
    GEORGE McDONALD v. THE UNITED STATES.
    [No. 30181.
    Decided Apr. 1, 1912.]
    
      On the Proofs.
    
    While the claimant is serving as master of the collier Sterling at $200 a month the Secretary of the Navy issues regulations for colliers which make the pay of masters of the first class $2S0, and places the Sterling in the first class. The regulation is not to affect existing contracts, but subsequently the claimant enters into a second contract, by which he agrees to serve in either class at $250 or at $200. But he continues to be paid while master of the Sterling only at the old contract rate of $200 a month.
    I.Where the Secretary of the Navy by regulations classed colliers specifically by name and prescribed the pay of the master in each class, the regulations were part of a contract between the Government and a master and determined his rate of pay.
    II.The formal regulations of the Secretary of the Navy have precedence over the correspondence of a bureau relating to a master’s pay.
    III.The decision of the Bureau of Navigation that “your pay will continue at the rates mentioned m your contract ” must be restricted to the then existing contract, and can not be extended to one subsequently made, after the regulations of the Secretary, of the Navy were issued.
    
      The Reporters’’ statement of the case:
    The following are the facts of the case as found by the court:
    I. On October 23, 1901, claimant entered into a contract with the United States to assume and exercise command as master of the naval collier Sterling for the sum of $200 per month until such time as his contract should be terminated by the Secretary of the Navy.
    
      II. On December 19, 1901, and while said contract was in force, the Secretary of the Navy issued regulations for naval colliers in which the following ratings were given:
    “For the purpose of wages, colliers are rated in two classes, as follows, viz:
    
      “First class. — All colliers having a displacement of five thousand tons or over: Ajax, Saturn, Aretlmsa, Alexander, Iris, Brutus, Sterling, Ocesar, Nero.
    
    
      “ Second class. — Those having displacement less than five thousand tons: Nans han, Abarenda, Marcellus, Leónidas, Lebanon, Justin, Southery, Pom fey, Zafiro, Hannibal
    
    In said regulations it is further provided:
    “4. The following schedule of wages will govern after January 1, 1902, and will be strictly adhered to:
    “ Master: First-class collier per month, $250; second-class collier per month, $200.”
    By said regulations contracts already entered into were exempted from the operation of the schedule thus prescribed.
    III. In a communication dated January 2, 1902, the Chief of the Bureau of Navigation furnished the claimant with an extract from said regulations to enable him to sign the crew of the Sterling, stating in that communication that the regulations were then in the hands of the printer, but would govern from January 1, 1902. The claimant was also informed that:
    “For the present, whilst the Sterling is employed on the coast of the United States and the West Indies, she will be classed in the second class, and no change will be made in her complement, as shown by your contract with the Navy Department.”
    Subsequently, on April 30, 1902, the claimant wrote to the Chief of the Bureau of Navigation requesting that the complement of the Sterling be changed to that of a first-class collier in accordance with the rating established for her by the said regulations.
    To which letter he received the following reply, dated June 3, 1902:
    “ Replying to your letter dated April 30, 1902, inquiring whether the Sterling. is not allowed the complement of a first-class collier, you are informed that so long as the ship continues on her present duties in United States and West Indian waters she will be considered as a second-class collier, and. will not be allowed the crew of a first-class collier. The Sterling is the only collier of the first class on similar duty. In case you are ordered on a foreign cruise, you are authorized to submit a plan for the rearrangement of quarters as suggested in your letter (second paragraph). For the present your pay will continue at the rates mentioned in your contract.”
    IV. The contract thus referred to and under which no claim is here made, remained in force, and the claimant served thereunder as master until July 1, 1902, when the new contract sued on and made part of the petition as Exhibit A was entered into, under which latter contract the claimant was assigned to the command of the Sterling as master, and served thereon under said contract from said July 1, 1902, to August 8, 1905, during all of which period he was paid at the rate of $200 per month.
    Claimant made no formal protest against the payment of said sum, and presented no claim for additional compensation until January 7, 1907, when for the first time he presented a claim based on the regulation of the Secretary of the Navy rating the Sterling as a first-class collier.
    • Mr. Archibald King for the claimant. Messrs. Geo. A. and Wm. B. King were on the brief.
    
