B-26321, SEPTEMBER 19, 1942, 22 COMP. GEN. 248

B-26321: Sep 19, 1942

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AS FOLLOWS: THERE ARE FORWARDED HEREWITH FOR YOUR CONSIDERATION THE CLAIMS OF FIFTEEN ENLISTED MEN FOR REIMBURSEMENT FOR CERTAIN ITEMS OF CLOTHING AND OTHER PERSONAL PROPERTY FURNISHED TO THE SURVIVORS OF THE U.S.S. AS FOLLOWS: "THE PAYMASTER GENERAL OF THE NAVY IS AUTHORIZED AND DIRECTED TO REIMBURSE SUCH OFFICERS. OTHERS IN THE NAVAL SERVICE OF THE UNITED STATES AS MAY HAVE SUFFERED. OR DAMAGE WAS WITHOUT FAULT OR NEGLIGENCE ON THE PART OF THE CLAIMANT. OR DAMAGED WAS SHIPPED ON BOARD AN UNSEAWORTHY VESSEL BY ORDER OF AN OFFICER AUTHORIZED TO GIVE SUCH ORDER OR DIRECT SUCH SHIPMENT. OR DAMAGE OF OR TO THE PRIVATE PROPERTY OF THE CLAIMANT WAS IN CONSEQUENCE OF HIS HAVING GIVEN HIS ATTENTION TO THE SAVING OF THE LIVES OF OTHERS * * *.'.

B-26321, SEPTEMBER 19, 1942, 22 COMP. GEN. 248

LOSSES OF PERSONAL PROPERTY BY NAVY PERSONNEL IN MARINE DISASTERS - CLOTHING, ETC., FURNISHED SURVIVORS OF TORPEDOED VESSEL THE ACT OF OCTOBER 6, 1917, PROVIDING FOR THE REIMBURSEMENT OF NAVY PERSONNEL FOR CERTAIN LOSSES OF PERSONAL PROPERTY IN MARINE DISASTERS, ETC., DOES NOT EXTEND TO A CASE WHERE NAVY ENLISTED MEN FURNISHED THEIR PERSONAL CLOTHING, BLANKETS, ETC., TO SURVIVORS OF A TORPEDOED VESSEL.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, SEPTEMBER 19, 1942:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 27, 1942, WITH ENCLOSURES, AS FOLLOWS:

THERE ARE FORWARDED HEREWITH FOR YOUR CONSIDERATION THE CLAIMS OF FIFTEEN ENLISTED MEN FOR REIMBURSEMENT FOR CERTAIN ITEMS OF CLOTHING AND OTHER PERSONAL PROPERTY FURNISHED TO THE SURVIVORS OF THE U.S.S. REUBEN JAMES ON OR ABOUT OCTOBER 30-31, 1941, UPON THE OCCASION OF THE TORPEDOING OF THAT VESSEL DURING A NATIONAL EMERGENCY DECLARED BY THE PRESIDENT TO EXIST.

THE ACT APPROVED OCTOBER 6, 1917 (40 STAT. 389; 34 U.S.C. 981), PROVIDES, IN PART, AS FOLLOWS:

"THE PAYMASTER GENERAL OF THE NAVY IS AUTHORIZED AND DIRECTED TO REIMBURSE SUCH OFFICERS, ENLISTED MEN, AND OTHERS IN THE NAVAL SERVICE OF THE UNITED STATES AS MAY HAVE SUFFERED, OR MAY HEREAFTER SUFFER, LOSS OR DESTRUCTION OF OR DAMAGE TO THEIR PERSONAL PROPERTY AND EFFECTS IN THE NAVAL SERVICE DUE TO THE OPERATIONS OF WAR OR BY SHIPWRECK OR OTHER MARINE DISASTER WHEN SUCH LOSS, DESTRUCTION, OR DAMAGE WAS WITHOUT FAULT OR NEGLIGENCE ON THE PART OF THE CLAIMANT, OR WHERE THE PRIVATE PROPERTY SO LOST, DESTROYED, OR DAMAGED WAS SHIPPED ON BOARD AN UNSEAWORTHY VESSEL BY ORDER OF AN OFFICER AUTHORIZED TO GIVE SUCH ORDER OR DIRECT SUCH SHIPMENT, OR WHERE IT APPEARS THAT THE LOSS, DESTRUCTION, OR DAMAGE OF OR TO THE PRIVATE PROPERTY OF THE CLAIMANT WAS IN CONSEQUENCE OF HIS HAVING GIVEN HIS ATTENTION TO THE SAVING OF THE LIVES OF OTHERS * * *.'

