urgently requested by the captain of the boat. No steps were taken toward affording such protection. For the foregoing reasons the Department of the Army believes that Major Earl should be compensated in a reasonable amount for the damage sustained by him on account of the loss of the Eldora.

The claim filed by Major Earl with the War Department, as herein before stated, was in the amount of $10,509.21, and the award that would be provided by the enactment of H. R. 6475 in its present form is in the same amount. This amount was based on the cost of the construction and outfitting of the boat. While construction costs, by themselves, are not as a rule regarded as a proper measure of damages for the destruction of property, it was pointed out by the claims officer in Hawaii who originally investigated this claim that in the present case such a measure of damages is the fairest and most accurate for the reason that a boat such as the Eldora does not depreciate in a period of 2 years after its construction (the approximate age of the boat at the time of its loss) since a large amount is usually spent in improvements during the first 2 years after the boat is built. The evidence shows that the owner of the Eldora spent at least $1,000 a year for each of the 2 years the boat was in use in servicing and improving it. Moreover, estimates of the value of the Eldora at the time of her destruction were submitted by the builder of the boat and by two apparently disinterested parties in the amounts of $10,500 $12,000, and $13,500, respectively. It appears, however, that after the Eldora had been in use for about a year the original motor was replaced by a new one. The cost of the new motor was properly included in the valuation of $10,509. 21 placed on the boat by the owner, but the cost of the original motor, $1,941.79, less $500 (amount recevied for the old motor), or $1,441.79, was also included. It is the view of the Department of the Army that said amount of $1,441.79 should be deducted from the amount of the claim ($10,509.21) since when the old motor was replaced its value ceased to form a part of the value of the vessel. It is, therefore, believed that an award in the amount of $9,067.42 ($10,509.21 less $1,441.79) would constitute a fair and reasonable settlement of this claim. It may be stated, that on July 31, 1944, while Major Earl's claim was under consideration by the War Department, he signed and filed with the Department an acceptance agreement in which he agreed to accept the sum of $9,067.42 in full satisfaction and final settlement of his claim.

This claim cannot be reconsidered and approved under the provisions of the act of July 3, 1943, supra, in view of the well-settled principle of administrative law that a decision made by the head of a Government department within the scope of his authority cannot be reviewed and set aside by his successor in office (34 Op. Atty. Gen. 55, 60). The only method, therefore, by which this claim may now be settled is through the enactment by the Congress of a private relief bill such as H. R. 6475. For this reason and upon the facts and considerations hereinbefore set forth, the Department of the Army would have no objection to the enactment of this bill if it should be amended to provide for an award to the claimant in the amount of $9,067.42.

This claimant has no remedy under the Federal Tort Claims Act (60 Stat. 842; 28 U. S. C. 921), since the claim accrued prior to January 1, 1945.

The Bureau of the Budget advises that there is no objection to the submission of this report.

Sincerely yours,

KENNETH C. ROYALL,
Secretary of the Army.

STATEMENT OF FACTS RE CLAIM OF ERWIN F. EARL FOR Loss of SAMPAN "ELDORA” Pursuant to orders of Lt. Col. Vincent S. Burton, Infantry, United States Army, the district commander, Hawaii District, issued immediately following the outbreak of war December 7, 1941, claimant's vessel, the Eldora, was impounded and directed to proceed to its home anchorage at Hilo. Two members of the civilian defense were placed aboard and given jurisdiction of the vessel and its JapaneseAmerican crew of three. The route the vessel was directed to take was via South Point (sce exhibit F, affidavit of Col. Charles J. Benda). The vessel reached South Point on about December 16, 1941, and was there ordered detained by Capt. Edmund K. Hohu, at that time commanding officer of Company G, Two Hundred and Ninety-ninth Infantry, and Morse Field, Kau, Hawaii, pursuant to orders theretofore received from Colonel Burton (see exhibit G, affidavit of Captain Hohu). Pursuant to Captain Hohu's orders, the vessel lay at anchor at South Point with its crew and armed guard aboard for approximately 3 or 4 days

in close proximity to headquarters ashore, during which time meals for the personnel aboard were sent aboard from the station ashore (see exhibit J, statement of Matsunori Matsuo, master of the Eldora).

