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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.

DEPARTMENT OF THE ARMY,

Washington, D. C., October 22, 1948. Hon. EARL C. MICHENER,

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 ali 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 & 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.

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

sea.

urgently requested by the captain of the boat. No steps were taken toward affording such protection. For the foregoing reasons the Department of the Army believes that Major Earl should be compensated in a reasonable amount for the damage sustained by him on account of the loss of the Eldora.

The claim filed by Major Earl with the War Department, as herein before stated, was in the amount of $10,509.21, and the award that would be provided by the enactment of H. R. 6475 in its present form is in the same amount. This amount was based on the cost of the construction and outfitting of the boat. While construction costs, by themselves, are not as a rule regarded as a proper measure of damages for the destruction of property, it was pointed out by the claims officer in Hawaii who originally investigated this claim that in the present case such a measure of damages is the fairest and most accurate for the reason that a boat such as the Eldora does not depreciate in a period of 2 years after its construction (the approximate age of the boat at the time of its loss) since a large amount is usually spent in improvements during the first 2 years after the boat is built. The evidence shows that the owner of the Eldora spent at least $1,000 a year for each of the 2 years the boat was in use in servicing and improving it. Moreover, estimates of the value of the Eldora at the time of her destruction were submitted by the builder of the boat and by two apparently disinterested parties in the amounts of $10,500 $12,000, and $13,500, respectively. It appears, however, that after the Eldora had been in use for about a year the original motor was replaced by a new one. The cost of the new motor was properly included in the valuation of $10,509. 21 placed on the boat by the owner, but the cost of the original motor, $1,941.79, less $500 (amount recevied for the old motor), or $1,441.79, was also included. It is the view of the Department of the Army that said amount of $1,441.79 should be deducted from the amount of the claim ($10,509.21) since when the old motor was replaced its value ceased to form a part of the value of the vessel. It is, therefore, believed that an award in the amount of $9,067.42 ($10,509.21 less $1,441.79) would constitute a fair and reasonable settlement of this claim. It may be stated, that on July 31, 1944, while Major Earl's claim was under consideration by the War Department, 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 final settlement of his claim.

This claim cannot be reconsidered and approved under the provisions of the act of July 3, 1943, supra, in view of the well-settled principle of administrative law that a decision made by the head of a Government department within the scope of his authority cannot be reviewed and set aside by his successor in office (34 Op. Atty. Gen. 55, 60). The only method, therefore, by which this claim may now be settled is through the enactment by the Congress of a private relief bill such as H. R. 6475. For this reason and upon the facts and considerations hereinbefore set forth, the Department of the Army would have no objection to the enactment of this bill if it should be amended to provide for an award to the claimant in the amount of $9,067.42.

This claimant has no remedy under the Federal Tort Claims Act (60 Stat. 842; 28 U. S. C. 921), since the claim accrued prior to January 1, 1945.

The Bureau of the Budget advises that there is no objection to the submission of this report. Sincerely yours,

KENNETH C. ROYALL,

Secretary of the Army.

STATEMENT OF FACTS RE CLAIM OF ERWIN F. EARL FOR Loss OF SAMPAN “ELDORA"

Pursuant to orders of Lt. Col. Vincent S. Burton, Infantry, United States Army, the district commander, Hawaii District, issued immediately following the outbreak of war December 7, 1941, claimant's vessel, the Eldora, was impounded and directed to proceed to its home anchorage at Hilo. Two members of the civilian defense were placed aboard and given jurisdiction of the vessel and its JapaneseAmerican crew of three. The route the vessel was directed to take was via South Point (sce exhibit F, affidavit of Col. Charles J. Benda). The vessel reached South Point on about December 16, 1941, and was there ordered detained by Capt. Edmund K. Hohu, at that time commanding officer of Company G, Two Hundred and Ninety-ninth Infantry, and Morse Field, Kau, Hawaii, pursuant to orders theretofore received from Colonel Burton (see exhibit G, affidavit of Captain Hohu). Pursuant to Captain Hohu's orders, the vessel lay at anchor at South Point with its crew and armed guard aboard for approximately 3 or 4 days

in close proximity to headquarters ashore, during which time meals for the personnel aboard were sent aboard from the station ashore (see exhibit J, statement of Matsunori Matsuo, master of the Eldora).

