B-8084, JANUARY 22, 1940, 19 COMP. GEN. 671

B-8084, JANUARY 22, 1940, 19 COMP. GEN. 671

SEAMEN - DESTITUTE AMERICAN - RELIEF AND TRANSPORTATION THE TERM "SEAMAN" AS USED IN SECTION 4612, REVISED STATUTES, EMBRACES A SHIP'S SURGEON" FOR THE PURPOSES OF SECTION 4577, REVISED STATUTES, WHICH PROVIDES FOR RELIEF AND TRANSPORTATION TO THE UNITED STATES OF DESTITUTE AMERICAN SEAMEN. A PERSON WHO LAST SERVED AS A SHIP'S SURGEON ON A FOREIGN VESSEL AND WHO HAS NOT SERVED AS SHIP'S SURGEON, OR OTHERWISE AS A SEAMAN, ON AN AMERICAN VESSEL FOR NEARLY 3 YEARS, IS NOT A BONA FIDE MEMBER OF THE AMERICAN MERCHANT MARINE WITHIN THE MEANING AND INTENT OF SECTION 4577, REVISED STATUTES, AND IS NOT ENTITLED TO THE RELIEF AND TRANSPORTATION OF THE UNITED STATES PROVIDED BY THAT SECTION FOR DESTITUTE AMERICAN SEAMEN.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF STATE, JANUARY 22, 1940:

I HAVE YOUR LETTER OF JANUARY 16, 1940, AS FOLLOWS:

THE DEPARTMENT HAS RECEIVED A REQUEST FROM THE AMERICAN CONSUL AT VALPARAISO, CHILE, FOR INSTRUCTIONS WITH REGARD TO A REQUEST FOR THE RELIEF AND TRANSPORTATION TO THE UNITED STATES AS AN AMERICAN SEAMAN MADE BY DR. HERMANN F. ERBEN, A NATURALIZED AMERICAN CITIZEN, WHO HAS IN THE PAST SERVED AS SHIP'S SURGEON ON AMERICAN VESSELS, AND WHO RECENTLY ARRIVED IN VALPARAISO FROM BUENOS AIRES AFTER BEING DISCHARGED AT THAT PORT FROM THE GERMAN S.S. USSUKUMA.

IT APPEARS THAT DR. ERBEN SERVED AS SHIP'S SURGEON ON AMERICAN VESSELS AT VARIOUS TIMES FROM 1930 TO FEBRUARY 1937; THAT HE WAS ENGAGED IN MEDICAL WORK IN SPAIN AND CHINA FROM MARCH 1937 TO MARCH 1938; THAT HE RETURNED TO THE UNITED STATES IN MAY 1938 POSSIBLY AS SHIP'S SURGEON ON A NORWEGIAN VESSEL; AND THAT HE VISITED AND TRAVELED IN EUROPE FROM OCTOBER 1938 TO JULY 1939, AT WHICH TIME HE SIGNED ON ON THE GERMAN S.S. USSUKUMA AS SHIP'S SURGEON.

IN VIEW OF THE FACT THAT DR. ERBEN HAS NOT SERVED ON AN AMERICAN VESSEL SINCE 1937, AND IN THE ABSENCE OF INFORMATION SHOWING THAT WHEN HE LAST LEFT THE UNITED STATES HE DID SO IN THE CAPACITY OF SEAMAN OR SHIP'S SURGEON, YOUR OPINION IS REQUESTED AS TO WHETHER DR. ERBEN MAY BE CONSIDERED AS AN AMERICAN SEAMAN AND AS SUCH ENTITLED TO RELIEF AND TRANSPORTATION.

IN VIEW OF THE FACT THAT THE AMERICAN CONSUL AT VALPARAISO HAS REQUESTED TELEGRAPHIC INSTRUCTIONS AN EARLY REPLY WILL BE APPRECIATED.

SECTION 4612, REVISED STATUTES (46 U.S.C. 713), PROVIDES:

IN THE CONSTRUCTION OF THIS TITLE, EVERY PERSON HAVING THE COMMAND OF ANY VESSEL BELONGING TO ANY CITIZEN OF THE UNITED STATES SHALL BE DEEMED TO BE THE "MASTER" THEREOF; AND EVERY PERSON (APPRENTICES EXCEPTED) WHO SHALL BE EMPLOYED OR ENGAGED TO SERVE IN ANY CAPACITY ON BOARD THE SAME SHALL BE DEEMED AND TAKEN TO BE A "SEAMAN; " AND THE TERM "VESSEL" SHALL BE UNDERSTOOD TO COMPREHEND EVERY DESCRIPTION OF VESSEL NAVIGATING ON ANY SEA OR CHANNEL, LAKE OR RIVER, TO WHICH THE PROVISIONS OF THIS TITLE MAY BE APPLICABLE, AND THE TERM "OWNER" SHALL BE TAKEN AND UNDERSTOOD TO COMPREHEND ALL THE SEVERAL PERSONS, IF MORE THAN ONE, TO WHOM THE VESSEL SHALL BELONG.

