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off South Point for 4 days with the full crew of three Japanese-Americans and the two armed guards aboard before the order was issued removing the crew for questioning to Hilo and at the same time relieving the armed guard from further service aboard it. The very fact that the Eldora thus lay for 4 days fully manned utterly destroys the validity of the contention that the vessel was left unmanned in order to facilitate its destruction if deemed militarily expedient. The simple and stark fact remains that Captain Hohu, presumably pursuant to orders from Colonel Burton, detained the crew and its armed guard aboard the vessel until December 19, 1941, at which time:
* I called Lt. Col. Vincent S. Burton for further orders concerning the detention of the sampan and the crew; that Lt. Col. Vincent S. Burton ordered me to release Mr. David Paris and Mr. Bob Leslie and to furnish the necessary transportation for their return to their home at Kona, Hawaii; that I was ordered by Lt. Col. Vincent S. Burton to have the Japanese American crew brought to his headquarters at Hilo under guard; that I detailed Sgt. P. Frendo the duty and gave him the necessary orders with instructions to pick up another anchor and rope; that the Japanese-American crew were safely turned over to the district commander *" (affidavit of Captain Hohu, exhibit G).
It will be noted that although Captain Hohu in his affidavit meticulously details the orders given him by Colonel Burton pertaining to the disposition of the Eldora and its crew, he makes no reference whatsoever to the contemplated destruction of the vessel as a military expedient. On the contrary, his emphasis is on the safety of the vessel and the means which he employed toward that end, the placement of an additional anchor, the posting of a special watch ashore, etc. All of these things graphically establish that the protection of the vessel and not its destruction was Captain Hohu's primary concern. They likewise furnish a clear-cut basis for allowing Major Earl's claim, for they demonstrate beyond peradventure that Captain Hohu by leaving the vessel unmanned and placing his reliance on a third anchor was negligent in his selection of the appropriate means to safeguard the vessel thus placed under his jurisdiction. Before the master of the vessel responded to Captain Hohu's command ordering him and his crew ashore, he specifically and categorically pointed out to Captain Hohu the danger inherent in such a move, as follows (exhibit J, p. 4):
Q: What was the next order you got from ashore?-A. That we take all Faluables and get off the boat. "Q. Who gave you that order?-A. Captain Hohu. "Q. When?-A. That was the last day that we were at anchor, 4 days after we had pulled in. "Q. What did you tell Captain Hohu?--A. I said, 'I can't leave the boat.' "Q. Did you apprise him of the danger to the boat if abandoned?-A. Yes. "Q. What did you say?-A. I told him that the boat would drift out to sea and if the wind changed
she would go on the rocks. "Q. What did he say?-A. He said, “That is orders. Can't do anything. The culpable error in judgment on the part of Captain Hohu, for which the military authorities were answerable to the owner of the vessel in the event of its less, was immediately apparent to Colonel Benda. This is clearly established by the following excerpt from the testimony of the master of the Eldora (exhibit J, p. 6):
"Q. Did you say anything then?—A. I told them (Colonel Burton and Colonel Benda) 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.”
AFFIDAVIT OF MAJ. ERWIN F. EARL CITY AND COUNTY OF HONOLULU,
Territory of Hawaii: Personally appeared before me, the undersigned authority for administering oaths, one Maj. Erwin F. Earl, who, first being sworn acwording to law, deposes and says: That with reference to letter SPJGP/D-44227 (Earl, Maj. Erwin F.) dated August 10, 1945, subject: "Claim for loss of sampan,” the evidence of the record is contrary to the statements of opinion made in subject letter. Specifically, paragraph 2 states in part,"loss of your sampan was not caused by any negligence or wrongful act on the part of military personnel,” Capt. Matsunori Matsuo, of the Eldora, states in sworn testimony incorporated in the original
claim as follows: On page 3, "I told him that it was no place to anchor the boat," on page 4, in answer to the question, "Did you apprise him of the danger to the boat if abandoned?” Answer “Yes." The next question is: “What did you say?" the answer being “I told him that the boat would drift out to sea and if the wind changed she would go on the rocks.” Further reference is made to the insecurity of the anchorage specified by military authorities on page 6 of Captain Matsuo's testimony when he was asked the question, “Did he make any suggestion with regard to making the boat safe?”, the answer being “Yes." The next question was, “What were these?” and the answer, “He suggested a stern anchor”; next question “What was your statement with regard to the stern anchor?" answer, “It is no good”; next question, "What did you say to that?" Answer, “He agreed with me. I told him that three anchors or any number of anchors would do no good at that anchorage.” This should have clearly indicated to the military authorities, including Lieutenant Colonel Burton, who was present at the interview and who as district commander gave the orders for impounding the boat, as well as her subsequent anchorage at South Point, that the anchorage at South Point was highly unsafe, and the fact that he as district commander took no further action for securing the safety of the Eldora is clear indication of negligence.
