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small in value. Likewise claims of persons engaged in military duties in connection with the fire may be paid if all other statutory requirements are satisfied, but the claims of persons who are on duty elsewhere cannot be paid even if the fire was caused by the negligence of Government personnel; their claims are not payable because they do not come within the purview of the act of March 4, 1921, as heretofore construed, nor are such claims payable under the act of July 3, 1943, because the loss occurred incident to their service and such claims cannot now be paid under the act of December 28, 1922, because it is no longer applicable to the War partment.

There is set forth herein a digest of some actual cases which may be of interest às indicative to some extent of the hardships and injustices to certain classes of claimants under existing statutory authorizations. Enactment of the proposed legislation would make possible the payment administratively of a substantial number of meritorious claims, including those digested herein, still unsatisfied which the War Department has under existing legislation been compelled to act upon unfavorably. A multiplicity of special bills for private relief would thus be avoided.

By the passage of the act of April 22, 1943 (57 Stat. 66), commonly referred to as the Foreign Claims Act, the Congress made available to the War Department

thoroughly satisfactory and workable basis for the settlement of claims for damage caused by our armed forces in foreign countries.

The next forward step came with the passage of the act of July 3, 1943, which consolidated all then existing statutory provisions for the administrative settlement of claims other than claims under the Foreign Claims Act and claims of War Department and Army personnel.

The only field of statutory authorization with respect to military claims which has not been modernized to meet present conditions is that covering the claims of military personnel and civilian employees of the War Department or of the Army for damage to or loss, destruction, capture, or abandonment of personal property occurring incident to the service. Fair, just, and prompt administrative processing of these claims is of paramount importance, especially in time of war. The manner in which such claims are handled and

the length of time required to effect payment or other final action has a direct effect upon morale in the Army and upon relatives and friends on the home front. At the present time, members of our armed forces and civilian employees of the War Department or of the Army stationed in all parts of the world are continuously subjected to hazards which result in loss, damage, or destruction of their personal property. It has become apparent that there is urgent need for new legislation to effect a fair, equitable, and uniform basis for the settlement of such claims.

Enactment of the subject bill would make possible the settlement by disapproval, replacement in kind, or payment in money, of claims for damage to or loss, destruction, capture, or abandonment of personal property coming within the provisions thereof to be effected, after appropriate investigation and recommendation, by the Secretary of War, with power to delegate such authority in appropriate classes of cases and under applicable Army regulations.

Attention is invited to the provision that any settlement made by the Secretary of War, or his designee, under the authority of the proposed legislation and such regulations as he may prescribe thereunder, will be final and conclusive for all purposes, notwithstanding any other provision of law to the contrary. In the absence of fraud or mistake in mathematical calculations, the findings of fact, conclusions of law and the decision of the Secretary of War, or his designee, upon the merits of any claim, would not be subject to review by any other administrative or accounting officer, employee, or agent of the United States.

For the reasons above stated, the War Department recommends enactment of the proposed legislation. For the Judge Advocate General:

Ralph G. Boyd, Colonel, Judge Advocate General's Department, Chief of Claims Division. PART II. CLAIMS PROCESSED UNDER THE ACT OF MARCH 4, 1921 (41 STAT, 1436;

31 U. S. C. 218-222) As AMENDED BY THE ACT OF JULY 3, 1943 (57 STAT. 374; 31 U. S. C. 222a-222b)

The following cases are examples of meritorious claims which cannot be paid under present statutes and Army regulations issued thereunder.

For convenience of reference most of these cases have been grouped and classified under the four categories of the act of March 4, 1921, as amended and under special headings appear groups of cases not readily susceptible of such classification. 1. Losses under category first (unseaworthy vessel) (sec. 1, act of March 4, 1921)

No cases are cited because, it seems, the category is obsolete. 2. Losses under category second (fire, flood, hurricane, etc.) (sec. 1, act of

March 4, 1921)

A. FIRE LOSSES

(1) Saving life or Government property, there being a physical impossibility of

saving personal property. SPJGD/D-44034 (King).

Facts: Sergeant King was assigned to work in the Platoon Headquarters at Burbank, Calif. As he needed a typewriter for this work, and the Government did not have a machine available at that time and place, he rented a typewriter from a local firm at his own expense ($7.50 for 3 months).

