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LIABILITY OF UNITED STATES FOR GENERAL
AVERAGE. The United States are liable to contribute their proportion to the general average in cases where they have property in a vessel subject thereto.
February 21, 1896. SIR: I am in receipt, by your reference, of a letter from the superintendent of the Eighth life-saving district, stating that certain goods shipped on the steamer Alamo were subject to a general average of 20 per cent of the value of the goods. You ask whether the amount shall be paid from the current appropriation for the Life-Saving Service, and, if so, how such payment should be made.
That the United States are subject to the same obligation as others having merchandise on a vessel to contribute their proportion to the general average in cases where such a gen. eral average has been incurred, was decided by AttorneyGeneral Wirt (5 Opin. A. G., 757). The amount is clearly, therefore, a charge against the appropriation for the LifeSaving Service, and should be paid like any other claim, proper voucher for the expenditure being taken. Respectfully, yours,
R. B. BOWLER,
Comptroller. The SECRETARY OF THE TREASURY.
LOAN OF SHIPS FOR THE USE OF THE NAVAL
MILITIA OF THE STATES.
The expenses incurred by order of the Navy Department in preparing a
Government vessel and in towing her to the place designated by that
February 24, 1896. SIR: I am in receipt of your communication of February 18, in reference to an item of $55 for towing the U.S. S. St. Louis from navy-yard, League Island, Pa., to the Race street wharf, Philadelphia, the same having been disallowed by the Auditor for the Navy Department in the settlement of the accounts of Pay Director Henry M. Denniston, United States Navy. You have appealed from this disallowance and requested a reconsideration thereof by this office.
The order to the conmandant of the navy-yard for the delivery of the St. Louis was as follows:
“ Washington, October 20, 1894. “SIR: A request having been received from the governor of Pennsylvania for the St. Louis, to be used by the naval militia for purposes of drill and instruction, under provisions of the act approved August 3, 1894 (copy inclosed), instructions have been issued to the Bureaus of Equipment and Construction and Repair to prepare her in accordance with the above-quoted law to be transferred to the State of Pennsylvania.
"When the ship is ready to be thus transferred, please have her towed to the Race street wharf, properly secured, and delivered to Brig. Gen. John W. Schall, commanding First Brigade, N.G.P., the inclosed blank receipt for the vessel being properly executed and sent to the Department. " Very respectfully,
" Assistant Secretary. "COMMANDANT,
“Navy-Yard, League Island, Pa."
From this it clearly appears that the ship was in the posses. sion of the United States until delivered at the Race street wharf, and all expenses incurred up to the time of such deliv. ery must be borne by the United States. Thereafter the State becomes responsible for such expenses until the ship is returned to the United States.
This decision does not conflict with the decision of Assistant Comptroller Mansur of December 15, 1894 (1 Comp. Dec., 109), upon a similar question in connection with the delivery of the Dale to the naval militia of Maryland, for it will be observed that he only went to the extent of deciding: “I do not think * * * that the duty of delivering the Dale at Baltimore is imposed upon the United States.” In other words, the terms upon which vessels may be loaned to the various States for the naval militia are to be determined in each case by the Secretary of the Navy, who may in his discretion decide at what point he will deliver the vessel in each particular case.
I have accordingly, upon a revision of this account, allowed the $55 claimed and certified the same to the Auditor. Respectfully, yours,
EDW. A. BOWERS,
RETARY OF THE
IN RE CLAIM OF HENRY O. PRESCOTT, LATE LANDS. MAN, UNITED STATES NAVY, FOR COMMUTATION OF RATIONS WHILE HELD A PRISONER BY THE CIVIL AUTHORITIES.
1. An enlisted man subsisted by the United States while held a prisoner
by the civil authorities is not entitled to commutation of rations. 2. The provision of the act of July 19, 1892, for the “subsistence of officers
and men when unavoidably detained or absent from a vessel to which attached under orders,” is not applicable to officers and men held in prison by the civil authorities for an offense to which they have plead guilty, as their detention is not unavoidable within the meaning of this act.
February 25, 1896. The claimant appeals from a decision of the Auditor for the Navy Department of January 15, 1896, disallowing a claim for commutation of rations from November 9, 1893, to December 17, 1894, at the rate of 30 cents a day, amounting to $121.80.