On the fourth day of the vessel's detention at South Point, the crew was taken off the vessel under guard pursuant to orders of Captain Hohu and over the objection of the master of the vessel, who directed specific attention to the danger of loss of the vessel if permitted to be anchored with no one aboard (see exhibit J). Matsuo was then interviewed by Colonel Benda, commanding officer of the Second Battalion, Two Hundred and Ninety-ninth Infantry, whose personal attention was again directed by Matsuo to the fact that the vessel had been left with no one aboard and that anchors would not afford adequate protection. The following excerpts from the testimony of Matsuo are highly significant (exhibit J, beginning at page 5):

"Q. When you came to Hilo what did you do?-A. They took me to the armory. "Q. Whom did you see?-A. Colonel Burton and Colonel Benda.

"Q. Who did most of the talking?-A. Colonel Benda.

"Q. What was said when you got into the armory?-A. He told us there was nothing to be afraid of, just a routine check-up. They gave us food.

"Q. Did you say anything then?-A. I told them the boat was not safe. He asked me if anyone was on the boat. He ran to the phone and phoned Morse Field headquarters.

“Q. What did he say?—A. He was bawling out the sergeant. Saying we have to pay for it.

Q. What did he say next?-A. He talked with the armed guards that came with us and told the sergeant to obey his orders.

"Q. Did you discuss the matter of the safety of the boat with Colonel Benda?A. Yes.

"Q. Did he make any suggestions with regard to making the boat safe?A. Yes.

"Q. What were these?—A. He suggested a stern anchor.

"Q. What was your statement with regard to the stern anchor?-A. It is no good.

"Q. What did he say to that?-A. He agreed with me. I told him that three anchors or any number of anchors would do no good at that anchorage.

"Q. What did he say?-A. He told me, "Don't worry".

"Q. What did you say?-A. Did not argue further. I asked him who was going to put the anchor on.

"Q. What did he say?-A. He said that he would have the boys at Morse Field put the anchors on.

"Q. Did you make any recommendations with regard to keeping watch on the boat in order to contribute to its safety?—A. Yes; both Colonel Benda and I did. "Q. What did he say that he was going to do with regard to guards?-A. He said he was going to keep two on the boat at all times."

The concern of the master of the vessel for its safety if left unmanned was concurred in by Colonel Benda. He realized the danger to the vessel if left unmanned in such a poor anchorage and made affirmative recommendations to Colonel Burton that "* * * at least two competent men should be placed aboard the Eldora in addition to the added precaution of another anchor." (See exhibit F, p. 2, affidavit of Colonel Benda.)

Colonel Burton apparently concurred in Colonel Benda's recommendation for, as Colonel Benda declares in his affidavit (exhibit F, p. 2):

Colonel Burton then advised this deponent that he would see that Captain Hohu took proper precautions to protect and safeguard the Eldora." Notwithstanding the foregoing, Captain Hohu was content to place his reliance for the safety of the vessel upon a third anchor, in spite of the fact that the inadequacy of such a measure was known to the officer in command of his battalion (Colonel Benda) and to Colonel Burton, the acting military governor and district commander, Hawaii District. On December 19, 1941, the same day and in fact a few hours after the crew had been removed, the eventuality which was anticipated by the master of the vessel, as well as by Colonel Benda, occurred. The Eldora broke its moorings, drifted out to sea, and was lost.

From the communication dated September 12, 1946, addressed to the claimant, it is clear that the obligation of the military to safeguard the vessel is conceded and that proper precautions obviously contemplated the maintenance of a watch aboard. The memorandum of September 12, 1946, seeks to justify the omission

H. Repts., 81-1, vol. 3- -26

to maintain personnel aboard by the injection of arguments that have no factual basis or support, namely:

(a) That no men were available for such duty; and,

(b) That the presence of any personnel aboard would have been inconsistent with the military purpose that was intended to be subserved by ordering the vessel to be anchored at South Point.