On the fourth day of the vessel's detention at South Point, the crew was taken off the vessel under guard pursuant to orders of Captain Hohu and over the objection of the master of the vessel, who directed specific attention to the danger of loss of the vessel if permitted to be anchored with no one aboard (see exhibit J), Matsuo was then interviewed by Colonel Benda, commanding officer of the Second Battalion, Two Hundred and Ninety-ninth Infantry, whose personal attention was again directed by Matsuo to the fact that the vessel had been left with no one aboard and that anchors would not afford adequate protection. The following excerpts from the testimony of Matsuo are highly significant (exhibit J, beginning at page 5):

"Q. When you came to Hilo what did you do?-A. They took me to the armory. "Q. Whom did you see?-A. Colonel Burton and Colonel Benda. "Q. Who did most of the talking?--A. Colonel Benda. "Q. What was said when you got into the armory?-A. He told us there was nothing to be afraid of, just a routine check-up. They gave us food.

"Q. Did you say anything then?-A. I told them the boat was not safe. He asked me if anyone was on the boat. He ran to the phone and phoned Morse Field headquarters.

"Q. What did he say?-A. He was bawling out the sergeant. Saying we have to pay for it.

"Q. What did he say next?-A. He talked with the armed guards that came with us and told the sergeant to obey his orders. "Q. Did you discuss the matter of the safety of the boat with Colonel Benda? A. Yes.

"Q. Did he make any suggestions with regard to making the boat safe?-A. Yes. "Q. What were these?-A. He suggested a stern anchor. "Q. What was your statement with regard to the stern anchor?—A. It is no good.

"Q. What did he say to that?-A. He agreed with me. I told him that three anchors or any number of anchors would do no good at that anchorage. "Q. What did he say?-A. He told me, “Don't worry". "Q. What did you say?-A. Did not argue further. I asked him who was going to put the anchor on. "Q. What did he say?-A. He said that he would have the boys at Morse Field put the anchors on.

"Q. Did you make any recommendations with regard to keeping watch on the boat in order to contribute to its safety?-A. Yes; both Colonel Benda and I did.

"Q. What did he say that he was going to do with regard to guards?--A. He said he was going to keep two on the boat at all times."

The concern of the master of the vessel for its safety if left unmanned was concurred in by Colonel Benda. He realized the danger to the vessel if left Unmanned in such a poor anchorage and made affirmative recommendations to Colonel Burton that ** * at least two competent men should be placed aboard the Eldora in addition to the added precaution of another anchor.” (See exhibit F, p. 2, affidavit of Colonel Benda.)

Colonel Burton apparently concurred in Colonel Benda's recommendation for, as Colonel Benda declares in his affidavit (exhibit F, p. 2):

Colonel Burton then advised this deponent that he would see that Captain Hohu

took proper precautions to protect and safeguard the Eldora.Notwithstanding the foregoing, Captain Hohu was content to place his reliance for the safety of the vessel upon a third anchor, in spite of the fact that the inadequacy of such a measure was known to the officer in command of his battalion (Colonel Benda) and to Colonel Burton, the acting military governor and district commander, Hawaii District. On December 19, 1941, the same day and in fact a few hours after the crew had been removed, the eventuality which was anticipated by the master of the vessel, as well as by Colonel Benda, occurred. The Eldora broke its moorings, drifted out to sea, and was lost.

From the communication dated September 12, 1946, addressed to the claimant, it is clear that the obligation of the military to safeguard the vessel is conceded and that proper precautions obviously contemplated the maintenance of a watch aboard. The memorandum of September 12, 1946, seeks to justify the omission

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to maintain personnel aboard by the injection of arguments that have no factual basis or support, namely:

(a) That no men were available for such duty; and, (6) That the presence of any personnel aboard would have been inconsistent with the military purpose that was intended to be subserved by ordering the vessel to be anchored at South Point.

