B-143083, JUL. 21, 1960

B-143083, JUL. 21, 1960

TO D. MACMILLAN, LCDR, SC, USNR:

BY FOURTH ENDORSEMENT DATED JUNE 1, 1960, REFERENCE NCA 121, WITH OTHER ENDORSEMENTS AND PAPERS ATTACHED, THE COMPTROLLER OF THE NAVY FORWARDED YOUR REQUEST FOR ADVANCE DECISION, SER 145M54 DATED FEBRUARY 10, 1960, AS TO THE LEGALITY OF PAYING THE CLAIM OF CAPTAIN VICTOR SEIDELHUBER, CIVILIAN MARINE EMPLOYEE, WHO ALLEGES HE PERFORMED CERTAIN OVERTIME AS MASTER OF THE USNS T-AKL 35, WHICH AT THE TIME WAS ASSIGNED TO COMSTSO KODIAK, ALASKA.

THE CLAIM DATED SEPTEMBER 10, 1958, EXPRESSLY IS FOR OVERTIME WORKED FROM FEBRUARY 2 TO AUGUST 13, 1953, WHICH CAPTAIN SEIDELHUBER SAYS TOTALS 843 HOURS AS DETAILED ON THE SUBMITTED MARINE PERSONNEL TIME SHEETS. SUCH DETAILED EVIDENCE, AS WAS FORWARDED TO US WITH YOUR LETTER OF FEBRUARY 10, 1960, COVERS ONLY FOR THE FOUR MONTHS' PERIOD FROM FEBRUARY 1 TO MAY 31, 1953, AND TOTALS APPROXIMATELY 388 HOURS OF "PORT SECURITY WATCH. EX. 8 HRS. 85.5-2A/L.' EVIDENTLY OVERTIME RECORDS SUBMITTED BY THE CLAIMANT FOR THE PERIOD JUNE 1 TO AUGUST 13, 1953, HAVE BEEN RETURNED TO HIM FOR DISPOSITION, SINCE THE RECORD INDICATES THE ADMINISTRATIVE DETERMINATION HAS BEEN THAT NO BASIS EXISTS FOR ALLOWANCE OF THAT PORTION OF HIS CLAIM. WE UNDERSTAND THE ABOVE-QUOTED REFERENCE IS TO THE PROVISIONS CONTAINED IN THE NAVY'S CIVILIAN MARINE PERSONNEL INSTRUCTION 85, SECTION 5, PARAGRAPH 5-2A (1), AS PROMULGATED OCTOBER 12, 1952. HOWEVER, IN THE LIGHT OF THE DETAILED ORIGINAL ENTRIES DAILY IN THE LOG BOOKS OF FEBRUARY TO MAY 1953 (ENCL. 11), OTHER PARAGRAPHS OF SECTION 5 ALSO ARE RELEVANT TO THE HOURS OF SERVICE IN QUESTION.

PARAGRAPH 5-1A--- PROVIDING THAT MASTERS ARE TO WORK WITHOUT PAYMENT OF OVERTIME THE NUMBER OF HOURS REQUIRED TO FULLY DISCHARGE THEIR RESPECTIVE RESPONSIBILITIES--- ALSO PROVIDES "THIS PROVISION (5-1A) IS NOT APPLICABLE TO MASTERS AND/OR CHIEF ENGINEERS ASSIGNED TO SMALLER SHIPS WHEN THE AUTHORIZED MANNING SCALE FOR THE SHIP PROVIDES FOR LESS THAN FOUR DECK AND/OR FOUR ENGINE DEPARTMENT OFFICERS, AND THE MASTER AND CHIEF ENGINEER ARE THUS REQUIRED TO STAND REGULAR SEA WATCH.' PARAGRAPH 5-1B PRESCRIBED THE HOURS OF WORK FOR "ALL OTHER MARINE EMPLOYEES ON PORT ME," NOT INCLUDED IN 5-1A ABOVE. PARAGRAPH 5-2A CONCERNED DECK DEPARTMENT OFFICER PERSONNEL IN PORT. IN THE LIGHT OF THE SPECIAL EXCEPTION IN 5-1A REGARDING SHIPS WITH LESS THAN FOUR DECK OFFICERS, THE PROVISIONS APPLICABLE TO THIS CLAIM ARE CONTAINED IN PARAGRAPH 5-2.

