B-41471, NOVEMBER 3, 1944, 24 COMP. GEN. 344

B-41471, NOVEMBER 3, 1944, 24 COMP. GEN. 344

COMPENSATION - DOUBLE-RETIRED OFFICER EMPLOYED AS MERCHANT SEAMAN IN VIEW OF THE PROVISIONS OF SECTION 1 (A) OF THE ACT OF MARCH 24, 1943, EXCLUDING SEAMEN EMPLOYED ON VESSELS OWNED OR OPERATED BY THE WAR SHIPPING ADMINISTRATION FROM THE OPERATION OF CERTAIN STATUTES APPLICABLE TO FEDERAL EMPLOYEES GENERALLY, THUS INDICATING A LEGISLATIVE PURPOSE TO PRESERVE THE PRIVATE-EMPLOYEE STATUS OF SUCH SEAMEN, A RETIRED COAST GUARD OFFICER SO EMPLOYED IS NOT TO BE REGARDED AS WITHIN THE LIMITATION OF SECTION 212 OF THE ACT OF JUNE 30, 1932, RESPECTING THE CONCURRENT PAYMENT OF RETIRED PAY AND CIVILIAN COMPENSATION IN AN OFFICE OR POSITION UNDER THE UNITED STATES GOVERNMENT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, NOVEMBER 3, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 13, 1944, AS FOLLOWS:

REFERENCE IS MADE TO THE ASSISTANT COMPTROLLER GENERAL'S DECISION OF JULY 24, 1944, B-41471, RESPECTING CERTAIN QUESTIONS WHICH HAD ARISEN IN CONNECTION WITH A DETERMINATION OF THE RETIRED PAY LEGALLY AUTHORIZED TO BE PAID TO LIEUTENANT CHARLES R. JOYCE, USCG, RETIRED, WHILE HOLDING A CIVILIAN POSITION WITH THE U.S. MERCHANT MARINE.

IN CONNECTION WITH THE FOREGOING, THERE IS TRANSMITTED HEREWITH A LETTER FROM THE COMMANDANT, U.S. COAST GUARD, DATED AUGUST 3, 1944, WHEREIN YOUR DECISION IS REQUESTED ON THE SPECIFIC QUESTION THEREIN PRESENTED, NAMELY.

WHETHER THE EMPLOYMENT OF LIEUTENANT CHARLES R. JOYCE, USCG, RETIRED, AS THIRD ASSISTANT ENGINEER ON THE S.S. DANIEL DRAKE, A VESSEL OPERATED BY UNITED STATES LINES, AGENTS FOR WAR SHIPPING ADMINISTRATION, CONSTITUTED THE HOLDING OF A CIVILIAN OFFICE OR POSITION UNDER THE UNITED STATES GOVERNMENT WITHIN THE SCOPE OF SECTION 212 OF THE SO-CALLED ECONOMY ACT OF JUNE 30, 1932 (47 STAT. 406), AS AMENDED (5 U.S.C. 59A/?

THE DECISION REFERRED TO IN YOUR LETTER WAS RENDERED IN RESPONSE TO YOUR REQUEST FOR DECISION ON QUESTIONS RAISED BY THE COMMANDANT, UNITED STATES COAST GUARD, IN CONNECTION WITH THE COMPUTATION OF THE RETIRED PAY LEGALLY AUTHORIZED TO BE PAID TO LIEUTENANT JOYCE UNDER THE PROVISIONS OF SECTION 212 OF THE SAID ECONOMY ACT BY VIRTUE OF CERTAIN BONUSES PAYABLE TO HIM "WHILE HOLDING A CIVILIAN POSITION WITH THE U.S. MERCHANT MARINE.'

THE SAID SECTION 212 OF THE ECONOMY ACT, 47 STAT. 406 (5 U.S.C. 59A), PROVIDES:

SEC. 212. (A) AFTER THE DATE OF THE ENACTMENT OF THIS ACT, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA OR UNDER ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN THE PAY ADJUSTMENT ACT OF 1922 ( U.S.C., TITLE 37), AT A RATE IN EXCESS OF AN AMOUNT WHICH WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN $3,000; AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $3,000 PER ANNUM SUCH PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR POSITION OR THE RETIRED PAY, WHICHEVER HE MAY ELECT. AS USED IN THIS SECTION, THE TERM "RETIRED PAY" SHALL BE CONSTRUED TO INCLUDE CREDITS FOR ALL SERVICE THAT LAWFULLY MAY ENTER INTO THE COMPUTATION THEREOF.

(B) THIS SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY PLUS CIVILIAN PAY AMOUNTS TO LESS THAN $3,000: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO REGULAR OR EMERGENCY COMMISSIONED OFFICERS RETIRED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES.

