F-0612-423
Decided by the Board February 1, 1954
Fine — Section 256 of the Immigration and Nationality Act — Direct evidence of crewman's having been discharged or paid off not required — Mitigation.
(1) An alien crewman has been discharged or paid off when, following the preparation of his pay voucher, he is informed by the master that his services are no longer required and the position vacated by such action is filled by another, even though there is no direct evidence of such discharge. This is further substantiated by the fact that the crewman received his wages in some manner even though the ship's articles show that the wages were withheld. When this occurs without first obtaining the consent of the Attorney General a violation of section 256 of the Immigration and Nationality Act is established.
(2) Mitigation is not warranted merely because the alien crewman, discharged or paid off without consent of the Attorney General, reships foreign without any assistance from the master or agents.
BEFORE THE BOARD
Discussion: This matter is before us by reason of an appeal from the decision of the District Director of Immigration and Naturalization, Miami, Fla., bearing date August 4, 1953, wherein fine in the amount of $1,000 was imposed upon the Texas Transport Terminal Co., Inc., New Orleans, La., agents of the vessel as aforesaid, which vessel arrived at the port and on the date indicated from a foreign port or place for violation of section 256 of the Immigration and Nationality Act ( 8 U.S.C. sec. 1286).
The specific violation complained of is "paying off and discharging the nonresident alien seaman D---- B---- in the United States without the consent of the Attorney General or the Immigration and Naturalization Service."
Section 256 of the Immigration and Nationality Act ( supra) provides in part as follows:
It shall be unlawful for any person, including the owner, agent, consignee, charterer, master, or commanding officer of any vessel * * * to pay off or discharge any alien crewman * * * without first having obtained the consent of the Attorney General. If it shall appear to the satisfaction of the Attorney General that any alien crewman has been paid off or discharged in the United States in violation of the provisions of this section, such owner, agent, consignee, charterer, master, commanding officer or other person shall pay to the collector of customs of the customs district in which the violation occurred the sum of $1,000 for each such violation. * * * Such fine may, in the discretion of the Attorney General, be mitigated to not less than $500 for each violation, upon such terms as he shall think proper.
In a report bearing date April 9, 1953, submitted by an investigator of the New Orleans, La., office of the Immigration and Naturalization Service it is stated briefly that the articles on which the crew of the SS. Republic arrived at New Orleans, La., on February 12, 1953, were closed on February 12, 1953, in the presence of the shipping commissioner, at which time D---- B---- was 1 of the 3 firemen-water tenders on this vessel. The closed articles show that his wages were withheld; that he had a balance of $308.16 due from the ship on that date. New articles were opened on the same date, February 12, 1953, and on those new articles there are again three firemen-water tenders. The name of D---- B---- is not contained among those three nor anywhere else on the crew list subsequently presented, but that seaman's name was replaced by that of one M---- T---- N----, a citizen of the United States.
On February 16, 1953 D---- B---- testified before an investigator of the New Orleans office of the Immigration and Naturalization Service to the effect that he was born in Amsterdam, Holland, on August 27, 1903, and that he is a citizen of the country of his nativity. In support of this statement he presented a Netherland passport valid to November 22, 1953. He further testified that he arrived at the port and on the date hereinabove set forth and that he was classified as a D-1 seaman which, in effect, required his departure from the United States on the next sailing of the vessel named. The Form I-95 specifically so indicated and in addition thereto set forth, "You may not be paid off or discharged in the United States. In no event is stay authorized beyond 90 days."
The vessel left New Orleans, La., on February 13, 1953, to proceed to Houston, Tex.
B---- further explains that he was put off the ship by the captain before it sailed for Houston, Tex., on the night of Thursday, February 12. He stated that he was not permitted to occupy his bunk and that the captain told him that he "was finished, that there was no work for me, that I would have to get off the ship."
There appears to be some misunderstanding on the part of the captain in that he asserted that he could not sign the alien on the ship's articles again and that the alien was therefore without a job or employment and that the master was powerless in the circumstances.
There was due this seaman on February 12, 1953, as shown by seaman's pay voucher, a gross amount of $422.23, with deductions of $114.17, making a total balance of $308.16, which pay was obtained by the alien crewman in some manner, although the master asserts that the wages due were withheld.
From the foregoing it is quite obvious that the crewman B---- was succeeded by M---- T---- N----, who was signed on the ship's articles on February 12, 1953, before the departure of the vessel from the port of New Orleans, La., and it is therefore shown that the master was fully aware of the "discharge" of the alien seaman B----.
P---- J---- D---- was interviewed on board the SS. Republic at Honolulu, T.H., on March 7, 1953, at which time he conceded that upon arrival at New Orleans, La., on the date hereinabove first set forth, D---- B---- was a member of the crew and he averred on that occasion that "he left the ship in New Orleans." The master alleged that he did not sign this alien crewman off the ship's articles and that he did not pay him off and further that he did not know exactly when he left the ship. The master further averred that he merely gave him "a drawer" and that he was not signed off the articles.
