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statement of Admiral Ramsay, transmitted by the Secretary of the Navy, giving the number and character of articles required by the Regulations, must be treated as the best evidence of what was required by the United States Naval Reg. ulations referred to in the act. It seems to me that the accounting officers must be bound by this official statement, and must reject all articles not recognized as a part of the necessary outfit required by the Regulations. It is contended by the attorney for the claimant that this list can not properly be regarded as fixing either the number or kind of articles that an enlisted man should have on board and that he is entitled to be compensated for; and especially that the limitation as to the number is unjust and unwarranted. But in view of the language of the act, which provides that the liability of the Government “shall be limited to such articles of personal property as are required by the United States Naval Regulations," I do not see any force in his contention. While it may be true that the quantity of articles owned is usually greater than the number indicated upon this list, it certainly does not lie with the accounting officers to say that any other number is required than that set forth by the Navy Department in its regulations. As well could it be urged that the accounting officers may add to the list of articles required such additional ones as seem to them necessary, and thus discard the Navy Regulations, to which, by the very terms of the act, we are bound. It is true that Admiral Ramsay states the number provided for in the Regulations is the least number that a man requires; but there is a sound reason for this, as many men (especially those new in the service) are not able to pay for large outfits, and it would be unjust to burden them with a load of debt (Navy Regulalations, art. 371, sec. 3) by compelling them to have as complete an outfit as that carried by a man long in the service, and which he has accumulated for his personal comfort and convenience and not as a necessity of the service. Therefore, while the number required by the Naval Regulations may be below that with which the men are usually provided, still no discretion lies in the accounting officers to go behind the regulations fixed by naval authorities familiar with the needs of the men.
Further, there was no intention in this act to reimburse men for other property than that necessary for efficient military service. Such articles as gold watches and musical instruments, for which claims have been submitted, certainly did not enter into the contemplation of the legislative body. Neither can the claims made by men for civilian clothes be sustained, as under the Naval Regulations of 1886, page 15, “General regulations for enlisted men,” paragraph 1 requires the uni. form to be worn at all times, and no provision is made for civilian dress.
Coming now to the question of the determination of the value of the personal property lost, as previously stated, this must be determined by the facts in each case where evidence of value is submitted. As is provided in the act, the value is to be that only at the date of the loss, and in estimating this it is necessary to know the length of time that the personal effects have been in service as well as their original cost. In submitting his claim this claimant, as others, seems to have regarded the cost price as the basis of reimbursement, without furnishing any information as to the length of time that the articles had been in service.
For convenience of settlement, however, and in the absence of any evidence showing the actual value of the personal property lost, the price at which articles are issued by the navy paymasters seems to be a proper and fair one as a basis of adjustment; for, while these prices are lower than those at which the articles could be purchased in open market, and while the clothing issued by the paymasters may not be as well made nor as expensive as that purchased by the men from outside tailors, yet this issuing price is the price of new articles, and in estimating the value of the articles purchased outside would probably be a fair one, considering the wear and tear to which they have been subjected, necessarily reducing their value. I therefore direct that, in the absence of satisfactory proof of actual value, these claims shall be adjusted upon the basis of the issuing price of sunilar articles by the paymasters of the Navy. Under the terms of the act, how. ever, the claimants are clearly entitled to prove value at the date of loss, and if they so elect they may submit such proof, which will be duly considered. What will be sufficient proof must be determined in each case. It is the duty of the accounting officers to determine whether the articles claimed to have been lost are required by the Naval Regulations, both as to number and kind, and also their value, as above directed.
If the contention of this claimant's counsel be true, that the "statement made by the Chief of the Bureau of Navigation, stating that the enlisted men are required to have a certain number of articles, etc., are not Naval Regulations, and should not be considered in the adjustment of this claim, and that this statement of requirements made subsequent to the wreck would be post facto rules and regulations and, of course, should not be allowed to these claimants even if valid regulations of the Navy”—if this contention be true, I say, it appears that there were in fact no Naval Regulations as contemplated in this act, and consequently that all of these claims must be rejected. But this is not the case. In the communication of Admiral Ramsay he states specifically that he furnishes "lists of articles required by regulations for the enlisted men of the Navy engaged in public service in the line of duty on the Tallapoosa, Despatch, and Kearsarge at the time of their loss.”
