F-5420
Decided by the Board June 17, 1953
Fine — Failure to detain alien seaman on board after notice to do so — Section 20, Immigration Act of 1924 and section 254 (a), Immigration and Nationality Act of 1952 — Arrival of ship for bunkers considered "arrival" pursuant to section 20 of the Immigration Act of 1924 and section 254 (a) of the Immigration and Nationality Act.
Where a vessel comes to the United States from foreign in transit for bunkers only, does not clear customs, and is not destined to any port in the United States, it makes an arrival requiring inspection of its crew under section 20 or the Immigration Act of 1924 and section 254 (a) of the Immigration and Nationality Act. Therefore, a fine against the agents of the vessel for failure to detain an alien seaman on board after notice to do so is properly imposed. The circumstances in the instant case differ from those in the Matter of SS. Broompark, 56106/199, dated May 10, 1944, in that the crew of the SS. Lake Minnewanka was inspected while the crew of the SS. Broompark had not been inspected when the vessel arrived for bunkering.
BEFORE THE BOARD
Discussion: This case is before us by certification. The Assistant Commissioner imposed fine in the sum of $1,000 under section 20 of the Immigration Act of 1924 against the agents of the above-named vessel for failure to detain on board the subject alien seaman after service of an order to do so. The vessel had come from foreign to Honolulu on August 8, 1949, for bunkers only and did not enter and clear customs. The crew was inspected by the Service and a notice to detain the subject alien seaman on board the vessel was served. The following morning, information was furnished that the seaman had deserted.
Whether a fine under section 20 of the Immigration Act of 1924 is appropriate where a vessel comes to the United States from foreign in transit for bunkering and is not destined to any port in the United States, depends upon whether the vessel can be considered as arriving in the United States ( Matter of SS. Broompark, 56106/199, dated May 10, 1944).
At the time the SS. Broompark arrived in the United States, it was the practice of the Immigration and Naturalization Service not to inspect the crews of vessels arriving solely for bunkers. The only justification for this position was that the vessel was not arriving in the United States in contemplation of section 20 of the Immigration Act of 1924. Some time after the Broompark decision, the Immigration and Naturalization Service changed its attitude. Instructions were issued to inspect all seamen arriving on vessels, even though the vessel was entering solely for bunkering. In accordance with such instructions, the crew of the SS. Lake Minnewanka was inspected upon the arrival of that vessel at Honolulu on August 8, 1949. In this respect the case now before us is basically different from the situation confronting us in the Broompark matter. Here, there was inspection. An order was issued to detain on board and that order was violated by the escape of the alien. In the Broompark case there was no inspection of the crew, nor under regulations then in force was an inspection contemplated. It was, of course, unreasonable to suppose that the provisions of section 20 of the Immigration Act of 1924 requiring detention of seamen on board until inspected had application in a case where the Immigration and Naturalization Service considered inspection not warranted by law. We do not feel, therefore, that the Broompark decision is necessarily decisive in the matter now before us.
As above stated, the Immigration and Naturalization Service subsequent to the Broompark decision did instruct its field officers to treat the arrival of a vessel for bunkering as an "arrival" in the United States requiring inspection under section 20 of the Immigration Act of 1924, although the applicable regulations did not in terms so require and did not indicate whether a coming for bunkers was an "arrival" (8 C.F.R. 120.3).
However, the term "arriving" of a vessel as used in connection with the detention of alien seamen was interpreted by the Attorney General in a regulation signed on December 19, 1952 ( 17 F.R. 11469), in connection with Public Law 414. The section of Public Law 414 interpreted (sec. 254 (a)) is substantially similar to the section in question and the interpretation should therefore be given consideration here. Meaning was given to the term in question by the Attorney General as follows:
"Arriving in the United States from any place outside thereof" as used in section 254 [Public Law 414].
means any coming from a foreign port or place or from an outlying possession of the United States to or into the United States or the territorial waters or overlying airspace thereof.
Certain exceptions which do not relate are then set forth (8 C.F.R. 1.1 (b) (4)).
In view of the foregoing, we conclude that the Broompark decision of May 10, 1944, is not applicable to the case before us and the fine was properly imposed.
Order: It is ordered that fine be imposed. The amount involved is $1,000.