The master also stated that he reported the failure of B---- to leave New Orleans in the statement of the master as to changes in crew when he left New Orleans. Although the master alleged that he did not see this crewman leave the ship he did concede that the said crewman took all of his effects from the ship and that such action was an indication that he was leaving the ship permanently.
It is significant that notwithstanding any indication of what may have happened before the shipping commissioner or any alleged inability of the master to continue the employment of B---- the fact remains that neither the master nor the agents nor any of the persons mentioned in the statute obtained permission from the Attorney General or his agents of the Immigration and Naturalization Service to discharge or to pay off the alien seaman D---- B----.
The sole issue before this Board for determination is whether or not the alien seaman D---- B---- was paid off or discharged without first having obtained the consent of the Attorney General.
The evidence of record shows that a seaman's pay voucher was prepared on February 12, 1953, and following the preparation of that seaman's pay voucher the master informed the said alien seaman that his services were no longer required aboard ship, and subsequently on the same day the position vacated by the master's action was filled by the same officer, by one M---- T---- N----, a citizen of the United States.
The foregoing is further substantiated by statement of the master concerning changes in crew. Moreover, the testimony of the witness D---- B---- shows that he was ejected from the ship in the circumstances hereinabove set forth, and these facts stand uncontroverted by the master, who in his testimony at Honolulu, T.H., indicates that the alien's leaving the ship was not the orderly following of the requirements of law.
The fact of a discharge need not be proved by direct evidence but may be inferred from circumstances such as the seaman's voluntarily leaving the vessel with the master's consent and without provision for his return, a forcible ejection of the seaman from the ship, orders for payment of wages in full to date on going ashore. * * * (56 Corpus Juris 945, sec. 78).
In the case of Trent v. Gulf Pacific Lines, 42 F. (2d) 903, the court said, among other things:
In the light of these authorities, it is my opinion that libellant was discharged "without fault on his part justifying such discharge." That he was discharged without his consent the record affirmatively shows; in fact, the final separation of ship and man came only through ejection * * *.
Among the contentions advanced by counsel in behalf of the appellant is that section 256 of the Immigration and Nationality Act ( supra) does not impose upon any person the duty to prevent an alien's being paid off. It merely makes it unlawful for a person, or, as the act states, "any party," to pay off the alien under certain circumstances. In this regard counsel contends that the Texas Transport Terminal Co., Inc., who was the agent did not discharge or pay off the seaman but it was the master who was the responsible individual.
The statute provides that it shall be unlawful for any person, including those specifically named, and that term "person" includes the owner, agent, consignee, charterer, master, or commanding officer, to pay off or discharge any alien crewman without first having obtained the consent of the Attorney General. The statute thereby makes all named equally responsible to see that no seaman is paid off or discharged without the consent of the Attorney General first having been obtained. The Congress was aware of the situation that after a master had departed he is unavailable and so in adopting section 256 of the Immigration and Nationality Act ( supra) it is obvious that the section of the statute quoted was made to apply to all, and it is our conclusion that the terminology makes all those mentioned equally responsible for the full enforcement of the provisions thereof.
Counsel further contends that the alien was not paid off and did not receive his wages in full, but the testimony of the alien crewman and the documents, plus the circumstances hereinabove set forth can lead to but one conclusion, and that is that the alien crewman was paid off and that he was discharged, and that there was a failure to comply with the statute by first obtaining the consent of the Attorney General.
After careful consideration of all of the evidence of record it is our conclusion that a violation of section 256 of the Immigration and Nationality Act is established in that the alien crewman D---- B---- was paid off and discharged without any of the parties mentioned in the statute first having obtained permission of the Attorney General to so pay off and discharge the said alien crewman.
The remaining question is one pertaining to mitigation of the penalty. The evidence in this case discloses that the entire crew was paid off before the United States Shipping Commissioner at the port of New Orleans, La., on February 12, 1953, at which time new articles were opened and that the name of D---- B---- is not shown on the articles of the SS Republic. There is an indication that the articles covering the arrival of the vessel on February 12, 1953, contain a notation that wages were withheld. The shipping commissioner indicated that this notation was properly placed on the articles, inasmuch as the Commissioner would not apply payment of all the wages due the alien crewman in this category, but the record discloses that B---- was told by the master after coming off watch at midnight that his services were no longer required, that he had no employment for him aboard the ship, following which B---- called the Immigration office on the following Friday morning and informed them of these circumstances. We think this not of great importance because of the fact that the circumstances in the case support a "discharge" of the alien seaman without the requisite permission as required by statute.
Counsel further assert in their brief that the "alien has since departed voluntarily, no harm whatsoever has resulted to the United States and the purpose of the law was served in that the alien did not remain in the United States."
The only indication in the entire record that the alien is no longer in the United States is that which would seem to disclose that he shipped foreign and there is nothing to establish that the master or the agents assisted the alien in this departure. In these circumstances there is but little to warrant or justify mitigation of the penalty.
The Government was put to considerable inconvenience and expense to ascertain the true facts in connection with this entire matter and it is our conclusion that the entire amount of penalty should be permitted to stand.
Order: It is ordered that the appeal from the decision of the District Director of Immigration and Naturalization, Miami, Fla., bearing date August 4, 1953, be and the same is hereby dismissed.