B-9165, MARCH 26, 1940, 19 COMP. GEN. 824

B-9165: Mar 26, 1940

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IS NOT DEPRIVED OF ELIGIBILITY FOR RELIEF AND REPATRIATION WHEN IN DESTITUTE CIRCUMSTANCES BECAUSE OF HIS HAVING PROCEEDED INTO A COMBAT AREA IN VIOLATION OF SECTION 3 (A) OF THE NEUTRALITY ACT OF 1939. 1940: I HAVE YOUR LETTER OF MARCH 20. AS FOLLOWS: A QUESTION HAS ARISEN RELATING TO THE ELIGIBILITY FOR RELIEF AND REPATRIATION OF AMERICAN SEAMEN WHO HAVE. HAVE COME UPON AMERICAN CONSULATES IN DESTITUTE CIRCUMSTANCES. FROM CUBA THE VESSEL WAS ORDERED BY THE FINNISH GOVERNMENT TO PROCEED TO BORDEAUX. DE BARROS WAS DISCHARGED BY THE FINNISH CONSUL UPON REQUEST OF THE MASTER AND UPON THE ORDER OF A DOCTOR. WAS PLACED IN A LOCAL HOSPITAL FOR TREATMENT. IT APPEARS THAT UPON HIS RELEASE FROM THE HOSPITAL HE WILL COME UPON THE CONSUL AS A DESTITUTE SEAMAN.

B-9165, MARCH 26, 1940, 19 COMP. GEN. 824

AMERICAN SEAMEN - RELIEF AND REPATRIATION - VIOLATION OF NEUTRALITY ACT OF 1939 AN AMERICAN SEAMAN WHO LAST SERVED ON A FOREIGN VESSEL, IS NOT DEPRIVED OF ELIGIBILITY FOR RELIEF AND REPATRIATION WHEN IN DESTITUTE CIRCUMSTANCES BECAUSE OF HIS HAVING PROCEEDED INTO A COMBAT AREA IN VIOLATION OF SECTION 3 (A) OF THE NEUTRALITY ACT OF 1939, 54 STAT. 7, IF HE BE OTHERWISE ENTITLED THERETO UNDER THE APPLICABLE LAW AND REGULATIONS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF STATE, MARCH 26, 1940:

I HAVE YOUR LETTER OF MARCH 20, 1940, AS FOLLOWS:

A QUESTION HAS ARISEN RELATING TO THE ELIGIBILITY FOR RELIEF AND REPATRIATION OF AMERICAN SEAMEN WHO HAVE, IN APPARENT VIOLATION OF SECTION 3 (A) OF THE NEUTRALITY ACT OF 1939, PROCEEDED INTO THE COMBAT AREA ESTABLISHED BY THE PRESIDENT'S PROCLAMATION OF NOVEMBER 4, 1939, AND HAVE COME UPON AMERICAN CONSULATES IN DESTITUTE CIRCUMSTANCES.

IT APPEARS THAT ONE AUGUST DE BARROS, AN AMERICAN SEAMAN, SIGNED ON THE FINNISH STEAMSHIP MARGARETA AT NEWPORT NEWS ON DECEMBER 15, 1939, FOR A VOYAGE "TO CUBA AND FURTHER AND BACK TO U.S.A.' FROM CUBA THE VESSEL WAS ORDERED BY THE FINNISH GOVERNMENT TO PROCEED TO BORDEAUX. UPON ARRIVAL AT BORDEAUX, DE BARROS WAS DISCHARGED BY THE FINNISH CONSUL UPON REQUEST OF THE MASTER AND UPON THE ORDER OF A DOCTOR, AND WAS PLACED IN A LOCAL HOSPITAL FOR TREATMENT. IT APPEARS THAT UPON HIS RELEASE FROM THE HOSPITAL HE WILL COME UPON THE CONSUL AS A DESTITUTE SEAMAN, AS THE FINNISH CONSUL STATES THAT IT WILL BE IMPOSSIBLE FOR HIS OFFICE TO EXTEND RELIEF, AND THE SHIP HAS NO AGENCY AT BORDEAUX.

FOR THE GUIDANCE OF THE AMERICAN CONSUL AT BORDEAUX IN CONSIDERING THE APPLICATION OF THIS SEAMAN FOR RELIEF, YOUR OPINION IS REQUESTED AS TO WHETHER THE FACT THAT THIS SEAMAN ENTERED THE COMBAT AREA IN APPARENT VIOLATION OF SECTION 3 (A) OF THE NEUTRALITY ACT WILL PERMIT THE CONSUL TO EXTEND RELIEF, TO WHICH HE APPEARS OTHERWISE ENTITLED.

