Apparently, the only question involved in your submission which is proper for consideration and decision by this office is whether an alien, after being discharged from an American vessel for cause, and having been convicted by a civil court and sentenced to prison in a foreign country, may still be regarded as an American seaman within the meaning of the provision of law making an appropriation "for relief and protection of American seamen in foreign countries." Act of June 1, 1922, 42 Stat., 603.

It has been held uniformly that a foreigner who ships on an American vessel in a port of the United States is an American seaman within the meaning of the provision in question. And being discharged for cause would not necessarily terminate that status. The United States Consular Regulations, paragraphs 249 and 250, provide that a foreigner forfeits his rights and status as an American seaman by deserting from an American vessel abroad for cause other than cruel or unusual treatment and that he terminates such status by shipping on a foreign vessel; but a discharge for cause, even though followed by trial, conviction, and incarceration, is not tantamount tc a voluntary desertion.

While an alien seaman might not under such circumstances be entitled as a matter of right to the specific benefits provided under certain statutes for destitute American seamen there would appear to be no objection to the use of the appropriation now in question to give him such temporary relief as the department may determine he should have until such time as he may be regarded as having voluntarily abandoned the American merchant-marine service.

PAY OF ENLISTED MEN WHILE IN MILITARY CUSTODY AFTER FURLOUGH TO THE REGULAR ARMY RESERVE.

The arraignment, trial, and acquittal by court-martial of an enlisted man after his furlough to the Regular Army Reserve does not have the effect of placing him on active duty for pay purposes after reporting to the military authorities and while under their jurisdiction awaiting trial.

Decision by Comptroller General McCarl, July 22, 1922.

Charley E. Carrell, former private, One hundred and forty-sixth Coast Artillery Corps, requested June 9, 1922, review of settlement No. W-738809, dated May 11, 1922, disallowing his claim for the pay of his grade for the period December 20, 1916, to February 12, 1917, while awaiting trial and judgment by an Army court-martial upon the charge of conduct to the prejudice of good order and military discipline.

Claimant enlisted April 18, 1913, at Columbus Barracks, Ohio, and was furloughed to the reserve on April 17, 1916. He was a member thereof when arraigned November 29, 1916, and tried by

general court-martial which convened at Fort Wright, N. Y., on the charge of conduct to the prejudice of good order and military discipline in that he, prior to his furlough, did forge the name of a certain commissioned officer to a guaranty card furnished by a watch company in order to procure for himself a watch. Carrell reported at Fort Wright on November 20, 1916, and the judgment of the court-martial acquitting him was promulgated February 6, 1917, and he was returned to his home under order dated February 12, 1917. Claimant alleged that he was in the performance of duties of his grade while awaiting trial and judgment by the general courtmartial and insists that he is entitled to the active duty pay of his grade for the period in question. The claim was disallowed in the settlement of which review is requested on the ground that he was entitled to reservist's pay only, and that had been paid in full.

Paragraph 95 of regulations for the Regular Army Reserve, dated August 15, 1916, so far as is material, reads:

A member of the Regular Army Reserve is throughout his enlistment period a soldier of the Regular Army. He is subject to military law and is governed by the Articles of War. He owes the same duties of obedience to his military superiors and is in turn entitled to the same consideration by such superiors as Army regulations enjoin upon all persons in the military service. For breaches of discipline he may be tried by court-martial.

A member of the Regular Army Reserve, under the act of June 3, 1916, 39 Stat., 185, and the quoted provisions of regulations issued pursuant thereto, remained a member of the Regular Army, was subject to military law, and was governed by the Articles of War. He was expressly made subject to trial by court-martial for any military offense committed while in the reserve and necessarily he was subject to the jurisdiction of a court-martial for any offense committed prior to furlough to the reserve. See in re Bird, Fed. Cases, No. 1428.

Under section 32 of the act of June 3, 1916, and paragraph 86 of the regulations for the Regular Army Reserve, he was entitled to the active duty pay of his grade only when mobilized by the President in the event of "actual or threatened hostilities" and so long as he remained on active service. The arraignment and trial as a reservist did not have the effect of placing him on active duty for the purposes of pay. See 1 Comp. Gen., 474.

