A-31794, A-48409, JULY 14, 1938, 18 COMP. GEN. 37

A-31794, A-48409, JULY 14, 1938, 18 COMP. GEN. 37

TRANSPORTATION - SHIPWRECKED OR DESTITUTE AMERICAN SEAMEN - VESSELS OF SAME COMPANY AS VESSEL OF LAST SERVICE AS THE PROHIBITION OF THE ACT OF APRIL 7, 1934, 48 STAT. 533, AGAINST PAYMENT OF A STEAMSHIP COMPANY FOR THE TRANSPORTING OF SHIPWRECKED AND DESTITUTE SEAMEN WHOSE LAST SERVICE WAS ON A VESSEL OF THE SAME COMPANY HAS NOT BEEN REPEATED IN THE APPROPRIATION ACTS OF JUNE 16, 1937, 50 STAT. 266, AND APRIL 27, 1938, 52 STAT. 252, AND IS NOT PERMANENT LEGISLATION BUT RELATED ONLY TO THE APPROPRIATIONS THERETOFORE MADE, THE FUNDS APPROPRIATED BY THE ACTS OF 1937 AND 1938, SUPRA, FOR THE RELIEF OF DESTITUTE AND SHIPWRECKED SEAMEN ARE AVAILABLE FOR PAYMENT OF SUCH OBLIGATIONS AS CONSULAR OFFICERS ARE AUTHORIZED BY LAW AND CONTROLLING DECISIONS OF THE COURTS TO INCUR IN THIS REGARD. THE CLAIM OF A STEAMSHIP LINE IN CONNECTION WITH THE TRANSPORTATION TO THE UNITED STATES OF SHIPWRECKED OR DESTITUTE AMERICAN SEAMEN ON VESSELS OF THE SAME COMPANY ON WHOSE VESSEL THEY LAST SERVED IS FOR SETTLEMENT BY THE GENERAL ACCOUNTING OFFICE IN ACCORDANCE WITH THE ESTABLISHED PROCEDURE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF STATE, JULY 14, 1938:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 6, 1938, AS FOLLOWS:

REFERENCE IS MADE TO THE DECISION OF THE COMPTROLLER GENERAL DATED MAY 19, 1934 (A-31794, A-48409), CONCERNING THE EFFECT OF THE DECISION OF THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF THE ALASKA STEAMSHIP COMPANY V. UNITED STATES, 290 U.S. 256, AND TO YOUR DECISION, A-88073 OF AUGUST 19, 1937, STATING THAT THE PROVISION IN THE ACT OF APRIL 7, 1934, UNDER WHICH THE GOVERNMENT WAS RELIEVED OF THE EXPENSE OF REPATRIATING CERTAIN DESTITUTE OR SHIPWRECKED AMERICAN SEAMEN, IS NO LONGER IN EFFECT.

THERE ARE ENCLOSED FOR YOUR INFORMATION COPIES OF LETTERS EXCHANGED WITH THE UNITED STATES MARITIME COMMISSION WHICH RELATE TO CORRESPONDENCE BETWEEN THE AMERICAN CONSUL AT TAIHOKA, TAIWAN, JAPAN, AND THE DOLLAR STEAMSHIP LINES REGARDING THE RESPONSIBILITY FOR THE REPATRIATION OF MEMBERS OF THE CREW OF THE WRECKED S.S. PRESIDENT HOOVER.

IN AS MUCH AS IT IS DESIRED TO ASCERTAIN THE PRESENT INTERPRETATION OF YOUR OFFICE CONCERNING THE LIABILITY OF THE GOVERNMENT UNDER THE STATUTE, 46 U.S.C. 593, FOR THE RELIEF AND REPATRIATION OF SHIPWRECKED AMERICAN SEAMEN, IT IS REQUESTED THAT YOU ADVISE THE DEPARTMENT WITH RESPECT THERETO AT A CONVENIENT OPPORTUNITY.

THE REFERRED TO DECISION OF MAY 19, 1934, 13 COMP. GEN. 369, 370, INVITED ATTENTION TO THE FACT THAT, WITH CERTAIN EXCEPTIONS--- WHICH DID NOT INCLUDE THE CLASS OF DECREES REPRESENTED IN THE ALASKA STEAMSHIP CO. CASE- -- JUDGMENTS AGAINST THE UNITED STATES ARE REQUIRED BY THE ACT OF APRIL 27, 1904, 33 STAT. 422, TO BE CERTIFIED TO THE CONGRESS AND A SPECIFIC APPROPRIATION MADE BEFORE THEY MAY BE PAID. ALSO, THAT THE ACT OF APRIL 7, 1934, 48 STAT. 533, MAKING APPROPRIATIONS FOR RELIEF, ETC., OF AMERICAN SEAMEN SPECIFICALLY PROVIDED---

* * * THAT NO PART OF THIS OR ANY OTHER APPROPRIATION SHALL BE AVAILABLE FOR MAKING PAYMENT TO STEAMSHIP OWNERS OR OPERATORS FOR TRANSPORTING A DESTITUTE OR SHIPWRECKED SEAMAN IF THE LAST PREVIOUS SERVICE OF THE DESTITUTE OR SHIPWRECKED SEAMAN WAS ON A VESSEL OF SUCH STEAMSHIP OWNER OR OPERATOR AND WAS NOT TERMINATED BY DESERTION.