IN ANSWER TO THE SPECIFIC QUESTIONS PRESENTED BY THE COMMANDANT IT WAS STATED IN THE DECISION OF JULY 24, 1944, IN ACCORDANCE WITH THE HOLDING OF THIS OFFICE IN DECISION OF FEBRUARY 12, 1943, 22 COMP. GEN. 795, THAT THE PHRASE "ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION" APPEARING IN SECTION 212 RELATES TO THE BASIC COMPENSATION OF THE CIVILIAN OFFICE OR POSITION, AND THAT THE BONUSES REFERRED TO WERE NOT FOR CONSIDERATION IN APPLYING THE PRESCRIBED MAXIMUM. THERE WAS PRESENTED FOR DECISION NO QUESTION WHETHER THE CIVILIAN POSITION HELD BY LIEUTENANT JOYCE CONSTITUTED "A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT" WITHIN THE MEANING OF THAT SECTION AND SINCE THE SUBMISSION PRESENTED INSUFFICIENT INFORMATION RESPECTING THE CHARACTER OF THE EMPLOYMENT AND THE DUTIES PERFORMED BY THE OFFICER FOR A DETERMINATION THEREOF, NO DECISION ON THAT POINT WAS RENDERED. HOWEVER, WITH RESPECT THERETO, THE COMMANDANT, UNITED STATES COAST GUARD IN HIS LETTER OF AUGUST 3, STATES:

5. THE FOLLOWING FACTS CONCERNING THE NATURE OF LIEUTENANT JOYCE'S CIVILIAN EMPLOYMENT ARE AVAILABLE AT COAST GUARD HEADQUARTERS:

(A) THE CERTIFICATE OF CIVIL EMPLOYMENT FILED BY LIEUTENANT JOYCE WITH THE ALLOTMENT DISBURSING OFFICER (A COPY OF WHICH IS ATTACHED HERETO) DATED 26 FEBRUARY 1944, SIMPLY STATES ,THAT I AM EMPLOYED BY THE UNITED STATES GOVERNMENT," "THAT THE TITLE OF MY POSITION IS THIRD ASSISTANT ENGINEER" "IN THE BUREAU OF DIVISION OF U.S. MERCHANT MARINE" "DATE OF ENTERING SUCH EMPLOYMENT FEBRUARY 22ND, 1944" AND "THAT MY PRESENT SALARY PER ANNUM IS $2,400 PER YEAR ($200 PER MO.).'

(B) THE FOREGOING STATEMENT OF EMPLOYMENT "IN THE BUREAU OR DIVISION OF U.S. MERCHANT MARINE" IS OBVIOUSLY A LOOSE, GENERAL STATEMENT,THERE BEING NO SUCH EMPLOYING BUREAU OR DIVISION OF THE UNITED STATES GOVERNMENT.

(C) THE ONLY RECORD WHICH THE SEAMEN'S RECORDS AND WELFARE SECTION OF COAST GUARD HEADQUARTERS HAS OF MARITIME EMPLOYMENT OF LIEUTENANT JOYCE IS ONE OF EMPLOYMENT FROM FEBRUARY TO APRIL, 1944, ON THE SS DANIEL DRAKE AS THIRD ASSISTANT ENGINEER. EXAMINATION OF THE ORIGINAL SHIPPING ARTICLES COVERING THE VOYAGE INVOLVED, WHICH WERE RECEIVED AT THIS HEADQUARTERS AFTER THE SUBMISSION OF THE CASE TO THE COMPTROLLER GENERAL, SHOWS THE FOLLOWING:

(1) THE NAME OF THE OPERATING COMPANY ON THE VOYAGE IS GIVEN AS " UNITED STATES OF AMERICA, WAR SHIPPING ADMINISTRATION, P. UNITED STATES LINES, AGENTS.'

(2) CHARLES R. JOYCE WAS SIGNED ON THE SS DANIEL DRAKE AS 3RD ASST. ENGINEER, WAGES PER MONTH $170, AT BOSTON, SIGNING 23 FEBRUARY 1944. SIGNED OFF AT HALIFAX, NOVA SCOTIA, 28 APRIL, 1944, BY "MUTUAL CONSENT FOR MEDICAL REASONS," HAVING SERVED 2 MONTHS, 8 DAYS AND HAVING EARNED TOTAL WAGES OF $997.18, OF WHICH $481.67 IS SHOWN ON THE ARTICLES AS REGULAR WAGE, AND $515.51 IS SHOWN AS OVERTIME AND BONUS.

