With each set there is a rescue and salvage vessel, which also is a matter of considerable expense.

Regardless of the amount of money available, the department would not recommend the providing of any more of this equipment at this time. Constant improvements in submarines will, it is hoped, enable them to better avoid casualties, and take care of casualties should they occur. In the V boats we have so many more compartments and appliances for the use of the crew, which should enable them to maintain considerable buoyancy within the boat. The remaining weight would be handled by the pontoons. The department feels that it can not logically provide for every conceivable combination of circumstances, and that the pontoons and rescue vessels now under way will fulfill our needs in this regard to a reasonable extent for some time to come.

The committee has asked that data be placed in the record regarding the amount that the trial course at Provincetown has been used by submarines in the past two or three years. Data on file in the Navy Department indicate that for the two and a half years preceding the S-4 collision, submarines were actually using the standardization course on about 55 separate days, and that they were operating in and out of Provincetown on other trials and tests for about 38 days more. Thus, as far as we can determine, there have been submarines operating out of Provincetown on trials about 10 per cent of the time.

The committee desires some information in regard to soda lime in submarines, and as to its efficiency in prolonging life. Expert witnesses before the naval court of inquiry testified that concerning the six men in the torpedo room, had they remained quiet they would, in the normal amount of air contained therein, have lived. between 65 and 72 hours. From the time of the accident until the last signals were heard from these men, about 72 hours elapsed.

In regard to the men entrapped in the engine and motor room, under the conditions as stated above, they should have lived about 38 hours.

Some points brought out in connection with the use of soda lime and oxygen may be of interest. Without soda lime to purify the airthat is remove the CO2 from the air-oxygen is without value. The effects of CO2 are doubled if the pressure in the compartment is doubled. About 10 per cent by volume is a lethal amount of CO2 in the air; that with 100 pounds of soda lime properly used in the torpedo room of the S-4 the six men might have lived 33 hours longer. The naval court found that the allowance list of the S-4 provides for 50 pounds of soda lime per man, and that it was available for issue at the navy yard, Portsmouth, from which the S-4 departed but two days before the collision; but that because of its strong corrosive effect and the difficulty of stowing it on submarines, mostly for emergencies, the value of such large quantities is considered by many submarines officers to be outweighed by its objectionable features; that the use of soda lime was developed as a war need, where submarines went on a station or patrol, and were forced to remain submerged for many hours for safety. By the use of soda lime they could remain down for several hours longer. Soda lime is primarily a war allowance. A rescue allowance is indeterminable; 104672-28- -21

that there were no evidences of soda lime having been on board the S-4, and it is believed that she carried none at the time of the accident. The committee has expressed a desire to know why and under what circumstances the Secretary of the Navy reversed the decisions of the court of inquiry in regard to the responsibility of Lieut. Commander R. K. Jones and the blame attached to Rear Admiral F. H. Brumby. The court found as follows:

The court finds that the commanding officer of the United States submarine S-4, the late Commander R. K. Jones, United States Navy, and the commanding officer of the United States Coast Guard destroyer Paulding, Lieut. Commander John S. Baylis, United States Coast Guard, are jointly responsible for the collision between the Paulding and the S-4, and that serious blame was incurred by them. Rear Admiral Frank H. Brumby, United States Navy, has been in command of the control force, including all submarines in the Atlantic, since August 1, 1927, and was in command of the forces employed in rescue operations on the S-4 from December 18, 1927, until such operations were discontinued. Rear Admiral Frank H. Brumby's testimony before this court showed that he had not the familiarity with the essential details of construction of submarines and the knowledge of rescue vessels, and the knowledge of the actual work being carried on by his subordinates necessary to direct intelligently the important operations of which he was in charge. While the plans he approved, conceived by an expert staff of which Captain King was the senior, were logical, intelligent, and were diligently executed with good judgment and the greatest possible expedition, yet Rear Admiral Brumby failed to contribute that superior and intelligent guidance, force and sound judgement expected from an officer of his length of service, experience and position. The court therefore recommends that Rear Admiral Frank H. Brumby, United States Navy, be detached from the command of the control force.

