F-4327
Decided by Board February 10, 1950
Fine — Failure to detain alien seaman for inspection — Section 20, act of 1924 — "Arrival from foreign."
Under section 20 of the Immigration Act of 1924, the duty is upon the ships' operators to detain seamen on vessels "arriving from foreign" until inspected, and the responsible parties are not relieved from such duty merely because there was brief (35 minutes) contact with shore at an American port prior to the vessel's "arrival" at a subsequent port in the United States, where the immigration authorities at the first port were not notified, there was no immigration inspection and the vessel did not formally enter (was not "entered" by customs) at the first port of contact here.
BEFORE THE BOARD
Discussion: This is an appeal from the order of the Assistant Commissioner imposing a fine of $1,000 under section 20 of the Immigration Act of 1924 against the Eastern Transportation Co., owners of the S.S. Baldrock, for failure to detain an alien seaman, E---- G----, on board the vessel upon its arrival at Boston, Mass., on May 23, 1946, until inspected by an immigrant inspector.
The record is none too clear, but from our examination of it we conclude these to be the facts: On May 11, 1946, the tug Baldrock, under the command of Captain A---- C---- S----, arrived at Boston from another United States port. His tug was short one seaman. The Boston agents secured and sent to the Baldrock seaman E---- G----. The master of the Baldrock was waiting for the seaman and as soon as he arrived the tug got under way and picked up two barges. The tug and tow were destined to Hantsport, Nova Scotia. Being busy with his duties incident to picking up the tows, the master did not have the opportunity to interview G---- until some hours after departure from Boston. According to the master's testimony, G---- claimed to be a United States citizen through naturalization but said he had lost his papers. Because of lack of papers the master says he had insufficient data formally to sign G---- on as a member of the crew.
The Baldrock arrived at Hantsport, Nova Scotia, on May 14. On May 16 it left for Rockland, Maine, arrived there May 17 in the forenoon. It again sailed for Hantsport, Nova Scotia, the same afternoon. The tug entered and cleared at Rockland, Maine, in regard to this arrival.
On May 21 the Baldrock left Hantsport, Nova Scotia, and arrived at Rockland, Maine, on May 22, at 2:10 p.m. It left Rockland at 2:45 p.m., or 35 minutes after arrival. At Rockland it picked up one barge and proceeded to Boston where it arrived on May 23. At Rockland on May 22 the Baldrock made contact with shore but was not entered by customs, nor was there immigration inspection.
Because not formally signed on as a crew member and because he had no papers, the master says G----'s name was not included on the crew list filed upon arrival at Rockland, Maine, on May 17, or at Boston on May 23. The master testified that the Baldrock arrived at Boston May 23 at 5:40 p.m. and was boarded at Boston at 6:20 p.m. the same day, that is 40 minutes after arrival. The immigration authorities were notified of the ship's arrival by Maxwell Harris Co., the ship's Boston agents. On May 24, G---- was paid off by the master without having been presented for inspection. He was not inspected by immigration authorities at Rockland, Maine, on May 22 nor at Boston on May 23. It is very apparent that the failure to have G---- inspected upon arrival at Boston was because his name was not on the crew list.
The sequence of events seems to be as follows: The Baldrock arrived at Boston, 5:40 p.m., May 23, docked at the Mystic wharf, 6:20 p.m., May 23, and was boarded by immigration officers at the Mystic dock upon arrival there, about 6:20 p.m., May 23. The next day the Baldrock left the Mystic dock at 7:05 a.m., and proceeded to Snyder's coal dock, and left the coal dock at 3:20 p.m. the same day (May 24) going to the shipyard at East Boston for slight repairs. While at this shipyard, on May 24, G---- was paid off by the master and left the vessel.
A question has been raised whether the Baldrock was subject to immigration inspection upon its arrival on May 23 at Boston because it was then coming from another part of the United States, to wit: Rockland, Maine. To us it is very clear the Baldrock was subject to immigration inspection upon arrival at Boston. The Baldrock did not formally enter at Rockland, Maine, on May 22, and we may properly assume this was for the master's convenience as the tug was there but for 35 minutes and only for the purpose of picking up a second tug to take to Boston.
The procedure of inspecting the crew upon arrival at Boston is in accord with immigration practice. Section 884.21 (b) of the Immigration Manual provides as follows:
When inspection is not completed at first port of arrival. — The immigration inspection of an alien seaman not made or completed at the initial port of arrival must be made or completed at the first subsequent port of call in the United States, if the vessel has not since proceeded to any foreign place.