As to reason (a), the memorandum of September 12, 1946, tacitly concedes the absence of evidence by declaring that (p. 2) “* * * there is no evidence that any such persons were available."

There is not the slightest suggestion in the affidavits of Colonel Benda and Captain Hohu (exhibits F and G) that the failure to maintain a watch aboard the Eldora while anchored at South Point was due to the unavailability of personnel. The precise contrary is the only conclusion properly deducible from Colonel Benda's frank acknowledgment of the danger to the safety of the vessel if left unmanned and his affirmative recommendation to Colonel Burton that two men be placed aboard. Colonel Benda was the battalion commander of the troops under whose jurisdiction the Eldora lay and as such was obviously completely cognizant of the personnel available under his command when he made his recommendation that a watch be placed aboard the vessel. To conclude otherwise, as does the memorandum of September 12, 1946, is to say that Colonel Benda's recommendation was wholly fatuous and inane and that Captain Hohu's judgment, based on 5 months in the islands, and his lack of experience with the vagaries of the Pacific (see exhibit G, Captain Hohu's affidavit)`justified his disregard of the danger which had been recognized by his superiors. It seems clear that there is no factual support for the contention that no personnel were available.

Analysis of the evidence likewise establishes the factual sterility of the second proposition upon which the memorandum of September 12, 1946, rests. It purports to propound the thesis that the vessel was deliberately left unmanned as a military measure in that (p. 2):

"* * * it was intended that the vessel would be destroyed in the event of an enemy attack, or if it drifted from its anchorage or for any other reason put to sea, and the presence of any personnel aboard her would have embarrassed any effort to accomplish this end."

With all due respect to the writer of the memorandum, the observation is irresistible that this conclusion is an afterthought injected for the purpose of vitiating what would otherwise be compensable negligence within the purview of the act of July 3, 1943. In the first place, it is important to ascertain from the evidence the true reason why the Eldora was detailed at South Point. Pursuant to orders of Colonel Burton, issued immediately after the outbreak of hostilities, all fishing vessels had been ordered impounded and returned to the anchorage nearest their fishing ground (exhibit F, Colonel Benda's affidavit, par. 4). On December 8, 1941, the Eldora put into Miloii, having fished on the preceding day in the waters off that port, and on arrival there its master first learned of the events of the preceding day at Pearl Harbor. The vessel was held at Miloii for approximately 4 days; that is, until December 12, 1941. On December 13, 1941, pursuant to orders issued by Colonel Burton, it sailed for its home anchorage at Hilo Harbor in custody of the military with two armed guards aboard. It had been ordered to proceed by way of South Point and to report to the commanding officer there and then to proceed to Hilo (see exhibit J, statement of Matsuo, master of the Eldora). (See also exhibit F, Colonel Benda's affidavit, par. 5.) Appropriate instructions had been issued to shore batteries and other military personnel along the route which the Eldora was ordered to traverse to assure its safety while en route. Notwithstanding the precautions taken by the military authorities to assure the safe passage of the Eldora and other similarly impounded fishing vessels en route to their home ports, some of them had been fired upon by our shore batteries and planes. As a consequence, when the Eldora reached South Point and reported to Captain Hohu as previously directed, the danger to the Eldora from inadvertent gunfire was considered so imminent if it proceeded further that, pursuant to further orders of Colonel Burton, it was there detained for its own safety.

