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against shipowners for any injury sustained aboard ship. (Parentheses supplied.)

All naval and MSTS personnel in supervisory positions should be familiar with the applicable directive as to the reporting and investigating of maritime personal injuries. 46

MARITIME PERSONAL INJURIES

(Continued from page 18) Generally, if ship's machinery, hatch covers, booms, rigging, or other appurtenances cause injury to a shipyard workman, there is a possible issue as to seaworthiness (in the legal sense). In such cases the investigating officer, in addition to the requirements of the JAG Manual, should direct his inquiry toward that piece of equipment that caused the injury to ascertain whether it was fit for its intended use and whether it was being so used. The piece of equipment itself should be tagged, identified and safely stowed for use as evidence. B. Longshoremen

When MSTS vessels carry cargo of other armed services, the responsibility for loading the cargo, subject to the safety of the ship, is on the shipper service. Consequently, arrangements for the services of civilian longshoremen are not made by MSTS. Therefore, a certain amount of coordination between MSTS and the shipper service may be necessary in the investigation of a shipboard injury which occurs during loading operations. As the MSTS vessel frequently leaves port soon after the accident, it may be necessary for the shipper service to assist in the investigation by obtaining statements of witnesses, medical reports, and compensation reports from the injured party's employer. On the other hand, the Master of the MSTS ship should insure that statements are taken from the shipboard witnesses as soon as possible and that an entry concerning the incident is made in the log. It is incumbent on Commanding Officers and Masters to use initiative to investigate longshoremen's injuries. While circumstances may not permit an elaborate investigation, an incomplete immediate investigation is far better than none. Failure to investigate an alleged shipboard injury will of course not excuse liability. As one court has stated :

If libelant (injured longshoreman) can prove that an agent of respondent (shipowner), whose duties included reporting such accidents to respondent's proper personnel, either saw the accident or was told about it, we think respondent should then have made an investigation .... Reasonable prudence would have dictated the careful investigation of such an accident, especially in view of the large number of law suits currently being brought by longshoremen

CONCLUSION Shore based workers, such as civilian repairmen and longshoremen, have two causes of action against the shipowner for injuries. They are unseaworthiness and negligence. Government employees excepted, anyone, whether he be a member of ship's company as in the case of MSTS contract operated tankers, or shoreworker, can sue the shipowner for negligence for failing to use reasonable care to protect him.

On the other hand, to maintain a cause of action against the shipowner for unseaworthiness, it is necessary that the injured person be doing work that is or has been thought to be traditionally done by seamen—those men of iron who sailed before the wooden mast. In addition, it is essential that the vessel on which the injury took place be in active maritime service and not undergoing major repairs or reconstruction, or otherwise removed from navigation. If these tests are met, the owner is liable for furnishing an unseaworthy ship or appliances regardless of whether he was negligent. The duty is absolute and nondelegable.

In processing a JAG Manual investigation involving a Sieracki seaman's shipboard injury, legal and investigating officers should not be concerned if they have difficulty in determining the legal status of the injured man or of the ship on which the injury occurred. This in many instances will require waiting until some Monday morning when a decision in the matter or a like case is announced by the Supreme Court. Nevertheless, the investigating officer can and should investigate the incident in order that sufficient facts relating to status of the injured man and the ship are preserved for use in dealing with possible claims. When shoreworkers are injured, an investigating officer should not conclude the investigation when it is determined that Navy negligence is not present. Remember that vicarious seamen have a special status in the maritime world and need not in many circumstances prove negligence to recover a judgment against the shipowner.

44. Military Sea Transportation Service (NAVPERS 10829-B), pp.

26, 27.

45. Smigiel v. Compagnie De Trans. Oceaniques, 185 F. Sapp. 328 at

330 (E.D. Pa, 1960), 1961 A.M.C. 2042 at 2045. 46. JAG INST. P5880.1A, Admiralty Claims.

RECENT DECISIONS OF THE COMPTROLLER GENERAL

Prepared by the Finance Branch Office of the Judge Advocate General

PAY AND ALLOWANCESRetired member living abroad

• A master sergeant of the Air Force was transferred to the Enlisted Reserve Corps in 1947 after completion of more than 20 years' active service, and in 1954 placed on the retired list of the Regular Air Force and concurrently advanced to the grade of captain, the highest temporary grade in which he had served satisfactorily while on active duty. In 1963 his retired pay was suspended pending an official determination of his possible loss of citizenship. It was considered that the member, born in England, had expatriated himself in 1959 by continued residence in that country. Section 352 (a) (1) of the Immigration and Nationality Act of June 27, 1952 (8 U.S.C. 1484) declares that United States citizenship is lost by continuous residence for 3 years in the territory of a foreign state of which the person formerly was a national.

