ments fraudulently induced by third parties are restored. Overpayments in allotments due to administrative delays are not collected. Recovery of erroneous allotments may be waived. Disbursing officers are credited with erroneous payments and overpayments, in the absence of fraud. More in line with the present consideration, the Act forbids the recovery or reopening of a settlement made pursuant to a determination of death, by reason of a subsequent report of death, except to fix a later date than that used in the prior settlement, that is, to increase the benefit. In short, the provisions of the Act are evidentiary of a policy of resolving all doubts in favor of and rendering in each case a full and beneficial settlement, and of a policy and intention that accomplished determinations and settlements shall not be disturbed.

In view of the emphasis placed on equitable considerations by the Missing Persons Act, the equitable aspects of the case at hand should not pass unnoticed. Had A remained safely and idly in his home, no question would have been raised concerning the settlement now under consideration. He voluntarily chose, however, actively and dangerously to resist the enemy, and consequently lost his life. No price should be charged for this gallantry. A well earned the additional pittance of $430.64 posthumously awarded from another source for services volunteered while on leave from his naval duties.

In view of the foregoing considerations, it was the opinion of the Judge Advocate General that the determination and settlement heretofore made under the Missing Persons Act in the case of A, deceased, former Navy civilian employee, were proper and lawful, and that the circumstances presented herein were insufficient to warrant reopening of such determination and settlement. (File: JAG:II:RDF:mh, 25 Feb. 1948.)

Missing persons claims: processing by Naval Governor of Guam.

The Naval Governor of Guam raised a question as to the proper method of processing and paying certain claims under the Missing Persons Act (approved March 7, 1942, 56 Stat. 143, as amended and codified in 50 App. U. S. C. 1001, et seq.), and as particularly amended by the Act of May 16, 1947 (61 Stat. 96). The Naval Governor of Guam requested that, in the event he is to be responsible for processing and paying claims under the Act of survivors of deceased civilian officers and employees of the Naval Government, specific authority be conferred upon him so to process and pay such claims. It was stated that until the present date, such claims have been settled in the General Accounting Office, after administrative preparation of the claims by the Naval Governor, and mention was made of the fact that in some cases the General Accounting Office has returned the claims for further administrative action.

Section 236, Revised Statutes, as amended by Section 305 of the Act of June 10, 1921 (42 Stat. 24, 31 U. S. C. 71), provides:

"All claims and demands whatever by the Government of the United States or against it, and all accounts whatever in which the Government of the United States is concerned, either as debtor or creditor, shall be settled and adjusted in the General Accounting Office."

This provision of law was construed, so far as its general application is concerned, by the Comptroller General in decision B-48106, dated 24 March 1945, in the following language:

"(The provision) contemplates that, unless otherwise specifically provided by subsequent legislation, all claims against the United States shall be settled and adjusted in the General Accounting Office. The broad term, ‘All claims and demands,' as contained in said law obviously embraces claims involving deceased civilian employees of the Navy."

Obviously, it becomes necessary to inquire as to whether the Missing Persons Act, supra, as amended, contains provisions which would negate the effect of the above-quoted statute and decision B-48106, supra. The Missing Persons Act, supra, as amended, confers sweeping powers upon the Secretary of the Navy or his designee in making conclusive determinations in matters involving naval personnel and civilian employees of the Navy Department. Nowhere in the Act, however, is specific authority conferred to settle and pay in the field claims of the kind under discussion. Indicative of the doubt concerning the existence of such authority is the fact that heretofore the uniform practice has been to settle such claims in the General Accounting Office.

It should be noted in this regard that at one time the Navy Department had under consideration the proposing of legislation to authorize the settlement and payment within the Department of just such claims. No such legislation was ever proposed, however, and the matter rests where it did.

If it should now be desired that action be taken to revise the existing procedure, the concurrence of the Comptroller General should be obtained in order that objections would not be forthcoming from the General Accounting Office to the payment of such claims in the field after payments have been made.

The decision as to whether to press for a revision of the current procedure was one to be dictated by administrative considerations, and as such, was not one to be made by the Office of the Judge Advocate General. So far as the present state of the law and the procedure by which it is presently effectuated are concerned, there is no compulsion upon the Naval Governor to process and pay the claims under discussion. In this connection, it will be of interest to note that the

effective period of the Missing Persons Act will terminate on 25 July 1948 (C. M. O. 10, 1947, 324). (File: JAG :II:EJT: mgl, 25 Mar. 1948.)

Naval firefighting apparatus and personnel dispatched outside confines of naval activity.

Advisory opinions were requested relating to the following matters:

(a) The legality of dispatching Government firefighting apparatus and personnel outside the confines of a naval supply depot, to assist in the extinguishment of fires which may or may not be endangering Government property.

(b) Government liability and responsibility in the event of injury or death resulting to and involving Navy civilian firefighting personnel traveling to and from, or fighting fires, off the naval depot.

(c) Government liability for injury or death occurring to firefighting personnel not employed by the Government but called upon from neighboring communities to assist in combating a fire on naval depot property. This may involve the following considerations:

(1) Where the community fire department carries compensation insurance.

