B-15340, MARCH 26, 1941, 20 COMP. GEN. 564

B-15340, MARCH 26, 1941, 20 COMP. GEN. 564

SEAMEN - DESTITUTE AMERICAN - RELIEF AND TRANSPORTATION AN AMERICAN SEAMAN DID NOT LOSE HIS STATUS AS SUCH NOR HIS RIGHT TO RELIEF UNDER SECTION 4577, REVISED STATUTES, AND THE APPLICABLE CONSULAR REGULATIONS, MERELY BECAUSE HIS LAST SERVICE AS A SEAMAN WAS ON A FOREIGN VESSEL WHICH HE LEFT AT LONDON TO VISIT RELATIVES IN CONTINENTAL EUROPE FOR SEVERAL MONTHS, WHERE ALL THE FACTS AND CIRCUMSTANCES INDICATE THAT HE HAS NEVER INTENDED TO ABANDON HIS STATUS AS AN AMERICAN SEAMAN, AND IF THE CONSULAR OFFICERS DETERMINE HE IS DESTITUTE, HE MAY BE FURNISHED RELIEF AND TRANSPORTATION TO THE UNITED STATES AS A DESTITUTE AMERICAN SEAMAN EVEN THOUGH LAND TRANSPORTATION MAY BE INVOLVED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, MARCH 26, 1941:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 4, 1941, AS FOLLOWS:

THERE IS ENCLOSED A COPY OF A DESPATCH FROM THE AMERICAN CONSULATE AT BREMEN, GERMANY, WITH REFERENCE TO THE APPLICATION OF CORNELIUS DONK FOR RELIEF AND REPATRIATION AS A DESTITUTE AMERICAN SEAMAN.

FROM THE FACTS AVAILABLE TO THE DEPARTMENT IT APPEARS THAT MR. DONK, FOR A PERIOD OF YEARS, SERVED REGULARLY ON AMERICAN SHIPS PRIOR TO HIS DEPARTURE FROM THE UNITED STATES ON THE NORWEGIAN SS HALWICK IN OCTOBER 1939, AND THAT UNDER ORDINARY CIRCUMSTANCES HE WOULD BE ENTITLED TO RELIEF AND REPATRIATION AS AN AMERICAN CITIZEN EVEN THOUGH TO REPATRIATE HIM AT THE PRESENT TIME IT WOULD BE NECESSARY TO FURNISH TRANSPORTATION OVER LAND FROM BREMEN, GERMANY, TO LISBON, PORTUGAL.

FROM THE ENCLOSED DESPATCH IT WILL BE NOTED THAT MR. DONK LEFT THE NORWEGIAN SS HALWICK AT LONDON AND PROCEEDED TO ROTTERDAM FOR THE PURPOSE OF VISITING HIS MOTHER. YOUR OPINION IS REQUESTED AS TO WHETHER MR. DONK IS ENTITLED TO ASSISTANCE UNDER THE CIRCUMSTANCES.

IN THE DESPATCH DATED OCTOBER 30, 1940, FROM THE AMERICAN CONSULATE AT BREMEN, ENCLOSED WITH YOUR LETTER, IT IS STATED, IN SUBSTANCE, THAT CORNELIUS DONK, A NATIVE OF HOLLAND, BECAME A NATURALIZED AMERICAN CITIZEN NOVEMBER 29, 1926; THAT HE HOLDS A SEAMAN'S CERTIFICATE OF IDENTITY ISSUED AT NEW YORK JANUARY 15, 1938, BY THE BUREAU OF MARINE INSPECTION AND NAVIGATION OF THE DEPARTMENT OF COMMERCE, AND, ALSO, SERVICE CERTIFICATES AS ABLE SEAMAN AND LIFEBOAT MAN, ISSUED AT NEW YORK APRIL 5, 1937; THAT HE HAS BEEN "REGULARLY EMPLOYED FOR THE PAST 10 YEARS ON AMERICAN VESSELS," ALTHOUGH NONE OF THE DISCHARGES EXHIBITED BY HIM ARE DATED LATER THAN 1938; AND THAT HE STATES THAT IN OCTOBER 1939, AFTER HAVING BEEN ASHORE FOR A TIME, HE SHIPPED ON A NORWEGIAN VESSEL, LEAVING IT AT LONDON AND PROCEEDING TO ROTTERDAM, HOLLAND, TO VISIT HIS MOTHER, AND THAT HIS PERSONAL EFFECTS AND FUNDS WERE DESTROYED IN THE BOMBING OF ROTTERDAM.

