F-4607
Decided by Board January 11, 1951
Fines — Section 20, Immigration Act of 1924 — Failure to comply with order to detain on board — Absolute duty. (See 3 IN Decs. 165 and 174.)
(1) The duty to detain an alien seaman on board the vessel after being ordered to do so under section 20, Immigration Act of 1924 is absolute; the mere fact that the crew member voluntarily returns to the vessel before it sails is no defense, though it may be considered a mitigating factor under section 20 ( supra), as amended by the act of December 19, 1944.
(2) In view of the congressional consideration of the subject and the legislation enacted by the act of December 19, 1944, amending section 20 ( supra), the decision rendered In the Matter of S.S. Aeas on June 10, 1941 ( 1 IN Dec. 105) should no longer be applied. (See 2 IN Dec. XIV, item (i)).
BEFORE THE BOARD
Discussion: The case is now before the Board on the basis of a motion filed by counsel asking us to reconsider our decision of May 29, 1950. In that decision we dismissed an appeal from the finding of the Assistant Commissioner of Immigration and Naturalization that a fine under section 20 of the Immigration Act of 1924 had been incurred.
The fine is for failure to detain on board two alien seamen. The facts are simple. The Panamanian S.S. Norness arrived at Savannah, Ga., on September 11, 1948. Four seamen were ordered detained on board. At 4: 30 p.m. on the day the vessel was scheduled to depart, an immigration inspector boarded the vessel to check on the detainees. Two of the four detainees were not then on board, but the master expressed the thought that they would return to the vessel before the vessel sailed. As a matter of fact, the two seamen did return to the vessel before it sailed at 5: 45 p.m. September 13, 1948, and the departure was verified. Section 20 of the Immigration Act of 1924 requires responsible persons named in the statute to detain on board and deport such seamen as the Immigration and Naturalization officials require to be so detained and deported. The requirement is not only that the seamen be deported, but that the seamen be also detained on board the vessel. In this instance, there is no question that the two seamen were deported, and likewise they were not detained on board during the entire time the vessel was in port. Because of the failure to detain the seamen on board, the fine has been imposed.
In counsel's original argument to the Board and his argument on the motion, he has stressed the fact that the case is substantially similar to our decision in the Matter of S.S. Aeas, 1 IN Dec. 105. In that case, this Board held that where an alien seaman has been ordered detained on board and deported, a fine would not lie even though the alien escaped from the vessel if he were apprehended through the efforts of the transportation agency and in fact deported on the vessel. We have previously held that the Aeas decision had no application to this case.
The Aeas case found its justification in the fact that if the action of the transportation agency in going out and apprehending seamen who escape after being ordered detained on board did not receive some reward, the primary purpose of the statute, to wit: To prevent the illegal entry of aliens in the guise of seaman, would be thwarted, and it was there felt that from overall administrative consideration the fine should not be imposed. That decision was rendered prior to the amendment of section 20 of the Immigration Act of 1924 by the act of December 19, 1944. This latter act provides that the Attorney General may mitigate the penalties under section 20 to not less than $200 for each seaman in respect of whom a violation of the statute occurs. The purpose for this amendment was to give some relief to transportation agencies where diligence and good faith were shown by the transportation agency in attempting to comply with the order of the Immigration authorities to detain and deport.
It cannot be doubted that the statute does, in terms, require the detention on board of seamen where an order has been entered to so detain, and any departure from the vessel is a violation of that order. The reason in the Aeas case for relaxing from the literal language of the statute, found its support only when consideration was given to the overall and primary purpose of the legislation, to wit: To prevent the illegal landing of aliens in the United States in the guise of seamen. Now, Congress has considered the matter of what relief should be affored to transportation agencies where a technical violation does occur, notwithstanding diligence and good faith of the agency. In view of congressional consideration of this problem, and legislation specifically dealing with it, the reasoning in support of the Aeas case no longer applies. Therefore, we conclude whether or not there are distinguishing facts between this case and the Aeas case, the Aeas decision should no longer be applied.
The question of mitigation of the fine, by regulations, is vested in the Commissioner of Immigration and Naturalization. Order: It is ordered that the motion for reconsideration be denied, but that the matter be remanded to the Commissioner of Immigration and Naturalization for consideration of the application for mitigation of the fine.
Discussion: This matter is before us by reason of a motion filed by counsel requesting reconsideration of the decision of this Board dated May 29, 1950, wherein an appeal from the decision of the Assistant Commissioner of Immigration and Naturalization imposing fine was dismissed. On that occasion it was directed that the petition for mitigation of the amount of penalty thus imposed be submitted to the Commissioner of Immigration and Naturalization for his consideration.
