A-34142, DECEMBER 2, 1930, 10 COMP. GEN. 248

A-34142, DECEMBER 2, 1930, 10 COMP. GEN. 248

VOLUNTARY SERVICES - TOWING OF DISABLED NAVY AIRPLANE WHERE IT APPEARS FROM THE FACTS OF THE RECORD THAT THERE WAS NO SUDDEN EMERGENCY INVOLVING THE LOSS OF HUMAN LIFE OR THE DESTRUCTION OF GOVERNMENT PROPERTY, PAYMENT FOR TOWING SERVICES VOLUNTARILY RENDERED IN THE TOWING OF A DISABLED NAVY AIRPLANE, FORCED DOWN BECAUSE OF A BROKEN CONNECTION ROD, IS NOT AUTHORIZED, BEING IN VIOLATION OF THE PROVISIONS OF SECTION 3679, REVISED STATUTES, AS AMENDED BY THE ACT OF FEBRUARY 27, 1906, 34 STAT. 49. THE ACCEPTANCE OF VOLUNTARY SERVICE IN CONTRAVENTION OF THE SAID STATUTE CANNOT FORM THE BASIS OF A LEGAL CLAIM AGAINST THE GOVERNMENT.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 2, 1930:

THERE HAS BEEN PRESENTED TO THIS OFFICE FOR CONSIDERATION AND SETTLEMENT THE CLAIM OF THE ESTATE OF J. B. EATON (DECEASED) FOR COMPENSATION FOR SERVICES RENDERED BY THE DECEASED TO THE UNITED STATES NAVY AIRPLANE NO. A -7059 ON FEBRUARY 3, 1928.

IT APPEARS THAT ON OR ABOUT FEBRUARY 3, 1928, UNITED STATES NAVY AIRPLANE NO. A-7059 PILOTED BY CAPT. E. D. HOWARD, UNITED STATES MARINE CORPS, WAS FORCED DOWN BECAUSE OF A BROKEN CONNECTING ROD IN THE VICINITY OF PIGEON KEY, FLA.; THAT AT THE TIME OF THE LANDING J. B. EATON WAS IN THE VICINITY IN HIS MOTOR LAUNCH AND VOLUNTEERED TO TOW THE DISABLED AIRPLANE TO PIGEON KEY, A DISTANCE OF APPROXIMATELY 2 AND ONE HALF MILES; THAT THEREAFTER, OR UNDER DATE OF NOVEMBER 20, 1929, APPROXIMATELY 21 MONTHS AFTER THE SERVICE WAS RENDERED, THE SAID J. B. EATON SUBMITTED TO THE BUREAU OF AERONAUTICS, NAVY DEPARTMENT, A CLAIM, NO SPECIFIC AMOUNT BEING STATED, ON ACCOUNT OF THE TOWING SERVICES, THE BASIS OF THE CLAIM BEING SET FORTH IN HIS LETTER OF NOVEMBER 20, 1929, AS FOLLOWS:

ON OR ABOUT THE MIDDLE OF FEBRUARY, 1928, IN A STORMY HIGH WIND I WAS GOING EAST FROM KEY WEST IN MY MOTOR BOAT ON THE NORTH SIDE OF THE FLORIDA EAST COAST RAILWAY. YOUR AEROPLANE A7059 IN CHARGE OF CAPT. E. D. HOWARD AND SGT. A. R. BUGBEE WERE EN ROUTE TO THE NAVAL STATION AT KEY WEST THEN HEADING TOWARDS CUBA TO DO PHOTOGRAPHIC COAST LINE WORK FOR OUR GOVERNMENT, WHEN NOT VERY FAR FROM MY BOAT THE ENGINE OF THE AEROPLANE BROKE DOWN AND THE AEROPLANE CAME DOWN IN VERY ROUGH WATER. IT SEEMED TO US THAT THE BOYS IN THE AEROPLANE COULD NOT SURVIVE IN THE HIGH ROLLING WAVES. AT CONSIDERABLE DANGER I BACKED MY BOAT WITHIN THROWING LINE OF THEIR PLANE AND MADE FAST THEIR ANCHOR ROPE TO MY BOAT AND I PULLED THEM A DISTANCE OF NEARLY FIVE MILES INTO PIGEON KEY HARBOR.

I NEVER HAVE SEEN TWO YOUNG MEN MORE GRATEFUL AND PLEASED OVER WHAT WE DID FOR THEM THAN THESE TWO MEN. I HAVE FELT THAT WE WERE ENTITLED TO A REASONABLE COMPENSATION FOR SAVING YOUR PROPERTY, NOT TO SAY ANYTHING ABOUT SAVING THE LIVES OF THESE TWO MEN. YOUR RECORDS WILL SHOW ALL ABOUT THIS MISHAP. SORRY I CAN NOT GIVE YOU THE EXACT DATE, BUT THAT IS NOT NECESSARY. I HAVE IT MARKED DOWN AS BEING FRIDAY ABOUT 4 P. M., BUT OMITTED WRITING DOWN THE DAY OF THE MONTH. IT GOES WITHOUT ARGUMENT THAT WE ARE ENTITLED TO COMPENSATION FOR WHAT WE DID FOR YOUR MEN.