On April 18, 1944, a fire broke out in the building where the typewriter and some of the sergeant's personal property were located. At the time, Sergeant King was asleep in his quarters and when he was awakened and told of the fire he found it was physically impossible for him to save the typewriter or any of his own property. He did, however, enter the burning building and save some Government property. The sergeant filed claim against the Government for the sum of $83.09 ($19 for the typewriter and $34.09 for personal property).

Held: Disapproved.

The claim could not be paid under the act of March 4, 1921 (category "second") because at the time the claimant devoted his attention to saving Government property it was physically impossible for him to save his own property. He, therefore, had no opportunity to make the election contemplated by the statute. It cannot be said that he lost his personal property in consequence of having given bis attention to the saving of Government property.

The claim could not be paid under the act of July 3, 1943, because the loss was incident to service. SPJGD/D–21558 (Loucks).

Facts: At 1305 on May 11, 1943, a fire was discovered in Building No. 640, bachelor officers' quarters, Army Air Base, Syracuse, N. Y. The board of officers found that the fire was caused by faulty construction of the building. The claimant was unable to reach his room to save his personal property because of the flames, but he assisted in removing Government property from the building and in fighting the fire.

Held: Disapproved.

Under the narrow construction which has been placed upon the applicable statute, irrespective of how much Government property the claimant saved this claim could not be paid because the physical facts were such that he had no opportunity to save his own property and therefore the loss was not in consequence of the claimant having given his attention to the saving of Government property.

NOTE.-The loss of claimant's property was in reality due to the negligence of the Government in that the fire was caused by faulty construction of the building in which the claimant was compelled to live and keep his property but, even so, the claim is not payable under the act of July 3, 1943, because the loss was incident to the claimant's service. SPJGD/D-27305 (Gulbransen).

Facts: On September 13, 1943, a fire occurred in claimant's quarters, room 37, BOQ 10-21, Army Air Base, Salt Lake City, Utah. At the time the fire was discovered claimant was in Lieutenant Harwell's room. Upon hearing the officers running in the hall, he entered the hall and saw that smoke was coming from his room. The claimant obtained a fire extinguisher and, with the aid of another officer, succeeded in getting the fire under control before the firemen arrived. At the time he began to fight the fire it had progressed to such an extent that he was unable to save any of the property for the loss of which claim is made.

Held: Disapproved.

The claimant had no opportunity to save his own property and therefore it cannot be said that his loss was in consequence of his activity in saving Government property or attempting to do so.

SPJGD/D-65057 (et al.) (Roberts and 7 others).

Facts: On November 17, 1944, fire totally destroyed BOQ, Building T 3451, Ephrata Army Air Base, Washington. Claimants, who were all asleep and were awakened by the fire, immediately gave their attention to saving the lives of other persons in the building and to the removal of Government property from the building, but by the time they were cognizant of the situation the fames and smoke made it impossible for them to take any steps toward saving their own property. Personal property of the total value of $6,444.60 belonging to the claimants was destroyed in the fire.

Held: Disapproved.

Although claimants gave their attention to saving lives of others and the removal of Government property from the building, their property was not lost and destroyed “in consequence thereof." Their property would have been destroyed in spite of any attempts on their part to save it and there was accordingly no election or opportunity to choose between saving Government property or the lives of others and their own property.

NOTE.—Claims of Lieutenant Riss 765064) and Captain Bohannan (65060), which resulted from the same fire, were allowed because of the wholly fortuitous circumstances that they were the first to discover the fire and were held to have had an opportunity to save their own property but instead elected to spread the alarm, thus saving the lives of the other men in the building. (2) Military duty in connection with the catastrophe, there being a physical impossi

bility of saving personal property. M. S. Comp. Gen. B-35681 (Lt. Col. Nelson J. Moore).

Facts: On September 3, 1942, Lt. Col. Nelson J. Moore was a patient on board a ship which caught fire at sea. His stateroom was on “A” deck and was destroyed by fire. He was at mess when the alarm sounded and smoke and fire precluded his returning to his stateroom to recover his property. Furthermore, as the senior Army officer present, he was asked by a ship's officer to assist in the evacustion of passengers from the ship.

