56160/122
Decided by Board January 7, 1944. Reaffirmed by Board May 4, 1944. Decided by Central Office June 24, 1946.
Fine — Failure to detain alien seaman, after notice — Section 20 of the Immigration Act of 1924 — Absolute duty — Mitigation of fine — Section 20 ( supra ) as amended by act approved December 19, 1944.
1. Under section 20 of the Immigration Act of 1924, there is an absolute duty to detain an alien seaman on board the vessel after notice to do so, and it is no defense that such seaman did not intend to remain in the United States, nor does an exception arise merely because such seaman actually departs with his vessel.
2. Under section 20 ( supra) as amended by the act approved December 19, 1944, mitigation of fine is authorized where extenuating circumstances justify.
BEFORE THE BOARD
(January 7, 1944)
BEFORE THE BOARD
(May 4, 1944)
Discussion: This is a fine proceeding under section 20 of the Immigration Act of 1924, against W---- H----, master of the S.S. Renvoyle for failure to detain the alien seaman above named after being ordered to do so by the immigration authorities. Both notice to detain and notice of intention to fine were served upon the master on October 9, 1943.
When the S.S. Renvoyle arrived at the port of Buffalo, N.Y., on October 9, 1943, the alien seaman named along with five others, was ordered detained on board. Immediately prior to the vessel's departure, that same night, the alien named was not on board. The master advises that the seaman involved surreptitiously left the vessel during its brief stay in port, but departed on the vessel when it sailed foreign. It seems that after the vessel began its return voyage the alien named hailed it from a bridge and was taken aboard before the vessel actually left Buffalo.
A protest has been filed by Brown Co., as agents of the vessel named, under which it is alleged that no notice to detain was served on them as agents. These proceedings are not brought against the agents. We shall, however, consider their protest as though it was submitted in behalf of the master. The protest, which includes an affidavit of the master, relates the facts above outlined and urges that no fine be imposed because the alien left the vessel through no fault or collusion of the master or agents and, further, that since the alien departed with the vessel no infraction of the laws and regulations resulted.
The duty to detain imposed by section 20 of the Immigration Act of 1924 is absolute. The absence of negligence or the exercise of due diligence is no defense. It is alleged, however, that since the alien named departed with the vessel upon which he arrived no infraction of the law resulted. We have held in the case of the Aeas (56068/170), that no fine would be imposed where a seaman who has been ordered detained eludes the watch of his guards and escapes, but is apprehended through the efforts of the steamship line in time to depart foreign on the same vessel upon which he arrived. That holding was prompted by the real and practical consideration that steamship lines be encouraged to expeditiously apprehend detained seamen who escape despite precautions taken to guard them. The facts of the Aeas case set forth the minimum requirements for the invocation of the rule therein propounded. The instant case does not meet those requirements. The alien seaman named was not apprehended through the efforts of the Master or the steamship line, nor does it appear that any steps were taken to guard the alien against leaving the vessel. A fine has, therefore, been incurred.
In its memorandum to this Board, the Central Office of the Immigration and Naturalization Service recommended that a fine be imposed in view of the decision in the case of the M.S. Davila (56118/196). The cited case is not similar to the one now under consideration. In the Davila case we held that the Aeas ruling was not applicable because the record there showed that the Master gave the detained seaman permission to leave the vessel — a deliberate violation of the detention order. No such affirmative violation of the detention order is presented by the instant case. The case before us is also distinguishable from that of the S.S. Baron Haig (56118/590) where the Aeas ruling was not applied because there the statute was violated through the failure to detain prior to inspection. As was stated in the decisions of the M.S. Davila and the S.S. Baron Haig, the ruling in the Aeas case is not to be interpreted as a broad inroad upon the application of section 20 of the Immigration Act of 1924. The Aeas case is not applicable merely because a detained seaman departs with the vessel upon which he arrived; the other factors presented in the Aeas case must also be established before the applicability of the holding in that case may be considered.
Findings of Fact: Upon the basis of the evidence, it is found:
(1) That the S.S. Renvoyle arrived at the port of Buffalo, N.Y., on October 9, 1943, having employed on board thereon the alien seaman, S---- B----;
(2) That the alien seaman named was ordered detained on board the vessel;
(3) That the alien seaman named was not detained on board the vessel, but escaped;
(4) That the alien seaman named rejoined his vessel prior to its departure from the waters of the United States.Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 20 of the Immigration Act of 1924, a fine has been incurred.Order: It is ordered that a fine be imposed. The amount involved is $1,000.
Discussion: On January 7, 1944, this Board found that a fine had been incurred under section 20 of the Immigration Act of 1924 and ordered that a fine in the sum of $1,000 be imposed against W---- H----, master of the S.S. Renvoyle.