In his decision B-153942 of June 22, 1964, the Comptroller first distinguished his decision at 41 Comp. Gen. 715, which stated that a Reserve officer retired for years of service who had become a citizen of a foreign country was not entitled to retired pay because foreign citizenship was "inconsistent” with continued Reserve status. The member in the present case was retired in an enlisted status, and in addition had not become a citizen of England or any country other than the United States.

The United States Supreme Court in Schneider v. Rusk, 377 U.S. 163 (1964), considered the case of a German national by birth and naturalized United States citizen who had returned to Germany, married, and resided for 8 years. The Court held that the above provision of the Immigration and Nationality Act purporting to divest such person's American citizenship was unconstitutional. Further, the Court in United States v. Gay, 264 U.S. 353 (1924) had held that the Navy might not discontinue the retired pay of a member solely because he lived abroad, having first secured the permission of the Department of the Navy to remain abroad and reporting his address each year as required. Thus the Comptroller concluded that continued foreign residence alone cannot deprive a member of his retired pay, and ordered payments in this case reinstated. (Comp. Gen. Dec. B–153942 of 22 June 1964)

of self-support" under the prevailing requirements of the Career Compensation Act of 1949 (decision B-148561 of 20 April 1962).

Section 401 of Title 37, U.S. Code (P.L. 87–649, 76 Stat. 470, Act of September 7, 1962), now defines “dependent spouse" of a female member for these purposes as one who "is in fact dependent on her for over one-half of his support.” In submitting the case for reconsideration, the member, an Air Force major, enclosed a physician's statement describing the medical symptoms of her husband's condition as extreme malnutrition, anemia, grand mal epilepsy which can not be completely controlled, and a resulting state of manic depression leaving him “unable to engage in any useful or gainful employment.” It was stated that his seizures occurred variably from as many as three daily to three weeks apart, and that he had had no income, salary or gainful employment for eight years, when he was first treated for epilepsy.

Relying on his past decisions as authority, the Comptroller stated: “It has long been held that to be regarded as in fact dependent on his wife in the service, a husband must on account of physical or mental incapacity or for some other reason, be incapable of self-support.” He continued by reviewing the rule of the Veterans Administration that in cases of pension claims based on a disability the incapacty must be "sufficient to render it impossible for the average person to follow a substantially gainful occupation.” The Comptroller noted that upon applications for benefits in this case, the Veterans Administration had ruled this test had not been met. He concluded that incapability of self-support had not been established, and denied the claim of dependency. (Comp. Gen. decision B-148561 of 6 April 1964)

PAY AND ALLOWANCES— Per Diem-sleeping bag as quarters

• An Army warrant officer performing temporary duty as a courier accompanying a security shipment from Wisconsin to Texas by rail was paid per diem at the rate of $8 rather than $16 pursuant to paragraph 4205– 5a (1), Joint Travel Regulations, which authorizes the $8 reduction for days of travel by surface common carrier. The officer was required to travel in a freight car, furnish and prepare his own rations, and use his own sleeping bag, and it was his contention that under the circumstances he should not have received the reduced

per diem.

QUARTERS ALLOWANCE-Dependent husband of female member;

test of dependency

• The Comptroller General's decision B-148561 of April 6, 1964, demonstrated the degree of dependency required to authorize the payment of an increased allowance for quarters to a female member of the uniformed services claiming as a dependent her incapacitated husband. In an earlier decision on the same case, the Comptroller had concluded that such payment was not authorized because the evidence submitted "did not warrant the conclusion that her husband was incapable

The Comptroller General in decision B-153421 dated May 7, 1964, found that the $8 reduction under paragraph 4205–5a (1) may be attributed largely to the anticipation that the member will not accrue expenses for quarters during such travel. He concluded that if the officer was furnished a freight car to sleep in, notwithstanding the use of his own sleeping bag, he incurred no expense for lodging, and hence was properly paid per diem only at the $8 rate. (Comp. Gen. Dec. B–153421 of 7 May 1964.)

