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establishment or marking of harbor lines, shall be payable from any funds which may be available for the improvement, maintenance, operation, or care of the waterways or harbors affected, or if such funds are not available in sums judged by the Chief of Engineers to be adequate, then from any funds available for examinations, surveys, and contingencies of rivers and harbors.
Chaffee was an assistant engineer on duty with the district engineer; he was, and is, a civilian employee in the classified service, and under paragraph 833, Orders and Regulations, Engineer Department, 1917, is required to be qualified to design as well as to direct engineering works," and paragraph 452 of the same Orders and Regulations stated that the expense of shipment of the change of station allowance of baggage of civilian employees of the rivers and harbors organization should be charged to the appropriation made for the maintenance and improvement of rivers and harbors. See 4 Comp. Dec., 231, 313.
Inasmuch as the rivers and harbors organization is not a part of the Army and as appropriations made for the maintenance and improvement of rivers and harbors are exclusively available for the authorized expenses in connection therewith, it follows that the settlement charging the appropriation for the maintenance and improvement of rivers and harbors with the expense of the transportation of the authorized change of station allowance of baggage of a civilian employee exclusively engaged in rivers and harbors work was proper and must be affirmed.
SUBSISTENCE-MEALS UNNECESSARILY TAKEN EN ROUTE-PER
DIEM ALLOWANCE ON SUNDAYS AND HOLIDAYS SPENT AT
HOME. The inconvenience of a reasonable advance of the dinner hour at the home of an
employee is not such an unusual circumstance as to entitle such employee to reimbursement for meals taken en route which should or might have
been taken before leaving his post of duty. When an employee in a travel status for a period of time covering Sundays or
holidays spends such Sundays or holidays at his own home he is not entitled
to a per diem in lieu of subsistence for those days. Decision by Comptroller General McCarl, February 3, 1923:
Don C. Fees, disbursing clerk, Department of Justice, January 9, 1923, requested review of the following vouchers disallowed in settlement certificate, judicial, 12342, dated November 1, 1922, which will be considered individually, as follows:
Voucher 16. A. A. McCormick, #10697, paid Mar. 10, dinner Mar. 6. Left headquarters 7 p. m. Not shown that unusual circumstances made it necessary for employee to take meal en route. Employee states he was engaged on Government business until 5.45 p. m. in dept. This circumstance does not negative the possibility of taking dinner at headquarters before departure. See 1 Comp. Gen. 390. $1.25.
In explanation of the necessity of this charge, Mr. McCormick states: “Left office 5.45 p. m.; home in Chevy Chase; dinner hour 6.15 p. m.," and also further states:
It is true I could have disarranged my family affairs and changed the regular dinner hour, left the Department of Justice at an early hour, to the neglect of Government business, taken dinner at home, and taken the 7 o'clock trala or provide a second dinner for myself at a restaurant and caught the 7 o'clock train.
It has been the rule of the accounting officers that meals taken en route which should or might have been taken before leaving a post of duty are reimbursable only when unusual circumstances make it impracticable for the officer or employee to take the meals at his post of duty and full explanation of such circumstances is furnished. 1 Comp. Gen., 390. It is not shown that the employee remained in the department until 5.45 p. m. upon work necessary to the travel to be performed. The explanation submitted discloses the circumstances relied upon to be not impracticability, such as have met with approval of this office, 7 MS. Comp. Gen., 1608, March 25, 1922, but apparently a matter of convenience of the employee and disinclination to meet an ordinary situation by a reasonable advance of the dinner hour usually to be arranged in the average hoine. Therefore, in accordance with the facts disclosed, the charge for this meal does not appear to be an expense necessarily incident to the travel undertaken, and accordingly the disallowance of $1.25 is affirmed.
Voucher 762, F. C. Tukey, #11479, paid March 24. Per diems in lieu of subsistence, Jan. 1 and 2, 1922, while at home and not on official business, not allowable. See 21 Comp. Dec., 785, and 27 Comp. Dec., 981. Disallowed, $8,00.