THE CLAIM WAS FORWARDED TO THIS OFFICE BY THE SECRETARY OF THE NAVY UNDER DATE OF OCTOBER 30, 1930, WITH RECOMMENDATION THAT $50 BE PAID THE CLAIMANT, THE REASONS THEREFOR BEING STATED AS FOLLOWS:

ON FEBRUARY 3, 1928, U. S. NAVY AIRPLANE NO. A-7059 WAS FORCED DOWN WITH A BROKEN CONNECTING ROD IN THE INNER WATERS IN THE VICINITY OF PIGEON KEY, FLORIDA. AT THE TIME MR. J. B. EATON WAS IN THE VICINITY IN HIS MOTOR LAUNCH AND TOWED THE DISABLED PLANE ASHORE FOR A DISTANCE OF ABOUT TWO AND ONE-HALF MILES. MR. EATON SUBMITTED A CLAIM TO THE NAVY DEPARTMENT FOR COMPENSATION FOR THE SERVICES RENDERED AND THE NAVY DEPARTMENT IS OF THE OPINION THAT SINCE THESE SERVICES WERE ACCEPTED BY THE OCCUPANTS OF THE NAVY PLANE CLAIMANT IS ENTITLED TO REASONABLE COMPENSATION FOR THE WORK PERFORMED. IN VIEW OF ALL OF THE CIRCUMSTANCES THE SUM OF $50.00 IS CONSIDERED TO BE REASONABLE AND IT IS RECOMMENDED THAT PROVISION BE MADE FOR THE PAYMENT OF THIS AMOUNT TO MR. EATON'S ESTATE.

THE FACTS OF RECORD CLEARLY SHOW THAT THERE WAS NO EXPRESS AGREEMENT WITH REFERENCE TO THE TOWING OF THE SAID AIRPLANE, BUT THAT TOWING SERVICE WAS RENDERED VOLUNTARILY WITHOUT ANY AGREEMENT OR UNDERSTANDING AS TO COMPENSATION THEREFOR. THE QUESTION, THEREFORE, IS WHETHER THE SERVICES SHOULD BE CONSIDERED AS HAVING BEEN RENDERED UNDER SUDDEN EMERGENCY INVOLVING LOSS OF HUMAN LIFE OR DESTRUCTION OF GOVERNMENT PROPERTY SO AS TO BRING THE SAID CLAIM WITHIN THE PURVIEW OF SECTION 3679, REVISED STATUTES, AS AMENDED BY THE ACT OF FEBRUARY 27, 1906, 34 STAT. 49, WHICH EXPRESSLY PROVIDES THAT NO OFFICER OF THE GOVERNMENT SHALL ACCEPT VOLUNTARY SERVICES FOR THE GOVERNMENT EXCEPT IN CASES OF SUDDEN EMERGENCY INVOLVING LOSS OF HUMAN LIFE OR DESTRUCTION OF GOVERNMENT PROPERTY.

IT APPEARS TO BE DEFINITELY ESTABLISHED BY VARIOUS LETTERS AND STATEMENTS THAT THE EMERGENCY IN THIS CASE DID NOT INVOLVE LOSS OF HUMAN LIFE OR DESTRUCTION OF GOVERNMENT PROPERTY. SEE STATEMENT OF ALVIN R. BUGBEE, DATED MARCH 12, 1930, AS FOLLOWS:

I WAS WITH CAPTAIN E. D. HOWARD AT THE TIME MENTIONED IN OL-3, A 7059, AND HEARD THE CONVERSATION BETWEEN CAPTAIN HOWARD AND MR. EATON. IN MY OPINION THERE WAS NO DANGER EITHER TO PLANE OR PERSONNEL. THE SEA WAS NOT VERY ROUGH AS LIEUTENANT BOYDEN LANDED NEAR US AND TOOK OFF AGAIN.

MR. EATON TOWED THE PLANE A MATTER OF POSSIBLY TWO AND ONE-HALF MILES, ALONG THE LEE OF THE FLORIDA EAST COAST RAILWAY, AND THE NEXT MORNING STARTED TO QUESTION ME ABOUT PLANE, IN REGARD TO ITS VALUE. I IMMEDIATELY REFERRED HIM TO CAPTAIN HOWARD.

CAPTAIN HOWARD WAS QUITE ANGRY AND AFTER HE HAD LEFT MR. EATON, HE TOLD ME,"THAT GENTLEMAN IS OUT TO GET ALL HE CAN FROM US.' THEN HE GAVE MR. EATON THE NUMBER AND NAME OF THE PLANE AND WHERE IT WAS FROM AND OUR DESTINATION.

