APPEAL FROM THE COURT OF CLAIMS.
MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.
By the statute of the United States, the officers of the Navy receive higher pay "when at sea," than when "on shore duty," or "on leave, or waiting orders"; and the pay of the claimant, being in the second five years of his service as lieutenant, was "when at sea, $2600; on shore duty, $2200; on leave, or waiting orders, $1800." Rev. Stat. § 1556. And by § 1571, "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."
To constitute sea service, then, three things, and three only, are necessary. The service must be performed "at sea"; "under the orders of a Department"; and "in vessels employed by authority of law."
In order to come within the phrase "at sea," as used in this statute, it is not necessary that the vessel upon which the service is performed should be upon the high seas. It is enough that she is waterborne, even if at anchor in a bay, or port or harbor, and not in condition presently to go to sea. It has accordingly been adjudged by this court that a vessel is "at sea," within the meaning of the statute, although she is used as a training ship, anchored in a bay, and not in a condition to be taken out to sea, beyond the main land; or is used as a receiving ship, at anchor in port at a navy yard, communicating with the shore by a rope, and having a roof built over her deck, and not technically in commission for sea service. United States v. Symonds, 120 U.S. 46; United States v. Bishop, 120 U.S. 51; United States v. Strong, 125 U.S. 656. The claimant, while the St. Mary's was not on a cruise, but anchored at and tied to a wharf in the harbor of New York, lived on board of her, wore his uniform, and was subject to
the same regulations, as while she was upon the high seas; and was therefore "at sea," so far as affected his rate of pay, during the whole period of his service as her executive officer. The fact that this service was called, in the order of the Secretary of the Navy assigning him to duty upon this vessel, "employment on shore duty," is immaterial. The material question is whether the service was, in fact, performed at sea, and not on shore; and not upon the name by which the Secretary of the Navy was pleased to designate it. As was said by this court in United States v. Symonds, above cited, "Congress certainly did not intend to confer authority upon the Secretary of the Navy to diminish an officer's compensation, as established by law, by declaring that to be shore service which was in fact sea service, or to increase his compensation by declaring that to be sea service which was in fact shore service." 120 U.S. 49.
The service of the claimant was clearly performed "under the orders of a Department." It was in obedience to an order of the Department of the Navy, that he reported to the commander of the St. Mary's, and served as her executive officer; and, throughout his service upon her, he received no orders, except from her commander, himself an officer in the Navy. As was well said by Judge Nott, now Chief Justice of the Court of Claims, in delivering the opinion of that court in the case at bar, "The order which placed the St. Mary's on duty as a school ship, and, to a certain extent, at the disposal of the board of education, did not transfer the vessel to any other authority than that of the United States. Possession, control, discipline and authority were all retained by the Government. The officers doubtless carried out the directions of the board of education; but they did not do so because they were the orders of the board of education, but because they were sent by the Secretary of the Navy to New York to do so." 30 C. Cl. 207.
It is no less clear that the St. Mary's was one of the "vessels employed by authority of law" by the United States. The Court of Claims has distinctly found, as a fact, that she was "a sailing vessel owned and employed by the United States."
Both the furnishing of the St. Mary's by the Secretary of the Navy to the State of New York for a ship to maintain a nautical school upon, and the detail of the claimant as executive officer of the vessel while she was used for that purpose, were pursuant to the powers expressly conferred upon the President of the United States and the Secretary of the Navy by the act of Congress, entitled "An act to encourage the establishment of public marine schools." Act of June 20, 1874, c. 339; 18 Stat. 121.
The duties of executive officer of the St. Mary's having been performed by the claimant as a lieutenant in the Navy of the United States, at sea, under the orders of the Department of the Navy, and in a vessel employed by the United States by authority of law, he was entitled, during the whole period of his service, whether the vessel was attached to a wharf, or was sailing on a cruise, to the rate of pay which the statute allowed to him "when at sea," notwithstanding that during the same period he also received pay from the State of New York for the performance of the distinct, but quite consistent, duties of instructor in its nautical school upon this ...