The first charge in the court-martial proceedings against Lieutenant Lyman is "neglect of duty." An examination of the specifications shows that the neglect charged and of which he was found guilty was, first, his failure to personally take an observation for longitude at 8 o'clock on the morning of the 2d day of February, the day of the wreck; second, his failure to obtain the local deviation of the compass upon the 1st and 2d days of February. From the evidence submitted it is shown that at least the assistant navigator took the morning observation, and that the deviation of the compass could not be accurately determined because of the rolling of the vessel, and that so determined it would have been of little value in view of the determination of the deviation of the compass made so recently at Port au Prince in quiet harbor waters. Several officers of commanding rank testify that they would have been guided under these circumstances by the deviation as determined in the harbor, and not by one taken at sea in case it varied from the harbor deviation. There is no question as to the correctness of the determination of the positions of the vessel submitted by the navigator to the captain at 8 a. m., 12 m., and 4 p. m., and it would appear that had the captain followed the advice of the navigator in getting up steam at 1 o'clock the disaster would have been averted. While these omissions in the performance of duty were found by the court-martial to be "neglect of duty," yet they are not such as are shown by the evidence to have resulted in the loss of the ship. I can not hold that such technical neglect of duty as Lieutenant Lyman was guilty of is sufficiently proximate to exclude him from the benefits of the act of March 2, 1895. The condition imposed upon the officer or seaman by that act is that they shall not recover for the property lost by them unless the loss resulted without their fault or negligence. This certainly can not mean that any negligence in connection with naval duties on board ship is sufficient to exclude a man from the beneficial operation of the act of 1895; for if so, the failure of a seaman, whose duty it was to polish brass, to do so being a neglect of duty, would prevent him from obtaining a reimbursement for his personal effects in case of the wreck of the vessel. The fault or negligence contemplated by the act of March 2, 1895, must be a contributing and really connected cause of the loss of the property, as, for instance, the carelessly leaving of personal effects upon the deck when a high sea was

washing over it. The negligence of which Lieutenant Lyman was found guilty in charge 1 is therefore too remote to prevent his obtaining the benefits of the reimbursement act.

Coming now to a consideration of the second charge against him, "Culpable inefficiency in the performance of duty," the specification is as follows:

"In that, on the second day of February, eighteen hundred and ninety-four, the said Charles H. Lyman, a lieutenant in the United States Navy, attached to and serving as navigator on board the United States flagship Kearsarge, making passage from Port au Prince, Haiti, to Bluefields (Mosquito Reservation), Nicaragua, well knowing that at about sunset of said day the said steamer Kearsarge had nearly run her estimated distance from the four o'clock postmeridian position, obtained and plotted by him, to the position of Roncador Bank, Caribbean Sea, and well knowing the difficulty of sighting said bank from a safe distance after darkness fell, under the conditions of weather then existing, did fail to advise his commanding officer, as it was clearly his duty to do, to lay a safe course for said vessel to the northward before continuing on a westerly course; and the said Lieutenant Lyman was therein and thereby culpably inefficient in the performance of his duty as navigator, in consequence of which the said steamer Kearsarge was, at about six hours and fifty minutes postmeridian on the day above mentioned, run upon Roncador Bank, in the Caribbean Sea, in about latitude thirteen degrees thirty-four minutes north, and longitude eighty degrees five minutes west, and was stranded."

The court expressly found that that portion of the charge beginning "in consequence of which," etc., was not proven, that is, they found that the Kearsarge was not wrecked through his negligence, but did find him guilty of failure to advise his commanding officer as to the course to be pursued. Unless he was responsible for the loss of the vessel, which resulted in the loss of his property, his inefficiency can not be held to exclude him from the benefits of the act of March 2, 1895.

Furthermore, the commander of the vessel is the one responsible for her safety. The fundamental principle of military discipline is that responsibility attaches to the head and, as a consequence of that, implicit obedience must be yielded by the subordinates. This is recognized by the naval regulations.

"ARTICLE 446. Unless in company with a senior, he [the captain is responsible for the course steered, and he is always responsible for the safe conduct of the ship.

"ARTICLE 452. He may, at his discretion, require the line

officers of the ship to take any astronomical or other observations and make any calculations necessary to obtain the position of the ship, or for other necessary purposes of navigation, and report the results to him.

"ARTICLE 453. 1. He shall keep himself informed of the error of the standard and binnacle compasses. He shall forward to the Navy Department a report of the result every time the local deviation is obtained."

The court-martial found Commander Heyerman guilty upon the charges brought against him. The first, and one sufficiently showing the character of their findings, is as follows:

"Through negligence, suffering a vessel of the Navy to be run upon a reef and stranded.