SEE, ALSO, STATEMENT OF FIRST LIEUTENANT HAYNE D. BOYDEN, UNITED STATES MARINE CORPS, DATED DECEMBER 28, 1928, AS FOLLOWS:

1. I WAS A MEMBER OF THE CUBAN AERIAL SURVEY IN 1928 AND ACCOMPANIED CAPTAIN HOWARD WHEN HE WAS FORCED DOWN IN AIRPLANE OL-3 NO. 7059 NEAR DAYTONA BEACH, FLORIDA.

2. THE CAUSE OF DISCREPANCY IN THE DATES OF MR. EATON'S LETTER AND THE ENCLOSED TROUBLE REPORT IS THAT THE WRONG TROUBLE REPORT WAS FORWARDED, (ENCLOSURE B.)

3. UPON REFERENCE TO MY FLIGHT LOG I FIND THAT ON FEBRUARY 3, 1928, CAPTAIN HOWARD, WITH GUNNERY SERGEANT A. R. BUGBEE, IN AIRPLANE OL-3 NO. 7059, WAS FORCED DOWN WITH A BROKEN CONNECTING ROD IN THE INNER WATERS IN THE VICINITY OF PIGEON KEY, FLORIDA. THE ENCLOSED TROUBLE REPORT RELATES TO A LATER FORCED LANDING ON APRIL 17, 1928.

4. AS TO MR. EATON'S CLAIM FOR COMPENSATION: I REMEMBER CAPTAIN HOWARD SAYING HOW INCENSED HE HAD BEEN THAT THE MEN IN THE MOTOR BOAT WHICH TOWED HIM TO PIGEON KEY HAD DESIRED TO ENTER A CLAIM AGAINST THE GOVERNMENT FOR QUITE A SUM OF MONEY AS SOON AS THEY FOUND IT WAS A GOVERNMENT PLANE THEY WERE TOWING. I REMEMBER HE SAID THEY SEEMED TO CONSIDER IT A GOOD OPPORTUNITY TO MAKE SOME EASY MONEY; AND HOW "HELPFUL" OUR AVERAGE CITIZEN SEEMED TOWARD RENDERING ANY KIND OF FREE SERVICE TO THINGS GOVERNMENTAL. I KNOW THAT THERE WERE NO "HIGH ROLLING WAVES" WHICH WERE ENDANGERING THE LIVES OF CAPTAIN HOWARD AND SERGEANT BUGBEE FOR I LANDED NEAR THEM TO ASCERTAIN THEIR TROUBLE, AND TOOK OFF AND PROCEEDED TO KEY WEST AT CAPTAIN HOWARD'S DIRECTION.

THE JUDGE ADVOCATE GENERAL OF THE NAVY IN ELEVENTH INDORSEMENT OF APRIL 23, 1930, STATES, AMONG OTHER THINGS, THAT---

* * * ATTENTION IS INVITED TO THE FACT THAT THE SERVICES RENDERED IN THIS CASE CONSISTED MERELY OF TOWING THE AIRPLANE ABOUT TWO AND ONE HALF MILES AND DID NOT CONSTITUTE SALVAGE SERVICES INVOLVING SERIOUS RISK OF LIFE OR PROPERTY.

THE BUREAU OF AERONAUTICS, NAVY DEPARTMENT, IN TWELFTH INDORSEMENT OF MAY 2, 1930, STATES ---

IN THE OPINION OF THIS BUREAU NO COMPENSATION FOR PERSONAL SERVICES RENDERED BY MR. EATON IN THE SUBJECT CASE IS JUSTIFIED. IT APPEARS THAT HIS SERVICES WERE ENTIRELY VOLUNTARY; THAT NO EMERGENCY EXISTED, AND THERE WAS NO DEMAND OR AGREEMENT MADE CONCERNING THE COMPENSATION AT THE TIME THE INCIDENT OCCURRED.

THE FACTS OF RECORD CONCLUSIVELY SHOW THAT THE SERVICES HERE IN QUESTION WERE VOLUNTARY AND RENDERED IN A CASE NOT WITHIN THE EXCEPTIONS STATED IN THE STATUTE CITED, SUPRA. THE ACCEPTANCE OF VOLUNTARY SERVICE IN CONTRAVENTION OF THE STATUTE CAN NOT FORM THE BASIS OF A LEGAL CLAIM AGAINST THE GOVERNMENT. NOTWITHSTANDING THE COMMENDABLE ACTION OF CLAIMANT IN TOWING THE AIRPLANE TO SHORE, THERE IS NO AUTHORITY OF LAW FOR THE ALLOWANCE OF THE CLAIM.

FOR REASONS HEREIN STATED THE CLAIM MUST BE AND ACCORDINGLY IS DISALLOWED.