Further recognition of negligence is made by Col. C. J. Benda in his affidavit which is also incorporated in the claim. Paragraph 9 of Lieutenant Colonel Benda's testimony states in part: "that during the questioning of the crew it developed that the Eldora had been left at South Point anchorage with no crew member or other personnel aboard. That this deponent realizing the danger such a poor anchorage in the event of heavy seas, recommended to Lieutenant Colonel Burton that at least two competent men should be placed aboard the Eldora in addition to the added precaution of another anchor.”* Lieutenant Colonel Burton not only failed to put two competent men aboard, but neglected to put anyone whatsoever aboard, at the same time retaining the crew members of the Eldora including her captain in custody at Hilo. This provides clear and concise evidence of negligence on the part of the military authority and disproves the state ment in paragraph 2 of letter SPJGD/D-44227, dated August 10, 1945, which states in part, "It does not appear that the military authorities omitted to do anything which could, under the circumstances, reasonably have been done to minimize the risk of loss of the vessel.”
Paragraph 2 of SPJGD/D-44227 further states: "The evidence of record does not establish that you were prevented from taking whatever measures were necessary for the protection of your property." The deponent has shown in sworn affidavit relative to the delegation of authority to Captain Matsuo that the care, preservation, operation and safety of the vessel were among the duties of the captain," and that "the owner further instructed Matsnori Matsuo that he was to remain in complete control of the Eldora during the owner's absence from Hilo, and that the movements of the vessel throughout waters adjacent to the Hawaiian Islands, and the taking and disposal of fish from these waters were to be his responsibility entirely, as well as the care, preservation, operation, and safety of the vessel; further that Matsunori Matsuo agreed to do these things to the best of his ability and judgment as captain of the Eldora, and that he truly and faithfully performed the duties to the satisfaction of the owner up to and/or on about December 8, 1941, when the control of the Eldora was forcibly removed from his jurisdiction by orders of the district commander of the island of Hawaii.”
Reference is made to page 4 of Captain Matsuo's sworn statement included in the body of the claim in which he was asked the question: “What was the next order you got from shore?”' the answer being: “That we take all valuables and get off the boat". Next question: “Who gave you that order?" Answer:"Captain Hohu." Another question: "\Vhat did you tell Captain Hohu?" Answer: "I said, I can't leave the boat.”. Question: "What did he say?" Answer: “He said, 'That is orders, can't do anything.' Question: "When he gave you these orders, was he armed?" Answer: "He always carried side arms.” Question: "Was he in the presence of other soldiers?” Answer: “Two or three soldiers.” Question: "Were these guards armed?" Answer:. “Always.” Question: "Did you comply with these orders and abandon ship?” Answer: "Naturally, I didn't want to argue with machine guns." The deponent contends that the foregoing offers concrete and ample evidence that Captain Matsuo, by reason of his forcible removal from the Eldora was unable to take any measures whatsoever to insure the protection of the vessel, that in the case of Captain Matsuo, he was indeed prevented from taking the necessary measures for preservation of the Eldora because of his forcible removal therefrom by the military authorities, and the Eldora was subsequently lost as a direct result of this action while she was presumably being cared for by
the military personnel stationed at South Point and under the direct control of the district commander.
The fact that no contractual arrangement was effected in itself constitutes further proof of negligence on the part of district commander who, utilizing the authority vested in him under military law, arbitrarily impounded the Eldora upon the outbreak of hostilities and made no effort whatsoever to protect the owner's interests even to the extent of issuance of a receipt for impounded private property. That the loss of the Eldora was the indirect result of combat activities is obvious, it being beyond the necessity of proof that a state of war existed after December 7, 1941, and that the islands of the Hawaiian group were under military law
In summary, the deponent contends that ample proof has been presented that the Eldora was seized by the military authorities, that she was entirely under their control up to and including the times when she was lost, that proof of negligence has been presented, that the owner or his representation were indeed prohibited from taking measures to insure the safety of the vessel, that having impounded the Eldora, her safety during that time devolved upon the military authorities, that regardless of what measures were taken by the military authorities to insure the safety of the vessel, she was nevertheless lost, and that the loss of the Eldora occurred while the military authorities were in complete control of the vessel, and that the responsibility for the loss was theirs and theirs alone.
Further, that the deponent, after a lapse of nearly 4 years has received absolutely no compensation for this loss and has suffered unwarranted financial hardships resulting therefrom by reason of being deprived not only of the monetary value of the vessel, but also the income resulting from her operation. And that the claim was t boroughly and completely investigated by officers of the Judge Advocate General's offices in the Territory of Hawaii, who were competent to judge the facts of the case and made written recommendation that the claim be approved when the claim was forwarded for final action, and finally, that the claim was unjustly disapproved by the Chief of the Claims Division in Washington, D. C. Further this affiant saith not.
ERWIN F. EARL 0256591,
Major, Air Corps. Subscribed and sworn to before me this 11th day of September 1945.
GORDON O. BERG,
Lieutenant Colonel, Air Corps, Acting Adjutant General, Air Depot, A. P. O. 953.
