F-0500-387
Decided by the Board December 18, 1953
Fine — Section 256 of the Immigration and Nationality Act — Liability of agent for master's action.
(1) Under section 256 of the Immigration and Nationality Act, the agent of a transportation line is made responsible for the paying off and discharging of a crewman without first obtaining the consent of the Attorney General, even though that action was taken by the master without knowledge of the agent, and notice of intention to fine is properly served on such agent.
(2) A crewman's landing permit, Form I-95 (a) showing grant of conditional landing and subsequent revocation is effectual notice of his status as to all of the persons mentioned in the statute and none of those persons are relieved of the necessity for obtaining permission from the Attorney General to pay off or discharge the crewman involved.
BASIS OF FINE:
Section 256 of the Immigration and Nationality Act ( 8 U.S.C., sec. 1286).
BEFORE THE BOARD
Discussion: This matter is before us by reason of an appeal from the decision of the District Director of Immigration and Naturalization, Baltimore, Md., bearing date April 27, 1953, wherein fine in the amount of $1,000 was imposed against Cottman Co., Baltimore, Md., agents for the aforementioned vessel, which vessel arrived at the port on January 2, 1953 for violation of section 256 of the Immigration and Nationality Act ( 8 U.S.C. sec. 1286).
The specific violation complained of is paying off and discharging the alien crewman D---- S----, who was temporarily landed under the provisions of section 252 (a) (1), without first obtaining consent of the Attorney General.
The evidence of record in this case shows that D---- S---- was born in Alexandria, Egypt, on October 1, 1910, and that he is a citizen of Greece. He presented a Greek Seaman's Book issued to him at Athens, Greece, on November 8, 1948 in support of his statement. The record further discloses that he arrived at Baltimore, Md., from Victoria, Brazil, on January 2, 1953, and on that occasion he was given temporary permission to land while the vessel was in port. It would appear that that temporary permit to land was revoked on January 8, 1953, in circumstances hereinafter set forth.
According to the record this crewman joined the vessel during the month of April 1952 at the port of Baltimore, Md., as a fireman. He made two trips to the United States subsequent thereto in May and June of 1952 when he was passed as a bona fide seaman and had been permitted shore leave. It is alleged that he was a competent and responsible seaman who had no intention of entering the United States illegally.
When he was examined by the immigrant inspector on the occasion of arrival he alleges that he informed the said officer that he intended to proceed to a hospital because of illness. He did so proceed to the hospital and he was directed to return to the said institution on January 5, 1953, for examination. Apparently he did not so return because if surgery was necessary he preferred to have that done in Greece and he intended to remain in the United States only so long as was necessary for the shipping company to obtain a ship to return him to Greece. It further appears that without first obtaining permission of the Attorney General this seaman was discharged in Baltimore, Md., on January 7, 1953, on account of illness. Thereafter, the alien intended to proceed to New York for the purpose of obtaining a ship for the return voyage to Greece whereupon he was apprehended by the Immigration authorities on January 8, in the railroad station and he was subsequently returned to the vessel. On January 8, 1953, there was served upon the master of the ship a notice to detain on board and to deport from the United States the aforementioned alien crewman, under and pursuant to the provisions of 8 C.F.R. section 252.2 (c) (1) and receipt of said notice was acknowledged by the master on January 8, 1953 at 5:30 p.m.
On January 9, 1953, there was addressed to the "master" and or Cottman Co., Baltimore, Md., notice of intention to fine under the Immigration and Nationality Laws reading in part as follows:
For paying off and discharging the alien named, who was landed under the provisions of section 252 (a) (1) without first obtaining consent of the Attorney General.
Section 256 of the Immigration and Nationality Act ( 8 U.S.C., sec. 1286) provides in part as follows:
It shall be unlawful for any person, including the owner, agent, consignee, charterer, master, or commanding officer of any vessel, * * * to pay off or discharge any alien crewman except an alien lawfully admitted for permanent residence, employed on board a vessel or aircraft arriving in the United States without first having obtained the consent of the Attorney General. If it shall appear to the satisfaction of the Attorney General that any alien crewman has been paid off or discharged in the United States in violation of the provisions of this section, such owner, agent, consignee, charterer, master, commanding officer, or other person, shall pay to the collector of customs of the customs district in which the violation occurred the sum of $1,000 for each such violation. * * * Such fine may, in the discretion of the Attorney General, be mitigated to not less than $500 for each violation, upon such terms as he shall think proper.
Section 252 (a) of the Immigration and Nationality Act ( 8 U.S.C., sec. 1282) provides in part as follows:
(a) No alien crewman shall be permitted to land temporarily in the United States except as provided in this section, section 212 (d) (3), section 212 (d) (5) and section 253. If an immigration officer finds upon examination that an alien crewman is a nonimmigrant under paragraph (15) (D) of section 101 (a) and is otherwise admissible and has agreed to accept such permit, he may in his discretion, grant the crewman a conditional permit to land temporarily pursuant to regulations prescribed by the Attorney General, subject to revocation in subsequent proceedings as provided in subsection (b), and for a period of time in any event, not to exceed —
* * * * * * *
(2) Twenty-nine days, if the immigration officer is satisfied that the crewman intends to depart, within the period for which he is permitted to land, on a vessel or aircraft other than the one on which he arrived.
(b) Pursuant to regulations prescribed by the Attorney General, any immigration officer may, in his discretion, if he determines that an alien is not a bona fide crewman, or does not intend to depart on the vessel or aircraft which brought him, revoke the conditional permit to land which was granted such crewman under the provisions of subsection (a) (1), take such crewman into custody, and require the master or commanding officer of the vessel or aircraft on which the crewman arrived to receive and detain him on board such vessel * * *, if practicable, and such crewman shall be deported from the United States at the expense of the transportation line which brought him to the United States. Until such alien is so deported, any expenses of his detention shall be borne by such transportation company. Nothing in this section shall be construed to require the procedure prescribed in section 242 of this act to cases falling within the provisions of this subsection.