The voucher discloses that Mr. Tukey, a special agent, was traveling in Ohio, supposedly on official business, and that for the month of January 1 to 31 he charges and is paid subsistence for 31 days, at $4 per day; total, $124; yet a preamble to the statement of expenses states:
At the close of business December 31st I was on official duties at Lima, O.; on January 1st and 2d I was not in Lima, but away from that city on personal matters. I returned to official duties at Cecil, O., at 6.00 a. m., January 3rd.
The allowance for subsistence is to reimburse him for the added expense which a traveler incurs when traveling away from home or designated headquarters. If the employee is at his home the reason for the allowance no longer exists, and when he travels to or remains at his home for personal reasons he is not entitled to any expense or per diem for any portion of the time thus consumed. 27 Comp. Dec., 982. It is immaterial that the 1st and 2d of January were holidays, as the fact remains that the agent was not in a travel status, and that is the basis upon which his rights rest, in accordance with act of April 6, 1914, 38 Stat., 318, which provides that:
On and after July first, nineteen hundred and fourteen, unless otherwise ex. pressly provided by law, no officer or employee of the United States shall be allowed or paid any sum in excess of expenses actually incurred for subsistence while traveling on duty outside of the District of Columbia and away from his designated post of duty,
Under the circnmstances there is no authority of law for payment of per diem for the two days in question, and this disallowance is affirmed.
RELIEF OF DESTITUTE AMERICAN SEAMEN. The fact that American seamen may have a “chose in action" in the form of a
libel suit against the vessel on which formerly employed does not bar relief to them under section 4577, Revised Statutes, if they are otherwise deter
mined by the consul to be destitute within the meaning of that section. The subsistence of destitute American seamen for a reasonable time after their
discharge, pending determination of a libel suit by them against the vessel
on which formerly employed, is within the discretion of the consul. Any agreement on the part of a consular officer to assume for the United States
liability for subsistence furnished by the owners of the vessel to American seamen in a foreign port while remaining on board the vessel on which employed is unauthorized and ineffective, as the obligation to furnish such subsistence rests with the owners of the vessel without right to reimburse
ment from the United States. Decision by Comptroller General McCarl, February 3, 1923:
The Secretary of State, by letter dated December 19, 1922, and John J. C. Watson, American consul, Barbados, West Indies, by letter dated November 15, 1922, requested revision of so much of settlements S-28685, 30215, and 30216, this office, dated February 27, 1922, October 19, 1922, and October 19, 1922, respectively, as disallowed in the accounts of the consul two items of $324.30 and $465.89, representing amounts expended for relief of the crew of the American schooner John R. Penrose before and after their discharge.
The material facts appear to be that the schooner John R. Penrose arrived at Bridgetown November 17, 1920, with the captain and six members of the crew on board. The captain immediately requested a survey of the vessel, the result of which disclosed the ship to be unfit for service until considerable repairing had been accomplished. The New York owners were duly advised thereof and of the necessity to forward sufficient funds to pay for food furnished the crew, but no funds were ever received. The owners' local agents, Hanschell & Co., continued to furnish food at its expense until December 15, 1920, when the consul was notified of its refusal to further supply the food unless reimbursed therefor by the consul. Whereupon the consul agreed to pay the bills if the local agent did not, and on the basis of this agreement the local agent continued to furnish the food until February 5, 1921. The item of $324.30, disallowed in the accounts, represents reimbursement to the local agents. The consul has conceded this item, but the Secretary of State has requested review thereof. Disallowance was for the reason that there was no authority by which the consul could assume such expense prior to discharge of the seamen.
Upon the recommendation of the consul the crew libeled the vessel, and on date of order for sale thereof, February 5, 1921, the consul discharged the seamen and removed them from the vessel to other quarters, where they were subsisted at expense of the Government until April 11, 1921. This expense is covered by the item of $465.89, disallowed because of the delay in returning the seamen to the United States and because seamen were not shown to be destituto.
Pending final determination of the libel proceedings, the consul deemed it advisable to retain the seamen under his jurisdiction and returned them via the first available steamer subsequent to receipt of the proceeds from the sale, which was prorated among the seamen to cover arrears of wages accrued and unpaid.
The consul had determined these seamen to be in a destitute condition upon arrival and justifies both items on that basis in order to save them from starvation.