6. IT THUS APPEARS THAT LIEUTENANT JOYCE'S EMPLOYMENT WAS NOT GOVERNMENT EMPLOYMENT IN THE ORDINARY SENSE. THE SS DANIEL DRAKE WAS OPERATED BY THE UNITED STATES LINES, A PRIVATE CONCERN, AS AGENTS FOR WAR SHIPPING ADMINISTRATION, WHICH MUST EITHER HAVE OWNED OR HAVE BEEN BAREBOAT CHARTERER OF THE VESSEL. IN A REALISTIC SENSE THIS IS NOT GOVERNMENT EMPLOYMENT ANY MORE THAN IS EMPLOYMENT BY A COST-PLUS CONTRACTOR WITH THE UNITED STATES. LIEUTENANT JOYCE'S EMPLOYMENT WAS ORDINARY EMPLOYMENT AS A SEAMAN ON A MERCHANT VESSEL, DURING THIS EMERGENCY PERIOD WHEN WAR SHIPPING ADMINISTRATION HAS A VIRTUAL MONOPOLY IN MERCHANT SHIPPING.

7. CONGRESS HAS RECOGNIZED THE SPECIAL STATUS OF OFFICERS AND SEAMEN EMPLOYED ON UNITED STATES OR FOREIGN FLAG VESSELS AS EMPLOYEES OF THE UNITED STATES THROUGH THE WAR SHIPPING ADMINISTRATION. SEE ACT OF MARCH 24, 1943, C. 26, 57 STAT. 45 (50 APPENDIX U.S.C. SUP. III, 1291). WITH RESPECT TO CERTAIN SPECIFIED SUBJECTS, CONGRESS HAS GIVEN THEM ALL OF THE RIGHTS, BENEFITS, EXEMPTIONS, PRIVILEGES AND LIABILITIES UNDER LAW APPLICABLE TO CITIZENS OF THE UNITED STATES EMPLOYED AS SEAMEN ON PRIVATELY OWNED AND OPERATED AMERICAN VESSELS. ONE SUCH SUBJECT SPECIFIED IS ,COLLECTION OF WAGES.' IT MAY WELL BE ARGUED THAT SINCE WAGES COLLECTED FROM EMPLOYMENT AS A SEAMEN ON PRIVATELY OWNED AND OPERATED VESSELS ARE NOT SUBJECT TO SECTION 212 OF THE ECONOMY ACT, WAGES COLLECTED FROM SUCH EMPLOYMENT THROUGH WAR SHIPPING ADMINISTRATION ARE SIMILARLY EXEMPT. THE ACT OF MARCH 24, 1943, ALSO PROVIDES THAT "SUCH SEAMEN, BECAUSE OF THE TEMPORARY WARTIME CHARACTER OF THEIR EMPLOYMENT BY WAR SHIPPING ADMINISTRATION, SHALL NOT BE CONSIDERED AS OFFICERS OR EMPLOYEES OF THE UNITED STATES" FOR THE PURPOSES OF CERTAIN SPECIFIED STATUTES. WHILE THE SPECIFIED STATUTES DO NOT INCLUDE SECTION 212 OF THE ECONOMY ACT (IT IS UNDERSTANDABLE THAT THAT SECTION WAS NOT DIRECTLY IN THE MIND OF CONGRESS), YET THERE IS ROOM FOR GIVING HOSPITABLE SCOPE TO THE UNDERLYING POLICY OF CONGRESS NOT TO TREAT SUCH SEAMEN AS EMPLOYEES OF THE UNITED STATES FOR COMPENSATION PURPOSES.

8. FOR THE FOREGOING REASONS, THERE IS A VERY REAL QUESTION WHETHER LIEUTENANT JOYCE'S CIVILIAN EMPLOYMENT WAS OF SUCH A CHARACTER AS TO BE WITHIN THE SCOPE OF SECTION 212 OF THE ECONOMY ACT. THE QUESTION WAS NOT DECIDED BY THE COMPTROLLER GENERAL, HE HAVING ANSWERED THE OTHER QUESTIONS PRESENTED ON THE BASIS OF AN ASSUMPTION THAT LIEUTENANT JOYCE'S CIVILIAN EMPLOYMENT WAS OF THAT CHARACTER. DECISION OF THIS QUESTION MAY HAVE WIDESPREAD EFFECT ON THE EMPLOYMENT OF RETIRED OFFICERS ON BOARD MERCHANT VESSELS DURING THIS PERIOD OF WAR SHIPPING ADMINISTRATION CONTROL OF MERCHANT SHIPPING.

