first class, Army of the United States, deceased, incident to his service in the Canadian Army which amount was paid to the United States by the Government of the Dominion of Canada, February 27, 1943, for his credit but which was erroneously paid by a United States finance officer to another individual of a similar name, and to allow in full and final settlement of the claim or claims not to exceed $59.58. There is hereby appropriated out of any moneys in the Treasury, not otherwise appropriated, the sum of $59.58, or so much thereof as may be necessary, for the payment of such claim or claims."

Respectfully,

ERWIN F. EARL

MAY 5, 1949.-Committed to the Committee of the Whole House and ordered to be printed

Mr. BYRNE of New York, from the Committee on the Judiciary, submitted the following

REPORT

To accompany H. R. 37201

The Committee on the Judiciary, to whom was referred the bill (H. R. 3720) for the relief of Erwin F. Earl, having considered the same, report favorably thereon with an amendment and recommend that the bill as amended do pass.

The amendment is as follows:

Page 1, line 6, strike out "$10,509.21", and insert in lieu thereof "$9,067.42".

The purpose of the proposed legislation is to pay the sum of $9,067.42 to Erwin F. Earl, of Honolulu, T. H., in full settlement of all claims against the United States on account of the total loss on December 19, 1941, of his 12-ton sampan, Eldora, Federal serial No. 32-B-534, which he suffered as a result of the activities of the armed forces of the United States.

It appears that on December 7, 1941, Erwin F. Earl, then residing and employed at Makaweli, Kauai, T. H., later a commissioned officer in the Army with the grade of major, was the owner of the 43-foot Diesel-powered fishing sampan Eldora, which vessel, operated by a captain and crew employed by the owner, was engaged in commercial fishing off the island of Hawaii. Full control of the fishing business and the operation of the boat was exercised by the captain, who was an American citizen of Japanese ancestry, as were the members of the crew.

Immediately after the outbreak of the war on December 7, 1941, the military authorities in Hawaii issued an order directing that all fishing boats, sampans, and motor-operated pleasure boats be returned to the anchorage nearest their fishing grounds to await further orders. Pursuant to such order the Eldora was impounded upon its return to Milolilii, Kona, Hawaii, on the afternoon of December 8, 1941.

The boat was anchored offshore, the crew were ordered to remain aboard, and two civilian guards from the Office of Civilian Defense were stationed on the boat. On the morning of December 12, 1941, pursuant to the orders of the military authorities, the Eldora started to return from Milolilii to its home port of Hilo, Hawaii. The boat was manned by its crew under the supervision of the two civilian guards. During the course of the day other sampans returning to home ports on the island of Hawaii were fired upon by unidentified airplanes and damaged or sunk with resulting injuries to personnel on board. When the Eldora reached South Point, Hawaii, on the afternoon of December 12, 1941, the commanding officer, Morse Field, located at that place, acting under orders, directed that the boat be anchored offshore where it could be covered by machine-gun fire if the necessity should arise. On December 16, 1941, the captain and crew were taken from the boat to Hilo for questioning by military personnel at district headquarters and the civilian guards were relieved. The captain of the boat protested that if the boat should be left unattended it might drift out to sea or go aground, but he was informed by the commanding officer, Morse Field, that he (the commanding officer) was acting under orders and that nothing could be done about it.

The evidence shows that the commanding officer, Morse Field, and other military personnel realized that the anchorage at South Point was unsafe and that there was danger of the boat being lost in the event of bad weather. Upon the orders of the commanding officer, Morse Field, a third anchor was added to the two already being used, and the anchors held until December 19, 1941, when there was an unusually high wind and a very heavy sea. At about 5:30 p. m. on that date the boat broke from its anchorage, drifted out to sea, and was never recovered.

The Secretary of the Department of the Army states that Mr. Earl had filed a claim for $10,509.21 and on July 31, 1944, while his claim was under consideration by the Department of the Army, he signed and filed with the Department an acceptance agreement in which he agreed to accept the sum of $9,067.42 in full satisfaction. And it is further stated that the Department of the Army would have no objection to the enactment of this bill should it be amended to provide for an award to the claimant in the amount of $9,067.42. Therefore, in view of the fact that the claimant signed an acceptance agreement in this amount, your committee recommends favorable consideration of the bill, as amended.

Hon. EARL C. MICHENER,

DEPARTMENT OF THE ARMY, Washington, D. C., October 22, 1948.

Chairman, Committee on the Judiciary, House of Representatives.

DEAR MR. MICHENER: The Department of the Army would have no objection to the enactment of H. R. 6475, Eightieth Congress, a bill for the relief of Erwin F. Earl, if it should be amended as hereinafter recommended.