WITH RESPECT TO MR. DONK'S RECENT EMPLOYMENT, THE DESPATCH STATES " HIS CERTIFICATES OF DISCHARGE SHOW MORE OR LESS CONTINUOUS SERVICE ON THE SS WASHINGTON FROM JUNE 1937 TO NOVEMBER 1939. HE HAD NO DISCHARGE TO SUPPORT HIS CLAIM THAT HIS LAST EMPLOYMENT ON AN AMERICAN VESSEL, IN FEBRUARY 1939, WAS THE SS SEMINOLE OF THE CLYDE-MALLORY LINE.' IT FURTHER APPEARS THAT MR. DONK HAS ENDEAVORED TO RETURN TO THE UNITED STATES BUT HAS BEEN UNABLE TO DO SO AS A RESULT OF WAR CONDITIONS IN EUROPE AND LACK OF FUNDS; ALSO, THAT HIS WIFE RESIDES AT WESERMUNDE IN THE BREMEN DISTRICT.

SECTION 4577, REVISED STATUTES, AS AMENDED (46 U.S.C. 678) PROVIDES:

IT SHALL BE THE DUTY OF THE CONSULS AND VICE CONSULS, FROM TIME TO TIME, TO PROVIDE FOR THE SEAMEN OF THE UNITED STATES, WHO MAY BE FOUND DESTITUTE WITHIN THEIR DISTRICTS, RESPECTIVELY, SUFFICIENT SUBSISTENCE AND PASSAGES TO SOME PORT IN THE UNITED STATES, IN THE MOST REASONABLE MANNER, AT THE EXPENSE OF THE UNITED STATES, SUBJECT TO SUCH INSTRUCTIONS AS THE SECRETARY OF STATE SHALL GIVE. THE SEAMEN SHALL, IF ABLE, BE BOUND TO DO DUTY ON BOARD THE VESSELS IN WHICH THEY MAY BE TRANSPORTED, ACCORDING TO THEIR SEVERAL ABILITIES.

SECTION 260 OF THE CONSULAR REGULATIONS AS AMENDED BY EXECUTIVE ORDER NO. 7543, JANUARY 29, 1937, IS, IN PERTINENT PART AS FOLLOWS:

260. SEAMEN ENTITLED TO RELIEF.--- SEAMEN OF THE UNITED STATES ENTITLED TO RELIEF WHEN DESTITUTE ARE:

(1) MERCHANT SEAMEN WHO ARE CITIZENS OF THE UNITED STATES AND WHO, AT THE TIME OF APPLYING FOR RELIEF, ARE BY HABIT AND INTENT BONA FIDE MEMBERS OF THE AMERICAN MERCHANT MARINE, ALTHOUGH THEIR LAST SERVICE MAY NOT HAVE BEEN IN AN AMERICAN VESSEL.