The duty is of the ship operators to detain seamen on vessels arriving from foreign until inspected. Because the immigration authorities at Rockland were not notified of the ship's arrival and, therefore, during the 35 minutes the Baldrock was at that port did not inspect the crew, gave the vessel no right to proceed to another port and thus avoid the necessity of detaining seamen for inspection. The duty to detain seamen for inspection is a continuing one, and lasts until the vessel is boarded by immigration officials for this purpose and the crew inspected. In fairness to the master, it should be observed he claimed no such exemption and saw to it that upon arrival at Boston, immigration authorities were notified and all of the crew but G---- were inspected.
Counsel argues that the evidence to prove the alienage of G---- is incompetent. Exhibit 4 is a certificate showing G----'s birth in Canada. At the hearing no objection was made to the introduction of this exhibit in evidence. It is sufficient to establish G----'s alienage irrespective of the competency of other evidence offered to establish the same point.
Counsel also points out that the master had no knowledge that G---- was an alien. Even so, this is no excuse for not presenting G---- to the immigration authorities for inspection. Immigration inspection was the proper forum for determining this issue. It is true if G---- had been a citizen, a penalty could not be imposed-but the obligation would still have been on the master to present G---- for inspection. The master acted at his peril when he failed to detain G---- on board for inspection. In fact, we see no excuse whatever for not presenting G---- for immigration inspection at Boston on May 23 when the vessel was boarded by an immigrant inspector and the other members of the crew inspected.
We believe there has been a violation of law, and the action of the Commissioner should be affirmed.
Order: It is ordered that the appeal be dismissed.
This matter came before this Board by reason of an appeal from the decision of the Assistant Commissioner of Immigration and Naturalization dated March 24, 1949, wherein fine in the amount of $1,000 was imposed against the Eastern Transportation Co., owners of the S.S. Baldrock, which vessel proceeded from Rockland, Maine, to Boston, Mass., at which place the vessel called on May 23, 1946. Prior thereto, the vessel arrived at Rockland, Maine, from Nova Scotia, Canada. Fine in this case was imposed under the provisions of section 20 of the Immigration Act approved May 26, 1924 (8 U.S.C., sec. 167). The specific violation complained of is that there was a failure to detain on board the aforementioned alien seaman E---- G----, who was employed aboard the said vessel, until he was inspected by an officer of the Immigration and Naturalization Service.
I cannot agree with the determination of the majority of the Board of Immigration Appeals.
The record also indicates that a notice of liability for fine under the immigration laws was served on the Eastern Transportation Co. for violation of section 36 of the act of February 5, 1917, for failure to list the alien, E---- G----, on crew list. This proceeding, however, is not part of the present consideration.
In a report dated March 10, 1948, it is stated by an immigrant inspector of the Immigration and Naturalization Service, Baltimore, Md., that the records of the Eastern Transportation Co. checked on March 9, 1948, disclose:
On May 9, 1946, the Baldrock left New York for Hantsport, Nova Scotia, arriving there on May 14, leaving on the same date for Rockland, Maine, arriving there May 17, left on the same date for Hantsport, Nova Scotia, arriving on the 19th, returned to Rockland, Maine, arriving on the 22d, then on to Boston, Mass., where it arrived May 23, 1946. It was towing barges and may have had one containing gypsum.
The record shows that one E---- R---- G---- was born in Channel, Newfoundland, on May 3, 1897. In a report of investigation dated March 8, 1948, conducted by an immigrant inspector of the Immigration and Naturalization Service, New Bedford, Mass., it is stated that E---- R---- G---- alleged that he entered the United States in August 1944. He admitted that he last arrived at Boston, Mass., on September 23, 1946, as a member of the crew of the tug Baldrock. He was thereafter taken into custody by the Service. It appears that he was the subject of a prior deportation proceeding during the month of January 1946.
In an affidavit attached to and made part of the record, A---- C---- S----, sets forth that he had been the master of the tug Baldrock for a considerable period of time prior to May 11, 1946, engaged in coastwise trade and that on May 11, 1946, he arrived at Boston, Mass. On that occasion, he was short one seaman and G---- boarded the tug on that day. The master was too busy to interview G---- until the "tow" was safely under way, when G---- was called to the master's room aboard the boat. This seaman was not formally signed on the articles of the vessel until after the customhouse had closed.
Upon interrogation, G---- alleged that he was a citizen of the United States and he thereupon told the master that he had lost his papers of identification as well as his certificate of naturalization. It would appear that thereafter G---- continued aboard the vessel. The tow docked at Nova Scotia, May 14, 1946, departed for Rockland, Maine, May 16, arrived May 17, and departed the same day for Nova Scotia. On May 21, 1946, the tow left Nova Scotia for Rockland, Maine, arrived at that place on May 22, 1946, and thereafter proceeded to Boston, Mass., where the vessel arrived on May 23, 1946, as hereinabove set forth.