THE RIGHT OF THE CLAIMANTS TO REIMBURSEMENT APPEARS TO BE DEPENDENT ON WHETHER OR NOT, IN TURNING OVER THEIR PERSONAL PROPERTY TO THE SURVIVORS OF THE REUBEN JAMES, THEY SUFFERED A LOSS WITHIN THE MEANING OF THE ACT OF OCTOBER 6, 1917, SUPRA, FOR WHICH REIMBURSEMENT IS AUTHORIZED, OR WHETHER THEY MADE AN OUTRIGHT GIFT OF SUCH PERSONAL PROPERTY FOR WHICH REIMBURSEMENT IS NOT AUTHORIZED UNDER THE CITED ACT.

THAT CONGRESS INTENDED REIMBURSEMENT SHOULD BE MADE IN CASES OF THIS NATURE SEEMS APPARENT FROM THE LANGUAGE EMPLOYED IN THE ACT OF OCTOBER 6, 1917, WHICH IN PLAIN TERMS CONTEMPLATES REIMBURSEMENT OF ANY PERSON IN THE NAVAL SERVICE FOR ANY "LOSS" OF PERSONAL EFFECTS SUFFERED BY HIM AS A RESULT OF "OPERATIONS OF WAR" OR IN CONSEQUENCE OF HIS "HAVING GIVEN HIS ATTENTION TO THE SAVING OF THE LIVES OF OTHERS" .

THE RIGHT OF CLAIMANTS TO REIMBURSEMENT ALSO APPEARS TO BE ESTABLISHED BY VARIOUS DECISIONS OF THE COMPTROLLER OF THE TREASURY. FOR EXAMPLE, IN 2 COMP. DEC. 347, IT WAS HELD THAT THE MASTER OF A LIGHTHOUSE TENDER COULD BE REIMBURSED FOR THE AMOUNT HE HAD EXPENDED IN CONNECTION WITH THE SICKNESS AND BURIAL OF ONE OF THE CREW. THE COMPTROLLER OF THE TREASURY HAS ALSO HELD THAT AN OFFICER WAS ENTITLED TO REIMBURSEMENT FOR SUBSISTENCE PURCHASED FOR CERTAIN RECRUITS WHILE IN A TRAVEL STATUS AND FOR WHOM THE GOVERNMENT FAILED TO PROVIDE NECESSARY RATIONS. (COMP. DEC. APRIL 24, 1901.)

THE COMPTROLLER OF THE TREASURY HAS ALSO HELD (8 COMP. DEC. 43) THAT AN OFFICER OR EMPLOYEE WHO MAKES AN EXPENDITURE FROM HIS OWN FUNDS FOR A NECESSARY EXPENSE OF THE GOVERNMENT IS ENTITLED TO REIMBURSEMENT THEREFOR. THE GENERAL PRINCIPLE PRESCRIBED IN THIS DECISION IS STATED THUSLY:

"WHEREVER AN OFFICER IN THE PERFORMANCE OF HIS OFFICIAL DUTY HAS FOUND IT NECESSARY, IN ORDER TO PROPERLY PERFORM HIS DUTY, TO ADVANCE HIS PRIVATE FUNDS, SUCH AN ADVANCE HAS BEEN REGARDED BY THIS OFFICE, NOT AS A VOLUNTARY AND UNAUTHORIZED ADVANCEMENT OF FUNDS CREATING NO LIABILITY ON THE PART OF THE GOVERNMENT, BUT AS AN ADVANCEMENT RENDERED NECESSARY BY THE EXIGENCIES OF A SITUATION FOR THE EXISTENCE OF WHICH THE GOVERNMENT WAS RESPONSIBLE, AND FOR WHICH THE OFFICER WAS ENTITLED TO REIMBURSEMENT OF THE AMOUNT ADVANCED.'

