1 Reporter's Statement of the Case President McKinley, another vessel owned and operated by the Dollar Company, it does not seem to me that under the above quoted Regulation this office is authorized to expend "public funds" in taking care of these 176 men. I should of course be quite willing to place the question before the Department of State in Washington for decision, should you so desire, and consent to an advance of the cost of the necessary cables. There does not seem to me that there is a great deal of doubt as to what decision the Department of State would take, and I am therefore unable to recommend that you incur the expense of cabling. Whether or not we cable is of course for you to decide, and my expression of the opinion above is not aimed at influencing you to the contrary. Regretting that our Regulations, as it seems to me they are interpreted, do not permit concurrence in your request, I am, * On December 18, 1937, Mr. Arndt wrote to the American Consul General at Hong Kong as follows: I have to acknowledge receipt of your letter of December 17, and in consideration of the views expressed therein, I wish to inform you that we are making arrangements to provide board and lodging for these men in Hong Kong, and will arrange to repatriate them to the United States by the S. S. President McKinley, sailing on December 20. I wish to place on record, however, that we are doing this without prejudice to any claims which might later be made under benefit of any laws which may be applicable to this case. 9. On December 20, 1937, the President McKinley embarked at Hong Kong, China, 145 of the 174 former members of the crew of the President Hoover, and transported them to the port of San Francisco, California, where they were disembarked on January 7, 1938. There is no evidence that the master of the President McKinley was requested by a consular officer of the United States to take on board the 145 seamen, or to transport them from Hong Kong to California, and no certificate with respect to their transportation was issued by a consular officer of the United States prior to their embarkation on the President McKinley at Hong Kong. Reporter's Statement of the Case 105 C. Cls. 10. On December 21, 1937, Mr. Arndt wrote again to the American Consul General as follows: With reference to our letter to you of December 17, your reply of December 17, and our further letter of December 18: and also with reference to the writer's interview with you of yesterday, at which time I conveyed to you the insistence of my Principals that, under the Navigation Laws of the United States of America, Statutes 4577 and 4578, the maintenance and transportation of the shipwrecked crew of this vessel should be for account of the American Consulate, and your refusal to accept responsibility for the expense of maintenance and repatriation of the crew, I am now instructed by my Principals to record our emphatic protest against your decision in this case; and we wish again to record that any action taken by us in providing maintenance and repatriation for these men, due to your refusal to accept this responsibility, is being taken by us without any prejudice whatever to any claims which might later be made for this expense which, in our opinion, is definitely for account of the American Consulate under the U. S. Navigation Laws. The American Consul General replied as follows: Referring to our conversation of yesterday afternoon, it has occurred to me that your Shanghai office may be interested in consulting 48 Stat. 533 (Act of April 7, 1934), as one of the statutory limitations regarding transportation at Government expense of destitute or shipwrecked seamen. This statutory limitation would seem to prohibit the use of official funds for payment to steamship owners or operators for transporting a destitute or shipwrecked seaman if the last previous service of the destitute or shipwrecked seaman was on a vessel of such steamship owner or operator, and was not terminated by desertion. The above indicated statutory provision would appear to prevent this, or any other consular office, undertaking to transport at official expense any of the seamen from the S. S. President Hoover, including those still at the scene of the stranding. This office continues to hold itself ready to be of any assistance to your Company which the regulations by which it is governed may permit. However, in questions at issue we would be unable to arrive at a decision until after reference to the Department of State. We 1 Reporter's Statement of the Case are not undertaking to refer the questions to Washington in the absence of a specific request from your Company, and you know, of course, that in the event of the use of the telegraph we would require from you a guarantee of such part of the cost of cabling as might not be approved from official funds. * 11. Further correspondence was addressed by Mr. Arndt to the American Consul. On December 22, 1937, he wrote the American Consul as follows: I am pleased to acknowledge receipt of your letter of December 21; however, with reference to the second paragraph, I would point out that the repatriation of part of the S. S. President Hoover crew is being made on the S. S. President McKinley, which is a vessel owned and operated by the American Mail Line, and that the previous service of these shipwrecked seamen was for the Dollar Steamship Line and not for the American Mail Line. The statute quoted in your letter, therefore, would not seem to apply. Our principals have since called to our attention that under U. S. C. 679, particularly the subdivision in the second last paragraph thereof, and also U. S. C. 678, there seems to