#### HANEY P. QUINN, TEUSTEE OP THE ESTATE OF THOMAS CLEAEY QUINN, v. THE UNITED STATES.

[No. B-143.

Decided July 9, 1923.]

*On the Proofs.*

*Navy -pay; lost naval vessels; -fixing date of loss.*— Where a naval vessel is lost at sea and the date and circumstances of its loss are unknown, it is the duty of the Secretary of the Navy under section 286, Revised Statutes, to cause the date when such vessel was lost to be fixed in order that the accounts of the officers and crew may be settled, and the date fixed under his direction is conclusive on the accounting officers of the Government.

*The Reporters*statement of the case:

*Mr. George A. King*for the plaintiff. *King <& King*were on the briefs.

*Mr. John G.*Ewing, with whom was *Mr. Assistant Attorney General Robert II. Lovett,*for the defendant.

The following are the facts of the case as found by the court:

I. Harry P. Quinn has been regularly appointed by a proper court of probate jurisdiction as trustee of the estate of Thomas Cleary Quinn, disappeared and missing.

II. Said Thomas Cleary Quinn at the time of his death was a pharmacist’s mate, first class, in the Navy of the *482United States, and was serving on tire U. S. S. *Conestoga.*That vessel left San Francisco for Pearl Harbor, Hawaii, en route to Samoa, on March 25, 1921, and was never heard of thereafter, although exhaustive search was made by the Navy Department. The Secretary of the Navy officially reported on July 5, 1921, to the Bureau of Navigation as follows:

“ 1. The U. S. S. *Conestoga*left San Francisco for Pearl Harbor, Hawaii, en route to Samoa, on March 25, 1921, and since that date, although exhaustive search has been made by surface vessels and aircraft attached to the Pacific Fleet and to the fourteenth naval district, no information has been obtained by the Navy Department of this vessel or of any of the members of her crew.

“2. In view of paragraph (1) above, the U. S. S. *Conestoga*is considered to have been lost with all on board, detached from duty as station tug, Samoa, and will be considered as placed out of commission and stricken from the Navy list as of June 30, 1921.”

The Comptroller General of the United States, sustaining a settlement of the claim of the plaintiff made by the Navy Department Division of the General Accounting Office, fixed the date of the loss of the vessel and the death of plaintiff’s decedent as April 30, 1921.

Upon the certification of the Secretary of the Navy the court finds as a fact that Thomas Cleary Quinn died in the naval service of the United States on June 30, 1921.

III. On March 25, 1921, and thereafter until his death, the rate of pay of Thomas Cleary Quinn as pharmacist’s mate, first class, was $91.00 per month and $10.00 per month additional pay on account of detail and service as Navy mail clerk.

IV. On the 25th day of March, 1921, there was to his credit on the rolls of the U. S. S. *Conestoga*a balance of $34.63. His pay as pharmacist’s mate, first class, from March 26 to June 30*1921, inclusive, three months and five days, at $91 per montl* amounted to $288.17. His additional pay as Navy mail clerk for the same period at $10 per month amounted to $31.67, making total credits $354.47. He was chargeable on account of the naval hospital fund for the same period, at 20 cents per month, $0.63. Allotment for *483April, May, and June, 1921, in favor of the Nortliport Trust Company, at $50 per month, $150. Amount paid by Navy settlement warrant No. 21281, dated April 7, 1922, under certificate of settlement No. 55197, dated April 3,1922, $2.24, making total debits $152.87, and leaving a balance due him on June 30,1921, amounting to $201.60.

MEMORANDUM by the court.

