A-6588, DECEMBER 19, 1924, 4 COMP. GEN. 547

A-6588: Dec 19, 1924

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IS NOT ENTITLED TO COMPENSATION OR ALLOWANCES FOR QUARTERS AND SUBSISTENCE WHILE ON A LEAVE OF ABSENCE GRANTED DURING THE VOYAGE AT HIS REQUEST AND UPON HIS SIGNING AT THE TIME A WAIVER RELINQUISHING ALL CLAIM FOR PAY AND ALLOWANCES DURING THE PERIOD OF THE LEAVE OF ABSENCE. WHEREIN WAS DISALLOWED HIS CLAIM FOR PAYMENT OF SALARY AND ALLOWANCE FOR QUARTERS AND SUBSISTENCE FOR TIME SPENT IN MANILA. PROVIDED: IT IS AGREED BETWEEN THE MASTER AND SEAMEN. FRANK RANDALL IS AT PRESENT MASTER. GOING ON SHORE IN FOREIGN PORTS IS PROHIBITED EXCEPT BY PERMISSION OF THE MASTER. THE CREW WAS PAID TO AND INCLUDING AUGUST 20. 1923) ORDERS WERE ISSUED TO PREPARE THE MERRITT FOR VOYAGE TO ZAMBOANGA. " THAT WHEN THE SHIP WAS MADE FAST TO PIER AT MANILA.

A-6588, DECEMBER 19, 1924, 4 COMP. GEN. 547

SEAMEN - CLAIM FOR WAGES AND ALLOWANCES WHILE ON LEAVE OF ABSENCE A SEAMAN WHO SHIPPED ON A UNITED STATES ARMY TRANSPORT FOR A VOYAGE, UNDER SHIPPING ARTICLES WHICH STIPULATED THAT THE CREW WOULD RECEIVE WAGES AND SUBSISTENCE UNTIL THEY RETURNED TO THE PORT OF HIRE, IS NOT ENTITLED TO COMPENSATION OR ALLOWANCES FOR QUARTERS AND SUBSISTENCE WHILE ON A LEAVE OF ABSENCE GRANTED DURING THE VOYAGE AT HIS REQUEST AND UPON HIS SIGNING AT THE TIME A WAIVER RELINQUISHING ALL CLAIM FOR PAY AND ALLOWANCES DURING THE PERIOD OF THE LEAVE OF ABSENCE.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 19, 1924:

O. N. MOSHKOLOFF, SEAMAN, REQUESTED NOVEMBER 19, 1924, REVIEW OF SETTLEMENT NO. 042708, DATED NOVEMBER 3, 1924, WHEREIN WAS DISALLOWED HIS CLAIM FOR PAYMENT OF SALARY AND ALLOWANCE FOR QUARTERS AND SUBSISTENCE FOR TIME SPENT IN MANILA, P.I., AS A MEMBER OF THE CREW OF THE UNITED STATES ARMY TRANSPORT MERRITT, WHILE WAITING FOR RETURN TRANSPORTATION TO THE UNITED STATES.

THIS SEAMAN CLAIMS WAGES FOR THE PERIOD AUGUST 21, 1923, TO SEPTEMBER 21, 1923, AT $70 PER MONTH, $72.33, AND SUBSISTENCE AT 50 CENTS PER DAY, AND QUARTERS AT 25 CENTS PER DAY, FROM AUGUST 22, 1923, TO SEPTEMBER 16, 1923, 26 DAYS, OR $19.50, TOTAL $91.83.

IT APPEARS THAT THE CLAIMANT, A WHEELMAN, SHIPPED FROM SAN FRANCISCO ON THE TRANSPORT MERRITT, SAILING JULY 14, 1923, UNDER SHIPPING ARTICLES FOR A VOYAGE WHICH STIPULATED THAT THE CREW WOULD RECEIVE WAGES AND SUBSISTENCE UNTIL THEY RETURNED TO THE PORT OF HIRE, AS WELL AS TRANSPORTATION TO SUCH PORT.

