B-3671, MAY 29, 1939, 18 COMP. GEN. 895

B-3671, MAY 29, 1939, 18 COMP. GEN. 895

MEDICAL TREATMENT - PUBLIC HEALTH SERVICE - "SEAMEN" EMPLOYEES OF ENGINEER CORPS OF UNITED STATES ARMY AND MISSISSIPPI RIVER COMMISSION EMPLOYEES OF THE ENGINEER CORPS OF THE UNITED STATES ARMY AND THE MISSISSIPPI RIVER COMMISSION, EMPLOYED ON BOARD VESSELS FOR MIXED DUTIES, ARE "SEAMEN" WITHIN THE MEANING OF SECTION 3 OF THE ACT OF MARCH 3, 1875, 18 STAT. 485, FOR PUBLIC HEALTH SERVICE MEDICAL TREATMENT PURPOSES, ONLY WHERE THE DUTIES SO PERFORMED ARE PRIMARILY OR PREDOMINANTLY THOSE ENUMERATED IN THE SAID ACT, BUT THE TYPE OF VESSEL ON WHICH EMPLOYED, OR USE TO WHICH PUT, APPEARS IMMATERIAL FOR SUCH MEDICAL TREATMENT DETERMINATION PURPOSES.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF THE TREASURY, MAY 29, 1939:

I HAVE YOUR LETTER OF MAY 5, 1939, AS FOLLOWS:

SECTION 3 OF THE ACT OF MARCH 3, 1875, 18 STAT. 485 (U.S.C., TITLE 24, SEC. 1), AS IT APPEARS IN THE U.S.C. READS AS FOLLOWS:

"THE TERM "SEAMAN," WHEREVER EMPLOYED IN LEGISLATION RELATING TO THE PUBLIC HEALTH SERVICE, SHALL BE HELD TO INCLUDE ANY PERSON EMPLOYED ON BOARD IN THE CARE, PRESERVATION, OR NAVIGATION OF ANY VESSEL, OR IN THE SERVICE, ON BOARD, OF THOSE ENGAGED IN SUCH CARE, PRESERVATION, OR NAVIGATION.'

SECTION 1 OF THE ACT OF MARCH 3, 1919, 40 STAT. 1302 (U.S.C. TITLE 24, SEC. 26), AS IT APPEARS IN THE CODE, READS IN PART AS FOLLOWS:

"THE SECRETARY OF THE TREASURY IS AUTHORIZED TO PROVIDE IMMEDIATE ADDITIONAL HOSPITAL AND SANATORIUM FACILITIES FOR THE CARE AND TREATMENT OF * * * AND THE FOLLOWING PERSONS ONLY: * * * SEAMEN ON BOATS OF THE MISSISSIPPI RIVER COMMISSION, * * * SEAMEN OF THE ENGINEER CORPS OF THE UNITED STATES ARMY, * * * ENTITLED BY LAW ON MARCH 3, 1919, TO TREATMENT BY THE PUBLIC HEALTH SERVICE.'

PARAGRAPHS 647 AND 648 OF THE PUBLIC HEALTH SERVICE REGULATIONS 1931, READ AS FOLLOWS:

"647. SEAMEN, NOT ENLISTED MEN, EMPLOYED ON VESSELS UNDER THE CHARGE OF THE ENGINEER CORPS OF THE UNITED STATES ARMY AND UPON ARMY TRANSPORTS AND OTHER VESSELS OF THE UNITED STATES ARMY, SHALL BE ADMITTED TO THE BENEFITS OF THE SERVICE UPON THE WRITTEN REQUEST OF THE COMMANDING OFFICER OF SAID VESSELS, UNDER THE SAME REGULATIONS AS GOVERN THE ADMISSION OF SEAMEN ON DOCUMENTED VESSELS.

"648. MASTERS, OFFICERS, AND CREWS OF VESSELS IN THE SERVICE OF THE MISSISSIPPI RIVER COMMISSION SHALL BE ENTITLED TO THE BENEFITS OF THE SERVICE UNDER THE SAME REGULATIONS AS GOVERN THE ADMISSION OF SEAMEN ON DOCUMENTED VESSELS.'

WITH REFERENCE TO THE FURNISHING, UNDER EXISTING LAW, OF MEDICAL RELIEF BY THE PUBLIC HEALTH SERVICE TO SEAMEN OF THE ENGINEER CORPS OF THE UNITED STATES ARMY AND OF THE MISSISSIPPI RIVER COMMISSION, IT IS RESPECTFULLY REQUESTED THAT YOU ADVISE THIS DEPARTMENT RELATIVE TO THE FOLLOWING:

"/A) ARE EMPLOYEES OF SUCH AGENCIES TO BE DEEMED SEAMEN AND, THEREFORE, ENTITLED TO MEDICAL RELIEF WHERE THEY ARE NOT EMPLOYED ON BOARD VESSELS PRIMARILY IN THE CARE, PRESERVATION, OR NAVIGATION OF SUCH VESSELS OR IN THE SERVICE, ON BOARD, OF THOSE ENGAGED IN SUCH CARE, PRESERVATION, OR NAVIGATION, BUT PRIMARILY PERFORM DUTIES ON BOARD OF A WORKSHOP CHARACTER NOT CONNECTED WITH THE CARE, PRESERVATION, OR NAVIGATION OF VESSELS.

