A-3926, NOVEMBER 26, 1924, 4 COMP. GEN. 483

A-3926: Nov 26, 1924

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THE VESSEL ON WHICH THE SEAMAN HAD SHIPPED AND ON WHICH HE WAS RETURNED TO THIS COUNTRY. WHICH STATEMENTS AND CERTIFICATE DEFINITELY ESTABLISH THE FOLLOWING FACTS: THAT JOSE MATOS WAS A MEMBER OF THE CREW OF THE S.S. THAT HE WAS DETECTED BY THE "POLICE DIVISION OF THE VESSEL'S OWNERS" ATTEMPTING TO AID A STOWAWAY ABOARD THE VESSEL. THAT HE WAS ARRESTED. THAT HE WAS COMMITTED TO JAIL FEBRUARY 2. IT IS ALSO SHOWN THAT HE WAS RETURNED TO NEW YORK ON THE S.S. THAT THE SIBONEY IS THE SAME VESSEL ON WHICH HE HAD LAST SERVED. IT IS URGED THAT THE SEAMAN IN THIS CASE BY HIS OWN ACTS BREACHED HIS CONTRACT OF EMPLOYMENT. THE TWO CAUSES ARE NOT ANALOGOUS. ALSO FOR THE REASON THAT THE VERY NATURE OF THE OFFENSE OF DESERTING A VESSEL WHILE ABROAD IS REPUGNANT TO THE CHARACTER OF EMPLOYMENT AND MARITIME CUSTOM.

A-3926, NOVEMBER 26, 1924, 4 COMP. GEN. 483

TRANSPORTATION OF DESTITUTE AMERICAN SEAMEN THE ARREST OF AN AMERICAN SEAMAN IN A FOREIGN PORT BY AN OFFICER OF THE SHIPPING COMPANY EMPLOYING THE SEAMAN, FOR ASSISTING A STOWAWAY ON BOARD THE VESSEL AND ACCEPTING MONEY THEREFOR, RESULTING IN TRIAL AND TEMPORARY CONFINEMENT, DOES NOT RELIEVE THE SHIPPING COMPANY FROM THE DUTY, RESPONSIBILITY, AND LIABILITY OF RETURNING THE SEAMAN TO THE UNITED STATES WHEN FOUND DESTITUTE IN THE FOREIGN COUNTRY BY THE UNITED STATES CONSULAR OFFICER WHO PLACED THE SEAMAN ON THE VESSEL ON WHICH HE LAST SERVED, NOR OBLIGATE THE UNITED STATES TO REIMBURSE SAID COMPANY FOR THE COST OF SUCH TRANSPORTATION. 3 COMP. GEN. 936, DISTINGUISHED.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 26, 1924:

THE NEW YORK AND CUBA S.S. CO. APPLIED OCTOBER 8, 1924, FOR RECONSIDERATION OF DECISION OF AUGUST 28, 1924, DENYING ITS CLAIM FOR $24.40 FOR TRANSPORTING JOSE MATOS, A DESTITUTE AMERICAN SEAMAN, FROM HABANA, CUBA, TO NEW YORK, N.Y., FOR THE REASON THAT NO EVIDENCE HAD BEEN SUBMITTED SHOWING THAT THE COMPANY HAD BEEN RELIEVED FROM THE RESPONSIBILITY OF RETURNING THE SEAMAN TO THIS COUNTRY.

IN SUPPORT OF THE REQUEST FOR RECONSIDERATION THE COMPANY HAS FURNISHED STATEMENTS FROM THE MASTER OF THE S.S. SIBONEY, THE VESSEL ON WHICH THE SEAMAN HAD SHIPPED AND ON WHICH HE WAS RETURNED TO THIS COUNTRY, AND FROM THE CHIEF OF THE SPECIAL POLICE AT HABANA, CUBA, AND A CERTIFICATE BY THE SECRETARY OF THE DISTRICT COURT AT HABANA, CUBA, WHICH STATEMENTS AND CERTIFICATE DEFINITELY ESTABLISH THE FOLLOWING FACTS:

THAT JOSE MATOS WAS A MEMBER OF THE CREW OF THE S.S. SIBONEY WHILE AT THE PORT OF HABANA, CUBA, FEBRUARY 1, 1924; THAT HE WAS DETECTED BY THE "POLICE DIVISION OF THE VESSEL'S OWNERS" ATTEMPTING TO AID A STOWAWAY ABOARD THE VESSEL; THAT HE WAS ARRESTED, TRIED IN THE LOCAL COURT ON A CHARGE OF SWINDLING, AND SENTENCED TO PAY A FINE OF $61 OR IN LIEU THEREOF TO SPEND A LIKE NUMBER OF DAYS IN JAIL; AND THAT HE WAS COMMITTED TO JAIL FEBRUARY 2, 1924, AND RELEASED FEBRUARY 12, 1924, HAVING PAID THE REMAINDER OF THE FINE. IT IS ALSO SHOWN THAT HE WAS RETURNED TO NEW YORK ON THE S.S. SIBONEY, SAILING FROM HABANA MARCH 15, 1924, AND THAT THE SIBONEY IS THE SAME VESSEL ON WHICH HE HAD LAST SERVED.

THE STATUTORY AUTHORITY FOR RETURNING DESTITUTE AMERICAN SEAMEN TO THE UNITED STATES AT THE EXPENSE OF THE GOVERNMENT UNDER CERTAIN CIRCUMSTANCES DOES NOT AFFECT THE PRIMARY DUTY, RESPONSIBILITY, AND LIABILITY OF THE SHIPPING COMPANY, OWNING OR OPERATING THE VESSEL ON WHICH HE LAST SERVED, TO RETURN THE SEAMAN BACK TO THE UNITED STATES WHEN FOUND DESTITUTE BY A CONSULAR OFFICER AND PLACED ON A VESSEL BELONGING TO THE SAME COMPANY. COMP. GEN. 148; 4 ID. 118.

IT IS URGED THAT THE SEAMAN IN THIS CASE BY HIS OWN ACTS BREACHED HIS CONTRACT OF EMPLOYMENT, OR THE SHIPPING ARTICLES, WHICH CONTROL THE RIGHTS OF BOTH PARTIES, AND THAT THE FACTS THEREFORE BRING THE CASE WITHIN THE DECISION REPORTED IN 3 COMP. GEN. 936, INVOLVING A CLAIM FOR TRANSPORTING A DESERTING SEAMAN FILED BY CLAIMANT COMPANY HEREIN. THE TWO CAUSES ARE NOT ANALOGOUS. DESERTION OF A SEAMAN, SATISFACTORILY PROVEN, HAS ALWAYS BEEN RECOGNIZED AS IPSO FACTO TERMINATING ALL RELATIONSHIP BETWEEN THE OWNERS OF THE VESSEL AND THE SEAMAN, NOT MERELY BECAUSE CONSTITUTING A VIOLATION OR BREACH OF THE SHIPPING ARTICLES, BUT ALSO FOR THE REASON THAT THE VERY NATURE OF THE OFFENSE OF DESERTING A VESSEL WHILE ABROAD IS REPUGNANT TO THE CHARACTER OF EMPLOYMENT AND MARITIME CUSTOM. IN THE PRESENT CASE THE OFFENSE OF ASSISTING A STOWAWAY AND ACCEPTING MONEY THEREFOR IS NOT SUCH AN OFFENSE AS IS SHOWN TO HAVE SPECIFICALLY BREACHED THE SHIPPING ARTICLES SIGNED BY THE SEAMAN, OR OF SUCH A NATURE AS WOULD IPSO FACTO TERMINATE THE RELATIONSHIP BETWEEN THE SHIPPING COMPANY AND THE SEAMAN. THE ARREST APPEARS TO HAVE BEEN MADE BY AN OFFICER OF THE SHIPPING COMPANY AND THE SHIPPING COMPANY APPEARS TO HAVE ACTED VOLUNTARILY IN TURNING THE OFFENDER OVER TO THE LOCAL AUTHORITIES; BUT BE THAT AS IT MAY, THE TEMPORARY ABSENCE OF THE SEAMAN FROM HIS VESSEL BECAUSE OF HIS ARREST AND CONFINEMENT FROM FEBRUARY 2 TO FEBRUARY 12, 1924, DID NOT RELIEVE THE SHIPPING COMPANY FROM THE DUTY, RESPONSIBILITY, AND LIABILITY OF RETURNING THE SEAMAN TO THE UNITED STATES, NOR OBLIGATE THE UNITED STATES TO REIMBURSE SAID COMPANY FOR THE COST OF SUCH TRANSPORTATION.