SECTION 1 (A) OF PUBLIC LAW 17, APPROVED MARCH 24, 1943, 57 STAT. 45, REFERRED TO IN THE COMMANDANT'S LETTER, PROVIDES:

THAT (A) OFFICERS AND MEMBERS OF CREWS (HEREINAFTER REFERRED TO AS "SEAMEN") EMPLOYED ON UNITED STATES OR FOREIGN FLAG VESSELS AS EMPLOYEES OF THE UNITED STATES THROUGH THE WAR SHIPPING ADMINISTRATION SHALL, WITH RESPECT TO (1) LAWS ADMINISTERED BY THE PUBLIC HEALTH SERVICE AND THE SOCIAL SECURITY ACT, AS AMENDED BY SUBSECTION (B) (2) AND (3) OF THIS SECTION; (2) DEATH, INJURIES, ILLNESS, MAINTENANCE AND CURE, LOSS OF EFFECTS, DETENTION REPATRIATION, OR CLAIMS ARISING THEREFROM NOT COVERED BY THE FOREGOING CLAUSE (1); AND (3) COLLECTION OF WAGES AND BONUSES AND MAKING OF ALLOTMENTS, HAVE ALL OF THE RIGHTS, BENEFITS EXEMPTIONS, PRIVILEGES, AND LIABILITIES, UNDER LAW APPLICABLE TO CITIZENS OF THE UNITED STATES EMPLOYED AS SEAMEN ON PRIVATELY OWNED AND OPERATED AMERICAN VESSELS. SUCH SEAMEN, BECAUSE OF THE TEMPORARY WARTIME CHARACTER OF THEIR EMPLOYMENT BY THE WAR SHIPPING ADMINISTRATION, SHALL NOT BE CONSIDERED AS OFFICERS OR EMPLOYEES OF THE UNITED STATES FOR THE PURPOSES OF THE UNITED STATES EMPLOYEES COMPENSATION ACT, AS AMENDED; THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED; THE ACT OF CONGRESS APPROVED MARCH 7, 1942 ( PUBLIC LAW 490, SEVENTY-SEVENTH CONGRESS); OR THE ACT ENTITLED " AN ACT TO PROVIDE BENEFITS FOR THE INJURY, DISABILITY, DEATH, OR DETENTION OF EMPLOYEES OF CONTRACTORS WITH THE UNITED STATES AND CERTAIN OTHER PERSONS OR REIMBURSEMENT THEREFOR," APPROVED DECEMBER 2, 1942 ( PUBLIC LAW 784, SEVENTY-SEVENTH CONGRESS). CLAIMS ARISING UNDER CLAUSE (1) HEREOF SHALL BE ENFORCED IN THE SAME MANNER AS SUCH CLAIMS WOULD BE ENFORCED IF THE SEAMAN WERE EMPLOYED ON A PRIVATELY OWNED AND OPERATED AMERICAN VESSEL.

IN SENATE REPORT NO. 62, DATED FEBRUARY 22, 1943, ACCOMPANYING H.R. 133, WHICH SUBSEQUENTLY WAS ENACTED INTO LAW AS PUBLIC LAW 17, IT IS STATED, IN PERTINENT PART, AS FOLLOWS (PP. 4-11):

PARTICULAR PROBLEMS REQUIRING LEGISLATION * * * * *

PROBLEMS ARISING OUT OF GOVERNMENT EMPLOYEE STATUS OF SEAMEN.--- VARIOUS DIFFICULTIES HAVE ARISEN WITH RESPECT TO THE BENEFITS AND REMEDIES FOR SEAMEN EMPLOYED BY, OR ON BEHALF OF, THE WAR SHIPPING ADMINISTRATION ON VESSELS OWNED OR BAREBOAT-CHARTERED BY IT. THESE QUESTIONS ARISE BECAUSE OF TECHNICAL STATUS OF SUCH SEAMEN AS EMPLOYEES OF THE UNITED STATES BY VIRTUE OF THEIR EMPLOYMENT THROUGH THE WAR SHIPPING ADMINISTRATION FOR SERVICE ON SUCH VESSELS.

BECAUSE OF THIS FACT THE ADMINISTRATOR HAS NOT BEEN ABLE UNDER EXISTING LAW TO CARRY OUT ENTIRELY HIS INTENDED POLICY OF MAINTAINING THE PEACETIME STATUS OF SEAMEN INSOFAR AS SEAMEN'S RIGHTS TO COMPENSATION FOR INJURIES, AND SO FORTH, WAGE CREDITS TOWARD SOCIAL SECURITY BENEFITS, AND VARIOUS OTHER BENEFITS WHICH SEAMEN HAVE ENJOYED AND TO WHICH THEY ARE ENTITLED. THE PURPOSE OF SECTION 1 OF THE BILL IS TO CORRECT THS SITUATION SO AS TO PERMIT THE COMPLETE EXTENSION INTO THIS AREA OF THE BASIC POLICY OF MAINTAINING THE PRIVATE STATUS OF MERCHANT SEAMEN FOR THE DURATION OF THE WAR.