Upon review of the matter no differences are found and the settlement is sustained.

CONTRACTS-INCREASED COSTS.

Where conditions arise during the life of a contract which, under its terms, would excuse performance thereof and the Government acknowledges the existence of such conditions and requests the contractor to effect performance of the contract by some method other than that contemplated by the contract, any additional expense so incurred is reimbursable to the contractor on a basis of quantum meruit.

Decision by Comptroller General McCarl, July 22, 1922.

Coney Island Coal Co. (Inc.), 17 Battery Place, New York, N. Y., by letter dated June 13, 1922, applied for a reconsideration of decision of May 19, 1922, 1 Comp. Gen., 685, sustaining on review settlement No. N-226903, dated March 16, 1922, disallowing its claim for $94 as extra expense in connection with the delivery of 88 tons of coal to the navy yard, Brooklyn, N. Y., in view of the terms of contract No. 50624, dated April 6, 1920, and of supplementary agreement dated July 7, 1920.

By the terms of the original contract the coal company agreed to furnish the United States f. o. b. cars at the navy yard, Brooklyn, N. Y., during the period July 1, 1920, to June 30, 1921, certain quantities of broken sizes and pea-size coal, among other sizes, at certain specified prices, respectively, per ton. The supplementary agreement provided for delivery by barge at a stipulated price per ton "alongside," provided railroad deliveries were found to be impracticable, all other terms and conditions of the original contract to remain the same.

The original contract provided in part:

1. It is expressly understood and agreed that there will be furnished and delivered at the contractor's risk and expense, at the place and within the time stated for each class and at the price set opposite each item, the articles or services listed herein.

The quantities of coal noted as required for the purposes indicated under the respective classes have been estimated from the best information obtainable as to prospective requirements and may be regarded as fairly accurately representing the maximum demands at the points described. It will therefore be understood that the contractor will furnish and deliver such coal of the kind specified as may be required and called for at the points named during the periods stated and that the quantities to be taken will not exceed by more than 1 per cent those for which awards are placed, unless delivery of a greater quantity is mutually agreed to; also that, where practicable, every effort will be made to care for the tonnage contracted for in equal monthly deliveries.

Deliveries will be taken in carload or barge lots (as indicated under the respective classes), and will be made within 15 days after receipt of order, in such quantities as may be required, and at the prices accepted by the Navy, on the order of the Bureau of Supplies and Accounts or its representatives at the different points of delivery.

If the United States directs a change in the place or manner of delivery, in writing, it is understood that the contractor will be paid for any expense so incurred over and above the expense to which the said contractor is obligated by the terms of the contract.

The facts giving rise to the claim are reported by the supply officer, navy yard, Brooklyn, N. Y., in a communication addressed to the Chief of the Bureau of Supplies and Accounts, Navy Department, and transmitted to the General Accounting Office by the latter officer subsequent to said decision of May 19, 1922, as follows:

(a) Contract #50624 was entered into providing for rail delivery to navy yard, New York, of anthracite coal with a supplement to permit the delivery by barge where rail delivery was impracticable *

(b) Upon the placing of the first order under this contract for rail delivery it was found that same was impossible owing to the absence of the necessary railroad tariff covering delivery from the contractor's mines to the Brooklyn Navy Yard.

(c) In view of the fact that delivery by barge was far from desirable, owing to the lack of proper handling facilities, and as it was expected daily that a tariff would be issued to cover rail delivery, no order was placed with the contractor for shipment by this method,

(d) Every effort was made by the bureau and the supply officer to secure this tariff * * but I. C. C. A1010 was not issued until September 15, 1920, and was made effective September 17, 1920, and until that date no deliveries by rail under this contract were possible.

(e) On September 4, the entire stock of broken and pea coal were exhausted, of which fact the bureau was advised

*

(f) Strike conditions were existent at this time and continued for a period of about six (6) weeks and no coal was procurable from any regular source of supply,

(g) The need for broken and pea coal became so urgent that the supply officer sent a personal representative to all the leading coal companies in New York in an effort to secure an amount sufficient to last during the emergency period. These efforts were entirely unsuccessful and finally the Coney Island Coal Co. was again approached to determine whether it was possible to divert coal by any methods to the navy yard, stating that delivery by any means would be acceptable.

