56118/196
Decided by the Board October 30, 1943.
Fines — Section 20, Immigration Act of 1924 — Failure to comply with order to detain on board.
When the responsible parties permitted an alien seaman to go ashore who had been ordered detained on board, the mere fact that he returned to the vessel before it sailed does not constitute a defense to liability for fine incurred under that section.
Kirlin, Campbell, Hickox, Keating and McGrann, of New York City, attorneys for the respondent.
Mr. Max Wilfand, Board attorney-examiner.
STATEMENT OF THE CASE: This case involves a fine proceeding under section 20 of the Immigration Act of 1924 against Furness, Withy, and Co., agents of the S.S. Davila, which arrived at the port of New York on April 9, 1942, for failure to detain on board and deport after service of an order to do so, the alien seamen, L---- W---- and W---- M----. The detaining notice was served on the agents on April 10, 1942, and the notice of liability for fine was similarly served on May 27, 1942. A protest has been duly filed.
DISCUSSION: The detaining notice was issued by an immigrant inspector, by direction of the officer in charge at the port, and it ordered all Chinese members of the crew of said vessel detained on board and deported. The attorneys in their protest do not dispute the fact that the alien seaman, L---- W----, deserted the vessel and was not aboard when it left the port of New York on May 16, 1942. Their protest insofar as this seaman is concerned is based on the same grounds as were previously considered by us in the case of the S.S. Darina (56096/251). In that case we found against their contentions and imposed a fine. We shall also take similar action in this case insofar as the seaman, L---- W----, is concerned.
In regard to the seaman, W---- M----, it is contended that he was aboard the vessel when it departed on May 16, 1942, and that in fact he was discharged and paid off in the United Kingdom when the vessel reached the port of Liverpool, England. The boarding inspector claimed that he boarded the vessel in the stream at 5 p.m. on the day that it left the port of New York, at which time this seaman was not aboard. The chief officer of the vessel corroborated this fact by reporting that the seaman in question was visiting a sick crew member at the Ellis Island hospital on that very day.
The responsible parties have submitted evidence that this seaman was aboard the vessel when it arrived in England on July 8, 1942. On the basis of this fact, we conclude that the same seaman, W---- M----, was actually aboard the S.S. Davila when it left the port of New York on May 26, 1942.
The Central Office of the Immigration and Naturalization Service recommends that, notwithstanding the foregoing facts, a fine should be imposed in this case, referring, in support of its recommendation, to our previous decision in the case of the S.S. Baron Haig (56118/590) [ see page 523, this volume]. In that case we imposed a fine for failure to detain an alien seaman for inspection. Notwithstanding the fact that the seaman returned to the vessel and sailed out with it when it departed foreign, we held that the doctrine of the Aeas case (56068/170) [ see page 105, this volume] did not apply. We there said:
That decision is not to be interpreted as a broad inroad upon the application of section 20 of the Immigration Act of 1924. That a seaman sailed out with the vessel on which he came has not been made a general defense available to responsible parties in all cases where a fine is sought to be imposed under section 20. The ruling in the Aeas case served the very practical purpose of encouraging the responsible parties to try to apprehend escaped seamen. It was not intended to be a license to such parties to permit alien seamen to go ashore without inspection. If such were the rule, a master or agent, willing to take a chance that his men would return to the ship, could take the matter of granting or denying shore leave into his own hands.
Though that case dealt with the failure to detain a seaman on board prior to inspection, and the instant one with a failure to detain a seaman after the service of an order to do so, we feel that the same reasoning should apply here. The master apparently took matters into his own hands and permitted the seaman W---- M---- to visit his friend in the hospital. He thereby failed to detain this seaman in accordance with the order served upon the responsible parties. Though the master was motivated by humane considerations in permitting this seaman to leave the vessel, the express terms of section 20 of the Immigration Act of 1924 were violated by him and the responsible parties must now be held liable therefore.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the S.S. Davila arrived at the port of New York on April 9, 1942, having aboard the alien seamen L---- W---- and W---- M---- who were ordered detained thereon;
(2) That after the service of the detaining order on the agents, the seaman L---- W---- deserted said vessel and was not aboard when it left the port of New York on May 16, 1942:
(3) That after the service of the detaining order on the agents the master permitted the seaman W---- M---- to leave the vessel in order to visit a fellow crew member in the Ellis Island hospital;
(4) That the seaman W---- M---- was not aboard said vessel when the boarding inspector examined the crew on May 26, 1942, prior to its departure from the port;
(5) That the seaman W---- M---- returned to said vessel after the boarding inspector left and prior to its departing;
(6) That the notice of liability for fine was served on the agents May 27, 1942.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 20 of the Immigration Act of 1924, a fine has been incurred by the agents for failure to detain the alien seamen L---- W---- and W---- M----.
ORDER: It is ordered that a fine in the sum of $2,000 be imposed, $1,000 for each alien seaman concerned herein.