THE ARTICLES OF AGREEMENT BETWEEN MASTER AND SEAMAN DATED PORT OF SAN FRANCISCO, JULY 14, 1923, PROVIDED:

IT IS AGREED BETWEEN THE MASTER AND SEAMEN, OR MARINERS, OF THE UNITED STATES ARMY TRANSPORT MERRITT, OF WHICH CAPT. FRANK RANDALL IS AT PRESENT MASTER, OR WHOEVER SHALL GO FOR MASTER, NOW BOUND FROM THE PORT OF SAN FRANCISCO, CALIF., TO MANILA, P.I., AND SUCH OTHER PORTS AND PLACES IN ANY PART OF THE WORLD AND IN ANY OCEAN AS THE MASTER MAY DIRECT, FOR A TERM OF TIME NOT EXCEEDING SIX CALENDAR MONTHS.

GOING ON SHORE IN FOREIGN PORTS IS PROHIBITED EXCEPT BY PERMISSION OF THE MASTER.

THE VESSEL ARRIVED IN MANILA AUGUST 20, 1923, AND ON AUGUST 21, 1923, THE CREW WAS PAID TO AND INCLUDING AUGUST 20, 1923. THE SAME DAY (AUGUST 21, 1923) ORDERS WERE ISSUED TO PREPARE THE MERRITT FOR VOYAGE TO ZAMBOANGA, P.I., SAILING DATE BEING FIXED AT 12 O-CLOCK NOON, AUGUST 24, 1923, AND THE CREW ADVISED OF THAT FACT.

IT APPEARS THAT A LARGE NUMBER OF THE CREW (33 PROTESTED AND REFUSED TO SAIL, CLAIMING UNDER THE SHIP'S ARTICLES "SIGNED IN SAN FRANCISCO JULY 14, 1923," THAT WHEN THE SHIP WAS MADE FAST TO PIER AT MANILA, THEIR PART OF THE CONTRACT WAS COMPLETED. THIS MISUNDERSTANDING SEEMS TO HAVE BEEN BROUGHT ABOUT BY A RUMOR IN SAN FRANCISCO ABOUT THE TIME THESE SEAMEN SIGNED UP FOR THE VOYAGE THAT THE VESSEL WOULD PROBABLY REMAIN IN PHILIPPINE WATERS. NOTHING OF THE KIND, HOWEVER, APPEARS IN THE ARTICLES OF AGREEMENT.

THE SHIP SAILED FOR ZAMBOANGA ON AUGUST 24, 1923, RETURNING SEPTEMBER 4, 1923, AND ON SEPTEMBER 6, 1923, SAILED FOR YOKOHAMA, JAPAN, RETURNING OCTOBER 5, 1923.

CAPT. W. H. MCHENRY, QUARTERMASTER CORPS, UNITED STATES ARMY, WAS REQUESTED JANUARY 15, 1924, TO REPORT AS TO THE FOLLOWING ITEMS:

A. STATEMENT OF FACTS LEADING UP TO SIGNING BY SOME OF THE CREW OF WAIVER OF ALL CLAIM FOR PAY AND SUBSISTENCE IN CONSIDERATION OF LEAVE OF ABSENCE FROM DATE OF ARRIVAL AT MANILA UNTIL DEPARTURE OF FIRST AVAILABLE TRANSPORT FOR SAN FRANCISCO.

B. WAS THE WAIVER INITIATED BY THE MEN THEMSELVES OR BY SOMEONE IN CHARGE OF TRANSPORT ATTERS?

C. WAS THE WAIVER INITIATED BEFORE OR AFTER ARRIVAL OF THE MERRITT AT MANILA?

D. WAS IT SIGNED IN THE PRESENCE OF THE SHIPPING COMMISSIONER? IF NOT, WHEN AND WHERE WAS HE MADE ACQUAINTED WITH THE EXECUTION OF THE SAME, AND DID ANY OF THE SIGNERS REPRESENT TO HIM THAT THEY SIGNED SAME INVOLUNTARILY?