THE TERM "SEAMAN," AS DEFINED IN THE ABOVE-QUOTED STATUTE, WOULD UNQUESTIONABLY EMBRACE ONE SERVING AS A SHIP'S SURGEON ON A "VESSEL," AS THE LATTER TERM IS USED IN THE STATUTE, AND SUCH A PERSON WOULD BE ENTITLED TO RELIEF AND TRANSPORTATION IF OTHERWISE COMING WITHIN THE PURVIEW OF SECTION 4577, REVISED STATUTES (46 U.S.C. 678), WHICH STATUTE PROVIDES AS FOLLOWS:

IT SHALL BE THE DUTY OF THE CONSULS, VICE CONSULS, COMMERCIAL AGENTS, AND VICE COMMERCIAL AGENTS, FROM TIME TO TIME, TO PROVIDE FOR THE SEAMEN OF THE UNITED STATES, WHO MAY BE FOUND DESTITUTE WITHIN THEIR DISTRICTS, RESPECTIVELY, SUFFICIENT SUBSISTENCE AND PASSAGES TO SOME PORT IN THE UNITED STATES, IN THE MOST REASONABLE MANNER, AT THE EXPENSE OF THE UNITED STATES, SUBJECT TO SUCH INSTRUCTIONS AS THE SECRETARY OF STATE SHALL GIVE. THE SEAMEN SHALL, IF ABLE, BE BOUND TO DO DUTY ON BOARD THE VESSELS IN WHICH THEY MAY BE TRANSPORTED, ACCORDING TO THEIR SEVERAL ABILITIES.

THE PROVISIONS OF SECTION 4577, REVISED STATUTES, SUPRA, AND OTHER STATUTES FOR RELIEF OF AMERICAN SEAMEN, WERE INTENDED TO PROMOTE SERVICE IN THE UNITED STATES MERCHANT MARINE BY PROVIDING RELIEF FOR AMERICAN SEAMEN WHO MIGHT BECOME DESTITUTE AS THE RESULT OF THEIR CALLING AND BY RETURNING THE SAID SEAMEN TO THE UNITED STATES IN ORDER THAT THEY MIGHT AGAIN ENGAGE IN THE SERVICE OF THE UNITED STATES MERCHANT MARINE. THE LAW CONTEMPLATES, HOWEVER, THAT THE RELIEF AUTHORIZED THEREUNDER SHOULD BE PROVIDED ONLY TO THOSE WHO AT THE TIME OF APPLICATION FOR RELIEF ARE BY HABIT AND INTENT BONA FIDE MEMBERS OF THE AMERICAN MERCHANT MARINE. IN 1 COMP. GEN. 760, IT WAS HELD (QUOTING FROM THE SYLLABUS):

AMERICAN SEAMEN WHO AFTER DISCHARGE AS SUCH IN A FOREIGN COUNTRY ACCEPT EMPLOYMENT ON LAND, AND DO NOT RETURN TO THE SEA NOR APPLY TO THE CONSUL FOR RELIEF FOR MORE THAN ONE YEAR AFTER THEIR DISCHARGE AS SEAMEN, MUST BE PRESUMED TO HAVE ABANDONED THEIR FORMER VOCATION AND ARE NOT ENTITLED TO RELIEF AS DESTITUTE AMERICAN SEAMEN UNDER SECTION 4577, REVISED STATUTES.

IN 2 COMP. GEN. 317, IT WAS HELD:

THE QUESTION OF WHEN OR HOW LONG AFTER DISCHARGE AN AMERICAN SEAMAN MAY BE ENTITLED TO RELIEF IS NOT ONE DEPENDENT UPON TIME ALONE BUT ONE OF FACT, TO BE DETERMINED PRIMARILY BY THE CONSULAR OFFICER TO WHOM THE APPLICATION FOR RELIEF IS MADE FROM ALL FACTS BEARING ON THE QUESTION OF WHETHER THE PARTICULAR SEAMAN CONTINUES TO HOLD HIMSELF OUT FOR SERVICE AS A SEAMAN OR HAS ABANDONED THE OCCUPATION OF SEAMAN.

AS DR. ERBEN HAS NOT SERVED AS A SHIP'S SURGEON OR OTHERWISE AS A SEAMAN ON AN AMERICAN VESSEL SINCE FEBRUARY 1937, IT WOULD NOT APPEAR THAT HE COULD QUALIFY AT THIS TIME AS A BONA FIDE MEMBER OF THE AMERICAN MERCHANT MARINE WITHIN THE MEANING AND INTENT OF THE APPLICABLE STATUTES. 1 COMP. GEN. 760; 6 ID. 348. IT MUST BE HELD, THEREFORE, THAT HE ENTITLED TO RELIEF OR TRANSPORTATION AS A DESTITUTE AMERICAN SEAMAN AT THE EXPENSE OF THE UNITED STATES.