The question for decision is the meaning of section 286, Revised Statutes, which provides for the fixing of the date of the wrecking or loss of a vessel by the accounting officers of the Treasury “ under the direction of the Secretary of the Navy,” the answer to the question turning upon the meaning of the phrase just quoted. The IT. S. S. *Conestoga*left San Francisco for Pearl Harbor, Hawaii, en route to Samoa, March 25,1921, and was never heard of afterwards, although search for her was exhaustively made. On July 5 the Secretary of the Navy officially notified the Bureau of Navigation that the vessel was considered to have been lost with all on board, was accordingly detached from duty as station tug, Samoa, “ and will be considered as placed out of - commission and stricken from the Navy list as of June 30,1921.” Plaintiff’s intestate was a pharmacist’s mate, first class, in the Navy, serving on said vessel, and the claim is for pay and allowances until June 30, 1921, the date stated in the Secretary’s order. The Comptroller General, following the ruling of the comptroller in 26 Comp. Dec., 336, relative to the loss of the U. S. S. Cyclops, held that section 286 does not contemplate action by the administrative officer in fixing the day of loss as conclusive upon the accounting officers, but does contemplate the presenting of facts to these officers “ with the request or direction to act.” In accordance with this ruling the date of the loss of the *Conestoga*was fixed’, by the accounting officers as of April 30 and not as of June 30.

Sections 286 and 287 are taken from the act of July 4,. 1864, 13 Stat. 389, entitled “An act for the relief of seamen and others borne on the books of vessels wrecked or lost in the naval service.” It is manifest that but for the act the-

*484accounts referred to in it could not be settled because necessary facts would not appear. A very important fact is the date of the wrecking or loss of the vessel. If the date be known, there is no difficulty, but if the vessel disappear as the *Conestoga,*did, how is the fact and date of loss to be ascertained ? The accounting officers already had authority to settle accounts, but they could not arbitrarily fix dates, and where it became necessary that the date of a loss which was unknown be fixed, for the purpose stated, it is also necessary for the statute to prescribe a method by which this could be done. They are accordingly, by section 286, “ authorized, under direction of the Secretary of the Navy ” (in settling accounts of seamen and others borne on the books of a vessel the date of whose loss or destruction is not known), “ to fix a day when such wreck, destruction, or loss shall be deemed and taken to have occurred.” This day being fixed, the settlement can proceed, but, as already said, a date is essential. The language used in the statute that the date is to be fixed “ under the direction of the Secretary of the Navy ” is not surplusage or meaningless (see *Warner Valley Stock Co.*v. *Smith,*165 U. S. 28, 34). The information as to the loss and the date of it should come from the source best qualified to furnish it. The Secretary of the Navy through those connected with the Navy Department is in position to know the status of naval vessels. The date of loss is to be fixed *under his direction.*Nor does this detract from the general powers of the accounting officers.

By the act of March 3, 1885, 23 Stat. 350, they were authorized to ascertain and determine the value of private property belonging to officers and enlisted men lost or destroyed in the military service in the circumstances stated in the act, and it provides that the Secretary of War shall decide what articles of personal property are reasonable, useful, necessary, and proper for the soldier while in quarters engaged in the public service in the line of duty. The duty thus imposed upon the Secretary of War must be performed before the accounting officers can perform their duties under the act, and his action is controlling. See *New-comber case,*51 C. Cls 408, 424. It would not be contended that under the act of 1885 the accounting officers can ignore *485the Secretary’s finding. Similarly the statute applicable to the instant case provides for action by the Secretary of the Navy. The Navy Regulations prescribe the duties of a captain whose vessel is lost; they also define the duties of the Bureau of Navigation, to which are addressed communications, among others, referring to the movements of ships and *“ to*their condition,” and this bureau is required to keep a record of service of all fleets, squadrons, ships, officers, and men, as well as to establish the complement of all ships in commission. The Secretary’s letter, addressed to this bureau and declaring the date when the *Conestoga,*went out of commission because of its loss, is controlling as to the fact, and the records are accordingly kept. It would be unreasonable to hold that the date of loss is conclusive on the department or bureau directly affected, but that the accounting officers can deduce a different conclusion based largely upon their estimate of the time the vessel may have been afloat after its departure from San Francisco.

In view of the report of the Assistant Comptroller that if the date should be June 30 instead of April 30 the state of the account would entitle plaintiff to a judgment, we think judgment for the amount stated in the court’s conclusion ($201.60) should be awarded.