There is some confusion as to the exact time of calling at Boston, Mass. On one occasion, it is set forth that the vessel arrived at 2 a.m. and was boarded by an immigration officer at 6:20 p.m. During the course of an interrogation on May 4, 1948, it was stated that the vessel arrived at Boston, Mass., on May 23, 1946, at 5:40 p.m., and thence proceeded to the Mystic dock at 6:20 p.m.; that on May 24, 1946, the vessel proceeded to the shipyard for repairs.
It is further set forth in this hearing that on May 24, 1946, G---- asked the master for an advance against his wages, and it appearing that G---- was under the influence of liquor, the master refused to comply with his wishes, but later paid him in full and discharged him prior to the vessel being boarded by an immigrant inspector. In this connection, it is set forth that the immigrant inspector did not board the vessel until 3 p.m., May 24, 1946.
Counsel in brief, as well as in his oral representation before this Board, referred particularly to the long delay on the part of the Immigration and Naturalization Service in having an officer aboard the vessel. Emphasis is placed upon the assertion of the seaman here involved to the effect that he was employed on board the vessel in the United States, on which occasion he alleged that he was a citizen of this country, and that he was returned to the port at which he was engaged, and subsequently discharged as a citizen of the United States.
It is of some importance that the tug in charge of the master as aforesaid had theretofore been engaged in coastwise shipping, and that there were a number of arrivals at Rockland, Maine, from Nova Scotia, Canada, prior to the time when the tug and tow called at that port on the voyage in question.
It is quite true that there was no inspection of the crew at Rockland, Maine, despite the fact that section 16 of the Immigration Act of February 5, 1917 (8 U.S.C., sec. 152) provides:
All aliens arriving at ports of the United States shall be examined by at least two immigrant inspectors at the discretion of the Attorney General, and under such regulations as he may prescribe * * *.
One question presented is whether or not the call at Boston, Mass., following arrival at Rockland, Maine, in the circumstances herein set forth may be considered on "arrival from any place outside the United States" so as to establish a violation of section 20 of the Immigration Act of May 26, 1924 (8 U.S.C., sec. 167). That section provides in part as follows:
The owner, charterer, agent, consignee, or master of any vessel arriving in the United States from any place outside thereof who fails to detain on board any alien seaman employed on such vessel until the immigration and naturalization officer in charge at the port of arrival has inspected such seaman (which inspection in all cases shall include a personal physical examination by the medical examiners), or who fails to detain such seaman on board after such inspection or to deport such seaman if required by such immigration and naturalization officer of the Attorney General to do so, shall pay to the collector of customs of the customs district in which the port of arrival is located the sum of $1,000 for each alien seaman in respect of whom such failure occurs. No vessel shall be granted clearance pending the determination of the liability to the payment of such fine, or while the fine remains unpaid, except that clearance may be granted prior to the determination of such question upon the deposit of a sum sufficient to cover such fine, or of a bond with sufficient surety to secure the payment thereof approved by the collector of customs. The Attorney General may, upon application in writing therefor, mitigate such penalty to not less than $200 for each seaman in respect of whom such failure occurs, upon such terms as the Attorney General in his discretion shall think proper. This section, as amended, shall apply to all penalties arising subsequent to June 5, 1940.
The master of the tug Baldrock was interrogated at Norfolk, Va., on March 15, 1948, under oath, at which time he stated that the tug arrived at Rockland, Maine, on May 22, 1946, at 2:10 p.m., that they picked up the barge Crummet and departed from Rockland, Maine, at 2:45 p.m., "in tow to Boston, Mass." He further indicated that the vessel was not inspected at that time by an immigration officer. The testimony of this master is as follows; and relates to a period immediately subsequent to calling at Boston, Mass.
Q. Was E---- G---- on board at that time?
A. Yes.
Q. Was he examined and cleared by the United States Immigration?
A. Yes.
The master was further interrogated on May 4, 1948, and at that time, he again stated that he arrived at Rockland, Maine, with one barge, that the tug proceeded to shore, and that when he departed from Rockland, Maine, he had two barges in tow, one of which barges he picked up at the anchorage ground in Rockland, Maine.
8 C.F.R., section 110.1 shows that Rockland, Maine, is designated as a class (c) port of entry: "Class C means that the port is a designated port of entry only for aliens who are arriving in the United States as seamen as that term is defined in the last sentence of section 1 of the Immigration Act of February 5, 1917 ( 39 Stat. 874; 8 U.S.C., sec. 173)."
Section 1 of the act of February 5, 1917 ( supra) defines the term "seaman" as used in this act to include every person signed on the ship's articles and employed in any capacity on board any vessel arriving in the United States from any foreign port or place. [Italics supplied.]
8 C.F.R., section 120.3 defines "arriving" as follows:
Arriving in the United States from any foreign port or place means arriving in the United States in any waters, territory, or other place subject to the jurisdiction thereof, except the Isthmian Canal Zone from any port or place in a foreign country or in the Canal Zone * * *.