That the late Lieut. Commander R. K. Jones, United States Navy, was the regularly ordered commanding officer of the S-4. He was seen by the commandofficer of the Wandank shortly after the S-4 started to make the standardization run on the afternoon of the collision; and had anything occurred during the trials to incapacitate the commanding officer for the active command of the S-4 it is probable that the submerged trials would have been immediately suspended.

That when found by the divers the body of Lieut. Commander R. K. Jones, free from injury, was found nearest the control bulkhead. This is the point from which the danger was most threatening, and therefore the post that the commanding officer would occupy. All available evidence showed that the late Lieutenant Commander Jones was actively in command of the S-4 at the time of the collision. There was no evidence to the contrary.

That the evidence further shows that the Paulding must have been in range or view of the periscope of the S-4 for at least six minutes before the collision; that under both the rules of the road and the submarine doctrine, it was obviously the duty of the commanding officer of the S-4 to keep clear of the Paulding. The fact of the collision shows that he did not dicharge his duty in this respect. There was no evidence before the court to indicate any responsibility for the collision on the part of any officer or man on the S-4 except the commanding officer.

The evidence before the court, direct, presumptive, and circumstantial, was sufficient in its opinion to fix responsibility for the collision upon the commanding officer of the S-4, the late Lieut. Commander R. K. Jones.

A general finding by the court that the responsibility for the collision rested upon the S-4 rather than upon any individual on that ship, thereby necessarily distributing the responsibility throughout all of its officers and men, or that no one on the S-4 was responsible for the collision, would have been contrary to the evidence, and an evasion by the court of the duty with which it was charged under its orders.

In regard to Rear Admiral Frank H. Brumby, United States Navy, the court states that after careful consideration of testimony given before the court by Rear Admiral Frank H. Brumby, United States Navy, the court was of the opinion that his testimony showed that he had not the familiarity with the essential details of construction of submarines and the knowledge of rescue vessels and the knowledge of the actual work being carried on by his subordinates, necessary to direct intelligently the important operations of which he was in charge.

In the opinion of the court, he had had sufficient time to acquire a familiarity with the essential details of construction of submarines, etc., even though he may not have had any special knowledge of these types of vessels at the time they came under his command. The court believes that the rescue operations that were under his immediate, direct command were of such tremendous importance that Rear Admiral Brumby should have had complete and accurate knowledge of all such operations undertaken by his subordinates, the reasons therefor, and the details of their execution.

The court was further of the opinion that the lack of such knowledge on the part of Rear Admiral Brumby as set forth above prevented him from contributing "that superior and intelligent guidance, force, and sound judgment,” etc.

Holding the opinion that it did, the court believed it was its duty to report that opinion to the Secretary of the Navy.

The court further believed the usefulness of Admiral Brumby as commander of the control force was so impaired by the lack of knowledge shown by the testimony before it that in the interests of good administration he should be detached from that command, and the court so recommended. It did not recommend disciplinary action in this case.

There follow examples of the testimony given by Rear Admiral Brumby before the court, purporting to indicate that he was not familiar with the details of the work.

The Secretary of the Navy finally closed the case on April 13, 1928, and stated, in part, as follows:

1. From a careful reading of the record in this case it is evident to the Navy Department that the court conducted a most thorough inquiry into the subject matter submitted to it. The court is therefore to be commended for the painstaking care and thoroughness with which it has inquired into the circumstances surrounding the disaster in question and the attempted rescue of the crew of the United States submarine S-4.

4. The court of inquiry finds that Lieut. Commander Roy K. Jones, commanding officer of the S-4, is worthy of blame for the accident because of the failure to determine the presence of the destroyer in time to avoid the collision. The finding is based wholly on circumstantial evidence indicating that Lieut. Commander Jones was in actual command, and pointing to the fact that the periscopes and listening devices were not effectively used in determining the presence of the destroyer. The Chief of the Bureau of Navigation in commenting on the finding concerning Lieut. Commander Jones calls attention to the fact that there are possibilities which might completely exculpate him from all blame. There can be no doubt, however, that under all the facts shown by the evidence and found by the court, the preponderance of probability is in favor of the finding that the failure to discover the presence of the Paulding in time to avoid the collision was the result of the failure to use the extraordinary care required.