INJURY SUFFERED BY RESERVIST DURING INACTIVE DUTY TRAIN

ING—Test for determination of disability fitness for military duty or normal civilian pursuits

The Comptroller General in Decision B-148324 of October 25, 1963, reviewed the claims of two Naval Reservists injured at informal sports activities during weekend inactive duty training exercises, addressing himself to the question whether the members concerned were “employed” on training duty at the times of their injuries within the meaning of 10 U.S.C. 6148(a) (see JAG Journal, January 1964, p. 220). The Comptroller concluded that for purposes of that statute a Reservist is employed on a training status from muster to dismissal and is thus entitled to disability benefits for injuries sustained during that period even though they resulted from some independent activity not a part of the training duties.

One of the above cases concerned an aviation mechanic who had fractured his thumb playing handball during a lull in duties launching helicopters. The thumb was placed in a splint, the member was released from inactive training duty and slightly over five weeks later returned for examination by the station medical officer who pronounced the fracture sufficiently well healed to permit removal of the split and “return to his present duties.” The question then existed whether during that five-week interval he was "disabled” within the meaning of the statute. Prior decisions of the Comptroller disclosed two apparently separate rules for making such determinations. Disability of Naval Reservists under 10 U.S.C. 6148(a) had been determined by deciding whether the member was able to return to his "normal civilian pursuits." Under similar statutory provisions the eligibility of injured members of the National Guard to disability benefits was made dependent upon a finding that the member was unable to resume military duties, even in a “limited” or “restricted” status.

In view of the fundamental similarity of the underlying statutes and the disparate results which could result from application of either test to a given case, this case was returned to the Comptroller as the basis for a request for further delineation of the rules to be followed in these matters. In his decision B–148324 of May 19, 1964, the Comptroller noted that the statutes in question were clearly intended to provide Reservists and National Guardsmen disabled or killed in line of duty during inactive-duty training with the same pensions, compensation, death gratuity, retirement pay, and hospital allowances as Regular members. In some instances, he continued, little information was available from the member's service medical record to determine his disability status after he had returned home, and was thus supplemented by any available data concerning his ability or inability to resume his normal civilian employment in order to reach a conclusion concerning his ability to perform military duties. The use of this secondary

evidence was not intended to establish a general rule for future cases.

"It seems reasonably clear that a right to active duty pay and allowances under the above-cited provisions of law while the member concerned is temporarily disabled by injury incurred in line of duty, is based upon physical disability to perform military duty, not his normal civilian pursuit, and that the determination as to how long the disability continues is left to the exercise of sound administrative judgment. If, despite his injury, the service concerned should actually return him to a limited or restricted reserve duty status where he would be subject to being called upon to perform such duty as his physical condition would permit, we would regard the continued payment of active duty pay and allowances in such circumstances as being too doubtful to warrant approval of such payment ... In each case, the service concerned should determine when the injured reservist recovers sufficiently to be fit to perform his normal military duties. In making that determination, the service should apply the same standards it would apply in the case of a member of the Regular service." (Comp. Gen. Dec. B-148324 of 19 May 1964.) PAY AND ALLOWANCES—Member retired or discharged

The Comptroller General in decision B-153988 of May 13, 1964, considered the situation of an enlisted member of the Navy whose name was placed on the temporary disability retired list in 1957, and who received retired pay through 1961. Payments were suspended at that date because the disbursing officer had received a completed discharge certificate granting the member an honorable discharge. Learning that he was about to be discharged, however, the member quickly obtained a temporary restraining order from Federal district court, and an agreement was struck between representatives of the court and the Navy that the discharge would not be completed until the completion of administrative action.

In 1963 the member was referred to the Physical Re view Council, which on the basis of new medical evidence found him to have been disabled in line of duty and while entitled to basic pay. Upon their recommendation the Secretary of the Navy directed that the member be permanently retired as of the 1961 date. The Comptroller was presented with the question whether the member was effectively retired, in light of the discharge certificate which had been completely prepared, signed, and sealed.

Citing United States v. Noble, 13 USCMA 413, 32 CMR 413 (1962), the Comptroller ruled that military status is only terminated upon the concurrence of both an effective discharge certificate or orders of separation, and delivery of such certificate or orders to the member. Since delivery was not completed in this case the member had never been discharged, and therefore was properly retired by the subsequent Secretarial action. (Comp. Gen. Dec. B-153988 of 13 May 1964.)