While I agree with the conclusion, I wish to set forth more fully my reasons for similarly concluding.
The proceeding previously was erroneously designated by the Immigration and Naturalization Service on August 19, 1949, "In Deportation Proceedings." At that time the Assistant Commissioner of Immigration and Naturalization, Adjudications Division, imposed a fine in the amount of $2,000 against the Strachan Shipping Co., agents for the S.S. Norness, which vessel arrived at Savannah, Ga., on September 11, 1948, from Dingwall, Nova Scotia, a foreign port, for violation of section 20 of the Immigration Act approved May 26, 1924 ( supra).
Section 20 of the act approved May 26, 1924 ( supra), provides in part as follows:
The owner, charterer, agent, or 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 and naturalization 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 and naturalization 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.
The facts in this case are set forth in the decision of this Board dated May 29, 1950, and also in the decision of the Immigration and Naturalization Service. In connection with this decision, those facts will be discussed again.
Subsequent to the vessel's arrival she was boarded by an immigrant inspector and during the course of the inspection four alien crewmen, F---- N---- and D---- R----, and two others were found not in possession of valid passports or other travel documents whereupon a notice to detain all four alien seamen on board the vessel was served upon H---- J----, master, and R---- W---- G----, Jr., a representative of the Strachan Shipping Co., agents for the vessel as aforesaid. Receipt of the notice to so detain was acknowledged by the master.
The proposed departure of the vessel was anticipated at 5 p.m. September 13, 1948, for Cuba and in connection therewith an immigrant inspector of the Savannah, Ga., office of the immigration and naturalization Service boarded the vessel at 4:30 p.m. for the purpose of verifying the presence on board of the four alien seamen who were ordered detained on board. It was then ascertained that notwithstanding the said order to so detain on board the two alien seamen hereinabove mentioned went ashore. Both aliens returned to the vessel before it actually sailed at 5:45 p.m., September 13, 1948. Such departure from the vessel was violative of the order of the Service and their return to the vessel was not in any way by reason of a subsequent apprehension on the part of any of the persons named in the statute.
Accordingly, on September 14, 1948, notice of liability for fine under the United States immigration laws was served upon R---- W---- G----, Jr., representative of the Strachan Shipping Co. and receipt thereof is acknowledged by the Strachan Shipping Co., agents.
In protest to the imposition of fine Mr. K---- O---- S----, manager, operating department, Naess, Mejlaender Co., Inc., stated that the master, following notice to detain on board, did everything possible to prevent the detainees, as aforesaid, from proceeding ashore and in this connection employed watchmen to enforce detention on board the vessel. On the appeal it was indicated that the real party in interest is Naess, Mejlaender Co., Inc., managing operators of the vessel.
On the prior consideration, it was pointed out by counsel that the principal purpose of the statute was the prevention of any alien seaman effecting unlawful entry into the United States. It was asserted in this connection that the seamen involved voluntarily returned to the ship and consequently the principle enunciated in the decision of this Board in the Matter of S.S. Aeas decided June 10, 1941, 1 IN Dec. 105 applies.
On the present motion, counsel further contends that the doctrine mentioned in the case cited is applicable to the case at bar and requires no extension. He emphasizes the fact that the alien seamen returned to the vessel before departure. Counsel concedes however that the alien seamen were not on board the vessel at the time the immigrant inspector from the Savannah, Ga., office was checking the crew preparatory to the vessel's departure.
The attorney maintains:
(a) The discipline maintained by the vessel was strong enough to assure the return of the escaped seamen to sail with their vessel, without the necessity of reapprehension. This is evident from the fact of their return and from the master's confidence that they would return to sail with the vessel when he learned they were missing.
(b) The fact that the pressure to return was mental and/or moral rather than physical should make no difference. It takes efforts to maintain such discipline just as well as to reapprehend seamen unwilling to return.
(c) Here, just as in the Aeas case, there is the consideration that an adverse decision imposing a fine — of any amount — would tend to discourage vessel owners from the efforts that effect the return and departure of the seamen — in the Aeas case, from searching and reapprehending — here, from maintaining the kind of crew discipline, and determination to search and reapprehend immediately if necessary, that assured ultimate return of any escapees and their departure with the vessel on its scheduled voyage.
The only justification for the decision in the Aeas case ( supra), especially when considered in conjunction with the specific provision of section 20 of the act of 1924 ( supra), where a violation had been established, was an effort to relieve the violator from the harsh and rigid effect thereof particularly when there had been a compliance with the purpose of the statute, to wit: The deportation of the alien seamen on the same voyage. By reason of the subsequent amendment of the statute as hereinafter referred to, that justification has been removed.