Considering, now, the sufficiency of the evidence recently introduced in Healey's behalf, as to the value and quantity of the property lost by him, it appears, first, that the claimant does not state specifically the time when the clothing was made, or how much it had been worn; second, the ship's tailor, Aitken, does not state that he ever made any clothes at all for the claimant; third, that the claimant does not state whether the clothing lost by him on the Kearsarge was all or in part made by Aitken. His evidence is as follows:
"This is to certify that I drew my flannel and cloth from the paymaster, and had my clothing made by J. P. Aitken, who did tailoring work on the Kearsarge previous to her wreck, pay. ing him such price for his labor and extra material as appeared in my indemnity schedule. Shoes, handkerchiefs, razors, etc., I purchased from on shore. (Signed)
T. W. HEALEY.” The Auditor has transmitted with this case a "clothing list for the third division, lost in wreck of U.S.S. Kearsarge.” This list was presumably made in pursuance of article 401, paragraph 6, of the Naval Regulations of 1893, which provides that in case of the loss of a ship “he (the captain) shall cause officers of division to report to him the loss of clothing and bedding sustained by the crew on occasion of the loss or capture of the ship. These reports, carefully drawn up in a uniform manner, and duly signed by officers of divisions and by himself, shall be forwarded to the Secretary of the Navy."
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This list was transmitted, in response to the request of the Auditor, on April 7, 1894, in the following letter:
“SIR: The clothing lists of the effects lost by the men on the Kearsarge, made up by their division officers, referred to in your letter of the 7th instant, are herewith forwarded. “Respectfully,
“F. M. RAMSAY,
“Chief of Bureau.”
Upon this list appears the name of the claimant with an itemized statement of the various articles of apparel, etc., lost by him, the total amounting to $88.42, of which amount $60 was paid him May 1, 1894, under section 288, Revised Statutes. This statement is signed by “F. R. Brainard, lieutenant, United States Navy, in charge of division,” and “approved, 0. F. Heyerman, commander, United States Navy, command. ing officer," and was made on March 3, 1894. The Kearsarge was wrecked February 2, 1894. In view of the facts recited and of this list, prepared by the officer in charge, who is required by his duties to be thoroughly familiar with the outfit of the men under him (Navy Regulations, articles 620, 621, and 624, also 1311 and 1313), and furnished the Department only a little more than one month after the loss of the ship, it does not appear that the claimant has sustained his claim of loss. To such an official record, made by the officers in charge, without any prejudice against the men, but rather sympathizing with them, great weight must be given, and it can only be set aside and overcome by the strongest proof to the contrary. It is worthy of remark that the name of the tailor, J. P. Aitken, appears upon this list, and that he is credited with having but $81.76 worth of clothes and other property. I do not find in the evidence submitted by Healey any such proof as will overcome this record of Lieutenant Brainard's, especially when taken in connection with the statements upon page 5 of the Auditor's letter of August 26, 1895, to this office. They are as follows:
- It appears from the rolls of the Kearsarge that Healey drew clothing and small stores between July 1, 1894, and February 20, 1895, amounting to $6.25, and as he claims it required 13 yards of cloth, at $2.84 per yard, for a pair of pants, and $3 for making, a total cost of $7.26, and as he was only charged with $6.25 worth of clothing and small stores, it can readily be seen that while the ship's tailor's charges may have been $3 for making a pair of pants and furnishing the trimming, he
could not have made Healey the four pairs for which he claims pay.
Healey enlisted May 26, 1892, and from that date to February 20, 1895, he was charged with $94.47 for clothing and small stores. This amount includes the $6.25 charged to him on the rolls of the Kearsarge.
"Healey claims that he lost 8 yards of cloth, at $2.84 per yard. The division officer's schedule shows that be lost bat 14 yards, at $2.36 per yard. He claims to have lost four pairs of blue cloth pauts, at $7.50 per pair; the division officer's schedyle shows that he had but two pair, at $4.03 per pair. He claims $4.14 per pair for white mustering pants. The division officer's schedule gives the price at $1.25 per pair.”
These records of supplies drawn and the record of the articles lost, made shortly after the wreck by Lieutenant Brainard, are so inconsistent with the claims now made by him as to require much more conclusive evidence of loss than he has submitted.
I must, therefore, reject his claim as presented, but have made certain allowances in the accompanying certificate, in accordance with the record proof and the principles laid down in this opinion.
EDW. A. BOWERS,
IN RE APPEAL OF THE PANAMA RAILROAD COM. PANY FOR ADDITIONAL ALLOWANCE FOR HANDLING COAL FOR U, S. S. MONTEREY.
Where the Government was to pay the actual cost of coaling a vessel, it is
liable for the amount expended for the subsistence of the laborers, if the same was paid by the party supplying the coal, as much as for the
amount of their wages. The term actual cost in such an agreenient includes all money actually paid
out or a liability to pay it incurred in the execution of the agreement, but it does not include wear and tear of implements, etc., used in its performance.
September 14, 1895. The Panama Railroad Company appeals from the decision of the Auditor for the Navy Department in disallowing certain items claimed in connection with coaling the U.S. S. Monterey.