E. WHAT REPRESENTATIONS, IF ANY, WERE MADE TO THESE MEN ABOUT THEIR BEING OBLIGED TO VACATE THE SHIP, AND ANY ALTERNATIVE AS TO QUARTERS FOR THEM?

F. DID OTHER MEMBERS OF THE CREW HAVE LIKE OPPORTUNITY FOR JOINING THE WAIVER, OR OF MAKING SIMILAR WAIVERS?

UNDER DATE OF JANUARY 18, 1924, CAPTAIN MCHENRY REPORTED TO THE GENERAL SUPERINTENDENT, ARMY TRANSPORT SERVICE, AS FOLLOWS:

(A) A FEW DAYS BEFORE THE ARRIVAL OF THE TRANSPORT MERRITT AT MANILA, TWO FILIPINO MEMBERS OF THE CREW APPLIED FOR A LEAVE OF ABSENCE ON ARRIVAL IN MANILA. THEY STATED THAT THEY WERE WILLING TO FORFEIT ALL PAY AND ALLOWANCES DURING THE TIME WHILE ON LEAVE, AND THAT SEVERAL OTHER MEMBERS OF THE CREW DESIRED A SIMILAR LEAVE. ON ARRIVAL AT MANILA A WAIVER CERTIFICATE WAS DRAWN UP AND PRESENTED TO ALL THE MEMBERS OF THE CREW.

(B) THE ORIGINAL PROPOSAL TO GO ON LEAVE WITHOUT PAY CAME FROM THE MEN THEMSELVES. THE CERTIFICATE WAS DRAWN UP BY THE UNDERSIGNED.

(C) THE PROPOSAL WAS MADE BY THE MEN BEFORE THE ARRIVAL OF THE MERRITT AT MANILA, BUT THE WAIVER WAS NOT PRESENTED TO THEM FOR SIGNATURE UNTIL AFTER ARRIVAL.

(D) THE WAIVER WAS NOT SIGNED IN THE PRESENCE OF THE SHIPPING COMMISSIONER, BUT IT WAS PRESENTED TO HIM WHEN HE WITNESSED PAYMENT OF THE CREW. AT THIS TIME HE READ THE WAIVER AND QUESTIONED THE SIGNERS THEREOF AS TO THE VALIDITY OF THEIR SIGNATURES AND WHETHER OR NOT THEY SIGNED VOLUNTARILY. NO REPRESENTATIONS OF HAVING SIGNED INVOLUNTARILY WERE MADE AT THE TIME.

(E) IT WAS EXPLAINED TO THE MEN AND PRESUMEDLY UNDERSTOOD BY THEM THAT UPON SIGNING THE WAIVER ALL CLAIM FOR PAY AND ALLOWANCES WAS RELEASED BY THEM UNTIL THE DEPARTURE OF THE NEXT AVAILABLE TRANSPORTATION FOR THE STATES.

(F) ALL MEMBERS OF THE CREW WERE GIVEN AN OPPORTUNITY TO SIGN THE WAIVER.

THE WAIVER REFERRED TO READS AS FOLLOWS:

U.S.A.T.'MERRITT,"

MANILA, P.I.,

AUGUST 21, 1923.

WE, THE UNDERSIGNED CREW OF THE TRANSPORT MERRITT, WHO HAVE SIGNED ON THE SHIPS ARTICLES AT SAN FRANCISCO, CALIF., FOR A RETURN VOYAGE WITH PAY DO HEREBY AGREE THAT FOR AND IN CONSIDERATION OF A LEAVE OF ABSENCE GRANTED FROM THE DATE OF ARRIVAL OF THE MERRITT AT MANILA UNTIL THE DEPARTURE OF THE FIRST AVAILABLE TRANSPORTATION TO SAN FRANCISCO, DO HEREWITH WAIVE AND RELINQUISH ALL CLAIM FOR PAY AND SUBSISTENCE DURING THE PERIOD OF THIS LEAVE OF ABSENCE.