It was asserted by counsel on the oral argument that the case under consideration is not distinguishable from the decision of this Board in the Matter of S.S. Aeas ( supra).
This Board pointed out in our decision that in our opinion the case is distinguishable in that at the time the immigrant inspector checked the crew prior to the ship's departure, the alien seamen involved were not on board the vessel, but had departed therefrom, despite the order to detain them on board and it was not until the said officer was leaving the vessel that the alien seamen returned of their own volition and not with the assistance of or any effort on the part of those whose duty it was to so detain.
It is thus established that there was a failure to detain on board these two alien seamen as required by statute. The most that is argued is the discipline maintained by the vessel to assure the return of the seamen who thus departed from the vessel in violation of the order of detention.
Counsel indicates that the pressure to return was mental or moral rather than physical but that this should make no difference. This is, however, quite different because in the case of the S.S. Aeas it was shown that there was a substantial physical effort to apprehend the departing seamen and a continuous effort to comply with the order issued in that case, the apprehension and subsequent deportation being due entirely to the efforts of the persons on whom the duty imposed by statute devolved.
The duty required by statute to detain on board and deport becomes absolute when a notice to so detain is served upon any of the persons mentioned and where such alien seaman effects escape or departs from the vessel, fine has been incurred irrespective of diligence. See Lloyd Royal Belge Societe Anonyme v. Elting, 55 F. (2d) 340; and Hamburg — American Line v. United States, 52 F. (2d) 463.
In the case of S.S. Aeas which is cited as analogous this Board distinctly referred to the continuing effort to apprehend the alien seamen as well as the diligent efforts, which efforts ultimately resulted in the apprehension and removal of the aliens from the United States on the same vessel on which they arrived.
In the Matter of S.S. Baron Haig, 56118/590, decided by this Board on August 26, 1943, 1 IN Dec. 523, this Board held that when the responsible parties failed to detain an alien seaman for inspection as required by section 20 of the Immigration Act of 1924, 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.
In our decisions we said:
The case of the S.S. Aeas, 56068/170 * * * is referred to. In that case we held that the fine would not be imposed where a seaman ordered detained on board escaped his guards, but through the efforts of the responsible parties was apprehended, his detention on board was resumed, and he departed with the vessel when it sailed. 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 in which 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, the 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.
Of similar import is the decision of this Board in the Matter of S.S. Davila decided October 30, 1943, 1 IN Dec. 578. In that case, we held that when the responsible parties permitted an alien seaman to go ashore who has 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 section 20 of the act of 1924 ( supra). We made reference to the decision of this Board in the case of the S.S. Baron Haig, ( supra), pointing out that in that case we imposed a fine for failure to detain the alien seamen for inspection. We said:
Notwithstanding the fact that the seamen returned to the vessel and sailed out with it when it departed foreign, we held that the doctrine of the Aeas case ( supra), did not apply * * *. 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 * * * 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 therefor.
As stated in this opinion there was a lack of continuing effort to enforce the detention of the alien seamen aboard the vessel and after their departure to continue that effort pursuant to the duty imposed by statute. Here, the seamen merely returned to the vessel and departed thereon subsequent to their departure from the vessel, which departure was violative of section 20 of the act of 1924. The time of the seamen's absence from the vessel is merely relative, the violation being that they left the ship despite the order to detain on board.
Of greater importance, however, in the determination of this case is the amendment of section 20 of the act of 1924 ( supra) on December 19, 1944 ( 58 Stat. 516, 8 U.S.C. 156), authorizing the Attorney General to mitigate penalties for violation of the said section of the statute. This amendment occurred subsequent to our decision in the Matter of the S.S. Aeas ( supra). We are no longer justified in following the principle established in that case. When that decision was rendered there was no power to mitigate the penalty imposed by statute and it was felt that the said penalty required by statute, to wit: $1,000 for each violation, disproportionate to the technicalities of the violation, that it was concluded that no fine should be imposed.
The fact that the two alien seamen left the vessel subsequent to the order to detain on board constitutes the violation even though they later returned to the vessel of their own accord and departed thereon in their capacity as seamen. Penalty has therefore been incurred. These facts, however, may be considered in connection with the petition for mitigation, which petition is of record. Mitigation is not within the jurisdiction of this Board and the case must necessarily be remanded to the Commissioner of Immigration and Naturalization for his further consideration in this regard.
In view of all of the foregoing and after careful reconsideration of all of the evidence of record as well as the representation of counsel, it is my conclusion that the present motion must be denied.