Held: Disapproved.

This claim is not payable under the act of March 4, 1921, because the possibility that the owner could have saved his personal property, had he not been engaged in saving human life or Government property, did not exist. It was not as a consequence of his aiding in the evacuation of the ship that property was lost. Neither was the loss a result of enemy action nor was it lost in the field during campaign within category “Fourth" of section 1 of the act.

This claim is not payable under the act of July 3, 1943, because the loss was incurred incident to service.

NOTE.—If the claimant had been naval personnel, his claim would be payable under the “marine disaster" provision (first category, sec. 1 of the act of October 27, 1943 (57 Stat. 582; 24 U. S. C. 984)). SPJGD/D-40136-D-40164 (29 enlisted men).

Facts: On or about March 29, 1944, a fire broke out in a barracks at Camp Stoneman, Calif., in which claimants were housed pending overseas shipment. At the time the fire was discovered all of the claimants were in formation in front of the building. When the fire was discovered the building was ablaze. Claimants were ordered to fight the fire and protect adjacent buildings. The evidence indicated that when the fire was discovered the fire was so far advanced that it would have been impossible for claimants to recover their property.

Held: Disapproved.

In view of the fact that the claimants could not have saved their property even if they had not engaged in fighting the fire to save other buildings, it cannot be said that their property was destroyed in consequence of the owners being engaged in military duty in connection with the fire as required by the statute. SPJGD/D-27339 (Breslend).

Facts: On November 9, 1943, a fire of undisclosed origin was discovered in claimant's quarters, nurses' quarters, Morris Field, Charlotte, N. C. At the time the fire was discovered the claimant was on duty as night nurse at the base hospital. The claimant made an attempt to cross the ramp leading from the nurses' quarters to the base hospital, but was unable to cross because of the smoke. The claimant then started for the front of the hospital; however, injured patients were being brought to the hospital and she remained at her post to give first-aid treatment.

Held: Disapproved.

Despite the fact that by giving first aid to persons injured in the fire the claimant did perform military duty in connection with the catastrophe, the olaim is not payable because the physical facts were such that she could not have saved her property even if she had not performed such military duty. SPJGD/D–54284 (Baranco).

Facts: On October 22, 1944, fire broke out in a second floor room of BOQ, Building T 194, Midland Army Air Field, Midland, Tex. Claimant who was on the first floor when the fire was discovered, immediately seized a fire extinguisher and fought the flames which cut off the stairway leading to the second floor. Claimant's property was in his room on the second floor and was damaged or destroyed by the fire.

Held: Disapproved. Although claimant was engaged in military duties in connection with the fire which destroyed his property, the claim cannot be approved because when the fire was discovered it was impossible to get to the second floor of the building and, therefore, it was impossible for him to save his own property. Since it could not have been saved it cannot be said that his property was destroyed in consequence of the owner having given his attention to the saving of Government property or because he was engaged in military duty.

Note.-The claims of Lieutenant Minott (SPJGD/D-54285) and Captain Mullins (SPJGD/D-54282), which resulted from the same fire, were approved for payment because their rooms were located on the ground floor and in those cases these two officers could have saved their own property but elected to save Govern. ment property instead. (3) Military duty-On duty elsewhere. 87 Court of Claims 606 (Morrison).

Facts: Captain Morrison lost his personal property through fire in quarters at Camp Moorpark, Calif. At the time of the fire he was on duty elsewhere in connection with an investigation of an accident involving the Civilian Conservation Corps with which he was on duty.

Held: Disallowed.

“In Curran v. United States (65 C. Cls. 26), in construing this part of the statute, the court held that the words 'connected therewith’ meant in connection with the property so lost. However, we believe that the court could have gone further and not restricted this meaning to the loss of the property of an officer but to the catastrophe or event which produced and which was the cause of the loss. The intention of Congress, as read into these contingencies, is that the officer must be present at and participate in the rescue of life or recovery of property during the catastrophe or disaster. His actual participation in some way in overcoming the catastrophe is essential, or his commanding officer would have had to order him to leave the scene of the catastrophe or disaster to procure assistance in which event he would have been 'engaged in authorized military duties in connection there

with.'»