The master of the vessel, N---- L----, in an affidavit bearing date January 19, 1953, indicates that while in Victoria, Brazil, during the month of December 1952, S---- was sent to a physician because he was ill and en route to Baltimore this crewman informed the master that the physician in Victoria, Brazil, suggested that he see a physician upon arrival of the vessel in Baltimore, Md. The master was aware of the temporary landing permit granted the crewman who informed the master on January 3, 1953 that he desired to visit a physician. Accordingly, he was sent to the Government hospital in Baltimore, Md., as shown by the letter hereinbefore referred to directing that the seaman return to the hospital at a later date for surgery.
On January 7 the master concedes that he signed off the alien crewman as aforesaid, together with two other seamen. As to the latter two seamen permission was granted but the master concedes that he did not inform the immigration officials about the subject of this proceeding since at the time he did not know that it was necessary to obtain approval to sign off from the ship's articles a sick seaman. The master avers that he was not aware that it was necessary under the new law to obtain permission to discharge a sick seaman.
The principal contention on the part of the Cottman Co. is that there was an improper service of the notice of intention to fine and that because of this improper service no fine should be imposed. It is averred that Cottman and Co. had no knowledge of the classification granted S---- by the immigrant inspector, yet when he violated the conditions of his landing permit Cottman and Co. was served with the fine notice and the master was not served. In this connection it should be noted that the notice to detain this alien seaman on board was served upon Cottman and Co. on January 9, 1953 but the agent refused to sign an acknowledgment of receipt of the notice of detention. Of course the notice of detention which was served on the master on January 8 and on Cottman and Co. on January 9, was subsequent to the discharge of this alien on January 7, 1953 by the master of the vessel as shown in his affidavit.
Counsel contend (1) that there was an improper service of the fine notice; (2) the imposition of fine against the agent rather than the master was likewise improper and in support of their position they cite the case of Compagnie Generale v. Elting, 298 U.S. 217 (1936). This was with regard to notice to detain.
In the case cited, the court held that it was the duty of the owner, charterer, agent, consignee or master of a vessel arriving from a place outside the United States, to detain alien seamen after examination by an immigration officer. But the court went on to state that such duty does not arise unless and until detention is required by an immigration officer, and such requirement must be communicated to the person on whom the duty rests. There is no implied agency of a master. In that case the court also held that a ship owner was not liable for fine imposed for failure to detain an alien seaman where a request for detention was communicated to the master of the ship, but not brought to the knowledge of the owner.
It is significant, however, that this decision was predicated upon the provisions of section 20 of the Immigration Act approved May 26, 1924 (8 U.S.C., sec. 167), whereas the present proceeding is predicated upon the provisions of section 256 of the Immigration and Nationality Act ( 8 U.S.C., sec. 1286), wherein it is made unlawful for any person, including the owner, agent, consignee, charterer, master, or commanding officer of any vessel, to pay off or discharge any alien crewman, except an alien lawfully admitted for permanent residence, employed on board a vessel or aircraft arriving in the United States, without first having obtained the consent of the Attorney General.
There is of record Form I-95A designated as Crewman's Landing Permit, which permit distinctly shows only a conditional landing and that conditional landing was subsequently revoked. This is full notice to all of the persons mentioned in the statute as to the terms and conditions of landing, and before an alien seaman may be paid off it is necessary, pursuant to the provisions of the statute as aforesaid, to obtain permission from the Attorney General to pay off any crewman. While it is alleged that the landing permit is furnished the master but none furnished the agent, the fact remains that under this statute the agent is made responsible.
In further support of the position of alleged improper service for which the agents contend no fine can validly be imposed, there has been cited the following cases: United States v. Columbus Marine Corp., 62 F. (2d) 795; Lancashire Shipping Co. v. Durning, 21 F. Supp. 588 (see also 98 F. (2d) 751); Deppe et al. v. Lufkin, 116 F. (2d) 483; Lancashire Shipping Co. v. Elting, 70 F. (2d) 699.
All of these cases are predicated upon the provisions of section 20 of the Immigration Act approved May 26, 1924, and pertain to appropriate service of an order of detention. In the instant case, however, the alien left the ship before notice to detain on board was served and he was discharged and paid off prior to the notice of detention which the agents declined to acknowledge.
While counsel avers that proper notice in the situation here should include notice to the agent regarding the classification given alien crewmen, it is clearly shown that the classification given the alien crewman at the time of arrival is set forth in the Form I-95A, Crewman's Landing Permit, and that permit does not contain any evidence of permission having been obtained from the Attorney General prior to the alien being paid off and discharged from the vessel.
This Board has very carefully considered all of the evidence of record, as well as representations of the agents and counsel throughout, and it is our conclusion that a violation of section 256 of the Immigration and Nationality Act is established in that the alien was paid off and discharged without permission of the Attorney General having been first obtained.
The remaining question for consideration is one pertaining to mitigation of the amount of penalty. It is asserted that guards were engaged to maintain the detainee on board the vessel to prevent further landing. It is shown by the evidence of record that the alien seaman involved was returned to the vessel and thereafter departed on the ship. Accordingly, the penalty will be mitigated to the fullest extent as provided by statute.
Order: It is ordered that the appeal from the decision of the District Director of Immigration and Naturalization, Baltimore, Md., be and the same is hereby dismissed.
It is further ordered that the amount of penalty be mitigated to the extent of $500, the remaining $500 being permitted to stand.