U.S. GOVERNMENT PRINTING OFFICE: 1964

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JAG Bulletin Board

Retirees: Life and Labor Abroad
Right to Compulsory Process

LT Alvern D. Christian, USN
Income Taxes Following Separation
or Retirement from Active Duty

J. O. Rolfson, Esq.
Customs in Present Day Court-Martial PHARETY OF CALIFORNIA

DAVIS
MAJ Daniel F. McConnell, USMC
Another Tool for Off-Base Searches-

DEC 1 5 1964
The Search Warrant

LTCOL Remmel H. Dudley, IUSMCLIBRARY
Criminal Law of the District of Columbia-
Federal or State?

CAPT Irving D. Labovitz, USAF
Recent Decisions of the Comptroller General
Court of Claims Decision

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AVEXOS P-523

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GENERAL

NAVY

ADVOCATE

THE OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE WASHINGTON, D.C. 20350

compensation can be paid for articles accepted and published.

Issuance of this periodical approved in accordance with Department of the Navy Publications and Printing Regulations, NAVEXOS P-35.

REAR ADMIRAL WILFRED A. HEARN, USN

Judge Advocate General of the Navy

The JAG JOURNAL is published by the Office of the Judge Advocate General of the Navy as an informal forum for legal matters of current interest to the naval service. The objective of the JAG JOURNAL is to acquaint naval personnel with matters related to the law and to bring to notice recent developments in this feld.

The JAG JOURNAL publishes material which it considers will assist in achieving this objective, but views expressed in the various articles must be considered as the views of the individual authors, not necessarily bearing the endorsement or approval of the Department of the Navy, or the Judge Advocate General, or any other Agency or Department of Government.

Invitations to submit articles are extended to all persong, whether lawyers or laymen. Articles submitted should adopt an objective rather than an argumentative approach and should be written in a manner readily understandable by the lay reader. The JOURNAL will return unpublished manuscripts if so requested, but responsibility for safe return cannot be assumed. No

REAR ADMIRAL ROBERT H. HARE, USN

Deputy and Assistant Judge Advocate General of the Navy

LIEUTENANT COMMANDER GARDINER M. HAIGHT, USN

Editor

For sale by the Superintendent of Documents U.S. Government Printing Office, Washington, D.C., 20402 Price 15 cents (single copy). Subscription price $1.25 per year:

50 cents additional for foreign mailing.

JAG BULLETIN BOARD RETIREES: LIFE AND LABOR ABROAD

Retired servicemen have a predictable inclination to discover interesting employment beyond the confines of the United States. Generally speaking, this meets with no legal or policy objections from the Government or from the services. The primary obligation of a retired Navy member is simply to keep the Department apprised of his whereabouts. Nonetheless, he is potentially subject to certain limitations upon his employment overseas, and several recent decisions of the Comptroller General have clarified the effect those restrictions may have on retired pay. One of them illustrates that sound legal advice has a place in this field.

In that case a retired Coast Guard chief boatswain's mate found his retired pay ordered withheld to offset what he had earned as salary while employed as a teacher by the Department of Education of the State of Tasmania, Australia.? The chief's difficulties stemmed from violating the mandate of a dusty portion of the U.S. Constitution—Article 1, Section 9, Clause 8—which demands that: No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office,

or Title, of any kind whatever, from any King, Prince, or foreign State.

For many years it was not entirely clear to which segments of the military community this prohibition applied—especially whether a retired enlisted man might also be deemed a person holding an "office of profit or trust" under the United States. For want of firm precedent to the contrary, the Judge Advocate General long pursued the path of caution and advised that enlisted personnel were included within the prohibition, largely in cases involving acceptance of foreign decorations. Then, in an unpublished decision, the Comptroller General held that nothing in the Constitution or statutory law barred a retired enlisted man from accepting an elective position in his native Philippines.* Relying in part on this decision, the Judge Advocate General in 1960 rendered a considered opinion that, for purposes of this constitutional section, a retired enlisted member of the Navy did not hold an “office" because his status was founded upon contract rather than appointment."

The Coast Guard case mentioned above has now superseded that opinion, and it did so on

(Continued on Page 46)

1. BuPers Manual, pars. C-14501(5) and H-31401(3). Fleet Re

servists (except for Philippine citizens who wish to reside in the Philippines) must receive permission from the Chief of Naval

Personnel for periods of foreign residence in excess of 6 months. 2. Comp. Gen. B-154213, September 11, 1964.

3. See, for example, Op. JAGN 1951/10, 1 Dig. Ops., Retirement

sec. 81.1.
4. Comp. Gen. B-141571, December 30, 1959.
5. JAG: 131: DPF; jf Ser: 1684 of March 24, 1960.

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