5. In determining issues of fact in a civil action, a preponderance of evidence is a sufficient basis for a finding of fact. This is sometimes spoken of as the weight of the evidence and sometimes as the preponderance of probability. In criminal matters a much higher degree of proof is required. If the evidence is direct, it must satisfy the court and jury beyond a reasonable doubt. If it is entirely circumstantial, in order to justify a verdict against the accused, the circumstantial evidence must be of so persuasive a character, and point so unerringly to the guilt of the accused, as to exclude every other reasonable hypothesis than that of guilt. It is manifest that the proof in this case, so far as it affects the conduct of Lieut. Commander Jones, is wholly insufficient to justify a finding of guilt. In other words, by a verdict of a general court-martial, whose verdict of guilty must be based upon circumstantial evidence, excluding every other reasonable hypothesis, it is manifest that Lieut. Commander Jones would be acquitted.

6. The Navy Department has already had occasions to consider the conduct of Lieut. Commander Jones at the inquest held on his remains wherein it was essential to determine whether or not his death was the result of his own misconduct. It was found that his death was not the result of his misconduct and in pursuance of that finding, the death gratuity due to the widow has already been paid to her.

7. * * * In view of the fact that Lieutenant Commander Jones lost his life by this collision, and in view of the fact that the evidence presented to the court of inquiry by reason of the loss of the whole crew of the S-4 would be insufficient to convict him of wrongdoing, in case the evidence was presented to a general court-martial, and in view of the fact that no such trial can be held, it seems unnecessary to expressly approve or disapprove of the finding against Lieutenant Commander Jones other than to point out that such finding is in accordance with the probabilities, but that these probabilities are insufficient to justify disciplinary action, assuming such action was possible.

*

*

9. The court recommends that Rear Admiral Frank H. Brumby, United States Navy, be removed from his command of the control force. This recommendation was not based upon any failure of the officers under his command to do all that was possible to do in the rescue and salvage operations, nor was it due to the failure to obtain supplies or equipment essential for those operations, but is based upon the theory that Rear Admiral Brumby's testimony showed an insufficient familiarity with the details of the construction of submarines. * * *

10. In connection with these questions and answers it is to be observed that most all of them call for hearsay evidence. Rear Admiral Brumby was asked to relate what had occurred upon the bottom of the bay and what difficulties the divers had encountered there. It is obvious that he could have no knowledge of these facts other than hearsay. While it would have been proper for him to have stated what reports had been made to him by the divers, either by telephone from the bottom or after returning to the surface, it is obvious that it would be better for the divers themselves to testify as to the work done on the bottom and the difficulties they encountered there. * * *

12. Rear Admiral Brumby was appropriately called upon for testimony as to the minute details of the salvage operations which had been going on for more than a month and was asked to give the exact time of certain incidents in the operation and may readily have been mistaken in his testimony. If he had been advised, either by being made a party to the proceedings or in any other way, that in the opinion of the court his testimony was being considered with reference to its effect upon his professional career or professional intelligence, it is obvious that he could and probably would have answered some questions which he felt might be more appropriately answered by those having direct and first-hand information. He was not advised at any time that the court considered his conduct such as to require investigation or action of any kind. If his attention had been called to his mistake with reference to the delay in getting air into the torpedo room, he would have been in a position to correct such mistake. It is probable that the court failed to do this because at that time the facts had not been fully brought to their attention. Rear Admiral Brumby not only had charge of the operations but he remained on board the Falcon in constant contact with all of those engaged in the work and he states that in his conferences the decisions were unanimously arrived at and carried out. There is nothing in his conduct in connection with the rescue or salvage operations which is considered blameworthy or other than commendable, and under all the circumstances, any errors or oversights or failures in his testimony are insufficient to overcome a splendid record of achievement covering more than 31 years of service in the Navy, approved as it has been by his superior officers and also by the selection board whose recommendation resulted in his recent promotion to the rank of rear admiral.