      Mr. Frederick De O. Faust (with whom was Mr. Assistant Attorney General Thompson) for the defendants.
   Peelle, Ch. J.,

delivered the opinion of the court:

The claimant seeks recovery for the difference between the pay of master of a first-class naval collier for the period which he commanded and that of a master of a second-class naval collier for which he was paid.

The facts briefly stated are these: October 23, 1901, the claimant entered into a contract with the Secretary of the Navy whereby, under his direction, he agreed to assume and exercise command of the naval collier Sterling at the compensation of $200 per calendar month or proportionately for any part thereof, the contract to be terminated at the will and pleasure of the Secretary.

While this contract was in force, the Secretary of the Navy, for the purpose of wages, rated colliers into two classes. Those having a displacement of 5,000 tons or over were rated as first class, with pay at $250 per month (in which classification the Sterling was one), and those having a displacement of less than 5,000 tons were rated as second class, with pay at $200 per month.

Under his contract the claimant performed service as master of the Sterling from October 23, 1901, to June 30, 1902, and was paid therefor at the rate of $200 per month.

On July 1, 1902, the claimant entered into another contract with the Secretary of the Navy whereby he agreed to assume and exercise command as master of a naval collier under the direction of the Secretary of the Navy, said contract to be terminable at the will and pleasure of the Secretary, for the consideration of $250 per calendar month, or proportionately for any part thereof, if in command of a first-class collier, and $200 per month, or proportionately for any part thereof, if in command of a second-class collier (the rates of the colliers to be established by the Secretary of the Navy).

Under the latter contract the claimant performed service from July 1,1902, to August 8, 1905, for which he was paid $200 per month on the theory that the collier Sterling, which he commanded, was a second-class vessel.

The question for decision, therefore, is, Was the classification by the Secretary of the Navy of the Sterling as a first-class collier incorporated in the contract? We think it was, since there are no words of exclusion in the contract unless the words (“ the rates of the colliers to be established by the Secretary of the Navy ”) can be so construed. As the rate had been established by the Secretary of the Navy long prior to the execution of the contract those words can not be taken to indicate that the Secretary thereby intended to change the rating of the Sterling to a second-class collier, nor did he do so.

The words in parentheses were doubtless intended to apply only to colliers not named in the regulation. If the claimant had been assigned to such a vessel, then the Secretary of the Navy would have had the undoubted right to establish the rating; or if the claimant had been assigned to the Pompey, rated as a second-class collier in the regulation, then he could only recover $200 per month; but here the Sterling was rated as a first-class collier in the regulation, and while not named in the contract sued on the claimant was assigned to the command thereof as master, and that done he thereby became entitled to the compensation provided for in the regulation.

As the regulation by the Secretary fixing the rates excepted therefrom contracts “ already entered into ” the rating did not apply to the contract of October, 1901. The rating fixed by the Secretary in the formal regulation formed the basis of pay for masters assigned to the command of colliers named thereunder, and such formal regulation must be accorded precedence over correspondence relating to the claimant’s pay under a prior contract, especially since the findings show that there was no change in the rating of the Sterling by the Secretary of the Navy prior to or during the existence of the contract sued on; and it may be further noted that even in the correspondence with the bureau officer it is shown, as set forth in Finding III, that the regulation would govern after January 1, 1902, though, as further stated, the regulation would not for the present apply to the Sterling while employed on the coast of the United States and in the West Indies; but clearly this language could only be made to apply to the contract under which the claimant was then operating and not to the contract sued on thereafter executed.

For the reasons given the claimant is entitled to recover judgment in the sum of $1,863.28, which is ordered accordingly.  