SEAMEN EMPLOYED AS GOVERNMENT EMPLOYEES ON VESSELS OWNED BY, OR BAREBOAT- CHARTERED TO, THE WAR SHIPPING ADMINISTRATION ARE SOMETIMES PRECLUDED FROM ENFORCING AGAINST THE UNITED STATES THE RIGHTS AND BENEFITS IN CASE OF DEATH, INJURY, ILLNESS, DETENTION, AND SO ON THAT WOULD BE AVAILABLE TO THEM IF EMPLOYED BY PRIVATE EMPLOYERS, EXCEPT UNDER THE SUITS IN ADMIRALTY ACT. IF THEY WERE PRIVATE EMPLOYEES, RIGHTS TO REDRESS FOR DEATH, INJURY, OR ILLNESS COULD BE PROSECUTED UNDER THE JONES ACT AND THE GENERAL MARITIME LAW. THESE SAME RIGHTS MAY BE ASSERTED AGAINST THE UNITED STATES AS THE EMPLOYER UNDER THE SUITS IN ADMIRALTY ACT PROVIDING THE VESSEL INVOLVED IS A MERCHANT VESSEL. IN CASE OF PUBLIC VESSELS THE SEAMAN MUST RELY FOR COMPENSATION UPON THE ADMINISTRATOR'S POLICY RECOGNIZING CONTRACTUAL LIABILITY WHICH THIS LEGISLATION RECOGNIZES. PRESENT-DAY OPERATING CONDITIONS OFTEN MAKE UNCERTAIN IN SOME CASES WHETHER THE VESSEL IS A MERCHANT OR A PUBLIC VESSEL. AS A CONSEQUENCE, EVEN THOUGH THE VESSELS ARE GENERALLY MERCHANT VESSELS AND NOT PUBLIC VESSELS, THERE ARE SOME CASES IN WHICH THE AFOREMENTIONED RIGHTS OF SUCH SEAMEN ARE IN DOUBT. IN ADDITION TO THESE RIGHTS WHICH, AT TIMES, ARE UNCERTAIN FOR THE REASONS MENTIONED, THE SEAMEN WHO ARE EMPLOYEES OF THE UNITED STATES PROBABLY HAVE RIGHTS UNDER THE UNITED STATES EMPLOYEES' COMPENSATION ACT IN THE EVENT OF INJURY OR DEATH. SUCH COMPENSATION BENEFITS ARE NOT PRESENTLY ENJOYED BY SEAMEN UNDER PRIVATE EMPLOYMENT. THUS VITAL DIFFERENCES IN THESE RIGHTS ARE MADE TO DEPEND UPON WHETHER THE SEAMAN HAPPENS TO BE EMPLOYED ABOARD A VESSEL TIME CHARTERED TO THE WAR SHIPPING ADMINISTRATION OR OWNED BY OR BAREBOAT CHARTERED TO THE WAR SHIPPING ADMINISTRATION. SINCE SEAMEN CONSTANTLY CHANGE FROM ONE VESSEL TO ANOTHER, THEIR RIGHTS FOR DEATH, INJURY, OR ILLNESS ALSO CONSTANTLY CHANGE, DEPENDING UPON THE RELATIONSHIP OF THE WAR SHIPPING ADMINISTRATION TO THE VESSEL. THIS FLUCTUATION AND LACK OF UNIFORMITY OF RIGHTS LEADS TO DEPENDENCY OF VITAL RIGHTS UPON CHANCE WITH A RESULT OF CONFUSION AND INEQUITIES. THE BILL IS DESIGNED TO REMOVE THIS CONFUSION AND THESE INEQUITIES. THE BILL DOES NOT AFFECT SEAMEN EMPLOYED ON VESSELS TIME- CHARTERED TO THE WAR SHIPPING ADMINISTRATION WHERE THE VESSELS ARE SUPPLIED WITH CREWS EMPLOYED BY THE COMPANY FROM WHICH THE VESSEL IS CHARTERED. AS TO THEM THEIR STATUS AND THE STATUS OF THE GOVERNMENT EMPLOYEES MENTIONED WILL BE MADE UNIFORM.

FURTHERMORE, THESE SEAMEN WHO ARE GOVERNMENT EMPLOYEES ARE THEORETICALLY SUBJECT TO THE CIVIL SERVICE RETIREMENT ACT, YET THEY ARE ACTUALLY EXEMPT FOR THE TIME BEING BECAUSE OF AN EXECUTIVE ORDER EXCLUDING EMPLOYEES ENGAGED IN CERTAIN TYPES OF SERVICES. EMPLOYEES OF PRIVATE COMPANIES EARN CREDITS TOWARD BENEFITS OF THE OLD-AGE AND SURVIVORS' INSURANCE PROVISIONS OF THE SOCIAL SECURITY ACT. UNDER THE PRESENT LAWS SEAMEN WHO ARE GOVERNMENT EMPLOYEES THROUGH EMPLOYMENT BY THE WAR SHIPPING ADMINISTRATION DO NOT HAVE RIGHTS UNDER EITHER THE CIVIL SERVICE RETIREMENT ACT NOR IS THEIR EMPLOYMENT COVERED UNDER THE SOCIAL SECURITY ACT. * * * *