SIGNED.

OEMITRY NIKOLAIEVITCH MOSHKALOFF. DEOGRACIAS DEMETRIO. XBRONSILAW NIKOLOIEVITCH SOLOVSKY.

PANTALEON B. YALGAN. XALEXANDER EVDOKIM GERAZIMETZ. FRANCISCO ABARIDO. XGEORGE PYEATT. SILVERIO CALMA.

SEMON KALININ. AURELIO CALMA.

AGOMOP I. MISHEL. CIRILO SALVADOR. XIGNATIEFF ANDREW. SERVILLANO GREGORIO. XMAKUM AKIM DRAGOVAZ. C. GUEVARA. XANATOL SMIRNOFF.

S. MISTIOLA.

ALEXANDER JIGOULEFF. BENNY MIGUEL. XH. C. BENEDICT. PABLO VILLAHERMOSA. XJ. S. WILLIAMS. XCLIFFORD JORGENSEN. XROBERT HALL.

XW. C. PERRY. XELMER ROBINSON. XF. J. GRIFFIN. XHOWARD FOSTER. XJACK BROWN.

ALVINO BRASH. XG. CLARK.

MARIANO SAMONTE. ERIK FROBERG.

NOTED AT MANILA 8/23/23.

V. ALDANESE,

INSULAR COLLECTOR OF CUSTOMS,

BY (SGD) EMILIO VELEZ,

DEPUTY COLLECTOR IN CHARGE OF MARINE DIVISION.

EXHIBIT NO. 1. XFURNISHED QUARTERS AND SUBSISTENCE AT MANILA.

THE HEADQUARTERS, PHILIPPINE DEPARTMENT, O.Q.M., REPORTED TO THE QUARTERMASTER GENERAL, WASHINGTON, D.C., UNDER DATE OF MARCH 27, 1924, AS FOLLOWS:

4. (A) NO FLOATING EQUIPMENT OF THE ARMY TRANSPORT SERVICE IN MANILA BAY DURING THE PERIOD AUGUST 21ST TO OCTOBER 23RD INCLUSIVE, TO QUARTER OR SUBSIST THESE MEN ON.

(B). THE MEN WHOSE NAMES APPEAR ON EXHIBIT NO. 1 WITH A CHECK MARK THUS "X" OPPOSITE THEIR NAMES, WERE FURNISHED QUARTERS AND SUBSISTENCE AT MANILA PENDING SAILING OF TRANSPORT. THE OTHERS APPEARING ON EXHIBIT NO. 1 WERE NOT FURNISHED EITHER QUARTERS OR SUBSISTENCE FROM NOON MEAL AUGUST 31ST TO DATE THEY WENT ON BOARD SHIP ENROUTE TO SAN FRANCISCO. SERVICES WERE REQUIRED OF THESE MEN.

THE STATEMENT IS MADE THAT THE CLAIMANT WAS PUT ON BOARD THE UNITED STATES ARMY TRANSPORT GRANT, SEPTEMBER 17, 1923, FOR RETURN TO SAN FRANCISCO, AND THAT THE OTHERS WERE RETURNED ON DIFFERENT DATES AS TRANSPORTATION WAS AVAILABLE.

THE OFFICER IN CHARGE ADMITS THAT HE PREPARED THE WAIVER FOR THE CLAIMANT'S SIGNATURE, BUT STATES THAT THE IDEA OF LEAVE OF ABSENCE WITHOUT PAY AND SUBSISTENCE, ORIGINATED WITH THE CLAIMANT, AND NO EVIDENCE HAS BEEN SUBMITTED TO THE CONTRARY. AS THE CLAIMANT FAILED TO SERVE ON THE VESSEL IN ACCORDANCE WITH THE TERMS OF HIS CONTRACT HE IS NOT ENTITLED TO THE SAME BENEFITS THAT WOULD HAVE ACCRUED TO HIM HAD HE COMPLIED WITH ITS TERMS.