APPLYING THE REASONING SET FORTH IN THE ABOVE QUOTED EXCERPT FROM 8 COMP. DEC. 43 TO THE PRESENT CASE, THE CONCLUSION APPEARS WARRANTED THAT THE ENLISTED MEN WHOSE CLAIMS ARE TRANSMITTED HEREWITH AND WHOSE PERSONAL PROPERTY WAS USED BY THE SURVIVORS OF THE REUBEN JAMES DID NOT, BY PERMITTING SUCH USE OF THEIR PROPERTY, MAKE A VOLUNTARY GIFT THEREOF. THE CONTRARY, THE VERY FACT THAT THESE ENLISTED MEN HAVE SUBMITTED CLAIMS FOR REIMBURSEMENT SEEMS TO CLEARLY SUPPORT THE CONCLUSION THAT THEIR PERSONAL PROPERTY ON THE OCCASION WAS TURNED OVER TO THE SURVIVORS OF THE REUBEN JAMES AS A NECESSARY CONSEQUENCE OF THE OPERATIONS OF WAR.

MOREOVER, IT IS NOT CONSIDERED THAT THE ACTION OF THE CLAIMANTS IN TURNING OVER THEIR PERSONAL PROPERTY TO THE SURVIVORS OF THE REUBEN JAMES CONSTITUTED A GIFT BY THEM OF SUCH PERSONAL PROPERTY. IT IS WELL SETTLED BY NUMEROUS DECISIONS OF THE COURTS THAT A GIFT DIVESTS THE OWNER OF TITLE AND REQUIRES A RENUNCIATION OF ALL CLAIM AND INTEREST IN THE SUBJECT OF THE GIFT. THE ACTION OF THESE ENLISTED MEN IN SUBMITTING CLAIM FOR REIMBURSEMENT SHOWS NO INTENTION ON THEIR PART OF RENUNCIATION OF THEIR RIGHTS IN THE PERSONAL CLOTHING AND OTHER EFFECTS WHICH THEY TURNED OVER TO THE SURVIVORS OF THE REUBEN JAMES DISASTER. HENCE, ANY ARGUMENT THAT MAY BE ADVANCED TO THE EFFECT THAT THE PROPERTY TURNED OVER TO SUCH SURVIVORS WAS IN THE NATURE OF A GIFT WOULD APPEAR TO BE UNTENABLE.

IN CONSIDERATION OF THE FOREGOING, THE NAVY DEPARTMENT CONSIDERS THAT THE ENCLOSED CLAIMS ARE PROPERLY PAYABLE UNDER THE ACT OF OCTOBER 6, 1917, BUT, BEFORE ISSUING INSTRUCTIONS TO SUCH EFFECT, YOUR DECISION IS REQUESTED ON THE QUESTION AS TO WHETHER OR NOT CURRENT NAVAL APPROPRIATIONS MAY BE CONSIDERED LEGALLY AVAILABLE FOR PAYMENT OF THE ENCLOSED CLAIMS ON THE BASIS OF THE FACTS DISCLOSED AND THE LAW APPLICABLE THERETO, AS HEREIN STATED.