Counsel for Brown Co., agents of the above named vessel, but not parties to this proceeding, have petitioned this Board for reconsideration of its decision and order dated January 7, 1944. It is submitted in behalf of the petitioner that the seaman did not escape into the United States within the intent of the law since the alien involved made no attempt to unlawfully gain admission to the United States under the guise of a seaman. The facts are not disputed. It is the legal consequences of the alien's departure from the vessel in violation of the detention order upon which attention is focused. Counsel cites the case of Compagnie Generale Transatlantique v. Elting, ( 298 U.S. 217) and United States v. Arnold Bernstein Steamship Line, ( 44 F. Supp. 19) as standing for the proposition that the purpose of section 20 of the Immigration Act of 1924 is to prevent aliens from unlawfully gaining entrance into the United States under the guise of seamen. Presumably, we are asked to infer from those cases that no infraction of law has occurred unless and until it affirmatively appears that the alien seaman actually intended to make unlawful entry into the United States for purposes other than those connected with his calling as a seaman, and that he merely posed as a seaman to accomplish such unlawful entry. It is also urged that since the alien voluntarily returned to his vessel he has proved conclusively that he had no intention to enter the United States unlawfully, and no fine may or should be imposed. These contentions are wholly untenable. It is true that the primary purpose of the statute is to prevent the unlawful entry of aliens posing as seamen. However, in order to effectuate that purpose Congress has imposed upon the owner, agent, charterer, consignee or master of any vessel arriving in the United States from a place outside thereof an absolute duty to detain alien seamen until inspected, and after inspection to detain those whom immigration authorities have ordered to be detained. There is no suggestion either in the statute or in the cases cited that liability for fine is to be determined by inquiring, after the detention order has been violated, whether or not the seaman intended to remain in the United States. See Lloyd Royal Belge Societe Anonyme v. Elting ( 61 F. (2d) 745 (C.C.A. 2d, 1932). Indeed such a procedure would make a mockery of the law. It would permit the master to deliberately violate the mandate of the detention order and grant shore leave to the detained seaman if he were convinced that such seaman would return to the vessel. Furthermore, the mala fides of an alleged seaman status is not the only basis for the issuance of a detention order. Immigration officials, although persuaded that an alien is a bona fide seaman, may, nevertheless, require his detention if, for example, he possesses no documents or if, in these times of war, his temporary presence in the United States he deemed inimical to the internal security of the United States.
Finally, our attention is directed to a previous decision of this Board made in Matter of Barge Ethel J., 56088/509 (June 8, 1942) in which, upon somewhat similar facts, no fine was imposed. To the extent that our decision in the Matter of Barge Ethel J., does not conform to or is inconsistent with our decision in this proceeding, it is overruled.
Upon reconsideration it is ORDERED that our decision and order herein, dated January 7, 1944, be and the same hereby is affirmed.
Discussion: This record relates to a fine proceeding instituted under Section 20 of the Immigration Act of 1924 against W---- H----, master of the S.S. Renvoyle, which arrived at Buffalo, N.Y., on October 9, 1943, for failure to detain on board and deport the above-named alien seaman, after service of an order to do so. On January 7, 1944, the Board of Immigration Appeals considered this case, concluded that liability had been incurred, and imposed a fine in the amount of $1,000. Under date of March 18, 1944, the above attorneys acting for Brown Co., agents for the S.S. Renvoyle, filed a petition for reconsideration of the Board's order of January 7, 1944. Upon reconsideration of the petition the Board of Immigration Appeals ordered, on May 4, 1944, that its previous decision be affirmed.
The present application for mitigation is based upon the following grounds: The S.S. Renvoyle arrived at Buffalo, N.Y., on October 9, 1943, that the detainee S---- B---- succeeded in effecting a shore leave surreptitiously after being ordered detained on board by both a United States immigration officer and the master of the vessel. Later, on the date of his escape when the vessel was passing through a draw at Buffalo the escaped detainee hailed the vessel from shore and was taken back aboard the ship and later departed from the United States aboard. His total absence from the ship had been for a period of a few hours.
Considering the application in the light of the pertinent statute and the evidence of record the question to be determined is whether the facts justify any mitigation of the fine heretofore imposed and if so, to what extent. The alien voluntarily returned to the vessel on which he arrived after taking a shore leave without permission and after being ordered detained on board. The evidence shows that the responsible parties were not negligent. In the circumstances it is concluded that mitigation to the full extent of $800 is justified herein.
Order: It is ordered that $1,000 fine imposed on January 7, 1944, with respect to the alien and vessel involved herein be mitigated to the full extent $800; the fine to be $200.