AFFIDAVIT OF MAJ. ERWIN F. EARL CITY AND COUNTY OF HONOLULU,
Territory of Hawaii, 88: I, Erwin F. Earl, major, Air Corps, 0256591, being under oath and duly worn, depose and state that I was notified by the claims officer investigating this claim that item I of the cost data sheet would not be recommended. This item represents cost of a Hill marine Diesel engine which was removed from the Eidora before her loss. It is my opinion that the cost of this engine, purchased by me for use in the Eldora, forms a legitimate portion of the total value of the boat to me, inasmuch as the total investment included cost of this engine less its estimated value at the time of its removal.
However, since I have been advised by the claims officer that he will not recommend payment of this item, I hereby agree to accept the sum of $9,067.42 as payment in full for this claim. This figure is obtained by deducting the total cost of the Hill marine engine ($1,941.79) from the total of the claim ($11,009.21).
I further agree that no other claim for loss of the Eldora will be made, other than the reduced claim for $9,067.42 herewith represented.
Erwin F. EARL,
Major, Air Corps. Subscribed and sworn to before me this 31st day of July A. D. 1944 at A. P. O.
Caplain, Air Corps, Adjutant, Four Hundred and Nineteenth Subdepot.
Honolulu, T. H., August 2, 1944. To Whom It May Concern:
The undersigned has been a shipwright and professional boat builder for 14 years.
With reference to the customs of boat builders and fishermen, when the keel of & new fishing boat is laid down, the ceremonies involve a gathering of the boat builder's crew, crew of the boat being built, owners and their representatives, and other persons interested in the fishing industry. The keel-laying ceremony includes serving of food and refreshments to all personnel involved.
There is another and much more elaborate ceremony when the boat is finished and launched. This is attended not only by persons intimately connected with the building and operating of the boat, but by well-wishers, friends, and other fishermen and dealers. The shipyard and ways are usually decorated and the christening takes place at this time. After the launching takes place it is customary to provide food and entertainment for all the guests.
Cost of these ceremonies is borne by the boat builder who in turn adds this expense to the total cost of the boat to the owners. This statement is prepared at the request of Maj. Erwin F. Earl.
Proprietor and Manager. A certified true copy:
AFFIDAVIT OF MAJ. HANS U. SMITHLINE CITY AND COUNTY OF HONOLULU,
Territory of Hawaii, 88: Personally appeared before me, the undersigned, authority for administering oaths, one Maj. Hans U. Smithline, who first being sworn according to law, deposes and says: That he was a licensed officer of the merchant marine during the years 1938 to 1943, and was rated as a master, motor vessels 350 gross tons, Hawaiian waters only. In October 1940, he was called to active duty with the Army of the United States as a second lieutenant, infantry: that Kalae Point (otherwise known as South Point) of the island of Hawaii, in his opinion, is not a safe anchorage for vessels of any type at any time. These particular waters are always exposed to any kind of weather. In addition to strong currents, ships making anchor in these waters are never afforded shelter from heavy seas and/or winds during the period of time they are anchored in the waters off Kalae Point, island of Hawaii. Navigation charts do not indicate these praters as being suitable for an anchorage nor is this information listed in any nautical publications. Furthermore, if an anchorage must be made in these waters, the master of the vessel should at all times have his ship and crew standing by to get under way in short order to prevent being forced aground or having the vessel drag anchor(s) and drift to sea. Further deponent sayeth not.
H. U. SMITHLINE,
Major, Air Corps. Subscribed and sworn to before me this 11th day of September 1945.
GORDON O. BERG,
Acting Adjutant General,
Air Depot, A. P. 0. 959. O
EVER READY SUPPLY CO. AND HAROLD A. DAHLBORG
May 5, 1949.—Committed to the Committee of the Whole House and ordered to be
Mr. BYRNE of New YORK, from the Committee on the Judiciary,
submitted the following
[To accompany H, R. 4307]
The Committee on the Judiciary, to which was referred the bill (H. R. 4307) for the relief of Ever Ready Supply Co. and Harold A. Dahlborg, having considered the same, reports favorably thereon without amendment and recommends that the bill do pass.
The purpose of the proposed legislation is to pay the sum of $210 to Ever Ready Supply Co., and to pay the sum of $57.60 to Harold A. Dahlborg, of Brockton, Mass., in full settlement of all claims against the United States for property damage, personal injuries, and loss of wages sustained as a result of an accident involving a United States Army ambulance at the intersection of Washington and Main Streets, North Easton, Mass., on July 16, 1940.
STATEMENT OF FACTS
It appears that on July 16, 1940, an Army ambulance, operated by an enlisted man on official business, was proceeding in a southerly direction on Washington Street in North Easton, Mass., at a speed of approximately 35 miles an hour. As the Army driver approached the intersection of Washington and Main Streets the traffic light facing him changed from green to yellow but, despite such change, he continued to drive his vehicle into the intersection. As he proceeded into the intersection he observed an automobile owned by the Ever Ready Supply Co. and operated by Harold A. Dahlborg, which had entered the intersection on Main Street and was traveling in a westerly direction. The driver of the Army vehicle thereupon applied his brakes, but he was unable to avoid a collision. The Army vehicle struck the rear portion of the right side of the civilian vehicle, causing the latter vehicle to turn completely around. As a result of the accident the civilian automobile was damaged in the amount of $210,