IN 2 COMP. GEN. 317, 318, RELATIVE TO RELIEF OF A SEAMAN UNDER SECTION 4577, REVISED STATUTES, IT WAS SAID:

* * * THE CIRCUMSTANCES OF EACH CASE MUST NECESSARILY BE CONSIDERED, HAVING IN VIEW THE BENEFICIAL INTENT OF THE RELIEF ACT. IT WOULD SEEM THAT AN AMERICAN SEAMAN TO BE ENTITLED TO THE RELIEF PROVIDED SHOULD CONTINUE TO HOLD HIMSELF OUT FOR SERVICE AS SUCH, AND AS LONG AS HE SO HELD HIMSELF OUT IT WAS WITHIN THE PURPOSE OF THE ACT OF RELIEF TO AFFORD THE AID NECESSARY TO PLACE HIM WHERE HE MIGHT REENTER THAT SERVICE. BUT IF ONE OF THAT DESIGNATION ENTERS ANOTHER OCCUPATION, OR DOES OTHER ACTS WHICH COUPLED WITH PROLONGED DELAY IN APPLYING FOR RELIEF, EVIDENCE AN ABANDONMENT OF THAT SERVICE, HE WOULD SEEM TO LOSE THE CHARACTER AND STATUS OF A SEAFARING MAN AND WOULD THEREFORE NOT BE ENTITLED TO RELIEF WITHIN CONTEMPLATION OF THE ACT.

THE FACTS AS REPORTED IN THE INSTANT MATTER DEFINITELY ESTABLISH CORNELIUS DONK'S STATUS AS AN AMERICAN SEAMAN DURING A CONSIDERABLE PERIOD OF TIME AS LATE AS 1938 AND PROBABLY AS LATE AS 1939. UNDER THE PROVISIONS OF THE CONSULAR REGULATIONS ABOVE QUOTED, HIS SERVICE ON A NORWEGIAN VESSEL DOES NOT OPERATE TO FORFEIT SUCH STATUS, AND THERE REMAINS FOR CONSIDERATION ONLY THE QUESTION WHETHER HIS LEAVING THE VESSEL AT LONDON, PROCEEDING TO ROTTERDAM TO VISIT HIS MOTHER AND REMAINING THERE FOR SOME MONTHS IS TO BE REGARDED AS TERMINATING HIS STATUS SO AS TO PREVENT HIS RELIEF UNDER THE ABOVE-QUOTED STATUTE.

ALTHOUGH MR. DONK APPEARS TO HAVE SPENT SEVERAL MONTHS IN ROTTERDAM- - PRESUMABLY FROM OCTOBER OR NOVEMBER 1939 TO MAY 1940--- BEFORE THE GERMAN INVASION OF HOLLAND AND THE BOMBING OF ROTTERDAM ( MAY 14, 1940), THE REPORTED FACTS INDICATE THAT HE WAS MERELY VISITING AND THAT HE HAS NOT AT ANY TIME INTENDED TO ABANDON OR LOSE HIS STATUS AS AN AMERICAN SEAMAN. HIS SUBSEQUENT EFFORTS TO RETURN TO THE UNITED STATES AS A SEAMAN STRENGTHEN THIS CONCLUSION; AND THE DISTURBED CONDITIONS IN EUROPE AND IN THE AMERICAN SHIPPING INDUSTRY FOLLOWING THE OUTBREAK OF THE WAR IN EUROPE IN SEPTEMBER 1939 MAY SERVE AS A FURTHER EXPLANATION OF HIS CONDUCT AS BEING CONSISTENT WITH AN INTENTION TO RETAIN HIS STATUS AS AN AMERICAN SEAMAN.

IN VIEW OF THE REPORTED FACTS OF THIS PARTICULAR CASE AND THE REASONS ABOVE SET OUT, I HAVE TO ADVISE THAT IF THE CONSULAR OFFICERS DETERMINE THAT CORNELIUS DONK IS IN FACT DESTITUTE, THERE WOULD APPEAR TO BE NO LEGAL OBJECTION TO HIS BEING FURNISHED RELIEF AND TRANSPORTATION TO THE UNITED STATES AS A DESTITUTE AMERICAN SEAMAN EVEN IF LAND TRANSPORTATION MAY BE INVOLVED. SEE 19 COMP. GEN. 824; 2 COMP. GEN. 317; CF. 19 COMP. GEN. 671.