There is not the slightest suggestion in any of the evidentiary material that any reason other than the desire and determination to protect the Eldora, the property of an American citizen, was the motivation for its detention at South Point. To suggest, as does the memorandum of September 12, 1946, that the destruction of the vessel was contemplated and that such destruction would be embarrassed by the maintenance of personnel aboard is in direct opposition to the the facts. It is of the utmost significance and importance that the Eldora lay

off South Point for 4 days with the full crew of three Japanese-Americans and the two armed guards aboard before the order was issued removing the crew for questioning to Hilo and at the same time relieving the armed guard from further service aboard it. The very fact that the Eldora thus lay for 4 days fully manned utterly destroys the validity of the contention that the vessel was left unmanned in order to facilitate its destruction if deemed militarily expedient. The simple and stark fact remains that Captain Hohu, presumably pursuant to orders from Colonel Burton, detained the crew and its armed guard aboard the vessel until December 19, 1941, at which time:

66* * * I called Lt. Col. Vincent S. Burton for further orders concerning the detention of the sampan and the crew; that Lt. Col. Vincent S. Burton ordered me to release Mr. David Paris and Mr. Bob Leslie and to furnish the necessary transportation for their return to their home at Kona, Hawaii; that I was ordered by Lt. Col. Vincent S. Burton to have the Japanese American crew brought to his headquarters at Hilo under guard; that I detailed Sgt. P. Frendo the duty and gave him the necessary orders with instructions to pick up another anchor and rope; that the Japanese-American crew were safely turned over to the district commander * * *" (affidavit of Captain Hohu, exhibit G).

It will be noted that although Captain Hohu in his affidavit meticulously details the orders given him by Colonel Burton pertaining to the disposition of the Eldora and its crew, he makes no reference whatsoever to the contemplated destruction of the vessel as a military expedient. On the contrary, his emphasis is on the safety of the vessel and the means which he employed toward that end, the placement of an additional anchor, the posting of a special watch ashore, etc. All of these things graphically establish that the protection of the vessel and not its destruction was Captain Hohu's primary concern. They likewise furnish a clear-cut basis for allowing Major Earl's claim, for they demonstrate beyond peradventure that Captain Hohu by leaving the vessel unmanned and placing his reliance on a third anchor was negligent in his selection of the appropriate means to safeguard the vessel thus placed under his jurisdiction. Before the master of the vessel responded to Captain Hohu's command ordering him and his crew ashore, he specifically and categorically pointed out to Captain Hohu the danger inherent in such a move, as follows (exhibit J, p. 4):

"Q. What was the next order you got from ashore?-A. That we take all valuables and get off the boat.

“Q. Who gave you that order?—A. Captain Hohu.

"Q. When?—A. That was the last day that we were at anchor, 4 days after we had pulled in.

"Q. What did you tell Captain Hohu?-A. I said, 'I can't leave the boat.' "Q. Did you apprise him of the danger to the boat if abandoned?-A. Yes. "Q. What did you say?-A. I told him that the boat would drift out to sea and if the wind changed she would go on the rocks.

"Q. What did he say?-A. He said, "That is orders. Can't do anything.' The culpable error in judgment on the part of Captain Hohu, for which the military authorities were answerable to the owner of the vessel in the event of its loss, was immediately apparent to Colonel Benda. This is clearly established by the following excerpt from the testimony of the master of the Eldora (exhibit P. 6):

J,

"Q. Did you say anything then?-A. I told them (Colonel Burton and Colonel Benda) the boat was not safe. He asked me if anyone was on the boat. He ran to the phone and phoned Morse Field headquarters.

"Q. What did he say?—A. He was bawling out the sergeant. have to pay for it."

AFFIDAVIT OF MAJ. ERWIN F. EARL

CITY AND COUNTY OF Honolulu,

Territory of Hawaii:

Saying we

Personally appeared before me, the undersigned authority for administering oaths, one Maj. Erwin F. Earl, who, first being sworn according to law, deposes and says: That with reference to letter SPJGD/D-44227 (Earl, Maj. Erwin F.) dated August 10, 1945, subject: "Claim for loss of sampan," the evidence of the record is contrary to the statements of opinion made in subject letter. Specifically, paragraph 2 states in part-"loss of your sampan was not caused by any negligence or wrongful act on the part of military personnel," Capt. Matsunori Matsuo, of the Eldora, states in sworn testimony incorporated in the original

