The JAG JOURNAL is published by the Office of the Judge Advocate General of the Navy as an informal forum for legal matters of current interest to the naval service. The objective of the JAG JOURNAL is to acquaint naval personnel with matters related to the law and to bring to notice recent developments in this field.

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REAR ADMIRAL WILFRED A. HEARN, USN Judge Advocate General of the Navy

REAR ADMIRAL ROBERT H. HARE, USN Deputy and Assistant

Judge Advocate General of the Navy

MAJOR WILLIAM H. J. TIERNAN, USMC Editor

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PARKING METER FEES-Reimbursement of Government Employees driving Government-owned vehicles on official business (B-147420)

What aspiring student of constitutional law can forget the ringing words of Chief Justice Marshall in McCulloch v. Maryland (4 Wheat. 316 (1819)), holding unconstitutional an attempt by Maryland to tax the Bank of the United States, wherein it was stated: That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another; which other, with respect to those very measures, is declared to be supreme over that which exerts the control, are propositions not to be denied.

The question is, in truth, a question of supremacy; and if the right of the states to tax the means employed by the general government be conceded, the declaration that the constitution, and the laws made in pursuance thereof, shall be the supreme law of the land, is empty and unmeaning declamation.

Ever vigilant in guarding against the erosion of federal supremacy at the hands of state and municipal governments, the Comptroller General has consistently held that appropriated funds could not be used to reimburse federal employees driving Government vehicles on offi

cial business for parking meter fees, such fees being an unconstitutional tax upon the Federal Government. Constitutional purists will thus deplore a recent decision, B-147420 of January 23, 1967, reversing this long-standing policy. In defense of this holding, however, it should be noted that the Comptroller General was undoubtedly much influenced by the Department of Justice, which indicated that it would no longer represent Government employees who receive traffic tickets for non-payment of parking fees. In any event, such reimbursement will no longer be objected to, provided however, that the fee in question is not, in truth, a disguised tax.

DISABILITY RETIREMENT-Effect of Court of Claims judgment upon grade on the retired list (B-143540)

Section 402 (d) of the Career Compensation Act of 1949 authorized computation of disability retired pay at the highest temporary rank held by an officer providing he "shall have served satisfactorily in such higher rank, grade, or rating as determined by the Secretary concerned." B-143540 of January 6, 1967, involved an army officer who was retired under this provision in the grade of colonel. The officer claimed that he should have been advanced on the retired list to the grade of brigadier general since he had served in that grade for four years (Continued on page 149)

INTRODUCTION

HE PURPOSE OF this article is to describe

the nature of the marine survey and its importance in the area of Navy admiralty claims. It is written for the commanding officer, his legal officer and other interested personnel of the command who may wish to know more about this important and commonly misunderstood subject.

To better understand the nature and use of the marine survey as it is employed by the Navy, one must look to the role the marine survey plays in the commercial maritime industry, for there is where the surveyor's functions have been shaped. As in any industry, the maritime industry has employed the talents of men of specialized technical knowledge and skills to provide expert advice and assistance in the multitude of problems which arise throughout the life of a vessel (and which often remain long after the vessel has ceased to exist). It is the complex nature of the industry and its vessels which has given rise to a host of experts, who cover a variety of functions ranging from naval architect to salvage engineer. The professional marine surveyor is one of this group of experts. His special function with which this article is concerned begins with an inspection of a vessel

*Lieutenant Marsh is presently assigned to the Admiralty Division of the Office of the Judge Advocate General. He received his LL.B. degree from the University of Michigan in 1961 and is a member of the State Bar of Michigan and the Westmoreland County Bar of Pennsylvania.

damaged as the result of collision or other maritime casualty and often continues until long after damage repairs have been completed.

The marine survey is a commercial maritime practice of long standing. During the last 100 years the services of the professional marine surveyor generally could be obtained through various independent salvage associations and classification societies which came into being, first in England and later in America. For instance, The Salvage Association, London, a nonprofit organization established in 1856, employs special surveyors and agents throughout the world and handles the surveying of ships and cargo for marine underwriters as well as other commercial interests. The American Bureau of Shipping, a classification society and register of shipping founded in New York in 1862, maintains a staff of surveyors in the United States and in ports throughout the world. The United States Salvage Association, principally a surveying association, is a service organization which primarily represents American marine underwriters. Its headquarters is in New York, and it maintains a staff of marine surveyors and has representatives in the major ports of the world, including Saigon.

Shipowners, underwriters, and other maritime interests have traditionally turned to the professional marine surveyor for expert assistance when, after a maritime casualty, they must face claims and litigation by opposing interests and when they wish to recover their own losses