME - CUSTOMS SERVICE EMPLOYEES SECTION 451 OF THE ACT OF JUNE 17, 1930, 46 STAT. 715, AND SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, AS AMENDED BY THE ACT OF FEBRUARY 7, 1920, 41 STAT. 402, DO NOT ENTITLE A CUSTOMS EMPLOYEE TO ADDITIONAL COMPENSATION FOR SERVICES PERFORMED ON A SUNDAY OR A HOLIDAY IN CONNECTION WITH THE EXAMINATION OF A VESSEL UNDER SECTION 12 OF THE ACT OF AUGUST 2, 1882, 22 STAT. 191.

COMPTROLLER GENERAL MCCARL TO THE COLLECTOR OF CUSTOMS, BOSTON, MASS., OCTOBER 17, 1930:

THERE HAS BEEN RECEIVED REQUEST OF OCTOBER 6, 1930, FOR DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF CHARLES W. HUTCHINSON, ADMEASURER OF VESSELS AT THE PORT OF BOSTON, MASS.THE REQUEST STATES THAT THE QUESTION FOR DECISION IS WITH REFERENCE TO WORK PERFORMED ON THE STEAMSHIP BRITANNIC ON SUNDAY,SEPTEMBER 7, 1930, BUT THE VOUCHER ACCOMPANYING THE REQUEST COVERS SERVICE PERFORMED ON THE STEAMSHIPS CLEVELAND AND LACONIA ON SEPTEMBER 14, AND ON THE STEAMSHIP SCYTHIA ON SEPTEMBER 28, 1930, FROM 8 A.M. TO 5 P.M., BOTH DATES BEING SUNDAY.

SECTION 451 OF THE TARIFF ACT OF 1930, APPROVED JUNE 17, 1930, 46 STAT. 715, PROVIDES:

* * * AT THE REQUEST OF THE MASTER, OWNER, OR AGENT OF ANY VESSEL, THE COLLECTOR SHALL ASSIGN CUSTOMS OFFICERS AND EMPLOYEES TO DUTY AT NIGHT OR ON SUNDAY OR A HOLIDAY IN CONNECTION WITH THE ENTERING OR CLEARING OF SUCH VESSEL, * * *, BUT ONLY IF THE MASTER, OWNER, OR AGENT GIVES A BOND IN THE PENAL SUM TO BE FIXED BY THE COLLECTOR, CONDITIONED TO PAY THE COMPENSATION AND EXPENSES OF SUCH CUSTOMS OFFICERS AND EMPLOYEES, WHO SHALL BE ENTITLED TO RATES OF COMPENSATION FIXED ON THE SAME BASIS AND PAYABLE IN THE SAME MANNER AND UPON THE SAME TERMS AND CONDITIONS AS IN THE CASE OF CUSTOMS OFFICERS AND EMPLOYEES ASSIGNED TO DUTY IN CONNECTION WITH LADING OR UNLADING AT NIGHT OR ON SUNDAY OR ON A HOLIDAY.

THE RATES OF COMPENSATION TO WHICH CUSTOMS OFFICERS AND EMPLOYEES WHO ARE ASSIGNED TO DUTY IN CONNECTION WITH LADING OR UNLADING AT NIGHT OR ON SUNDAY OR ON A HOLIDAY ARE FIXED UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, 36 STAT. 901, AS AMENDED BY THE ACT OF FEBRUARY 7, 1920, 41 STAT. 402, WHICH PROVIDES AS FOLLOWS:

THAT THE SECRETARY OF THE TREASURY SHALL FIX A REASONABLE RATE OF EXTRA COMPENSATION FOR OVERTIME SERVICES OF * * * OTHER CUSTOMS OFFICERS AND EMPLOYEES * * * ON SUNDAYS OR HOLIDAYS, TO PERFORM SERVICES IN CONNECTION WITH THE LADING OR UNLADING OF CARGO * * * SUCH RATES TO BE FIXED ON THE BASIS OF * * * TWO ADDITIONAL DAYS' PAY FOR SUNDAY OR HOLIDAY DUTY * * *.

