56096/481
Decided by the Board February 22, 1943.
Fines — Section 20, Immigration Act of 1924 — Service of notice to detain and notice of liability for fine.
When the master of a vessel was served with a notice to detain on board and deport an alien seaman, and the notice of liability for fine was addressed jointly to the agents and another master of the vessel appointed to that position after the seaman's escape, fine may not be imposed against either of the latter parties, as it is essential that notice to detain and notice of liability for fine be served upon the one against whom fine is directed.
Mr. Thomas H. Walsh, of Boston, Mass., for the respondent.
Mr. Anthony L. Montaquila, Board attorney-examiner.
STATEMENT OF THE CASE: This is a fine proceeding against John G. Hall and Company, Inc., agents for the S.S. Comol Cuba, which arrived at the port of Boston, July 27, 1941, incident to failure to detain on board and deport an alien member of the crew.
DISCUSSION: When the vessel arrived at the port of Boston on July 27, 1941, notice to detain on board and deport the seaman in question was served upon the master, C.T. Stefano, and acknowledged. The notice of liability, which is dated July 29, 1941, was addressed jointly to K.H. Kellar, master, and John G. Hall Co., agents. Acknowledgment was made solely by the agents on the following day, namely, July 30, 1941.
Section 20 (a), Immigration Act of 1924 (8 U.S.C.A. 167), provides:
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 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 officer or 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 the clearance may be granted prior to the determination of such question upon 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.
It is not disputed that notice to detain on board was never served upon the agents of the vessel against whom these proceedings were instituted. The protest asserts that K.H. Kellar was chief officer of the vessel at the time Mr. Stefano was master, and that Mr. Kellar was appointed master of the vessel sometime after the alleged violation.
We conclude that neither the agents nor Mr. Kellar can be held liable to a fine. In other words, the notice of liability for fine should have properly been served upon Mr. Stefano, who was served with notice to detain on board the seaman named and who was master of the vessel at the time the latter notice was served upon him as such. This no doubt is no longer practicable.
It is an essential prerequisite to the imposition of a fine for violation of the immigration laws that both notice to detain and notice of liability be served upon the one against whom the fine is directed. Under section 20, the person who is charged with the duty to detain a seaman on board, in the event of a violation of the order to detain, becomes personally subject to the prescribed fine. But no one is charged with the duty to detain unless notified of the requirement, and notice to one does not, without more, operate as notice to another, notwithstanding that the master of a vessel is regarded in admiralty as the special agent of the owner. Thus, as notice to detain was served only on the master, no one of the other persons specified in the statute, namely section 20, can be held liable for his violation ( Compagnie Generale Transatlantique v. Elting, 298 U.S. 217; Lancashire Shipping Company v. Durning, 21 F. Supp. 588, reversed, 96 F. 2d 1018, vacated and affirmed, 98 F. 2d 751, 305 U.S. 635).
It is established that the seaman in question departed foreign from the port of New York on September 20, 1941, ex-S.S. Azra.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the S.S. Comol Cuba arrived at the port of Boston, Mass., July 27, 1941, having on board an alien member of the crew;
(2) That on July 27, 1941, the master of the vessel, C.T. Stefano, was served with notice to detain on board and deport said seaman;
(3) That said seaman left the vessel, and on July 29, 1941, notice of liability for fine was addressed jointly to K.H. Kellar, who became master of the vessel after the seaman's escape, and the agents, John G. Hall Co., Inc.;
(4) That said notice of liability for fine was acknowledged solely by the agents on July 30, 1941;
(5) That notice to detain on board said seaman was never served upon the agents;
(6) That notice of liability for fine was not served upon C.T. Stefano, who was master of the vessel at the time of the seaman's escape therefrom.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 20, Immigration Act of May 26, 1924, the agents of the S.S. Comol Cuba, John G. Hall Co., Inc., have not incurred liability to a fine.
ORDER: It is ordered that fine be not imposed. The sum involved is $1,000, which should be returned to the depositor.