Authority for relief of destitute American seamen abroad applicable to this case is found in section 4577, Revised Statutes, which makes it the duty of consular officers to provide, at the expense of the United States, for subsistence and return to the United States of American seamen found destitute within their districts. Relief under this statute is not conditional upon discharge of the seamen but upon destitution, and if destitution of the seamen be clearly established it is equally as applicable before discharge as after. Relief under this statute must not be confused with relief under section 4581, Revised Statutes, as amended, for seamen discharged before a consul on account of injury or illness incapacitating them for service, which relief is conditional upon discharge and is available to the seaman regardless of his financial status. Decision of January 16, 1923, 2 Comp. Gen., 438.
Destitution is a question of fact for determination by the consul whose action, in the absence of contrary facts, would be sufficient. 3 Comp. Dec., 40; 14 id., 867; 2 Comp. Gen., 318.
The only seamen prohibited by regulation from being declared destitute are those who have “arrears of wages or extra wages, or those who are earning their own living.” Paragraph 262, Consular Regulations.
This provision of the regulation was not intended to include seamen who have arrears of wages in expectancy, the receipt of which is conditional upon the happening of something in the future, the construction apparently placed on the regulation as a basis for disallowance. In this case the “ chose in action” or share in the libel suit held by the men was of no value to prevent distress and possible starvation. It is believed the consul was justified in determining the men to be destitute after discharge.
With respect to the period destitute seamen may be subsisted at Government expense, the statute and regulations are silent. It is contemplated, however, that there be no unreasonable delay in either returning the seamen to the United States or otherwise releasing them. In view of the relief character of the controlling statute the consul has a discretion to retain the men for a reasonable period, if the conditions are such in individual cases to justify it. It is a part of a consul's duty to collect and pay arrears of wages due a
seaman discharged by him and to finally accomplish this in tho present case retention of the men from February 5, 1921, to April 11, 1921, pending termination of libel proceedings, sale of vessel, and receipt of proceeds appears justified, there being no contradic
Upon the facts presented the consul is entitled to credit for the item of $465.89, representing expenditures for relief of the seamen after discharge.
While the fact that the seamen were not discharged was not sufficient reason for disallowance of the item of $324.30, representing reimbursement to Hanschell & Co., there are other and sufficient reasons for sustaining the disallowance. Hanschell & Co. were the local agents of the owners of the vessel and, as such, assumed the care of the seamen when the vessel first arrived. This firm's obligation to furnish necessary food and clothing to these men continued during the period ownership of the vessel remained in its principal's name and while the men remained on board. The obligation could not be avoided by merely notifying the consul of its intention to withdraw its support. Hence, during the period December 15, 1920, to February 4, 1921, these seamen were subsisted by parties obligated to do so and there was no authority to make reimbursement from funds of the United States. For this reason the disallowance of the item of $324.30 is sustained.
Upon review of the matter the settlements are revised and the sum of $465.89 certified for allowance in the accounts of the consul.
RIVER AND HARBOR CONTRACTS IN EXCESS OF APPROPRIA
In view of section 10, of the act of September 22, 1922, 42 Stat., 1043, permitting
river and harbor improvements to be prosecuted by direct appropriations or continuing contracts, or both, contracts for such work may be made involving the expenditure of amounts in excess of the then available apppropriations, provided it is specifically stated in such contracts that the Government is not bound for the payment of any sum in excess of that then available from the allotment by the Secretary of War, nor liable in any manner for the failure of Congress from time to time to appropriate for work done in excess of available funds or to appropriate funds to con.
tinue or complete the work. Comptroller General McCarl to the Secretary of War, February 3, 1923:
There has been submitted by your authority the request of the Chief of Engineers, United States Army, for decision as to whether a contract may be lawfully entered into under the provisions of section 10 of the act of September 22, 1922, 42 Stat., 1043, for dredging in Honolulu Harbor, Hawaii, at a cost of from $949,540 to $1,028,764.80 when the only funds available at this time for such work consist of an allotment of $300,000 from the amount appropriated by the act of June 30, 1992, 42 Stat., 760.