A-3403, OCTOBER 20, 1924, 4 COMP. GEN. 390

A-3403: Oct 20, 1924

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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 OTHERWISE RELIEVED OF LIABILITY TO RETURN THE SEAMAN TO THE UNITED STATES. THE CLAIM WAS DISALLOWED FOR THE REASON THAT THE SEAMAN LAST SERVED ON THE STEAMSHIP YANKEE ARROW. WHICH OWNED THE VESSEL ON WHICH THE TRANSPORTATION WAS FURNISHED. AN ENTRY WAS MADE IN THE LOG BOOK OF THE VESSEL CERTIFYING TO THE DESERTION OF THE SEAMAN. THE UNITED STATES CONSUL WAS NOT NOTIFIED OF THE DESERTION BY THE CAPTAIN OF THE VESSEL AT THE TIME.

A-3403, OCTOBER 20, 1924, 4 COMP. GEN. 390

SEAMEN, DESTITUTE AMERICAN--- TRANSPORTATION THE SWORN STATEMENT BY AN OFFICER OF A SHIPPING COMPANY THAT A DESTITUTE AMERICAN SEAMAN WENT ASHORE FROM A SHIP OF SAID COMPANY IN A FOREIGN COUNTRY AND FAILED TO RETURN BEFORE THE SHIP SAILED, 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 OTHERWISE RELIEVED OF LIABILITY TO RETURN THE SEAMAN TO THE UNITED STATES.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 20, 1924:

THE STANDARD TRANSPORTATION CO. HAS REQUESTED REVIEW OF SETTLEMENT 01559, DATED MAY 12, 1924, DISALLOWING ITS CLAIM FOR $138.35 FOR TRANSPORTATION OF DESTITUTE SEAMAN, A. J. PALLISARD, FROM HANKOW, CHINA, TO SAN FRANCISCO, CALIF., BY THE STEAMSHIP CHINA ARROW DURING THE PERIOD OCTOBER 20 TO NOVEMBER 15, 1923.

THE CLAIM WAS DISALLOWED FOR THE REASON THAT THE SEAMAN LAST SERVED ON THE STEAMSHIP YANKEE ARROW, A VESSEL BELONGING TO THE SAME SHIPPING COMPANY, CLAIMANT HEREIN, WHICH OWNED THE VESSEL ON WHICH THE TRANSPORTATION WAS FURNISHED, AND NO EVIDENCE HAD BEEN SUBMITTED SHOWING AFFIRMATIVELY THAT CLAIMANT COMPANY HAD BEEN RELIEVED FROM ALL DUTY, RESPONSIBILITY, AND LIABILITY WITH RESPECT TO THE SEAMAN SO TRANSPORTED. 4 COMP. GEN. 118; DECISION OF OCTOBER 7, 1924, A-3621.

A SWORN STATEMENT BY AN OFFICER OF CLAIMANT COMPANY HAS SINCE BEEN FURNISHED SHOWING THAT THE SEAMAN WENT ASHORE OCTOBER 14, 1923, FROM THE STEAMSHIP YANKEE ARROW AND FAILED TO RETURN BEFORE SAILING OCTOBER 16, 1923. AN ENTRY WAS MADE IN THE LOG BOOK OF THE VESSEL CERTIFYING TO THE DESERTION OF THE SEAMAN, BUT THE UNITED STATES CONSUL WAS NOT NOTIFIED OF THE DESERTION BY THE CAPTAIN OF THE VESSEL AT THE TIME, STATED AS DUE TO THE LACK OF OPPORTUNITY PRIOR TO SAILING TIME. LATER, APPARENTLY, THE CONSUL WAS NOTIFIED OF THE ALLEGED DESERTION BY AN OFFICER OF THE SHIPPING COMPANY.

IT HAS BEEN HELD THAT DESERTION OF A SEAMAN ACTUALLY PROVEN RELIEVES THE SHIPPING COMPANY OF LIABILITY TO RETURN HIM TO THE UNITED STATES IF FOUND DESTITUTE ABROAD. 3 COMP. GEN. 936.

DESERTION IS DEFINED UNDER 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.--- 18 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:

300. 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.)

301. 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. (24 C.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.

ACCORDINGLY, THE TWO PRIMARY REQUIREMENTS TO PROVE DESERTION ARE LACKING IN THIS CASE, VIZ, NOTICE TO THE CONSULAR OFFICER WITHIN 48 HOURS THEREAFTER, AND A CERTIFICATE OF THE CONSULAR OFFICER MADE AT THE TIME SHOWING THE ACTUAL DESERTION OF THE SEAMAN AS DEFINED BY THE CONSULAR REGULATIONS. IT MUST BE HELD, THEREFORE, THAT THE EVIDENCE ADDUCED DOES NOT SUFFICIENTLY ESTABLISH THE DESERTION, OR THAT THE SHIPPING COMPANY HAS BEEN OTHERWISE RELIEVED OF LIABILITY TO RETURN THE SEAMAN TO THE UNITED STATES.