F-0800/35
Decided by Board February 6, 1957
Fine — Section 251 (a) and (d), Immigration and Nationality Act — Carrier is liable for clerical errors in manifests after repeated violations and warnings.
A carrier which had repeatedly submitted incorrect manifests and had been warned about further errors is subject to fine for a clerical error in its manifest, although no opportunity for correction was provided. In this situation, the United States implementation to paragraphs 11.3 and 11.4 of Annex 9 to the Convention on International Civil Aviation controls on the question of liability.
BASIS FOR FINE:
Act of 1952 — Section 251 (a) and (d) ( 8 U.S.C. 1281).
BEFORE THE BOARD
Discussion: This matter is before us on appeal from an order of the Acting District Director at Detroit, Michigan, dated August 31, 1956, imposing a fine of $10 on Pan American World Airways, Inc., owners and/or agents of Plane No. 774 (flight 59), which arrived at the port of Detroit, Michigan, from foreign on July 7, 1956, for failure to deliver a complete and true list of all aliens employed aboard said aircraft, as required by the statute.
The crewmember B---- B---- K---- was employed aboard the aircraft as a stewardess. She was listed as a United States citizen on the manifest submitted on the plane's arrival. She was, in fact, a German national. The error in reporting her is established and conceded.
The only issue is whether the carrier was properly fined without first having been given an opportunity to correct the error. We hold that it was, despite the fact that the carrier had personnel available to make the correction without unduly delaying the inspection process by Service officers.
The question arises because of the provisions of paragraphs 11.3 and 11.4, Annex 9 to the Convention on International Civil Aviation, to which the United States is a signatory. We have previously held that said provisions must be taken into consideration in fine proceedings of the nature involved here. Substantially, they provide that carriers shall not be fined for purely clerical errors in documentations which are inadvertent, not of a serious nature, and made without intent to violate the immigration laws, unless the carrier is first given an opportunity to correct such errors and can do so without unduly delaying the functions of the public officials concerned. However, for the reasons hereinafter set forth, these provisions are not controlling here.
Annex 9, with supplement, was implemented by appropriate notification of the United States position on differences (deviations) with respect to the Standards and Recommended Practices for Facilitation set forth therein. Specifically with reference to paragraphs 11.3 and 11.4, the Service reserved the right to impose the fine authorized by the law for repeated errors after the carriers have been notified. (See Appendix A, p. 21, ACC 50/25.4, May 1, 1953.) Under the terms of the Convention, the implementation has application to the region concerned (in this instance the United States) and it is binding on the signatories.
The facts of this case make it clear that the implementation rather than the Annex itself is controlling here. The carrier had submitted 8 incorrect manifests at the port concerned in a period of 1 month. This was the second time in that period it had made the same error in reporting this crewmember. The Service had apprised the carrier of the errors and warned it that future errors would result in fines.
It is no defense that the carrier had notified its field office of the error as to this alien and advised precautions to prevent recurrence. The carrier is responsible for the act, or omission, of its representatives who failed to change in advance the information on the manifest as to her.
It is likewise no defense that the carrier has exercised due diligence by spending thousands of dollars in the instruction of its employees as to the requirements of the immigration laws and regulations of this country. The statute specifically prohibits remission or refund of the fine and it makes no provision for mitigation thereof.
Order: It is ordered that the appeal be dismissed.