REFERENCE IS MADE TO THE FACT THAT ARTICLE XV, SECTION 260, OF THE FOREIGN SERVICE REGULATIONS HAS BEEN AMENDED BY EXECUTIVE ORDER NO. 7543, DATED JANUARY 29, 1937, TO READ 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.'

I HAVE NO DOUBT THAT AUGUST DE BARROS MAY BE REGARDED AS AN AMERICAN SEAMAN IN VIEW OF THE STATEMENT OF THE CONSUL THAT "SINCE MAY 1, 1939, HE HAS MADE SEVERAL TRIPS ABOARD AMERICAN OIL TANKERS ( S.S. ACME AND S.S. ALTAIR) OF THE STANDARD OIL COMPANY.' THE FACT THAT HE MADE ONE VOYAGE AS A MEMBER OF THE CREW OF THE FINNISH STEAMSHIP MARGARETA WOULD NOT TERMINATE THIS STATUS. (5 OPS. ATTYS. GEN. 547; SEE ALSO COMPTROLLER GENERAL'S DECISION OF JANUARY 22, 1940, IN CASE OF DR. HERMANN F. ERBEN.)

SECTIONS 3 (A) AND (B), SECTION 5 (A), AND SECTION 15, OF THE NEUTRALITY ACT OF 1939, APPROVED NOVEMBER 4, 1939, 54 STAT. 7, 11, PROVIDE:

SEC. 3. (A) WHENEVER THE PRESIDENT SHALL HAVE ISSUED A PROCLAMATION UNDER THE AUTHORITY OF SECTION 1 (A), AND HE SHALL THEREAFTER FIND THAT THE PROTECTION OF CITIZENS OF THE UNITED STATES SO REQUIRES, HE SHALL, BY PROCLAMATION, DEFINE COMBAT AREAS, AND THEREAFTER IT SHALL BE UNLAWFUL, EXCEPT UNDER SUCH RULES AND REGULATIONS AS MAY BE PRESCRIBED, FOR ANY CITIZEN OF THE UNITED STATES OR ANY AMERICAN VESSEL TO PROCEED INTO OR THROUGH ANY SUCH COMBAT AREA. THE COMBAT AREAS SO DEFINED MAY BE MADE TO APPLY TO SURFACE VESSELS OR AIRCRAFT, OR BOTH.

(B) IN CASE OF THE VIOLATION OF ANY OF THE PROVISIONS OF THIS SECTION BY ANY AMERICAN VESSEL, OR ANY OWNER OR OFFICER THEREOF, SUCH VESSEL, OWNER, OR OFFICER SHALL BE FINED NOT MORE THAN $50,000 OR IMPRISONED FOR NOT MORE THAN FIVE YEARS, OR BOTH. SHOULD THE OWNER OF SUCH VESSEL BE A CORPORATION, ORGANIZATION, OR ASSOCIATION, EACH OFFICER OR DIRECTOR PARTICIPATING IN THE VIOLATION SHALL BE LIABLE TO THE PENALTY HEREINABOVE PRESCRIBED. IN CASE OF THE VIOLATION OF THIS SECTION BY ANY CITIZEN TRAVELING AS A PASSENGER, SUCH PASSENGER MAY BE FINED NOT MORE THAN $10,000 OR IMPRISONED FOR NOT MORE THAN TWO YEARS, OR BOTH.

SEC. 5. (A) WHENEVER THE PRESIDENT SHALL HAVE ISSUED A PROCLAMATION UNDER THE AUTHORITY OF SECTION 1 (A) IT SHALL THEREAFTER BE UNLAWFUL FOR ANY CITIZEN OF THE UNITED STATES TO TRAVEL ON ANY VESSEL OF ANY STATE NAMED IN SUCH PROCLAMATION, EXCEPT IN ACCORDANCE WITH SUCH RULES AND REGULATIONS AS MAY BE PRESCRIBED.

SEC. 15. IN EVERY CASE OF THE VIOLATION OF ANY OF THE PROVISIONS OF THIS JOINT RESOLUTION OR OF ANY RULE OR REGULATION ISSUED PURSUANT THERETO WHERE A SPECIFIC PENALTY IS NOT HEREIN PROVIDED, SUCH VIOLATOR OR VIOLATORS, UPON CONVICTION, SHALL BE FINED NOT MORE THAN $10,000, OR IMPRISONED NOT MORE THAN TWO YEARS, OR BOTH.