MS. Comp. Gen. B-24200 (Garland).

Facts: The claimant, a crew member of a Government airplane, was proceeding by the best available air route from Craig Field, Ala., to Kelly Field, Tex., for the purpose of navigation training. While en route the plane developed mechanical trouble and, as there were no available emergency landing fields nearby, the claimant was forced to abandon the plane by parachute. In the resulting crash of the plane the claimant's private property was destroyed by fire.

Held: Disallowed.

The Comptroller General quoted that portion of the opinion in the Morrison case (87 Ct. of Claims 606) which in defining congressional intent held that "in connection therewith” means in connection with the catastrophe and then said: "The facts as determined show that the airplane which this officer was piloting in the performance of his regularly assigned military duties crashed and burned. The officer bailed out of the plane and parachuted to safety. His action was necessary to save his own life, but there appears nothing to show that he was engaged in saving Government property or lives, or that he performed any authorized military duties in connection with the fire which destroyed his property, necessary to bring his claim within the above cited rule.”

SPJGD/D-51149 (Actkinson).

Facts: On or about June 2, 1944, a pyramidal tent occupied by the claimant and five other officers at Camp No. 10, Seventeenth Replacement Depot, in England, was set afire by live sparks emitting from the officers' mess hall

. The claimant's personal property which was in the tent was destroyed by the fire. At the time the fire occurred the claimant was attending a formation for night classes and did not return to his quarters until after the fire had been extinguished.

Held: Disapproved.

Under the applicable statute the Government is not an insurer and a claim for loss of property destroyed in a barracks fire is not payable unless the loss was in consequence of the claimant giving his attention to either (a) saving human life, or (6) saving Government property, or (c) military duties in connection with the fire. SPJGD/D-28438 (Tucker).

Facts: On August 20, 1943, a fire of undisclosed origin was discovered in officers' quarters, Building No. T-3464, Camp Howze, Tex. The claimant's personal property which was in his quarters in this building was destroyed by fire. The claimant was engaged in series D field exercises with the Nine Hundred and Ninth Field Artillery Battalion, Eighty-fourth Division, and was not present at the scene of the fire.

Held: Disapproved.

Under the applicable statute a claim for the loss of property destroyed in a barracks fire is payable only if the facts and circumstances were such that the owner could have saved his own property, but failed to do so because of any one of the following:

(a) He elected to save the life of some other person in danger at the same time and under similar circumstances, or

(b) He elected to save Government property in danger at the same time and under similar circumstances, or

(c) He was engaged in military duties in connection with the catastrophe.

NOTE.-A claim is not payable if the claimant was performing military duties elsewhere because the statute (second category, sec. 1) contains the words "military duties in connection therewith.” SPJGD/D-46352 (Salsberg).

Facts: On March 17, 1944, the claimant's quarters with the Seven Hundred and Fifty-sixth Bombardment Squadron, Four Hundred and Fifty-ninth Bombardment Group, Three Hundred and Fourth Bombardment Wing, were destroyed by fire. At the time of the loss, the claimant was away from his base on a bombing mission over Vienna, Austria.

Held: Disapproved.

NOTE.—The applicable statute is so closely drawn, and the construction placed upon it is so narrow, that relatively few losses caused by barracks fires are payable. The physical facts must have been such that the claimant could have saved his own property but elected to save human life or Government property instead. The statute is based upon the theory of reward. A more equitable basis would be a theory of protection of the claimant's property at a time when he is absent and, therefore, helpless so far as saving his own property is concerned.

In regard to the performance of military duties, no consideration is given to the nature or importance of the duties. The controlling factor is whether or not such duties were in connection with the fire. SPJGD/D-39872 to 39912 (Parker and 50 others).

Facts: On April 22, 1944, a fire broke out in Building No. 101, Stockton Field, Calif. The personal property of the claimants, located in the building, was destroyed as the result of the fire. The claimants were not present at the scene of the fire, but were performing a required military duty, to wit: Attending class at another building.

Held: Disapproved.

The claimants were performing military duty at the time of the fire but it was not in connection with the fire, as required by the statute.

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