
    HARRIE WEBSTER v. THE UNITED STATES.
    [No. 17492.
    Decided April 19, 1897.]
    
      On the Proofs.
    
    The Vandalia is •wrecked in the harbor of Apia, Samoa, in 1889, the officers and men losing all their effects. Congress pass an act to reimburse them. An officer files his claim -with the accounting officers omitting (in ignorance of the terms of the statute) items for which he is entitled to reimbursement. The accounting officers refuse to open the settlement.
    I.Under the Aot 19th February, 1890 (26 Stat. £., 9), granting reimbursement to the survivors of the officers and crews of the Trenton and Vandalia, a supplemental claim may form the subject of an action in this court, though it was not presented to the accounting officers until after the original claim had been settled and paid.
    II.The severance of a claim of distinct items, and acceptance of payment for the items allowed will not estop the claimant from asserting iu this court the second claim for items not presented to the accounting officers.
    III.Where a statute provides for the reimbursement of officers, and that theaccounting officers shall “require a schedule and certificate from each person mailing a claim under this act,” the accounting officers are not thereby constituted an exclusive tribunal; and an action may be maintained in this court.
    
      
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant was commissioned as a passed assistant engineer in the Navy of the United States October 29,1874, and is still serving.
    II. On March 16, 1889, while serving under orders from the Secretary of the Navy on board the U. S. S. Vandalia in the harbor of Apia, Samoan Islands, said vessel was wrecked and totally destroyed, together with a large amount of personal property belonging to the claimant, amounting in value to $2,440, which amount is less than the annual sea pay his grade was at that time. The loss so sustained was without any fault or negligence on the part of the claimant.
    III. Thereafter, to wit, on the day of March, 1890, the claimant filed with the accounting officers of the Treasury Department, together with his certificate as to the value thereof, a claim growing out of said wreck and loss amounting to $1,844, not including the money and articles set forth in finding v, for which he now seeks pay.
    At the time the claimant filed his said first claim he was at Honolulu, Hawaii, and his only knowledge of the terms of the act February 19, 1890 (26 Stat. L., 9), for the reimbursement of the sufferers by reason of said wreck, was by hearsay, from which he understood that the money and articles for which he now seéks pay were not articles for which reimbursement would be allowed under said act.
    IV. Thereafter, to wit, June 26,1890, said claim so presented and filed was adjusted, and the sum of $1,844 as claimed was allowed and subsequently paid to the claimant.
    V. Thereafter the claimant filed a supplementary claim under said act, as follows:
    “J. B. Lynch, Esq.,
    
      “Fourth Auditor, Treasury Department.
    
    
      “ Sir : I transmit herewith a supplementary schedule of articles lost by me from the destruction of the U. S. S. Vandalia, on board of which vessel I was serving as passed assistant engineer at the time of her loss; and I do hereby certify, upon honor, that the said loss was not occasioned through any negligence or want of skill or foresight on my part; and, further, that the accompanying list of articles lost, with their value, is just and correct, to tbe best of my knowledge and belief.
    “Very respectfully, H. Webstee,
    
      “P. A. Engineer, U. 8. N.
    
    “Address U. S. S. Nipsic, Mare Island Navy-Yard, Cal.”
    SCHEDULE.
    Photographic camera and attachments. $150
    Photographic stock, plates, chemicals, etc. 150
    200 finished negatives, at $0.50. 100
    Money, in gold and silver. 156
    Total.. 556
    Which supplementary claim was examined by the Treasury Department and disallowed by letter of December 17,1890, as follows:
    “Teeasuey Depaetment,
    “Second Oompteollee’s Oepice,
    “ Washington, D. C., Eecemher 17, 1890.
    
    “Respectfully returned to the Fourth Auditor.
    “It appears upon examination that in March, 1890, P. A. Engineer Webster presented a claim under the Act of February 19,1890 (26 Stat., 9) amounting to $1,844, for losses incurred by the wreck of the United States vessels at Apia, Samoan Islands, March 16,1889.
    “June 26,1890, by Treasury settlement, he was allowed the full amount claimed in his application. He now presents a supplementary claim under the same act amounting to $556.
    “Having made this claim under the act of February 19, 1890, and having received a Treasury settlement and allowed the full amount claimed, I can not reopen the case with a view to a further allowance. An opportunity was given him under the law to present a claim for the full amount of his losses. The only restriction in the act was that he should not exceed twelve months’ sea pay of his grade. I believe it would be contrary to law and the regulations of the Department to allow two claims of this class to be paid under the same act.
    “A rehearing is denied.
    “B. F. Gilkeson,
    “ Comptroller.
    
    “G. H. F.”
    YI. The money and other personal property set out in finding v was reasonably worth the sum of $556.
    Upon the foregoing findings of fact the court decides, as a conclusion of law, that the claimant recover judgment against the United States in the sum of $556.
    
      Mr. John Paul Jones for the claimant.
    