IT IS STATED THAT THE CLAIM FOR ADDITIONAL COMPENSATION IS MADE UNDER SECTION 12 OF THE PASSENGER ACT OF 1882, APPROVED AUGUST 2, 1882, 22 STAT. 191, WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

* * * THE SAID COLLECTOR OF CUSTOMS MAY DIRECT AN EXAMINATION OF THE VESSEL TO BE MADE BY AN INSPECTOR OR OTHER OFFICER OF THE CUSTOMS, WHO SHALL MAKE THE EXAMINATION AND REPORT WHETHER THE PROVISIONS OF THE ACT HAVE BEEN COMPLIED WITH IN RESPECT TO SUCH VESSEL, AND THE SAID COLLECTOR IS AUTHORIZED TO WITHHOLD THE CLEARANCE OF SUCH VESSEL UNTIL THE COMING IN OF SUCH REPORT; AND IF THE SAID REPORT SHALL SHOW THAT ANY OF THE PROVISIONS OF THIS ACT HAVE NOT BEEN COMPLIED WITH, THE COLLECTOR IS AUTHORIZED AND DIRECTED TO WITHHOLD THE CLEARANCE OF SUCH VESSEL UNTIL THE SAID PROVISIONS ARE COMPLIED WITH; * * *.

IN ARTICLE 134 OF THE CUSTOMS REGULATIONS OF 1923, THE SECRETARY OF THE TREASURY HAS FIXED THE RATE OF ADDITIONAL COMPENSATION AUTHORIZED BY THE ACT OF FEBRUARY 13, 1911, AS AMENDED, SUPRA. THE LAST PARAGRAPH OF SAID ARTICLE 134 PROVIDES THAT:

EXTRA COMPENSATION CAN NOT BE ALLOWED FOR OVERTIME FOR THE FOLLOWING SERVICES, AS THEY ARE NOT SUCH AS ARE CONTEMPLATED BY THE ACT: * * * EXAMINING VESSELS UNDER THE PASSENGER ACT OF 1882.

APPARENTLY, IT IS THE THOUGHT OF THE CLAIMANT THAT THE PROVISION IN SECTION 451 OF THE TARIFF ACT OF 1930, SUPRA, AUTHORIZING PAYMENT OF ADDITIONAL COMPENSATION TO CUSTOMS OFFICERS AND EMPLOYEES ASSIGNED TO DUTY ON SUNDAY OR A HOLIDAY IN CONNECTION WITH THE CLEARING OF A VESSEL HAS APPLICATION TO THE EXAMINATION OF VESSELS UNDER THE PASSENGER ACT OF 1882 BUT THE LANGUAGE OF THE STATUTORY PROVISIONS INVOLVED DOES NOT SEEM TO SUPPORT SUCH A VIEW. THE PROVISION IN SECTION 451 OF THE TARIFF ACT OF 1930, HAS REFERENCE TO THE DUTIES OF CUSTOMS OFFICERS AND EMPLOYEES IN CONNECTION WITH THE ACTUAL CLEARANCE OF VESSELS, WHEREAS THE PROVISION IN THE PASSENGER ACT OF 1882 HAS REFERENCE TO DUTIES TO BE PERFORMED WHICH MAY OR MAY NOT PREVENT CLEARANCE BUT HAVE NOTHING TO DO WITH THE ACTUAL CLEARANCE.

THE REGULATION QUOTED SHOWS THAT UNDER THE PREVIOUS PROVISIONS FOR ADDITIONAL COMPENSATION FOR CUSTOMS EMPLOYEES, PAYMENT WAS NOT AUTHORIZED TO EMPLOYEES WHO PERFORMED THE DUTIES PRESCRIBED UNDER SECTION 12 OF THE PASSENGER ACT OF 1882, AND THERE APPEARS NOTHING IN SECTION 451 OF THE TARIFF ACT OF 1930, TO INDICATE AN INTENT TO INCLUDE THE DUTIES UNDER THE PASSENGER ACT OF 1882 IN THE CLASS OF DUTIES FOR WHICH ADDITIONAL COMPENSATION FOR OVERTIME IS PAYABLE.

YOU ARE ADVISED THAT PAYMENT ON THE VOUCHER SUBMITTED OR ON THE VOUCHER REFERRED TO IN THE LETTER OF OCTOBER 6, 1930, IS NOT AUTHORIZED.