14. Subject to the above, the proceedings, findings, opinion, and recommendations of the court of inquiry and court of inquiry in its first and second revisions and the remarks of the Judge Advocate General, the Chief of the Bureau of Navigation, and the Chief of Naval Operations, are approved.

Senator ODDIE. Captain Theleen, in connection with the purpose and work of the Naval Consulting Board, it was thought that the matter of asking the Naval Consulting Board to concentrate to a certain extent on safety devices for submarines should properly be referred to the Secretary of the Navy. Will you request Secretary Wilbur, for us, to give the committee an opinion on this matter? Captain THELEEN. I will do that, Senator.

Senator ODDIE. And I will ask that you put the Secretary's reply in the record at this point.

Captain THELEEN. Yes, sir.

(The statement of the Secretary of the Navy is as follows:)

The question of examining and considering the large number of ideas and suggestions received in the Navy Department since the S-4 disaster has been given serious consideration. The committee is informed of the history of the efforts of the department and of the President of the United States to obtain congressional action with reference to appointing a suitable technical board to consider the subject of safety devices for submarines and the salvage of submarines,

The Naval Consulting Board is a board appointed through the efforts of the Secretary of the Navy in 1915, and during the World War passed upon over 100,000 ideas, many of which referred to safety devices for submarines. The question of calling for the assistance of the Naval Consulting Board in connection with this technical board was considered, but it was felt that this board might be open to the charge of bias as they had already passed on many safety devices submitted during the war.

In the latter part of December, 1927, the chairman of the Naval Consulting Board telegraphed to the Secretary of the Navy that the Naval Consulting Board offered its services individually or collectively to investigate the S-4 disaster. The Secretary, in acknowledging the receipt of this telegram, stated that the department appreciated very much the willingness of the board to be of service and would be very glad to call upon them should need for the services of the board be felt. Furthermore, the department would be very glad to receive and consider any suggestions of any character which the board might have to make upon this subject. In reply to this letter the chairman of the Naval Consulting Board stated that he had no doubt that this matter was receiving the best attention of the Navy and that he had no suggestions to make. The question of obtaining assistance from the Naval Consulting Board has been seriously considered. There is some doubt, however, as to the legal status of this board. From the years 1916 to 1921 the board was recognized as an existing board by action of Congress in making appropriations for operating expenses. Whether or not the department can, at the present time, call upon this board for gratuitous services is doubtful.

The law forbidding the acceptance of voluntary services reads:

"No executive department of other Government establishment of the United States shall expend, in any one fiscal year, any sum in excess of appropriations made by Congress for that fiscal year, or involve the Government in any contract or other obligation for the future payment of money in excess of such appropriations unless such contract or obligation is authorized by law. Nor shall any department or any officer of the Government accept voluntary service for the Government or employ personal service in excess of that authorized by law, except in cases of sudden emergency involving the loss of human life or the destruction of property. * * * Any person violating any provision of this section shall be summarily removed from office and may also be punished by a fine of not less than $100 or by imprisonment for not less than one month." (U. S. Code, title 31, sec. 665; R. S. sec. 3679; Mar. 3, 1905, c. 1484, sec. 4, 33 Stat. 1257; Feb. 27, 1906, c. 510, sec. 3, 34 Stat. 48.)

The payment of compensation or expenses of boards and commissions is restricted by the following statutes:

No part of the public moneys, or of any appropriation made by Congress, shall be used for the payment of compensation or expenses of any commission, council, board, or other similar body, or any members thereof, or for expenses in connection with any work or the results of any work or action of any commission, council, board, or other similar body, unless the creation of the same shall be or shall have been authorized by law; nor shall there be employed by detail, hereafter or heretofore made, or otherwise personal services from any executive department or other Government establishment in connection with any such commission, council, board, or other similar body." (U. S. Code, title 31, sec. 673; Mar. 4, 1909, c. 299, sec. 9, 35 Stat. 1027.)

"No accounting or disbursing officer of the Government shall allow or pay any account or charge whatever, growing out of, or in any way connected with, any commission or inquiry, except courts-martial or courts of inquiry in the military or naval service of the United States, until special appropriations shall