claim as follows: On page 3, "I told him that it was no place to anchor the boat,” on page 4, in answer to the question, "Did you apprise him of the danger to the boat if abandoned?" Answer "Yes." The next question is: "What did you say?" the answer being "I told him that the boat would drift out to sea and if the wind changed she would go on the rocks." Further reference is made to the insecurity of the anchorage specified by military authorities on page 6 of Captain Matsuo's testimony when he was asked the question, "Did he make any suggestion with regard to making the boat safe?", the answer being "Yes." The next question was, "What were these?" and the answer, "He suggested a stern anchor"; next question "What was your statement with regard to the stern anchor?" answer, "It is no good"; next question, "What did you say to that?" Answer, "He agreed with me. I told him that three anchors or any number of anchors would do no good at that anchorage." This should have clearly indicated to the military authorities, including Lieutenant Colonel Burton, who was present at the interview and who as district commander gave the orders for impounding the boat, as well as her subsequent anchorage at South Point, that the anchorage at South Point was highly unsafe, and the fact that he as district commander took no further action for securing the safety of the Eldora is clear indication of negligence. Further recognition of negligence is made by Col. C. J. Benda in his affidavit which is also incorporated in the claim. Paragraph 9 of Lieutenant Colonel Benda's testimony states in part: "that during the questioning of the crew it developed that the Eldora had been left at South Point anchorage with no crew member or other personnel aboard. That this deponent realizing the danger such a poor anchorage in the event of heavy seas, recommended to Lieutenant Colonel Burton that at least two competent men should be placed aboard the Eldora in addition to the added precaution of another anchor." Lieutenant Colonel Burton not only failed to put two competent men aboard, but neglected to put anyone whatsoever aboard, at the same time retaining the crew members of the Eldora including her captain in custody at Hilo. This provides clear and concise evidence of negligence on the part of the military authority and disproves the statement in paragraph 2 of letter SPJGD/D-44227, dated August 10, 1945, which states in part, "It does not appear that the military authorities omitted to do anything which could, under the circumstances, reasonably have been done to minimize the risk of loss of the vessel."

Paragraph 2 of SPJGD/D-44227 further states: "The evidence of record does not establish that you were prevented from taking whatever measures were necessary for the protection of your property.' The deponent has shown in sworn affidavit relative to the delegation of authority to Captain Matsuo that "the care, preservation, operation and safety of the vessel were among the duties of the captain," and that "the owner further instructed Matsnori Matsuo that he was to remain in complete control of the Eldora during the owner's absence from Hilo, and that the movements of the vessel throughout waters adjacent to the Hawaiian Islands, and the taking and disposal of fish from these waters were to be his responsibility entirely, as well as the care, preservation, operation, and safety of the vessel; further that Matsunori Matsuo agreed to do these things to the best of his ability and judgment as captain of the Eldora, and that he truly and faithfully performed the duties to the satisfaction of the owner up to and/or on about December 8, 1941, when the control of the Eldora was forcibly removed from his jurisdiction by orders of the district commander of the island of Hawaii."

Reference is made to page 4 of Captain Matsuo's sworn statement included in the body of the claim in which he was asked the question: "What was the next order you got from shore?" the answer being: "That we take all valuables and get off the boat". Next question: "Who gave you that order?" Answer: "Captain Hohu." Another question: "What did you tell Captain Hohu?" Answer: "I said, I can't leave the boat." Question: "What did he say?" Answer: "He said, "That is orders, can't do anything.' Question: "When he gave you these orders, was he armed?" Answer: "He always carried side arms." Question: "Was he in the presence of other soldiers?" Answer: "Two or three soldiers." Question: "Were these guards armed?" Answer: "Always." Question: "Did you comply with these orders and abandon ship?" Answer: "Naturally, I didn't want to argue with machine guns." The deponent contends that the foregoing offers concrete and ample evidence that Captain Matsuo, by reason of his forcible removal from the Eldora was unable to take any measures whatsoever to insure the protection of the vessel, that in the case of Captain Matsuo, he was indeed prevented from taking the necessary measures for preservation of the Eldora because of his forcible removal therefrom by the military authorities, and the Eldora was subsequently lost as a direct result of this action while she was presumably being cared for by