PROVISIONS OF THE BILL BY SECTIONS * * * * *

THE PROVISIONS OF SECTION 1.--- SECTION 1 WOULD PROVIDE THAT OFFICERS AND CREW MEMBERS WHO ARE EMPLOYED ON BEHALF OF THE UNITED STATES THROUGH THE WAR SHIPPING ADMINISTRATION ON THE SAME BASIS AS SEAMEN IN PRIVATE EMPLOYMENT WITH RESPECT TO RIGHTS, BENEFITS, AND PRIVILEGES IN CONNECTION WITH EMPLOYMENT, PARTICULARLY IN CASE OF DEATH, INJURY, OR OTHER CASUALTY. UNDER THE BILL, THESE EMPLOYEES OF THE WAR SHIPPING ADMINISTRATION WILL HAVE THE SEAMEN'S RIGHT TO WAGES, MAINTENANCE, AND CURE, IN CASE OF ILLNESS OR INJURY IN THE SHIP'S SERVICE. THEY WILL HAVE THE BENEFITS OF THE PUBLIC HEALTH SERVICE, INCLUDING MARINE HOSPITALS, LIKE OTHER SEAMEN. THEY WILL HAVE OLD-AGE AND SURVIVORS' INSURANCE UNDER THE SOCIAL SECURITY ACT. THEY WILL CONTINUE TO HAVE THE RIGHT TO INDEMNITY THROUGH COURT ACTION FOR INJURY RESULTING FROM UNSEAWORTHINESS OF THE VESSEL OR DEFECTS IN VESSEL APPLIANCES, AND THEY (AND THEIR DEPENDENTS) WILL HAVE THE RIGHT TO ACTION UNDER THE JONES ACT (1920) FOR INJURY OR DEATH RESULTING FROM NEGLIGENCE OF THE EMPLOYER. SUCH SEAMEN WILL HAVE THE RIGHT TO ENFORCE CLAIMS FOR THESE BENEFITS ACCORDING TO THE PROCEDURE OF THE SUITS IN ADMIRALTY ACT, EXCEPT THAT CLAIMS WITH RESPECT TO SOCIAL SECURITY BENEFITS SHALL BE PROSECUTED IN ACCORDANCE WITH THE PROCEDURE PROVIDED IN THE SOCIAL-SECURITY LAW. THE SEAMEN AND THEIR DEPENDENTS OR BENEFICIARIES WILL HAVE PROTECTION OF WAR-RISK INSURANCE AT THE EMPLOYER'S EXPENSE IN ACCORDANCE WITH THE DECISIONS OF THE MARITIME WAR EMERGENCY BOARD AS REQUIRED FOR ALL PRIVATELY EMPLOYED SEAMEN.

THE BASIC SCOPE AND PHILOSOPHY OF THE MEASURE IS TO PRESERVE PRIVATE RIGHTS OF SEAMEN WHILE UTILIZING THE MERCHANT MARINE TO THE UTMOST FOR PUBLIC WARTIME BENEFIT. EXCEPT IN RARE CASES THE SHIPS THEMSELVES ARE BEING OPERATED AS MERCHANT VESSELS, AND ARE THEREFORE SUBJECT TO THE SUITS IN ADMIRALTY ACT IN ALL RESPECTS. GRANTING SEAMEN RIGHTS TO SUE UNDER THAT ACT IS THEREFORE ENTIRELY CONSISTENT WITH THE UNDERLYING PATTERN OF THE MEASURE. THIS SHOULD FOLLOW EVEN IN THE EXTRAORDINARY CASE WHERE VESSELS MIGHT OTHERWISE TECHNICALLY BE CLASSED AS PUBLIC VESSELS.