IT APPEARS THAT THE FIFTEEN CLAIMANTS HERE REFERRED TO WERE ENLISTED MEN ATTACHED TO THE U.S.S. NIBLACK (424), WHO TO A GREATER OR LESS EXTENT CONTRIBUTED TO THE NECESSITIES OF SOME OF THE SURVIVORS OF THE U.S.S. REUBEN JAMES BY FURNISHING ITEMS OF CLOTHING BELONGING TO THE CLAIMANTS. THESE ITEMS CONSISTED MOSTLY OF PERSONAL ATTIRE SUCH AS SHOES, SHIRTS, TROUSERS, JUMPERS, BLANKETS, ETC., AND REPRESENTED MOSTLY, IF NOT EXCLUSIVELY, SUCH ARTICLES AS ARE CUSTOMARILY ISSUED TO THE SERVICE, WHICH THE LAW REQUIRES TO BE ISSUED IN KIND. EACH CLAIM PREPARED ON S. AND A. FORM NO. 378 IS TO THE EFFECT THAT THE ARTICLES WERE "DAMAGED" OR "GIVEN TO A SURVIVOR" AND THAT SUCH "LOSS" OR "DAMAGE" WAS DUE TO "THE ATTENTION GIVEN TO THE SAVING OF LIVES OF OTHERS" .

ALTHOUGH SOME OF THE CLAIMANTS STATE SPECIFICALLY THAT THE ARTICLES WERE "GIVEN TO A SURVIVOR" WHICH LANGUAGE REASONABLY CONSTRUED PRESUPPOSES AN INTENTIONAL DIVESTING OF TITLE BY A DONOR FOR THE BENEFIT OF THE DONEE, OTHER OF THE CLAIMS DO NOT CONTAIN SUCH SPECIFIC TERMS OF DISPOSITION AND FOR THE PURPOSE OF THE CASE IT MAY BE ASSUMED, NOTWITHSTANDING THE CLEAR IMPORT OF THE WORDS JUST REFERRED TO, THAT IN NONE OF THE CASES WAS THERE EVINCED AN INTENTION OF MAKING AN OUTRIGHT GIFT.

THE WORD "LOSS" AS USED IN THE ACT OF OCTOBER 6, 1917, 40 STAT. 389, PARTIALLY QUOTED IN YOUR LETTER, UNDOUBTEDLY MEANS THE UNINTENTIONAL PARTING WITH SOMETHING OF VALUE. IT IS DOUBTFUL THAT THE CLAIMANTS UNINTENTIONALLY PARTED WITH POSSESSION OF THE ARTICLES, AND IF THE VOLUNTARY RELEASE OF POSSESSION DID NOT CONSTITUTE AN OUTRIGHT GIFT, THE MOST THAT COULD BE SPELLED OUT OF THE TRANSACTION WOULD SEEM TO BE A GRATUITOUS BAILMENT WITH THE SURVIVORS CHARGED WITH THE RESPONSIBILITY AND OBLIGATION OF RETURNING THEM TO THE BAILORS AND IF THE ARTICLE OF BAILMENT WAS NOT IN FACT RETURNED, THE BAILORS SHOULD LOOK TO THE BAILEE RATHER THAN TO THE GOVERNMENT. NOTHING IS SHOWN IN THE RECORD AS TO THE ITEMS, IF ANY, CLAIMED BY AND ALLOWED UNDER THE ACT OF OCTOBER 6, 1917, TO THE SURVIVORS OF THE REUBEN JAMES WITH PARTICULAR REFERENCE TO WHETHER THE ITEMS FOR WHICH REIMBURSEMENT IS NOW CLAIMED BY THE FIFTEEN CLAIMANTS WERE TAKEN INTO CONSIDERATION AS DEDUCTIBLE ITEMS. IN THE CIRCUMSTANCES THE CLAIM IS NOT FOR ASSERTION BY THE MEN WHO VOLUNTARILY DIVESTED THEMSELVES OF POSSESSION BUT BY THE MEN WHO SUFFERED THE LOSSES AS A RESULT OF THE DISASTER.

IT IS CONCLUDED THAT THE APPROPRIATION AVAILABLE FOR REIMBURSEMENT MAY NOT PROPERLY BE CHARGED WITH PAYMENT OF THE CLAIMS WHICH ARE RETURNED HEREWITH.