Appellant enlisted in the United States Navy July 30, 1892, for a term of three years, and was discharged therefrom by reason of the expiration of his term of enlistment on July 29, 1895.
He was arrested in November, 1893, upon a warrant issued by the United States commissioner at Sitka, Alaska, charging him with “larceny by stealing from the person" under section 554 of the criminal code of the State of Oregon. He was thereupon arraigned, plead guilty to the charge, and in default of the required bail, was committed to jail to await the action of the district court of Alaska. The grand jury having failed to indict him, he was released from imprisonment on December 17, 1894. At the time of his arrest he was attached to the U.S. S. Pinta.
The United States district attorney, in explanation of the delay in bringing to trial, says:
“He was not arraigned for trial because of the failure of the district court to meet, and was held until December, 1894, as a prisoner. At the November term, 1894, upon the sworn statement of the person injured that a portion of his properiy was recovered, and that he did not desire to prosecute, and requesting that the prosecution end, and believing that the defendant was denied his constitutional privilege of a speedy trial, and that he had been detained as long as he would have been sentenced for, the grand jury did not indict the prisoner, and in December, 1894, he was released. The long detention of the prisoner without trial was an important condition and the action taken by the grand jury was with other matter reported to the court.”
The defendant does not deny his guilt. His services as seaman were allowed and paid for during the time of his confinement in jail. The pending claim is for commutation of rations for the time he was confined in prison. He bases his right to recover upon the ground that the food furnished him during that time was such that he was compelled at times to buy his meals from the outside.
The Auditor disallowed the claim for the reason that he had received subsistence while in prison, and consequently was not entitled to commutation of rations from the Government. An examination of the accounts of 0. T. Porter, United States marshal for the Territory of Alaska, shows that he was paid 70 cents a day by the United States for boarding claimant during his confinement in the jail at Sitka.
Under the law and regulations governing the Navy enlisted men attached to any United States vessel or station and doing duty thereon are allowed a ration or commutation thereof. It is the policy of the Government that the rations provided by law shall be issued in kind wherever practicable. When rations are furnished in kind, enlisted men in the Navy are not entitled to commutation therefor. The claimant having been furnished subsistence rations by the Government while confined in jail, is not entitled to cominutation therefor, unless he comes under some special provision of the law or regula tions. Such provision can not be found.
Attention has been called to a clause of the act of July 19, 1892 (27 Stat., 236), making appropriations for the paval service for the fiscal year ending June 30, 1893, providing for the “subsistence of officers and men when unavoidably detained
or absent from the vessel to which attached under orders (during which subsistence rations to be stopped on board ship, and no credit for commutation thereof to be given).”
Was the absence of claimant unavoidable within the meaning of the clause above cited ? Clearly it was not.
The supreme court of Pennsylvania, in the case of Hays v. Kennedy (41 Pa. St., 384), said:
“In the first place, it must see that the nature of the necessity (or accident) pleaded be such as the law itself would respect, for there may be a necessity that it would not. A necessity created by a man's own act, with a fair, previous knowledge of the consequences that would follow, and under circumstances which he had the power of controlling, is of that nature. Secondly, that the party who was so placed used all practicable endeavors to surmount the difficulties which already formed the necessity, and which, on a fair trial, he found unsurmountable.”
The arrest and imprisonment of claimant was the direct result of an act admittedly illegal—that of larceny from the person and was the natural consequence of the act which alone prevented his return to the vessel and his receiving therefrom the rations to which he would have been entitled. He created the necessity for his arrest and detention with a full knowledge of the consequences that would follow, and under circumstances which he had the power of controlling.
He is therefore not entitled to recover under any view of the case, and the decision of the Auditor is affirmed.
EDW. A. BOWERS,
TELEGRAMS OVER BOND-AIDED LINES. Where no directions are given that the bond-aided telegraph line be used
in the transmission of a message and no proof is furnished that such line was actually used, the telegraph company first receiving the message is entitled to payment.
February 25, 1896. SIR: I have received your letter of the 13th instant reading as follows:
“I have the honor to inclose an account in favor of the Western Union Telegraph Company amounting to 21 cents