
    CHARLES AULICK, Administrator, v. THE UNITED STATES. JOHN S. COVELL v. THE SAME.
    [No. 15626.
    Decided January 11, 1892.]
    
      On the Proofs.
    
    A naval officer is assigned to duty on the monitor Ajax, at anchor in the James Eiver. The difference between this case and Gorwmeis (24 C. Cls. R., 104) is that the officer in the former failed to show that he was subjected to the restrictions, regulations, and requirements incident to sea service.
    I. There is a distinction between rendering service and being in service; an officer may be in sea service though not rendering service at sea.
    
      II. A ship of war afloat, manned, in a serviceable condition, and able to proceed to sea, is in service, though she may need more men and stores to make her sea service effective, and an officer on such a vessel is in sea service if he is subjected to the restrictions, regulations, and requirements which are incident to service at sea.
    
      The Reporters’ statement of the case:
    The following are the facts of this ease as found by the court:
    I. Since the bringing of this suit the claimant has died. His estate is now represented by Charles Aulick, administrator.
    II. Hampton Aulick was a passed assistant surgeon in the Navy during the period from November 3, 1882, until May 10, 1884.
    III. On the former date he reported on board the U. S. S. Ajax, and served there until May 10, 1884, in obedience to the following order:
    “Navy Department,
    “Bureau oe Navigation and Oeeice of Detail,
    “ Washington, October 26, 1892.
    
    “Sir: On the reporting of your relief, Passed Assistant Surgeon P. S. Nash, on the 1st of November next, you will regard yourself detached from the Dispatch and will proceed without delay to Norfolk, Ya., and report to Commodore Mayo for duty on board the ironclads at City Point, Ya., as the relief of Passed Assistant Surgeon C. A. Siegfried.
    “This employment on shore duty is required for the public interests, and such service will continue until 26th October, 1884, unless it is otherwise ordered.
    “By direction of the Secretary:
    “ J. G-. Walker,
    “ Chief of Bureau f
    
    IY. Decedent performed the duty assigned him until May 10,1884, when he was detached. Said vessels were public vessels of the United States, and during said period were afloat in navigable waters of the sea. During said period decedent received only the pay of an officer of his grade on shore duty, and was not allowed a ration or commutation therefor.
    Y. On the date specified the following order was made:
    “August 3,1887.
    “Vessels in commission, lying in port, held in reserve for sea service, and reduced in complement, will be considered by the Department as on special shore service, and the officers attached thereto on shore duty.
    
      “Whenever the complement of such vessel is filled, she will be considered as on sea service and her officers on sea duty until the completion of the cruise or the reduction of the complement, when she will again be considered as on special shore service and her officers on shore duty.
    “E. W. THOMPSON,
    “ Secretary of the Wavy.”
    
    YI. The vessels to which decedent was assigned were lying in port, held in reserve for sea service, and reduced in complement.
    YII. During the time he was attached to this vessel decedent was required to have his quarters on board, to mess there, and was obliged to wear his uniform, and was not permitted by the rules of the service to live with his family.
    
      Mr. John Paul Jones for the claimant.
    
      Mr. P. P. Pewees (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
    It is substantially decided in Symoncls’s Case (21 C. Cls. B., 148; 120 U. S. B., 46) and Strong’s Case (125 U. S. B., 656) that where the service rendered is actually sea service, it is not in the power of the Secretary of the Navy to reduce the pay of the officer by declaring it to be “shore duty.” It is decided in these cases that sea service may be rendered upon a vessel in port as well as upon the high seas. Evidence of the character of the duties devolving upon the officers may be given for the purpose of determining the character of the service of the vessel.
    But the vessel must be in sea service. In the Symonds case the service was that of a training ship. In the Strong case it was that of a receiving ship. It was not claimed in behalf of the Government that • a training ship or receiving ship might not be in “sea service,” but whilst it was admitted both vessels were in service, it was urged that the service in which they were engaged was not “sea service.” This court held that the vessels were in “sea service,” and the Supreme Court affirmed the judgments rendered.
    But in the case at bar the monitors were not in service at all. They were simply held in reserve for service. The Government owns the vessels and the Navy Department must preserve them, but it is a notorious fact that the day of their influence is past. The duty of the persons in charge is to take care of them, and a sufficient number of persons to perform that duty are detailed.
    Claimant was a physician, whose appointment was for service upon all the vessels. That he had to wear his uiiiform is asserted, but not proven. If proven, it is immaterial. If sea service can not be made shore duty by regulations, neither can regulations make shore duty sea service. The case is ruled by Oorwine v. United, States (24 O. Cls. R., 104).
   Nott, J.,

delivered the opinion of the court:

This is an action brought by a naval officer to recover sea pay while on board the monitor Ajax, she at the time being moored in the James River near Richmond.

The opinion of'the court in the case of Corwine (24 C. Cls. R., 104) says of this identical vessel, while lying in this identical place, “The Ajax was a vessel belonging to the United States, employed by authority of law, and being at sea in the navigable waters of the United States.” “The vessel to which the claimant was assigned was lying in port, held in reserve for sea service, and reduced in complement,” and “in a state of absolute repose, performing no function or duty.”

The only point raised by the counsel for the defendants is that the case does not come within the decisions in Symonds and Strong (120 U. S. R., 46; 125 id., 656), because in one of those cases the service which the ship was rendering was that of a training ship, and in the other that of a receiving ship. Here it is insisted that the ship was not in service.

There is a distinction between rendering service and being in service. An officer sleeping in his berth is not rendering service, but is nevertheless in service. An officer on “ shore leave” for a few hours while his vessel is in a foreign port is in sea service, though not rendering service. The sea pay does not stop because the officer chances for the moment to be on dry land. And it is so with a vessel. Ships of war in time of peace are for the greater part of the time in a condition of idleness. They sail somewhere and do nothing; they sail somewhere else and again do nothing; they return home and await orders. A ship of war may pass her entire life in a condition of readiness to serve, but of never serving.

The opinion in the Corwine case does indeed say that the monitors, of which the Ajax was one, “ were not in any service.” The words have not the significance in that case which they have in this, and it is clear from the context and the whole tenor of the opinion that they were used as synonymous with being engaged in service or at the time rendering service. A ship of war afloat, manned, in a serviceable condition, and able to proceed to sea if ordered so to do, is in service, though she may need more stores and more men to make her sea service effective.

It was also said in the opinion in the Corwine case:

“It is not the mere location or condition of the ship that determines the right of pay, but the condition of the ship with reference to the sea, qualified by the further condition of being subjected to such restrictions, regulations, and requirements as are incident to service at sea.”

This language is not strictly a decision favorable to the present claimant, inasmuch as judgment went against the former claimant, for the reason that he had failed to show that he was subjected to such restrictions, regulations, and requirements as are incident to service at sea. But in the present ease the claimant has complied with the second condition, and the court now adopts the language as its decision and as accurately expressive of its opinion in this case.

The judgment of the court is that the claimant recover of the defendant the sum of $303.56.

In the case of John Q. Lovell, the facts being substantially the same as those in this case, judgment will also be entered for $514.52.  