IT HAS ALSO BEEN THE FIXED POLICY OF THE WAR SHIPPING ADMINISTRATION AS FAR AS POSSIBLE TREAT CLAIMS FOR INJURY, ILLNESS, DEATH, AND SO FORTH, RELATING TO SEAMEN WHO ARE EMPLOYED ABOARD VESSELS THAT MIGHT BE CLASSIFIED TECHNICALLY AS PUBLIC VESSELS IN THE SAME MANNER AS SUCH CLAIMS RELATING TO SEAMEN WHO ARE EMPLOYED ABOARD MERCHANT VESSELS ARE TREATED. AT THE TIME THEY ACCEPT EMPLOYMENT ABOARD A VESSEL, SEAMEN, OF COURSE, ARE NOT IN POSSESSION OF NECESSARY INFORMATION OR KNOWLEDGE TO DETERMINE WHETHER THE VESSEL IS TECHNICALLY A MERCHANT VESSEL OR A PUBLIC VESSEL. FURTHERMORE, IN VIEW OF THE NICETIES OF THIS LEGAL QUESTION, IT WOULD BE UNREASONABLE TO EXPECT THAT THEY WOULD BE ABLE TO MAKE SUCH A DETERMINATION EVEN IF THEY WERE IN POSSESSION OF SUCH INFORMATION AND KNOWLEDGE. ACCORDINGLY, THESE SEAMEN EXPECT THAT THEY WILL HAVE THE SAME SUBSTANTIVE RIGHTS IN THE EVENT OF INJURY, ILLNESS, DEATH, AND SO FORTH, IRRESPECTIVE OF WHETHER THE VESSEL IS A MERCHANT VESSEL OR TECHNICALLY IS A PUBLIC VESSEL. THE WAR SHIPPING ADMINISTRATION HAS RECOGNIZED THIS UNDERSTANDING ON THE PART OF THE SEAMEN AND HAS TREATED THE SAME AS BEING INCLUDED IN THE CONTRACT OF EMPLOYMENT. IN DISCHARGE OF THIS CONTRACTUAL OBLIGATION THE ADMINISTRATION HAS PROPERLY ADJUSTED CLAIMS WITH RESPECT TO SEAMEN WHO HAVE SUFFERED INJURY, ILLNESS, OR DEATH ABOARD VESSELS THAT MIGHT BE TECHNICALLY CLASSIFIED AS PUBLIC VESSELS IN THE SAME MANNER AS IF SUCH SEAMEN WERE EMPLOYED ABOARD MERCHANT VESSELS.

IT IS IN THE SPIRIT AND INTENT OF SECTION 1 TO AVOID POSSIBILITIES OF DOUBLE RECOVERY WHICH MIGHT OTHERWISE ARISE IF A SEAMAN PURSUED HIS RIGHTS UNDER SECTION 1 AND THEN ATTEMPTED TO PURSUE COMPARABLE RIGHTS OR SUCH RECOVERY FOR THE SAME OR SIMILAR EVENTS UNDER OTHER LAW OR PROVISION; AND, ON THE OTHER HAND, WHICH MIGHT ARISE WITH RESPECT TO RETROACTIVE RIGHTS WHICH THE CLAIMANT ELECTS TO PURSUE AS IF SECTION 1 WAS IN EFFECT AT THE TIME OF ACCRUAL OF THE CLAIM.

THE EFFECT OF THIS LEGISLATION IS TO ELIMINATE THE DANGER THAT SEAMEN MAY RECOVER BOTH AGAINST THE FEDERAL EMPLOYEES' COMPENSATION FUND AND UNDER HIS STATUTORY OR COMMON-LAW REMEDIES FOR THE SAME INJURY. SUCH DOUBLE RECOVERY HAS BEEN AVOIDED IN THE PAST BY ADMINISTRATIVE AND JUDICIAL ACTION WHICH THIS LEGISLATION WILL SERVE TO CONFIRM. THIS LEGISLATION, HOWEVER, DOES NOT ELIMINATE DANGER OF DOUBLE RECOVERY IN CONNECTION WITH PAYMENTS MADE UNDER BENEFITS PROVIDED BY DECREES OF THE MARITIME WAR EMERGENCY BOARD IN ALL CASES. THE COMMITTEE UNDERSTANDS THAT THAT BOARD IS GIVING CONSIDERATION TO AND WILL UNDERTAKE TO ADOPT APPROPRIATE SAFEGUARDS SO THAT DUPLICATE PAYMENT OF BENEFITS TO SEAMEN FOR THE SAME INJURY OR CASUALTY THROUGH THE OPERATION OF THEIR BENEFITS AND THROUGH THE BENEFITS PROVIDED FOR UNDER THIS LEGISLATION WILL BE AVOIDED.

IT IS IN LINE WITH THE POLICY OF AVOIDING CONFUSION AND DUPLICATION THAT SPECIFIC REFERENCE IS MADE FOR THE EXCLUSION OF SEAMEN EMPLOYEES OF THE UNITED STATES FROM COVERAGE UNDER CERTAIN STATUTES WHICH OTHERWISE WOULD IN SOME CASES AT LEAST APPLY TO THEM. * * *

