56118/526
Decided by the Board October 16, 1943.
Fines — Section 20, Immigration Act of 1924 — Failure to comply with order to detain on board.
A fine has not been incurred under section 20 of the Immigration Act of 1924 for failure to detain on board an alien seaman when a seaman ordered detained was permitted to land in response to what appeared to be a bona fide need for medical treatment.
Kirlin, Campbell, Hickox, Keating and McGrann, attorneys for the respondent.
Miss Arlene Tuck, Board attorney-examiner.
STATEMENT OF THE CASE: This is a fine proceeding under section 20 of the Immigration Act of 1924 against Simpson, Spence Young, agents, for failing to detain the alien seamen R---- C----, R---- S----, and E---- G---- after service of an order to do so. Notice of intention to fine was served on the agents on January 21, 1943.
DISCUSSION: The record establishes that on December 26, 1942, when the S.S. Rodsley arrived at New York, notice was served on the master to detain on board seven alien seamen, including those named above. Like notice was served on the agents on December 29, 1942. According to the agents' protest, several days later the seamen S---- and G---- complained of illness, and the master sent them ashore for examination. A certificate from the Long Island College Hospital states that G---- was admitted as an out-patient and was treated for possible early tuberculosis but made one visit only, and studies were not completed. A certificate from the same hospital states that S---- was admitted to the hospital on January 7, January 15, and February 4, 1943, and was treated for chronic bronchitis and tachycardia, after which he was certified as unfit for duty and repatriation was advised. Concerning the seaman C----, the protest states that on January 7, 1943, he suffered serious burns and was sent to the United States Marine Hospital at Stapleton, Staten Island. The record contains a photostatic copy of a certificate from the United States Marine Hospital stating that he was admitted there on January 7, 1943, for treatment of burns and on March 17, 1943, had not yet been discharged.
It is conceded that none of the seamen in question were on board the S.S. Rodsley when it sailed from New York on January 17, 1943. The record discloses that pursuant to arrangements made by the British consulate the seaman S---- departed foreign on March 9, 1943, and the seaman C---- on April 23, 1943. Although a berth was obtained by G---- on an outgoing vessel, there is no evidence of his having left the United States.
The Central Office of the Immigration and Naturalization Service states in regard to the seamen C---- and S----, that inasmuch as they were in need of hospitalization and were repatriated at no expense to the Government within a reasonable time after the completion of treatment, there has been substantial compliance with the provisions of section 20 and fine should not be imposed. In regard to the seaman G----, however, it is recommended that fine be imposed since even if he did require medical treatment, there is no evidence of his departure from the United States, and, accordingly, there has been no compliance with section 20. We do not wholly agree with this reasoning.
Section 19 of the Immigration Act of 1924 provides that alien seamen may be permitted to land temporarily for medical treatment. This provision must be interpreted together with section 20 of that act, which provides fines for failure to detain alien seamen ordered detained on board. In the absence of regulations providing the circumstances under which seamen ordered detained on board may be permitted to land for medical treatment before the detaining order is lifted, it is our view that fine has not been incurred when a detained seaman was permitted to land in response to what appeared to be a bona-fide need for medical treatment. In the instant case each of the alien seamen was treated at a hospital, and the afflictions of seamen S---- and C---- were serious. It is true that an accurate picture of the ills of seaman G---- could not be presented because of his failure to return for further treatment. Nevertheless, if his symptoms were sufficient to lead the hospital authorities to believe that he might require hospitalization treatment, the master or other responsible parties would have been justified in so believing.
In determining the liability of responsible parties for failing to detain an alien seaman ordered detained on board, we do not consider it relevant whether or not he departed on some other vessel at sometime after his ship left. Nor can such departure be called substantial compliance with section 20 of the Immigration Act of 1924, which provides for detention on board the vessel on which seamen arrive, the immediate purpose of which would appear to be to prevent such seamen going ashore in the United States. That the seaman G---- did not depart sometime after his ship left the United States, therefore, does not affect the liability of the agents for failing to detain him on board.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the S.S. Rodsley arrived at the port of New York on December 26, 1942, having on board the alien seamen R----, C----, R---- S----, and E---- G----;
(2) That on December 26, 1942, notice to detain on board the three seamen in question was served on the master;
(3) That on December 29, 1942, a similar notice was served on the agents;
(4) That thereafter the seamen in question were permitted to go ashore in response to what appeared to be a bona-fide need for medical treatment;
(5) That none of the seamen in question was on board the S.S. Rodsley when it departed from New York on January 17, 1943.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under sections 19 and 20 of the Immigration Act of 1924, the agents, Simpson, Spence Young, have not incurred liability for fine for failing to detain on board the alien seamen after service of an order to do so.
ORDER: It is ordered that fine be not imposed. The sum involved is $3,000.