"/B) ARE EMPLOYEES OF SUCH AGENCIES TO BE DEEMED SEAMEN AND, THEREFORE ENTITLED TO MEDICAL RELIEF WHERE THEY ARE EMPLOYED ON BOARD VESSELS PRIMARILY IN THE CARE, PRESERVATION, OR NAVIGATION OF SUCH VESSELS OR IN THE SERVICE, ON BOARD, OF THOSE ENGAGED IN SUCH CARE, PRESERVATION, OR NAVIGATION, BUT ALSO PERFORM OTHER DUTIES ON BOARD OF A WORKSHOP CHARACTER NOT CONNECTED WITH THE CARE, PRESERVATION OR NAVIGATION OF THE VESSELS?

"IT MAY BE STATED THAT SOME OF THE VESSELS INVOLVED ARE SELF PROPELLED AND SOME ARE NOT SELF-PROPELLED, AND ALSO THAT SOME OF THE VESSELS ARE DESIGNATED AS BEING, AMONG OTHERS, OF THE FOLLOWING TYPES: DREDGES, DERRICK BOATS, TENDERS, FLOATING PILE DRIVERS, FLOATING GRAVEL DIGGERS, FLOATING CONCRETE CASTING PLANTS, FLOATING CONCRETE SINKING PLANTS, FLOATING ASPHALT MIXING AND SINKING UNITS, ETC.

"COPIES OF CORRESPONDENCE, GIVING INFORMATION CONCERNING TYPES OF VESSELS AND EMPLOYEES INVOLVED, THAT MAY BE OF ASSISTANCE IN RENDERING YOUR DECISION AS TO THE EMPLOYEES WHICH SHOULD RECEIVE MEDICAL RELIEF FROM THE PUBLIC HEALTH SERVICE, ARE ENCLOSED. THE RETURN OF THE ENCLOSURES WITH YOUR REPLY WILL BE APPRECIATED.'

IN DECISION IN 5 COMP. GEN. 536, IT WAS HELD:

SHIPKEEPERS AND DECK HANDS OF THE MISSISSIPPI RIVER COMMISSION EMPLOYED ON QUARTER BOATS ARE SEAMEN WITHIN THE MEANING OF SECTION 3 OF THE ACT OF MARCH 3, 1875, 18 STAT. 485, AND ARE ENTITLED TO MEDICAL TREATMENT BY THE PUBLIC HEALTH SERVICE UNDER THE PROVISIONS OF THE ACT OF MARCH 3, 1919, 40 STAT. 1302. 5 COMP. GEN. 211, AFFIRMED.

ALSO, IT WAS STATED IN THAT DECISION AT PAGE 537:

* * * THE SECTION QUOTED EXTENDS THE MEANING OF THE TERM "SEAMAN" TO INCLUDE NOT ONLY THE MEMBERS OF A CREW BUT ALSO ANY PERSON EMPLOYED ON BOARD ANY VESSEL IN THE CARE, PRESERVATION, OR NAVIGATION THEREOF, OR IN THE SERVICE OF THOSE SO ENGAGED. IT IS NOT NECESSARY THAT THE PERSON BE CONSIDERED A MEMBER OF THE CREW IN ORDER TO BE ENTITLED TO THE BENEFITS OF THE ACT OF MARCH 3, 1919, SUPRA, AND THE USE TO WHICH THE VESSEL IS PUT SEEMS TO BE IMMATERIAL. THE QUARTER BOATS ON WHICH THE EMPLOYEES WERE EMPLOYED ARE BOATS OF THE MISSISSIPPI RIVER COMMISSION AND, AS FAR AS APPEARS, THE EMPLOYEES ARE SEAMEN WITHIN THE MEANING OF THAT TERM AS DEFINED IN SECTION 3 OF THE ACT OF MARCH 3, 1875, AND AS USED IN THE ACT OF MARCH 3, 1919.

THE PRIMARY OR PREDOMINANT OBJECTIVE OF THE DUTIES PERFORMED BY THE INVOLVED EMPLOYEES WOULD APPEAR TO CONSTITUTE A PROPER BASIS FOR CLASSIFYING THEM AS SEAMEN WITHIN THE MEANING OF THE TERM ,SEAMAN," AS DEFINED IN THE CITED STATUTE. ACCORDINGLY, QUESTION (A) IS ANSWERED IN THE NEGATIVE, AND QUESTION (B) IN THE AFFIRMATIVE.

THE INCLOSURES FORWARDED WITH YOUR LETTER ARE RETURNED HEREWITH AS REQUESTED.