THE PRESIDENT'S PROCLAMATION OF NOVEMBER 4, 1939, AFTER DEFINING THE COMBAT AREAS UNDER THE NEUTRALITY ACT, ENJOINED UPON ALL OFFICERS OF THE UNITED STATES, CHARGED WITH THE EXECUTION OF THE LAWS THEREOF, THE UTMOST DILIGENCE IN PREVENTING VIOLATIONS OF SAID ACT AND IN BRINGING TO TRIAL AND PUNISHMENT ANY OFFENDERS AGAINST THE SAME, AND ALSO, SPECIFICALLY DELEGATED TO THE SECRETARY OF STATE POWER TO PROMULGATE RULES AND REGULATIONS NOT INCONSISTENT WITH THE LAW AS MAY BE NECESSARY AND PROPER TO CARRY OUT ITS PROVISIONS. WHETHER THERE HAS BEEN A VIOLATION OF THE NEUTRALITY ACT AND THE PRESIDENTIAL PROCLAMATION IS NOT A QUESTION FOR DETERMINATION BY THIS OFFICE AND, BEING A MATTER SEPARATE AND DISTINCT FROM THE STATUTES PROVIDING FOR RELIEF TO AMERICAN SEAMEN, SUCH A VIOLATION WOULD NOT SEEM TO HAVE ANY MATERIAL BEARING UPON THE APPLICATION OF SUCH RELIEF STATUTES.

SECTION 4577, REVISED STATUTES, PROVIDES:

IT SHALL BE THE DUTY OF THE CONSULS, VICE CONSULS, COMMERCIAL AGENTS, AND VICE-COMMERCIAL AGENTS, 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.

SECTIONS 260 AND 264 OF THE CONSULAR REGULATIONS DEFINE " SEAMEN OF THE UNITED STATES" AS FOLLOWS:

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

(1) MERCHANT SEAMEN, BEING CITIZENS OF THE UNITED STATES, OR ALIENS WHO HAVE DECLARED THEIR INTENTION TO BECOME CITIZENS OF THE UNITED STATES AND WHO SHALL HAVE SERVED 3 YEARS UPON MERCHANT, FISHING, OR WHALING VESSELS OF THE UNITED STATES OF MORE THAN 20 TONS' BURDEN (8 U.S.C. SECTION 376), 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.

(2) ALIENS REGULARLY SHIPPED IN AN AMERICAN VESSEL IN A PORT OF THE UNITED STATES (SEC. 264).

WHEN ALIEN LOSES STATUS OF AMERICAN SEAMAN. AN ALIEN WHO SHIPS AS A SEAMAN ON AN AMERICAN VESSEL IN A PORT OF THE UNITED STATES WITH INTENT TO ATTACH HIMSELF FOR AN INDEFINITE THOUGH NOT NECESSARILY A LONG TIME TO THE AMERICAN MERCHANT SERVICE, BECOMES THEREBY AN AMERICAN SEAMAN WITHIN THE MEANING OF THE STATUTE AND REGULATIONS AUTHORIZING THE RELIEF AND TRANSPORTATION AT GOVERNMENT EXPENSE OF DESTITUTE SEAMEN TO THE UNITED STATES; AND HE RETAINS THAT STATUS, WITH ITS PRIVILEGES, UNTIL DIVESTED OF IT BY SHIPPING ON A FOREIGN VESSEL. * * * ( ITALICS SUPPLIED.)

THE SEAMAN HERE, HAVING LAST SERVED ON A FOREIGN VESSEL, WOULD BE ENTITLED TO RELIEF AT THE EXPENSE OF THE UNITED STATES ONLY IF HE BE A CITIZEN OF THE UNITED STATES, OR HAS DECLARED HIS INTENTION TO BECOME A CITIZEN. IF HE BE AN ALIEN, HIS SERVICES ON THE FOREIGN VESSEL WOULD, UNDER THE ABOVE-QUOTED REGULATIONS, DIVEST HIM OF HIS STATUS AS AN AMERICAN SEAMAN. THEREFORE, IF IT BE ESTABLISHED THAT DE BARROS IS A CITIZEN OF THE UNITED STATES, OR THAT HE HAS DECLARED HIS INTENTION TO BECOME A CITIZEN AND IS OTHERWISE WITHIN THE PROVISIONS OF CONSULAR REGULATION 260 (1), SUPRA, HE MAY BE FURNISHED RELIEF AND TRANSPORTATION TO THE UNITED STATES AS A DESTITUTE AMERICAN SEAMAN IRRESPECTIVE OF WHETHER HE MAY BE SUBJECT TO A PENALTY FOR VIOLATION OF THE NEUTRALITY ACT. IF HE BE AN ALIEN, HE IS NOT ENTITLED TO BE RETURNED TO THIS COUNTRY AS A DESTITUTE AMERICAN SEAMAN. CF. 1 COMP. GEN. 583; 2 ID. 32; 5 ID. 180 AND 634; 13 ID. 403.