United States v. Engard/Opinion of the Court

A higher rate of pay is allowed to a chief engineer as well as to other naval officers when performing sea duty than when engaged on shore duty. Rev. Stat. 1556, U.S.C.omp. Stat. 1901, p. 1067. And Rev. Stat. 1571, U.S.C.omp. Stat. 1901, p. 1079, provides as follows:

'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.'

The government did not dispute at bar, however, that where an officer assigned to sea duty within the purview of the foregoing provision is called upon, without a change in his sea assignment, to perform merely temporary service ashore, he is entitled to sea pay. And this is in accord with the naval regulations, wherein it is provided:

'(1) Officers shall be entitled to sea pay while attached to, and serving on board of, any ship in commission under control of the Navy Department, the Coast Survey, or the Fish Commission. . . .' '(3) Any officer temporarily absent from a ship in commission to which he is attached shall continue to receive sea pay. . . .'

'A temporary leave of absence does not detach an officer from duty nor affect his rate of pay.'

It is settled that the Navy Department has no power to disregard the statute, and to deprive an officer of sea pay by assigning him to a duty mistakenly qualified as shore duty, but which is, in law, sea duty. United States v. Symonds, 120 U.S. 46, 30 L. ed. 557, 7 Sup. Ct. Rep. 411; United States v. Barnette, 165 U.S. 174, 41 L. ed. 675, 17 Sup. Ct. Rep. 286. And, of course, the converse is also true, that the Navy Department has no power to entitle an officer to receive sea pay by assigning him to duty which is essentially shore duty, and mistakenly qualifying it as sea duty. But there is no conflict between these rulings, and the conceded principle that, where an officer is assigned to a duty which is essentially a sea service, that he does not lose his right to sea pay whenever he is called upon to perform a mere temporary service ashore. In the present case it cannot be denied that the officer was assigned to sea duty, and that the order of the Department, instead of detaching him therefrom, simply ordered him to discharge a temporary service ashore in addition to his sea service. The whole contention of the government is that this temporary shore service was necessarily incompatible with the continued performance of the officer's duty on the ship to which he continued to be attached, and therefore that the shore duty was paramount to the sea service, and necessarily, by operation of law, affected the detachment of the officer so as to permanently relieve him from the sea duty to which he continued to be regularly assigned.

There is no finding in the record, however, which justifies this argument, and as urged at bar it rests upon the mere assumption of the incompatibility between the sea duty to which the officer was regularly assigned and the temporary shore duty which he was called upon by the Department to discharge. In effect, the proposition is that it must be assumed as a matter of law, in the absence of a finding to that effect, that the temporary shore duty was of such a permanent character as to render it impossible for the officer to continue to perform duty under his permanent sea assignment, and, therefore, as a matter of law, caused such assignment to terminate. We think the converse is true; and that where the assignment of an officer to duty by the Navy Department expressly imposed upon him the continued discharge of his sea duties, and qualified his shore duty as merely temporary and ancillary to the regular sea duty, that the presumption is that the shore duty was temporary, and did not operate to interfere with or discharge the officer from the responsibilities of his sea duty, to which he was regularly assigned.

Affirmed.