      
      Mr. John G. Gapers (with whom was Mr. Assistant Attorney - General Dodge) for the defendants.
   Peedle, J.,

delivered the opinion of the court:

On March 16,1889, and for a long time prior thereto, the claimant was passed assistant engineer in the United States Navy, and while serving as such, under orders from the Secretary of the Navy, on board the U. S. S. Yandalia, in the harbor of Apia, Samoan Islands, the vessel was wrecked and totally destroyed, by reason of which, and without any fault on his part, the claimant suffered the total loss of a large amount of personal property, including $156 in gold and silver money on board the vessel at the time.

To reimburse those who suffered loss by reason of said wreck the Congress passed the Act February 19,1890 (26 Stat. L., 9), the first section of which is as follows:

u That to reimburse the survivors of the officers and crews of the United States steamers Trenton and Yandalia, wrecked in the harbor of Apia, Samoan Islands, on the sixteenth day of March, eighteen hundred and eighty-nine, and the survivors of the officers and crew of the United States steamer Nipsic, stranded at the same time and place, for losses incurred by them, respectively, in the wreck and stranding of said vessels, there shall be paid to each of said survivors, out of any money in the Treasury of the United States not otherwise appropriated, a sum equal to the losses so incurred by them: Provided, That the accounting officers of the Treasury shall, in all cases, require a schedule and certificate from each person making a claim under this act: Provided further, That in no case shall the aggregate sum allowed as compensation for such losses exceed the amount of twelve months’ sea pay of the grade or rating held by such person at the time such losses were incurred.”

There are other sections in the act, but the one quoted is the only one applicable to the case at bar.

Under that section the claimant, in March, 1890, filed with the accounting officers of the Treasury Department a claim for the property so lost by him, amounting to $1,844, not, however, including the money and other property for which reimbursement is now sought.

The claim thus filed was adjusted, and in June following the full amount was allowed and paid to the claimant.

Thereafter, in 1890, the claimant filed with the accounting officers a supplementary account for $556, which was disallowed by the Second Comptroller of the Treasury Department by letter of December 17,1890, as set forth in finding v.

When the claimant’s first account was filed for reimbursement under the act he omitted to include in his schedule of losses the money and articles set forth in finding v, because at that time he was not aware that the act authorized reimbursement therefor, he being absent from the country, and his only knowledge of the act derived from hearsay, as set forth in the findings.

The defendants contend, and such was the theory or ground upon which the Comptroller acted, that the supplementary claim can not be considered and its merits passed upon without reopening the account which was settled growing out of the same loss, and that as no mistakes in matters of fact arising from errors in calculation were shown to exist in the allowance made the case could not be reopened.

If the defendants were asserting a counterclaim growing out of the settled account for overpayments made under a wrong construction of the law, the question would come within the decision in the Yoes Case (30 C. Cls. R., 370), and the suit would be an invitation to open up the account to correct the error.

But the defendants are not seeking to interpose a counterclaim, nor is the claimant asking that the settled account be reopened.

Both parties concede that the account as settled was correct, and therefore if reopened it would only be to reaffirm the settlement made. Nor is there any controversy in respect to the loss of the money and articles for which the supplementary claim is made or as to the value thereof.

We think the claimant’s supplementary claim can be considered and its merits passed upon without reopening his settled account growing out of the same loss, as no fraud or mistake is shown in either claim; and the claimant’s right to reimbursement for the “ losses incurred” by him arises under a special statute, enacted in part for' his relief, by the terms of which an appropriation is made for “ a sum equal to the losses so incurred.”

The only limitation in the act is'“that in no case shall the aggregate sum allowed as compensation for such losses exceed the amount of twelve months’ sea pay of the grade or rating held by such person at the time such losses were incurred.”

Tbe claimant’s rate of pay while at sea at the time of his loss Avas $2,450; besides, he was entitled to $109.50 commutation for rations, so that the aggregate amount of his loss as disclosed by both claims is less than the amount of twelve months’ sea pay of his grade.

Under a misapprehension of the terms of the act, as well as against his own interest, the claimant excluded from his first claim the money and articles for which reimbursement is now sought.

Has he by thus severing his claim and allowing the first to go to settlement before filing the second estopped himself from asserting the second claim in this court?

We think not. While the better practice is for a creditor to present his whole claim at the same time, we are aware of no law which compels him to do so. At common law the right of a creditor to sever his claim and maintain two suits thereon was recognized, and this court has repeatedly entertained suits on accounts for fees of officers which were withheld from the accounting officers at the time of presenting to them for settlement accounts for fees accruing at the same time.

In the case at bar we think the claimant’s rights are to be determined by the special statute enacted in part for his benefit and relief, and by the terms of that act he is entitled to reimbursement for the loss incurred by him; not reimbursement for a part of his loss, but for the loss incurred, limited only by the latter proviso to the section.

It will be observed that although the act provides that those who incur loss “shall be paid,” and in terms makes an appropriation therefor, yet the amount to be so paid is to be ascertained by the accounting- officers, within the limits before stated, by requiring “a schedule and certificate from each person making a claim under this act,” i. e., an itemized account of such loss, with a certificate attached thereto as to-the correctness of the items lost and. their value.

We do not think the language of the section is sufficient to constitute the accounting officers an exclusive tribunal for the adjustment of such claims; but as this question is not raised by the defendants we will not consider it further.

For the reasons stated the claimant is entitled to recover judgment for the sum of $556.  