(h) The Coney Island Coal Co., owing to strike conditions, could not procure any coal for barge or truck delivery to navy yard, New York, but agreed as a personal concession and to assist the Government in every way to divert from coal already consigned to the city of New York and at that time lying in the barge Elizabeth in Newtown Creek, a sufficient quantity of coal to meet the immediate needs of the navy yard, providing the additional charges incident to towing and demurrage would be assumed by the Navy.

(i) In view of all the circumstances outlined above, the supply officer directed this company to proceed with the delivery on this basis and stated to that firm that the additional charges under the conditions would be assumed. As no difficulties were anticipated with regard to payment, no further steps were taken at this time, it being believed that a full statement of the facts at the time of submission of public bill would be sufficient.

The claim is specifically for towing boat Elizabeth from Newtown Creek to navy yard, Brooklyn, and return, $60; demurrage two days, September 9 and 10, at $17, $34; total, $94.

In the decision of May 19, 1922, it was stated that the contractor was under a contract liability to make delivery of coal within 15 days from the date orders there for were given unless excused by the United States by reason of "strikes, riots, fires, or disasters, delays in transit or delivery on the part of transportation companies, or other circumstances beyond the control of the contractor." The decision rested on the view that the United States had not excused the contractor from making delivery, and that having succeeded in making delivery, notwithstanding the existence of strike conditions that would excuse failure to make delivery, additional pay for the delivery in question was not authorized.

It now appears from the report of the supply officer, navy yard, Brooklyn, N. Y., hereinbefore quoted, that owing to strike conditions existent at the time no coal was procurable from any regular

source, and that to meet an urgent need for coal, the supply at the navy yard being exhausted, a special service was asked for by the United States, which service the contractor was not required to render, being excused from making delivery by the strike conditions under the terms of the contract. For this special service in obtaining the coal, the facts all having been laid before the Government before undertaking to perform the service, I am of the opinion the contractor has a legal claim against the United States for the payment of the expense in question and that payment may be made upon the basis of a quantum meruit.

On reconsideration of the matter upon the facts now appearing, the settlement is reversed and $94 is certified due the claimant.

DOUBLE COMPENSATION

- ASSISTANT SURGEON OF ALASKAN ENGINEERING COMMISSION.

Charges by an assistant surgeon of the Alaskan Engineering Commission for performing autopsies outside of the scope of his official duties are fees and not salary and do not come within the inhibition of the act of May 10, 1916, 39 Stat., 120, as amended; and as the salary of such assistant surgeon is not fixed by law or regulation he is not prohibited from receiving such additional fees by sec. 1765, Revised Statutes.

Decision by Comptroller General McCarl, July 22, 1922.

F. R. Brenneman applied July 6, 1922, for review of settlement No. 11799, dated March 16, 1922, of the State and Other Departments division of this office in which was disallowed items in his accounts as United States marshal, third division, Territory of Alaska, of $25 and $10 paid by him to Dr. J. H. Romig.

The reason for the disallowance was that since Doctor Romig was an assistant surgeon of the Alaskan Engineering Commission, receiving a salary of $2,400 per annum, payment of the items was in violation of the act of May 10, 1916, 39 Stat., 120, as amended by the act of August 29, 1916, 39 Stat., 582, which prohibits payment of two salaries the combined sum of which exceeds $2,000 per annum. It appears that the salary of an assistant surgeon of the Alaskan Engineering Commission is not fixed by law or regulations and, therefore, section 1765, Revised Statutes, would not apply.

The items disallowed are stated as follows: For services as medical expert in the case of John Partti, coroner's inquest, for making examination of body to ascertain cause of death and testifying to same before a coroner's jury, $25; and the same in the case of Gabriel Ramondo, $10. In each case the rate is stated at so much a day. because the voucher form calls for a statement of the number of days and the rate per day.