A lieutenant in the Navy, assigned by order of the Secretary of
the Navy to duty as executive officer of a vessel of the United
States, furnished by the Secretary of the Navy to the New York as a
school ship, is entitled to sea pay as well while the vessel is
attached to a wharf in the harbor of New York as while she is on a
cruise, and although this service is called, in the Secretary's
order for his detail, "employment on shore duty," and
notwithstanding he is receiving pay from the state as instructor in
its nautical school upon the vessel.
This was a claim by a lieutenant in the Navy of the United
States for sea pay while on board the
St. Mary's in the
harbor of New York. The facts found by the Court of Claims were, in
substance, as follows:
The
St. Mary's was a sailing vessel owned and employed
by the United States, and had been furnished for educational
purposes by the Secretary of the Navy, upon the application of the
Governor of the State of New York, under the Act of Congress of
June 20, 1874, c. 339, which is copied in the
Page 165 U. S. 175
margin. [
Footnote 1] The
command of the vessel was always retained in an officer of the
United States Navy. The nautical school upon this vessel was
established by the Board of Education of the City of New York,
under the statute of the State of New York of July 1, 1882, c. 410,
the material provisions of which are likewise copied in the margin.
[
Footnote 2] The object of the
nautical
Page 165 U. S. 176
school is to instruct young men in maritime matters, so as to
fit them for any service connected with maritime life, leaving them
free to go into the Navy or into the merchant marine. The
instruction is in seamanship, navigation, sailmaking, and
everything pertaining to a seaman's life.
The claimant, on January 1, 1891, reported to the commander of
the
St. Mary's for duty as executive officer on board of
her, and there served as such until October 24, 1893 (the date of
filing this petition), in obedience to an order signed by the
Secretary of the Navy, dated December 30, 1890, and in the usual
form of orders assigning officers to duty on school ships, as
follows:
"Navy Department, Washington, December 30, 1890"
"Sir: You are detached from the
Minnesota on the 31st
instant, and will report to Commander A. S. Crowninshield on the
same day for duty as executive on board the nautical school ship
St. Mary's as the relief of Lieut. C. C. Cornwell. This
employment on shore duty is required by the public interests, and
such service will continue until the 31st of December, 1893, unless
it is otherwise ordered."
Throughout the claimant's service on the
St. Mary's, he
received no orders, except from her commander, an officer of the
Navy, and through him his junior officers received the orders of
the commander. Her complement of officers was the commander, the
executive officer, a lieutenant, an ensign, and a surgeon. Her crew
consisted of twenty-two
Page 165 U. S. 177
men of different grades and ranks, all employed by the City of
New York. Her commander was required by the regulations of the Navy
to report semiannually to the Secretary of the Navy upon the
conduct and professional ability of his subordinate officers, and
upon the efficiency of the men.
The
St. Mary's each year went upon a cruise, lasting
from about the middle of May to sometime in October, and during the
rest of the year was attached to a dock in the harbor of New York.
While she was not cruising, the claimant lived on board, and was on
duty on board every day, wearing his uniform and doing the same
duty, and subject to the same regulations, as while the ship was on
the high seas, and in the matter of quarters, mess, and uniform
there was no difference whether the vessel was under sail, or lying
at anchor, or tied to a wharf. The claimant's duties as executive
officer were the care and preservation of the ship, looking after
the crew, and attending to the details of the organization and
police of the ship.
The claimant also acted as instructor of the pupils of the
nautical school on board the
St. Mary's, and was paid for
his services in that capacity by the Board of Education of the City
of New York.
In the routine of the Navy Department, officers are usually
assigned alternately to sea and shore duty for periods of about
three years each. For two and a half years prior to December 31,
1890, the claimant had been attached to the United States steamship
Galena on a cruise, performing sea duty and receiving sea
pay.
The claimant had been in the Navy since 1872, and during his
service on the
St. Mary's was entitled to $2,600 a year
while on sea duty, and $2,200 while on shore duty. The accounting
officers of the United States allowed him sea pay while the
St.