8 C.F.R. section 120.5. Arrival in ports defined:
The expression "arrival in ports of the United States" (act of Dec. 26, 1920 ( 41 Stat. 1082; 8 U.S.C. 170)), shall be taken to mean arrival at ports in the United States from a foreign port or place. If a vessel arrives foreign at a port of the United States and later on the same voyage touches at other ports of the United States, she will for the purpose of this definition be regarded as arriving foreign at such other ports.
Of some assistance in the practice of the Immigration and Naturalization Service is 8 C.F.R., sec. 120.10, which section provides:
When a vessel calls at several United States ports the list of arriving seamen, required by section 36 of the Immigration Act of 1917 ( 39 Stat. 896; 8 U.S.C. 171), shall be delivered to the official in charge at the port of arrival, who will give his receipt therefor to the master; the report of illegal landings required by said section shall be made to the official in charge at the port of arrival or call where the illegal landing occurs; and the list of departing, deserted, and landed seamen required by said section shall be delivered to the official in charge at each port of call. The official in charge at any port of call or final clearance foreign shall promptly notify the official in charge at the port of initial entry (where the incoming crew list is filed) of any and all changes occurring in the crew of any vessel subsequent to departure from such initial port of arrival; and such report shall be filed with the crew list to which it refers.
Thus, it will be seen that the foregoing regulations require an examination of all arriving seamen employed on board the vessel to be inspected at the initial port of arrival.
The evidence of record seems to indicate, "According to our official log, we arrived at Rockland Harbor at 9:30 a.m., on May 30, 1946 * * *. We were examined by United States Customs and Immigration by Inspector W---- L---- J----, and left for Nova Scotia on the same date at 3:10 p.m., with the barge Cohasset in tow."
Thus it will be seen that in one instance there was an inspection of the crew, and in the other instance, the master seems to indicate that the crew was not inspected. Why the vessel was not inspected at the time of arrival in question from Canada at Rockland, Maine, on May 26, 1949, is only explained by the brief stay at that port and perhaps by reason of local practice; but the fact remains that the vessel arrived at the port of Rockland, Maine, from Nova Scotia, Canada, and picked up a tow at that port.
Obviously, the principal question thus presented is, did the vessel arrive at Boston, Mass., from a place outside the United States? The testimony clearly establishes that the vessel arrived at Boston, Mass., from Rockland, Maine, subsequent to which time the alien seaman was paid off.
The practice of the Immigration and Naturalization Service is indicated in the Immigration Manual, and while this manual has no force or effect of law, it may be helpful in the instant case.
An alien employed on a vessel arriving from a foreign port or place is subject to inspection, even though he signed on or joined the vessel in the United States under conditions that required the master to return him to this country, or did not go ashore in any foreign port.
Section 882.32 of the Manual provides in part —
* * * When a vessel calls at several United States ports, the crew list must be delivered to the immigration officer in charge at the first port of arrival who will give his receipt therefor to the master * * *
A penal law such as section 20 of the act approved May 26, 1924 (8 U.S.C. sec. 156) is primarily intended to regulate the conduct of the persons therein specified within the scope of their responsibility. "That penal statutes are to be strictly construed has become a maxim of law * * *" (vol. 2: Lewis Sutherland, Statutory Construction, p. 963). Moreover, "a penal law must be construed strictly and according to its letter." "A penal statute cannot be extended by implication or construction."
Thus the evidence of record seems clear that the tug arrived at Rockland, Maine, from Nova Scotia, Canada, and from Rockland, Maine, the tug, with its several tows, proceeded to Boston, Mass. The port of Rockland, Maine, is designated a port of entry for alien seamen as hereinabove set forth. To assert that the vessel arrived from a place outside the United States at Boston, Mass., when, in fact, the vessel arrived at the latter mentioned place from a port in Maine, would be extending the true facts by implication and such extension would be contrary to statutory construction of a penal statute. To say the least, in addition to the foregoing, there is considerable confusion in the record sufficient to create doubt.
While I agree that there exists an irregularity not only as to the circumstances in which the alien seaman was employed and later joined the vessel during the time he was in the United States, but there is a further irregularity in the circumstances in which he returned to this country. I recognize fully that there was a failure on the part of the Immigration and Naturalization Service in Rockland, Maine, to accord the alien members of the crew of the tug Baldrock an inspection for which purpose officers should have been detailed to make the necessary inspection, yet following closely the letter of the law as set forth in section 20 of the Immigration Act of May 26, 1924, there is considerable doubt predicated upon the facts in the case as to whether the tug Baldrock may be considered as arriving from a foreign port or place at Boston, Mass., when, in fact, she arrived from Nova Scotia, Canada, at Rockland, Maine, and thereafter called at Boston, Mass.
It is therefore my opinion that a violation of section 20 of the Immigration Act of May 26, 1924 ( supra) is not established.