This bill would authorize and direct the Secretary of the Treasury "to pay, out of any money in the Treasury not otherwise appropriated, to Erwin F. Earl, of Honolulu, Territory of Hawaii, the sum of $10,509.21, in full settlement of all claims against the United States on account of the total loss on December 19, 1941, of his 12-ton sampan, Eldora, Federal Serial Numbered 32-B-534, which he suffered as a result of the activities of the armed forces of the United States."

On December 7, 1941, Erwin F. Earl, then residing and employed at Makaweli, Kauai, T. H., later a commissioned officer in the Army with the grade of major, was the owner of the 43-foot Diesel-powered fishing sampan Eldora, which vessel, operated by a captain and crew employed by the owner, was engaged in commercial fishing off the island of Hawaii. Full control of the fishing business and the operation of the boat was exercised by the captain, who was an American citizen of Japanese ancestry, as were the members of the crew. Immediately after the outbreak of the war on December 7, 1941, the military authorities in Hawaii issued an order directing that all fishing boats, sampans, and motoroperated pleasure boats be returned to the anchorage nearest their fishing grounds to await further orders. Pursuant to such order the Eldora was impounded upon its return to Milolilii, Kona, Hawaii, on the afternoon of December 8, 1941. The boat was anchored offshore, the crew were ordered to remain aboard, and two civilian guards from the Office of Civilian Defense were stationed on the boat. On the morning of December 12, 1941, pursuant to the orders of the military authorities, the Eldora started to return from Milolilii to its home port of Hilo, Hawaii. The boat was manned by its crew under the supervision of the two civilian guards. During the course of the day other sampans returning to home ports on the island of Hawaii were fired upon by unidentified airplanes and damaged or sunk with resulting injuries to personnel on board. When the Eldora reached South Point, Hawaii, on the afternoon of December 12, 1941, the commanding officer, Morse Field, located at that place, acting under orders, directed that the boat be anchored offshore where it could be covered by machinegun fire if the necessity should arise. On December 16, 1941, the captain and crew were taken from the boat to Hilo for questioning by military personnel at district headquarters and the civilian guards were relieved. The captain of the boat protested that if the boat should be left unattended it might drift out to sea or go aground, but he was informed by the commanding officer, Morse Field, that he (the commanding officer) was acting under orders and that nothing could be done about it. The evidence shows that the commanding officer, Morse Field, and other military personnel realized that the anchorage at South Point was unsafe and that there was danger of the boat being lost in the event of bad weather. Upon the orders of the commanding officer, Morse Field, a third anchor was added to the two already being used, and the anchors held until December 19, 1941, when there was an unusually high wind and a very heavy At about 5:30 p. m. on that date the boat broke from its anchorage, drifted out to sea, and was never recovered.

sea.

On April 2, 1944, Major Earl filed a claim with the War Department (now Department of the Army) in the amount of $10,509.21 for damages on account of the loss of the Eldora. After a careful consideration in the Department the claim was disapproved on July 30, 1945, under the provisions of the act of July 3, 1943 (57 Stat. 372; 31 U. S. Č. 223b), on the grounds that the loss of the boat was not caused by any negligence or wrongful act on the part of the military personnel who ordered the Eldora to anchor and remain at South Point, and that the restriction of the use of the vessel and the removal of the captain and crew thereof were lawful and reasonable in the light of the existing military situation.

Thereafter, on September 10, 1945, Major Earl appealed to the Secretary of War (now Secretary of the Army) from the action taken in disapproving his claim. The claim was then reviewed by the Secretary, but on September 9, 1946, the prior action of disapproval was sustained and the appeal therefrom denied, on the same grounds on which it had theretofore been disapproved, and on the further ground that there was no bailment of the Eldora to the Government. A finding that a bailment did in fact exist would have made the claim, if otherwise meritorious, compensable under the provisions of the act of July 3, 1943, supra.

Since the denial of Major Earl's appeal on September 9, 1946, the Department has had occasion to consider various other claims arising out of similar circumstances, and, in the light of the further study given to this matter, has come to the conclusion that the detention and impounding of private property, as in the case of the Eldora, constitutes a bailment. Under this view, the United States, as bailee of the property detained, has a duty to exercise a reasonable degree of care for the protection of such property and in due course to return it to the owner in the same condition in which it was received. It is not believed that "a reasonable degree of care" was exercised for the protection of the Eldora. The evidence shows that the military authorities who took custody of the boat were fully aware of the danger inherent in leaving her unattended and knew, or should have known, that if the boat should be detained at the exposed anchorage it could be protected in the event of a storm only by having an experienced crew aboard her, as was