Mary's was on a cruise, but only shore pay while she was lying
at a wharf in the harbor of New York.
The Court of Claims held that he was entitled to sea pay during
the whole time of his service on the
St. Mary's, and gave
judgment accordingly in his favor for $780.25. 30 Ct.Cl. 197. The
United States appealed to this Court.
Page 165 U. S. 178
MR. JUSTICE GRAY, after stating the case, delivered the opinion
of the Court.
By the statute of the United States, the officers of the Navy
receive higher pay "when at sea" than when "on short duty," or "on
leave, or waiting orders," and the pay of the claimant, being in
the second five years of his service as lieutenant, was, "when at
sea, $2,600; on shore duty, $2,200; on leave or waiting orders,
$1,800." Rev.Stat. § 1556. And by § 1571,
"no service shall be regarded as sea service except such as
shall be performed at sea, under the orders of a department, and in
vessels employed by authority of law."
To constitute sea service, then, three things, and three only,
are necessary: the service must be performed "at sea," "under the
orders of a department," and "in vessels employed by authority of
law."
In order to come within the phrase "at sea," as used in this
statute, it is not necessary that the vessel upon which the service
is performed should be upon the high seas. It is enough that she is
waterborne, even if at anchor, in a bay or port or harbor, and not
in condition presently to go to sea. It has accordingly been
adjudged by this Court that a vessel is "at sea" within the meaning
of the statute although she is used as a training ship, anchored in
a bay, and not in a condition to be taken out to sea beyond the
mainland, or is used as a receiving ship at anchor in port at a
Navy yard, communicating with the shore by a rope, and having a
roof built over her deck, and not technically in commission for sea
service.
United States v. Symonds, 120 U. S.
46;
United States v. Bishop, 120 U. S.
51;
United States v. Strong, 125 U.
S. 656. The claimant, while the
St. Mary's was
not on a cruise, but anchored at and tied to a wharf in the harbor
of New York, lived on board of her, wore his uniform, and was
subject to
Page 165 U. S. 179
the same regulations as while she was upon the high seas, and
was therefore "at sea" so far as affected his rate of pay, during
the whole period of his service as her executive officer. The fact
that this service was called, in the order of the Secretary of the
Navy assigning him to duty upon this vessel, "employment on shore
duty" is immaterial. The material question is whether the service
was in fact performed at sea, and not on shore, and not upon the
name by which the Secretary of the Navy was pleased to designate
it. As was said by this Court in
United States v. Symonds,
above cited:
"Congress certainly did not intend to confer authority upon the
Secretary of the Navy to diminish an officer's compensation, as
established by law, by declaring that to be shore service which was
in fact sea service, or to increase his compensation by declaring
that to be sea service which was in fact shore service."
120 U.S.
120 U. S.
49.
The service of the claimant was clearly performed "under the
orders of a department." It was in obedience to an order of the
Department of the Navy that he reported to the commander of the
St. Mary's, and served as her executive officer; and,
throughout his service upon her, he received no orders except from
her commander, himself an officer in the Navy. As was well said by
Judge Nott, now Chief Justice of the Court of Claims, in delivering
the opinion of that court in the case at bar:
"The order which placed the
St. Mary's on duty as a
school ship, and, to a certain extent at the disposal of the board
of education, did not transfer the vessel to any other authority
than that of the United States. Possession, control, discipline,
and authority were all retained by the government. The officers
doubtless carried out the directions of the board of education, but
they did not do so because they were the orders of the board of
education, but because they were sent by the Secretary of the Navy
to New York to do so."
30 Ct.Cl. 207.
It is no less clear that the
St. Mary's was one of the
"vessels employed by authority of law" by the United States. The
Court of Claims has distinctly found as a fact that she was "a
sailing vessel owned and employed by the United States."