be a clear provision whereby the American Consulate must provide subsistence and transportation for the account of the United States Government in cases of this kind. On December 24, 1937, he wrote the American Consul as follows: With reference to previous correspondence and discussions with you in regard to liability for maintenance and repatriation of the crew of the above vessel, we have now received a further radio from our Principals stating that, in regard to the Comptroller's Orders, to which you referred us, these were overruled by the U. S. Supreme Court, and our Principals asked us to call to your attention the case of the Alaska Steamship Co. v. U. S. A., 290 and U. S. 256/264. Therefore, we trust you will see your way clear to provide the necessary subsistence and transportation expenses for this crew. In view of our telephone conversation with you of this morning, however, it appears that it will be necessary for you to secure specific authority from Washington. This being the case, we hereby request that you kindly 69779546-vol. 105- -3 Reporter's Statement of the Case 105 C. Cls. put the matter before Washington by cable, and we hereby undertake to reimburse you for any cable expenses in this connection which may, at a later date, be disallowed by the U. S. Government. 12. On December 23, 1937, the Consul General at Hong Kong sent the following radiogram to the Secretary of State, Washington, D. C.: ROUTINE VEDBY Because of Note two paragraph two hundred sixty and Note sixteen paragraph two hundred seventy-five of Consular Regulations this office has deferred acceptance local Robert Dollar Company demand that it maintain and repatriate crew of S. S. President Hoover brought to Hong Kong by S. S. President Pierce of Dollar Steamship Company Period Is Consulate General authorized maintain and repatriate balance of crew of Hoover if brought to Hong Kong by other than vessels operated by Robert Dollar Company Period Is Robert Dollar Company considered as owners of [sic] operators of both the American Mail Line and Dollar Steamship Line Please wire instructions A telegram (paraphrased) dated December 28, 1937, from the Department of State to the Consulate at Hong Kong, is quoted: Your telegram of December 23, 1 p. m. Section 260, Consular Regulations, Note 2, not now effective. If agent or owner of Hoover refuses or is not able to assume primary liability for relief and repatriation of shipwrecked seamen and they are found to be destitute by the Consul, it is his duty to arrange for necessary relief and repatriation by the most feasible means. Relief of seamen should not be unreasonably delayed and seamen allowed to suffer. It is suggested that Dollar agent might be informed that Company may submit claims respecting relief and transportation of seamen as provided by Section 271, Note 2, and the notes to Section 284 of Consular Regulations. If claim is submitted it should be supported by statement signed by Consul having knowledge of facts and by certificate of Collector of Customs certifying that seamen arrived in United States. Consular Form No. 24 should be issued for seamen shipped thereunder. See Notes to Section 282, Consular Regulations. If relief is furnished by the Consul, no payments should be made directly to the Dollar Line or the seamen. Department is informed that American Mail Line owns and operates its own ships independently of the Dollar Line. 1 Reporter's Statement of the Case 13. On January 7, 1938, Mr. Arndt wrote the Consul General at Hong Kong the following letter: With reference to our conversation of yesterday, we send you herewith a list of names of Crew Members who arrived here by the S. S. President Pierce, and who were repatriated by the S. S. President McKinley. You will note the number of these men who arrived here by the S. S. President Pierce was 174. * * * We also enclose one receipted and two copies of all bills which we have paid for maintenance of distressed seamen ex the S. S. President Hoover at this port. The total expenses for maintenance at Hong Kong amount to HK$3,680.90, for which claim will be made in due course. 14. On the same date the Consul General at Hong Kong furnished the following signed statement regarding the maintenance and repatriation of certain members of the crew of the President Hoover, to which was attached the letters above referred to, and radiogram of December 23, 1937. quoted above: Statement regarding maintenance and repatriation of certain members of the crew of the stranded S. S. President Hoover. I, the undersigned American consular officer, hereby make the following statements regarding the maintenance and repatriation of certain members of the crew of the stranded S. S. President Hoover. (1) The S. S. President Hoover, a vessel owned and operated by the Dollar Steamship Line, stranded on Hoishoto Island off the southern coast of Formosa on the night of December 10-11, 1937. (2) 174 members of the crew, which had been signed on at San Francisco, were transported from the scene of the wreck direct to Hong Kong, without intervening port of call, by the Dollar liner S. S. President Pierce, which arrived in Hong Kong on December 16th. The names and ratings of these men, as furnished by the local office of the Dollar Line, are given below, together with a statement as to what disposition was made of them: [List omitted]1 (3) On December 17, 1937, the local agent of the Robert Dollar Company requested the American Consulate A copy of this list, which contains the names, ratings and disposition of the 174 members of the crew, is appended to the stipulation filed November 30, 1943, as Exhibit C, and is made a part of finding 14 by reference. |