"Specification. In that, on the second day of February, eighteen hundred and ninety-four, the said Oscar F. Heyerman, a commander in the United States Navy, being in com mand of the United States flagship Kearsarge, making passage from Port au Prince, Haiti, to Bluefields (Mosquito Reservation), Nicaragua, did, when about fifty-five miles to the northward and eastward of Roncador Bank, in the Caribbean Sea, shape, and did subsequently maintain a course of west-southwest three-quarters west, which said course lay close to a dangerous reef and cay, surrounded by strong currents well known to exist, and did neglect and fail to exercise proper care and attention in navigating said vessel while approaching said reef and cay, in that he neglected and failed to lay a course which would surely carry the vessel clear of said reef and cay, or to change course in due season to avert disaster, in consequence of which neglect and failure on the part of the said Commander Heyerman the said steamer Kearsarge was, at about six hours and fifty minutes postmeridian on the day aforesaid, run upon the north end of Roncador Bank, in the Caribbean Sea, in about latitude thirteen degrees thirty-four minutes north and longitude eighty degrees five minutes west, and was stranded.""

The first specification of the second charge of which he was found guilty relates to his failure to increase the speed of the vessel so that the bank might be sighted in daylight, as he was advised to do by the navigator, and the second specification of this charge holds him guilty because he did not lay a course to the northward before continuing on his westerly course.

Considering the findings of the court-martial in these two cases together convinces me that the loss of the vessel is attributable to the course pursued and action taken by the commander of the vessel, as found by the court-martial, and that although Lieutenant Lyman was guilty of some omis

sions of duty required by naval regulations, yet in no wise can those omissions be held to have been, either proximately or remotely, the cause of the loss of the Kearsarge.

Respectfully, yours,

EDW. A. BOWERS,
Assistant Comptroller.

The AUDITOR FOR THE NAVY DEPARTMENT.

IN RE ACCOUNT OF CAPT. ERIC BERGLAND, LIGHT-HOUSE ENGINEER, SIXTH DISTRICT.

If a disbursing officer pays for a site for a light-house from moneys appropriated and advanced to him for that purpose, he must be credited therewith in the settlement of his accounts, even if light-houses be included within the meaning of the act of March 2, 1889, requiring sites for public buildings to be paid for by drafts from the Treasury Department at Washington.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

February 8, 1896. In the settlement of the account for the third quarter, 1895, of Capt. Eric Bergland, light-house engineer of the Sixth district, the Auditor of the Treasury Department rendered a decision changing an existing construction of the statutes, and submits the same to the Comptroller for his approval, disapproval, or modification, as required by section 8 of the act of July 31, 1894.

In said account Captain Bergland claimed credit for $275 paid for a tract of land on St. Simon Island, in Glynn County, Ga., containing about one-fifth of an acre. The Auditor disallowed the payment because the same should have been made directly by draft from the Treasury, in accordance with the provisions of that clause of the sundry civil appropriation act of March 2, 1889 (25 Stat., 941), which requires that—

"payments for sites for public buildings under the control of the Treasury Department shall be made by the Treasury Department, at Washington, District of Columbia, by drafts or checks payable to the grantors of such sites or their legal representatives,"

construing the words "public buildings under the control of the Treasury Department" to include light-houses.

The clause thus construed by the Auditor is contained in

said act under the head of public buildings, and is a part of some general legislation in regard to public buildings, the whole of which is as follows:

"That hereafter no plan shall be approved by the Secretary of the Treasury for any public building authorized by Congress to be erected, until after the site therefor shall have been finally selected; and he shall not authorize or approve of any plan for any such building which shall involve a greater expenditure in the completion of such building, including heating apparatus, elevators, and approaches thereto than the amount that shall remain of the sum specified in the law authorizing the erection of such building, excluding cost of site.

"That hereafter commissions shall not be paid for disbursements on account of sites for public buildings; nor on account of construction of public buildings except for moneys actually handled and paid out by disbursing agents; and payments for sites for public buildings under the control of the Treasury Department shall be made by the Treasury Department, at Washington, District of Columbia, by drafts or checks payable to the grantors of such sites or their legal representatives. "That hereafter all legal services connected with the procurement of titles to site for public buildings, other than for life-saving stations and pier-head lights, shall be rendered by United States district attorneys: Provided further, That hereafter, in the procurement of sites for such public buildings, it shall be the duty of the Attorney-General to require of the grantors in each case to furnish, free of all expenses to the Government, all requisite abstracts, official certifications, and evidences of title that the Attorney-General may deem necessary."

That the words "public buildings," when used in acts of Congress, do not necessarily include light-houses is quite plain from an examination of the Revised Statutes and other acts. Section 3684 provides that

"All appropriations for public buildings under the control of the Treasury Department shall be available immediately upon the approval of the act containing such appropriations."

Section 3685 provides:

"Appropriations for establishing light houses shall be available for expenditure for two years after acts of State legislatures ceding jurisdiction over sites take effect."

Section 3734 provides that before new buildings shall be commenced the plans and estimates shall be approved by the Secretary of the Treasury, the Postmaster General, and the Secretary of the Interior, while a crause in the act of March