As to reason (a), the memorandum of September 12, 1946, tacitly concedes the absence of evidence by declaring that (p. 2) “*

there is no evidence that any such persons were available.”

There is not the slightest suggestion in the affidavits of Colonel Benda and Captain Hohu (exhibits F and G) that the failure to maintain a watch aboard the Eldora while anchored at South Point was due to the unavailability of personnel. The precise contrary is the only conclusion properly deducible from Colonel Benda's frank acknowledgment of the danger to the safety of the vessel if left unmanned and his affirmative recommendation to Colonel Burton that two men be placed aboard. Colonel Benda was the battalion commander of the troops under whose jurisdiction the Eldora lay and as such was obviously completely cognizant of the personnel available under his command when he made his recommendation that a watch be placed aboard the vessel. To conclude otherwise, as does the memorandum of September 12, 1946, is to say that Colonel Benda's recommendation was wholly fatuous and inane and that Captain Hohu's judgment, based on 5 months in the islands, and his lack of experience with the vagaries of the Pacific (see exhibit G, Captain Hohu's affidavit) justified his disregard of the danger which had been recognized by his superiors. It seems clear that there is no factual support for the contention that no personnel were available.

Analysis of the evidence likewise establishes the factual sterility of the second proposition upon which the memorandum of September 12, 1946, rests. ports to propound the thesis that the vessel was deliberately left unmanned as a military measure in that (p. 2);

it was intended that the vessel would be destroyed in the event of an enemy attack, or if it drifted from its anchorage or for any other reason put to sea, and the presence of any personnel aboard her would have embarrassed any effort to accomplish this end.'

With all due respect to the writer of the memorandum, the observation is irresistible that this conclusion is an afterthought injected for the purpose of vitiating what would otherwise be compensable negligence within the purview of the act of July 3, 1943. In the first place, it is important to ascertain from the evidence the true reason why the Eldora was detailed at South Point. Pursuant to orders of Colonel Burton, issued immediately after the outbreak of hostilities, all fishing vessels had been ordered impounded and returned to the anchorage nearest their fishing ground (exhibit F, Colonel Benda's affidavit, par. 4). On December 8, 1941, the Eldora put into Miloii, having fished on the preceding day in the waters off that port, and on arrival there its master first learned of the events of the preceding day at Pearl Harbor. The vessel was held at Miloii for approximately 4 days; that is, until December 12, 1941. On December 13, 1941, pursuant to orders issued by Colonel Burton, it sailed for its home anchorage at Hilo Harbor in custody of the military with two armed guards aboard. It had been ordered to proceed by way of South Point and to report to the commanding officer there and then to proceed to Hilo (see exhibit J, statement of Matsuo, master of the Eldora). (See also exhibit F, Colonel Benda's affidavit, par. 5.) Appropriate instructions had been issued to shore batteries and other military personnel along the route which the Eldora was ordered to traverse to assure its safety while en route. Notwithstanding the precautions taken by the military authorities to assure the safe passage of the Eldora and other similarly impounded fishing vessels en route to their home ports, some of them had been fired upon by our shore batteries and planes. As a consequence, when the Eldora reached South Point and reported to Captain Hohu as previously directed, the danger to the Eldora from inadvertent gunfire was considered so imminent if it proceeded further that, pursuant to further orders of Colonel Burton, it was there detained for its own safety.

There is not the slightest suggestion in any of the evidentiary material that any reason other than the desire and determination to protect the Eldora, the property of an American citizen, was the motivation for its detention at South Point. To suggest, as does the memorandum of September 12, 1946, that the destruction of the vessel was contemplated and that such destruction would be embarrassed by the maintenance of personnel aboard is in direct opposition to the the facts. It is of the utmost significance and importance that the Eldora lay

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