THE DUTY FOR WHICH CAPTAIN SEIDELHUBER CLAIMS OVERTIME PAY IS DESCRIBED BY CERTAIN ENTIRES IN THE SHIP'S LOG, SUCH AS,"CONFINED TO THE VESSEL FOR SECURITY REASONS," "ON PORT SECURITY WATCH," "ON PORT WATCH.' THESE ENTRIES ARE SUPPLEMENTED BY STATEMENTS SUCH AS: "W. HAYT O.S. ON GANGWAY WATCH. LINES, LIGHTS TENDED. PORT REGULATIONS OBSERVED. FREQUENT ROUNDS MADE ABOUT DECKS.' THIS DUTY WAS PERFORMED BETWEEN THE HOURS OF 1700 AND 0800 MONDAY THROUGH FRIDAY, AND ON SATURDAYS AND SUNDAYS. THIS DUTY IS WITHIN THE SCOPE OF THE DEFINITION FOUND IN CMPI 85.2-1J, WHICH READS: ,SECURITY WATCH. THE WATCH STOOD IN PORT BY PERSONNEL OF THE DECK DEPARTMENT ABOARD A SHIP BETWEEN THE HOURS OF 1700 AND 0800 ON WEEK DAYS AND ALL DAY ON SATURDAYS, SUNDAYS, AND HOLIDAYS FOR THE PURPOSE OF CHECKING MOORING LINES AND PATROLLING THE SHIP FOR FIRE DETECTION OR OTHER SAFETY PURPOSES.'

THE SHIP'S LOG SHOWS THAT IN STANDING THE SECURITY WATCH, CAPTAIN SEIDELHUBER TOOK TURNS REGULARLY WITH HIS FIRST OFFICER AND AT TIMES WITH HIS SECOND OFFICER. SUCH ENTRIES AND OTHER RECORDS INDICATE THAT THESE THREE OFFICERS WERE THE ONLY ONES QUALIFIED TO STAND THE REQUIRED SECURITY WATCH, AND THIS ASSIGNMENT OF DUTY IS NOT CONSIDERED TO HAVE BEEN ARBITRARY ACTION OF THE MASTER TO DENY LIBERTY TO GO ASHORE. THEREFORE, THE CONCLUSION IS THAT THE MAINTENANCE OF SUCH SECURITY WATCH WAS AUTHORIZED. SEE CMTS LETTERS, SER 1673M54, OCTOBER 27, 1959, AND SER 75M26, FEBRUARY 3, 1959, COPIES ENCLOSED WITH YOUR LETTER OF FEBRUARY 10, 1960, TO US.

THE OFFICE OF INDUSTRIAL RELATIONS CONSIDERS THAT CAPTAIN SEIDELHUBER'S CLAIM IS COVERED BY CMPI 85.5-2A (1) WHICH READS IN PART: "OVERTIME SHALL BE PAID FOR ALL WORK PERFORMED IN EXCESS OF 8 HOURS PER DAY, FOR ALL WORK PERFORMED ON SATURDAYS, SUNDAYS, AND HOLIDAYS, AND FOR ALL WORK PERFORMED BETWEEN 1700 AND 0800, MONDAY THROUGH FRIDAY ...., " AND THAT CMPI 85.5-1A EXCLUDES MASTERS FROM THIS PROVISION, EXCEPT FOR THE MASTERS OF SHIPS WITH MANNING SCALES PROVIDING FOR LESS THAN FOUR DECK OFFICERS. CAPTAIN SEIDELHUBER WAS THE MASTER OF A SHIP WITH A MANNING SCALE PROVIDING FOR THREE DECK OFFICERS INCLUDING THE MASTER AND WAS THUS ELIGIBLE TO RECEIVE OVERTIME PAY FOR STANDING SECURITY WATCHES.

HENCE, OUR VIEW IS THAT THE CLAIM FOR OVERTIME FOR THE PERIOD IN QUESTION SHOULD BE FOR ALLOWANCE TO THE EXTENT THE LOG BOOKS AND TIME SHEETS BOTH SUBSTANTIATE THE DUTY, IF OTHERWISE PROPER. IN THAT REGARD, WE ASSUME THAT THE EVIDENCE AS PRESENTED IS SUCH AS WOULD CUSTOMARILY BE CONSIDERED AS SUFFICIENT VERIFICATION IN MARITIME CASES. IN ANY INSTANCES IN WHICH THE CLAIM IS NOT SUPPORTED BY THE LOG BOOK ENTRIES OR IN WHICH THE EVIDENCE ON THE TIME SHEETS AND LOG BOOKS CANNOT BE RECONCILED, DISALLOWANCE SHOULD BE MADE ON THAT BASIS AND FOR THE REASON THAT LONG DELAY IN PRESENTING THE CLAIM RENDERS CLARIFICATION OF THE CONFLICTING EVIDENCE AT THIS TIME AS UNLIKELY IF NOT IMPOSSIBLE.