Page 165 U. S. 180
Both the furnishing of the
St. Mary's by the Secretary
of the Navy to the State of New York for a ship to maintain a
nautical school upon and the detail of the claimant as executive
officer of the vessel while she was used for that purpose were
pursuant to the powers expressly conferred upon the President of
the United States and the Secretary of the Navy by the act of
Congress entitled "An act to encourage the establishment of public
marine schools." Act June 20, 1874, c. 339; 18 Stat. 121.
The duties of executive officer of the
St. Mary's
having been performed by the claimant as a lieutenant in the Navy
of the United States at sea, under the orders of the Department of
the Navy, and in a vessel employed by the United States by
authority of law, he was entitled, during the whole period of his
service, whether the vessel was attached to a wharf or was sailing
on a cruise, to the rate of pay which the statute allowed to him
"when at sea," notwithstanding that during the same period he also
received pay from the State of New York for the performance of the
distinct, but quite consistent, duties of instructor in its
nautical school upon this vessel, the performance of which, indeed,
by naval officers was manifestly contemplated and intended by the
act of Congress and by the orders of the Secretary of the Navy.
Judgment affirmed.
MR. JUSTICE FIELD and MR. JUSTICE BREWER took no part in the
consideration and decision of this case.
[
Footnote 1]
"
An Act to Encourage the Establishment of Public Marine
Schools"
"The Secretary of the Navy, to promote nautical education, is
hereby authorized and empowered to furnish, upon the application in
writing of the governor of the state, a suitable vessel of the
Navy, with all her apparel, charts, books and instruments of
navigation, provided the same can be spared without detriment to
the naval service, to be used for the benefit of any nautical
school, or school or college having a nautical branch, established
at each or any of the ports of New York, Boston, Philadelphia,
Baltimore, Norfolk and San Francisco, upon the condition that there
shall be maintained at such port a school or branch of a school for
the instruction of youths in navigation, seamanship, marine
engineery, and all matters pertaining to the proper construction,
equipment and sailing of vessels, or any particular branch thereof.
And the President of the United States is hereby authorized, when
in his opinion the same can be done without detriment to the public
service, to detail proper officers of the Navy as superintendents
of, or instructors in, such schools, provided that if any such
school shall be discontinued or the good of the naval service shall
require, such vessel shall be immediately restored to the Secretary
of the Navy, and the officers so detailed recalled, and provided
further that no person shall be sentenced to, or received at, such
schools as a punishment or commutation of punishment for crime. 18
Stat. 121."
[
Footnote 2]
"SEC. 1068. The board of education are authorized and directed
to provide and maintain a nautical school in said city, for the
education and training of pupils in the science and practice of
navigation; to furnish accommodations for said school, and make all
needful rules and regulations therefor, and for the number and
compensation of instructors and others employed therein; to
prescribe the government and discipline thereof, and the terms and
conditions upon which pupils shall be received and instructed
therein and discharged therefrom, and provide in all things for the
good management of said nautical school. And the said board shall
have power to purchase the books, apparatus, stationery, and other
things necessary or expedient to enable said school to be properly
and successfully conducted, and may cause the said school, or the
pupils, or part of the pupils thereof, to go on board vessels in
the harbor of New York, and take cruises in or from said harbor,
for the purpose of obtaining a practical knowledge in navigation
and of the duties of mariners. And the said board are hereby
authorized to apply to the United States government for the
requisite use of vessels and supplies for the purpose above
mentioned."
"SEC. 1070. The board of education shall appoint annually at
least three of their number, who shall, subject to the control,
supervision and approbation of the board, constitute an executive
committee for the care, government and management of such nautical
school under rules and regulations so prescribed, and whose duty it
shall be, among other things, to recommend the rules and
regulations which they deem necessary and proper for such
school."
"SEC. 1071. After the establishment and organization of the said
school, the expenses thereof, and of carrying out the provisions of
this chapter, shall be defrayed from the moneys raised by law for
the support of common schools in the City and County of New
York."
2 Laws N.Y. 1882, p. 300.
