ALB-10/10.1
Decided by Board April 3, 1957
Fine — Section 254 (a) (2), Immigration and Nationality Act — Where alien crewman was refused a conditional landing permit, separate notice to detain is not required.
(1) Liability to fine under section 254 (a) (2) of the act has been established where an alien crewman who had been refused a conditional landing permit deserted the vessel about an hour before departure time.
(2) It is no defense to the agents that they were never served with notice to detain the crewman on board, since the statute itself places the parties, including the agents, on notice to detain without more.
(3) It is likewise no defense that the parties charged with liability are agents for the charterers only. In that capacity, they have a connection with the vessel which suffices to establish their liability to fine under the statute.
BASIS FOR FINE:
Section 254 of the Immigration and Nationality Act ( 8 U.S.C. 1284) for failure to detain on board the alien crewman E---- A---- who was not granted a conditional landing permit.
BEFORE THE BOARD
Discussion: This matter is before us on appeal from a decision of the District Director at Buffalo, New York, dated January 14, 1957, directing that fine in the amount of $1,000 be imposed on Freedman and Slater, agents for the SS. Marilena, which arrived at the port of New York, New York, on August 13, 1956, for failure to detain on board the vessel the above-named alien crewman who was not granted a conditional landing permit. The district director did not grant mitigation of the fine to any extent.
The basic facts of the case are not in dispute. Upon arrival, the above-named alien crewman was not granted a conditional landing permit and a Form I-95 "Refused" was issued as to him. According to the record, he deserted the vessel about an hour prior to the vessel's departure foreign from the port of Albany, New York. The Form I-489 (Statement of Changes in Crew) submitted for such departure does not contain any report as to this crewman. However, the record does establish that when his absence from the vessel was noted by the master after the vessel had sailed, the agents were notified and they informed the Immigration Service that the crewman had left the vessel. Apparently, he is still at large in the United States.
On the basis of the foregoing, it is clear that liability to fine has been established. The simple reason is that the absolute duty to detain the crewman aboard the vessel imposed by the statute on, inter alia, the agents was not met. Accordingly, the appeal will be dismissed.
It is no defense to these agents that they were never served with notice to detain the crewman aboard the vessel. The reason is that the statute itself serves as notice to them, inter alia, to detain a crewman aboard after inspection until such time as the immigration officer lifts his detention by issuing him a conditional landing permit. The terms of the permit constitute full notice to all, agents included, of the limitations placed on the crewman's landing. While the permit may only be furnished the master, the fact remains that the statute makes the agents responsible. We so hold, pointing out in passing that the issuance of an order to detain (form I-259) in this case and its service on the master only, being merely surplusage, does not alter the situation as to the agents.
Both under section 20 of the Immigration Act of 1924 (8 U.S.C. 167, 1940 ed.) and section 254 (a) (1) of the present act ( 8 U.S.C. 1284), the parties named therein, including the agents, had the duty of detaining crewmen aboard until inspection without the requirement of individual notice to detain. The reason is that the statutes themselves place said parties on notice to detain, without more. The court so held under the former law ( Denholm Shipping Co., Limited v. Elting, 55 F. (2d) 422; Navigazione Libera Triestina v. United States, 36 F. (2d) 631), and there is no change in the language of the present law calling for a contrary conclusion. We hold that the same situation exists with respect to the duty to detain after inspection under the present law.
Under the former act, the duty to detain after inspection did not arise until the Service required the detention (which also applies to the duty to detain stowaways after inspection under section 273 (d) of the present act ( 8 U.S.C. 1323) cited by counsel), and it was this provision that made notice of the detention essential. Subsection (2) of the statute now under consideration, however, specifically states that the parties named therein, including the agents, must detain a crewman aboard after inspection unless a conditional permit to land is issued to him. The difference in the language of the two statutes clearly expresses the congressional intent to change the law, and we think that our interpretation of the present law is the only reasonable one. For these reasons, the court decisions referred to by counsel involving section 20 of the 1924 act, supra, and the prior decisions of this Board involving section 273 (d) of the Immigration and Nationality Act ( 8 U.S.C. 1323) are not controlling here.
It is likewise no defense that the parties here sought to be charged with responsibility are agents for the charterers only. We think that the case of United States v. Arnold Bernstein S.S. Line, 44 F. Supp. 19, adequately answers the arguments on this point. That case involved the imposition of a fine on the party as agent where a crewman jumped overboard and swam ashore before the vessel docked and was not aboard for inspection on arrival. The court, in holding that the statute (section 20 of the 1924 act; 8 U.S.C. 167, 1940 ed.) imposed an absolute duty on each and every one of the persons enumerated therein to detain crewmen aboard until inspection, said:
* * * The statute imposes a liability not only on the master and owner who usually control a vessel and its crew, but also upon the agent, charterer and consignee who are compelled to take the necessary steps to produce all alien seamen for inspection. * * * [Emphasis supplied.]
An affirmative defense identical with the one raised here received judicial consideration in the case of United States v. International Freighting Corporation, Inc., 20 F. Supp. 357. There, an order to detain a named crewman aboard the vessel involved was served upon the master, upon a corporation whose relation to the vessel does not appear, and upon the defendant, as agent. The crewman was not aboard when the vessel sailed and a notice of fine proceedings was served on the defendant, which he refused to accept. The court, in granting the Government's motion to strike the affirmative defense, said:
* * * It is my opinion that the alienage of the seaman constituted the jurisdictional fact which gave power to the Secretary of Labor to proceed under section 20 of the Immigration Act of 1924, and that his finding that the defendant committed the violation is to be accorded the same finality as his finding that the seaman had not been detained pursuant to the immigration officer's direction. * * *
The court, in so doing, pointed out, by citing other cases, the distinction between facts which are jurisdictional, e.g., alienage of the seaman, and those which are quasi-jurisdictional, e.g., the fact of agency, and that the latter class of facts must be alleged and proved in order to set the machinery of the law in motion.
On the basis of the foregoing, we hold that Freedman and Slater are liable to fine, as agents, for having failed to detain the above-named crewman aboard the vessel involved. The evidence establishes that Freedman and Slater have a connection with this vessel as agents for the charterer. This connection suffices to establish their liability to this fine under the statute.
The parties named in the statute are liable. If one holds himself out as agent, we hold he is within this statute and that no limiting agreement between the agent and carrier can exempt him from the operation of the statute.
The only question remaining for consideration is whether mitigation of the fine is merited in these premises, and we find that it is not. We do not think that the responsible parties took proper precautions to meet their duty of detaining this crewman aboard the vessel by merely relying upon the usual gangway watchman to see to his detention. Insofar as the record shows, the only step which the responsible parties took after the escape of the detainee was to report the matter to the Service. No showing has been made that efforts to locate or apprehend the escaped detainee were made by the responsible parties, or that they cooperated with the Service in his location and apprehension. According to the record, he is still at large in the United States. In other words, there are no factors here meriting mitigation to any extent.
Order: It is ordered that the appeal be and the same is hereby dismissed and that the request for mitigation of the fine be denied.