(2) Where no compensation insurance coverage is in effect. (d) Government liability for damage to community apparatus engaged in firefighting operations within the confines of the naval depot.

(e) Government liability for injury or death to individuals and/or private property damage as the result of accident involving depot apparatus while responding to or returning from an outside assistance call.

Article 1497 of Navy Regulations provides in pertinent part as follows:

"(1) The commandant shall establish regulations to guard against accidents from fire in the ships and buildings within the yard

"(4) He may direct the fire alarm to be sounded for a fire in the immediate vicinity of the yard, and the engines and other apparatus may be sent to such fires, but shall be kept under command of their own officers."

While the above was the only particular regulation governing the dispatching of firefighting apparatus and personnel outside the naval reservation to assist in the extinguishment of fires, it would appear that such regulation was not intended to limit the aid to be rendered only to such cases. It generally has been considered the duty of the

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military where sudden and unexpected emergencies arise endangering the public property of the United States, or other public calamity disrupting the normal processes of Government, when requested by proper authority, to render such aid as the circumstances of the case may warrant.

The Judge Advocate General, in an opinion dated 8 October 1941 (C. M. O. 2, 1941, 370, 373), concerning the right of the Navy to intercede in riots and insurrections for protection of public property of the United States where a labor dispute may be involved, held that where naval authority could prevent serious loss or damage to public property growing out of unlawful violence, it would be incumbent upon the senior officer present, pending instructions from higher authority, to act upon the request of the local Government authority having custody or control of such property, at the same time informing the Secretary of the Navy of the steps being taken. The above opinion cited Army Regulation 500-505 (b), and stated that while there is no similar Navy regulation the substance of the regulation applies generally to naval personnel. Army Regulation 500–505 (b), which is as follows, is equally applicable to fires:

"Emergency-In case of sudden and unexpected invasion, insurrection, or riot, endangering the public property of the United States, or of attempted or threatened robbery or interruption of the United States mails, or of earthquake, fire, or flood, or other public calamity disrupting the normal processes of government, or other equivalent emergency so imminent as to render it dangerous to await instructions requested through the speediest means of communications, an officer of the army may take such action before the receipt of instructions as the circumstances of the case and the law under which he is acting may justify, and will promptly report his action, and the circumstances requiring it, to the Adjutant General, by telegraph if possible, for the information of the President."

In view of the above it was the opinion of the Judge Advocate General that Government firefighting apparatus and personnel may be dispatched outside the depot limits, in such cases as fall within Article 1497 (4) of Navy Regulations, and when requested by proper authority to prevent serious loss or damage to public property or to prevent public calamity that threatens to disrupt the normal processes of Government. In most cases where firefighting apparatus and personnel are requested the need is for immediate action, and whether such assistance should be rendered in each particular case must of necessity be determined by the local authority.

In answer to question (b), it may be stated that where Navy civilian firefighting personnel are injured or killed while traveling to and from, or fighting fires, off the naval depot, not resulting from negli

gent acts or omissions on the part of naval personnel while acting within the scope of their employment, such firefighting personnel or their surviving dependents may apply to the Bureau of Employees' Compensation, Federal Security Agency, for compensation benefits under the provisions of the Compensation Act of September 7, 1916, as amended. On the other hand, if such firefighting personnel are injured or killed as the result of negligent acts or omissions of naval personnel while acting within the scope of their employment, it is possible that they or their legal representatives may obtain relief under the provisions of the Federal Tort Claims Act, Title IV of Public Law 601, 79th Congress, approved 2 August 1946. The question as to whether or not they or their legal representatives are entitled to relief under this Act must remain unanswered until decided by the Federal Courts.

Questions (c), (d) and (e) were answered by stating that the Government is liable only under circumstances where the property damage, injury or death is occasioned by negligent acts or omissions of Navy civilian firefighting personnel or other naval personnel while acting within the scope of their employment. It is considered that Navy civilian firefighting personnel are acting within the scope of their employment, while traveling to and from, or fighting fires, off the naval depot, when dispatched by naval authority.

The Navy Department has statutory authority under the provisions of the Act of December 28, 1945 (59 Stat. 662, as amended; 31 U. S. C. 223d), to administratively adjust and settle claims in an amount not in excess of $1,000 for damage to or loss or destruction of property, or for personal injury or death arising incident to the noncombat activities of the Navy Department or of the Navy. In general the claims within the above category are those arising out of authorized activities which are peculiarly Navy activities having little parallel in civilian pursuits and out of situations which historically have been considered as furnishing a proper basis for the payment of claims, such as claims for damage, injury or death arising out of, and which are natural or probable results or incidents of, maneuvers and special exercises, practice firing of heavy guns, practice bombing, naval exhibitions, operation of aircraft and antiaircraft, use of barrage balloons, use of instrumentalities having latent mechanical defects not traceable to negligent acts or omissions, explosions of ammunitions, and movement of combat vehicles designed especially for military use.

In a hypothesized case, community firefighting personnel are assisting in fighting a fire in a warehouse on the depot in connection with a mutual aid firefighting agreement, and ammunition or other inherently dangerous material in the warehouse, which is peculiar to the Navy, explodes and causes damages and injuries to community firefighting apparatus and personnel. It was the opinion of the Judge