UNDER ARTICLE 1, SECTION 9, OF THE CONSTITUTION OF THE UNITED STATES, THE CONGRESS MAY, OF COURSE, REFUSE TO PAY CERTAIN CLASSES OF CLAIMS AGAINST THE UNITED STATES UNTIL THEY ARE REDUCED TO JUDGMENT IN A COURT OF COMPETENT JURISDICTION AND THE JUDGMENTS CERTIFIED TO THE CONGRESS IN ACCORDANCE WITH LAW FOR AN APPROPRIATION. ALSO, THE CONGRESS IN MAKING APPROPRIATIONS FOR THE PAYMENT OF OBLIGATIONS AGAINST THE UNITED STATES MAY EXCLUDE CLASSES OF CLAIMS, AND THE EFFECT OF THE CITED ACT OF APRIL 7, 1934, WAS TO EXCLUDE CLAIMS OF STEAMSHIP OWNERS FOR TRANSPORTATION OF DESTITUTE OR SHIPWRECKED SEAMEN IF THE LAST SERVICE OF SUCH SEAMEN WAS ON A VESSEL OR VESSELS OF THE TRANSPORTING STEAMSHIP COMPANY. HOWEVER, THE EXACT LANGUAGE IN THE ACT OF APRIL 7, 1934, FOR THE RELIEF AND PROTECTION OF AMERICAN SEAMEN WAS NOT REPEATED IN THE ACT OF JUNE 16, 1937, 50 STAT. 266, OR IN PUBLIC, NO. 495, SEVENTY-FIFTH CONGRESS, APPROVED APRIL 27, 1938, 52 STAT. 252. THE LATTER ACTS MADE APPROPRIATIONS IN TERMS AS FOLLOWS:

* * * FOR RELIEF, PROTECTION, AND BURIAL OF AMERICAN SEAMEN IN FOREIGN COUNTRIES, IN THE PANAMA CANAL ZONE, AND IN THE PHILIPPINE ISLANDS, AND SHIPWRECKED AMERICAN SEAMEN IN THE TERRITORY OF ALASKA, IN THE HAWAIIAN ISLANDS, IN PUERTO RICO, AND IN THE VIRGIN ISLANDS, AND FOR EXPENSES WHICH MAY BE INCURRED IN THE ACKNOWLEDGMENT OF THE SERVICES OF MASTERS AND CREWS OF FOREIGN VESSELS IN RESCUING AMERICAN SEAMEN OR CITIZENS FROM SHIPWRECK OR OTHER CATASTROPHE AT SEA * * *.

THAT IS TO SAY, THE PROHIBITION CONTAINED IN THE SAID ACT OF APRIL 7, 1934, AGAINST PAYMENT OF A STEAMSHIP COMPANY FOR TRANSPORTING TO THE UNITED STATES SHIPWRECKED AND DESTITUTE SEAMEN WHOSE LAST SERVICE WAS ON A VESSEL OF THE SAME COMPANY HAS NOT BEEN REPEATED IN THE APPROPRIATION ACTS OF JUNE 16, 1937, AND APRIL 27, 1938, AND IN DECISION OF AUGUST 19, 1937, A-88073, IT WAS HELD THAT SAID PROHIBITION WAS NOT PERMANENT LEGISLATION BUT RELATED ONLY TO APPROPRIATIONS THERETOFORE MADE. IN THE ABSENCE OF SUCH PROHIBITION, IT MUST BE PRESUMED THAT THE APPROPRIATIONS CONTAINED IN SAID ACTS FOR THE RELIEF OF DESTITUTE AND SHIPWRECKED SEAMEN ARE AVAILABLE FOR THE PAYMENT OF SUCH OBLIGATIONS AS CONSULAR OFFICERS ARE AUTHORIZED BY LAW TO INCUR IN CONNECTION WITH THE FURNISHING OF RELIEF TO DESTITUTE AMERICAN SEAMEN. AND IN DETERMINING WHAT OBLIGATIONS THE CONSULAR OFFICERS ARE THUS AUTHORIZED TO INCUR THE DECISION OF THE SUPREME COURT OF THE UNITED STATES IN ALASKA STEAMSHIP CO. V. UNITED STATES, 290 U.S. 256, IS, OF COURSE, FOR CONSIDERATION. IN SUCH CONNECTION, HOWEVER, THERE IS FOR CONSIDERATION, ALSO, ANY STATUTES ENACTED SUBSEQUENT TO THOSE CONSIDERED BY THE COURT IN THAT CASE AFFECTING THE OBLIGATIONS OF THE OWNERS OF VESSELS AND ANY VALID CONTRACTS, ORDERS, OR REGULATIONS AFFECTING SUCH OBLIGATIONS.

ANY CLAIM OF THE DOLLAR STEAMSHIP LINES FOR TRANSPORTING, ON OTHER VESSELS, TO THE UNITED STATES SHIPWRECKED OR DESTITUTE AMERICAN SEAMEN WHO WERE ABOARD THE S.S. PRESIDENT HOOVER WHEN SHE WAS AGROUND IN ASIATIC WATERS SHOULD BE TRANSMITTED TO THIS OFFICE FOR SETTLEMENT IN ACCORDANCE WITH THE ESTABLISHED PROCEDURE.