AS CLEARLY DISCLOSED BY THE QUOTED PORTIONS OF THE SAID REPORT (SEE, ALSO, HOUSE OF REPRESENTATIVES REPORT NO. 107, DATED FEBRUARY 8, 1943), THE PRIMARY PURPOSE OF SECTION 1 OF THE ACT OF MARCH 24, 1943, SUPRA, WAS TO CLARIFY THE STATUS OF SEAMEN EMPLOYED ON VESSELS OWNED BY, OR BAREBOAT- CHARTERED TO, THE WAR SHIPPING ADMINISTRATION, WHO, BY VIRTUE OF SUCH EMPLOYMENT MIGHT BE CONSIDERED TO BE TEMPORARY EMPLOYEES OF THE UNITED STATES, AND TO PRESERVE FOR THEM THE SAME PRIVATE-EMPLOYEE STATUS AND RIGHTS ENJOYED BY SEAMEN ON MERCHANT VESSELS TIME-CHARTERED BY THE WAR SHIPPING ADMINISTRATION. ALSO, IT APPEARS THAT THE EXPRESS EXCLUSION OF SEAMEN TEMPORARILY EMPLOYED BY THE WAR SHIPPING ADMINISTRATION FROM THE OPERATION OF CERTAIN FEDERAL STATUTES APPLICABLE TO GOVERNMENT EMPLOYEES GENERALLY, IS FOR THE PURPOSE OF REMOVING DOUBT AND CONFUSION.

MANIFESTLY, THE ENUMERATION OF CERTAIN FEDERAL STATUTES--- IN FURTHERANCE OF THE PRIMARY PURPOSE OF THE ACT TO PRESERVE THE PRIVATE EMPLOYEE STATUS OF SUCH SEAMEN--- PROPERLY MAY NOT BE CONSIDERED AS INDICATIVE OF AN INTENT OF THE CONGRESS THAT ALL STATUTES NOT SO ENUMERATED, AFFECTING FEDERAL EMPLOYEES GENERALLY ARE FOR APPLICATION TO THEM. RATHER, CONSIDERED IN THE LIGHT OF THE OVER-ALL PURPOSE OF THE ACT, THE EXCLUSION OF SEAMEN EMPLOYED ON VESSELS OWNED OR OPERATED BY THE WAR SHIPPING ADMINISTRATION FROM THE OPERATION OF THE STATUTES MENTIONED CLEARLY INDICATES A LEGISLATIVE INTENT TO EXCLUDE THEM FROM THE OPERATION OF ANY FEDERAL STATUTE WHICH MIGHT INFRINGE UPON THEIR RIGHTS, AS PRIVATE EMPLOYEES, RESPECTING WAGES, DISABILITY COMPENSATION, SOCIAL SECURITY BENEFITS, ETC. THE PROHIBITION CONTAINED IN SECTION 212 OF THE ECONOMY ACT, SUPRA, IS APPLICABLE TO A RETIRED OFFICER HOLDING "A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT," AND TO APPLY SUCH PROVISION TO OFFICERS AND MEMBERS OF CREWS SERVING AS MERCHANT SEAMEN ON VESSELS UNDER THE IMMEDIATE CONTROL OF THE WAR SHIPPING ADMINISTRATION WOULD BE CONTRARY TO THE PLAIN INTENT AND PURPOSE OF THE SAID ACT OF MARCH 24, 1943.

MOREOVER, IT IS UNDERSTOOD THAT MANY SUCH SEAMEN ARE PROCURED OR EMPLOYED BY THE GENERAL AGENTS OF THE WAR SHIPPING ADMINISTRATION AND ARE PAID DIRECTLY BY THE AGENTS IN THE SAME MANNER AS SEAMEN EMPLOYED ON MERCHANT VESSELS PRIVATELY OWNED AND OPERATED. THEIR WAGES ARE NOT FIXED DIRECTLY BY THE FEDERAL GOVERNMENT BUT ARE ESTABLISHED IN ACCORDANCE WITH EXISTING AGREEMENTS CONTROLLING WAGES OF SEAMEN ENGAGED IN COMMERCIAL OPERATIONS. AND WHILE IT MAY BE THAT FOR CERTAIN PURPOSES SOME OF THESE SEAMEN ARE CONSIDERED TO BE TEMPORARY EMPLOYEES OF THE UNITED STATES, IT DOES NOT APPEAR THAT THEY HOLD CIVILIAN POSITIONS UNDER THE UNITED STATES GOVERNMENT WITHIN THE MEANING OF SECTION 212 OF THE ECONOMY ACT.

BASED UPON THE FACTS AS REPORTED IN THE COMMANDANT'S LETTER, IT APPEARS THAT THE RETIRED OFFICER HELD THE STATUS OF A SEAMEN ON A MERCHANT VESSEL. ACCORDINGLY, YOU ARE ADVISED THAT THE PROVISIONS OF SECTION 212 OF THE SAID ECONOMY ACT ARE NOT FOR APPLICATION TO SUCH CIVILIAN EMPLOYMENT OF LIEUTENANT JOYCE UNDER THE WAR SHIPPING ADMINISTRATION.