56068/583
Decided by the Board June 9, 1942.
Fines — Section 10, Immigration Act of 1917, as amended — Failure to prevent landing.
Under section 10 of the Immigration Act of 1917, as amended by section 27 of the Immigration Act of 1924, liability has been incurred if an alien has landed without permission, and whether or not due diligence was exercised is immaterial.
Mr. George W. Stilson, Board attorney-examiner.
STATEMENT OF THE CASE: This is a proposed criminal proceeding against the Ocean Dominion Steamship Corporation, agents of the S.S. Sarcoxie, for violation of section 10 of the Act of February 5, 1917, as amended by section 27 of the Act approved May 26, 1924 (8 U.S.C. 146), for failure to prevent the landing of the alien, B---- F----.
The matter is now before this Board to determine whether a violation of section 10 has been established and whether it is practicable to proceed in personam or in rem.
DISCUSSION: Section 10 of the 1917 act, as amended, makes it the duty of every person or transportation company, who provides a means for an alien to come to the United States, to prevent the landing of such alien at a time or place other than as designated by immigration officials. Failure to prevent such landing is made a misdemeanor to be punished by a fine of from $200 to $1,000; or if it is not practicable and convenient to prosecute the person, it makes the vessel subject to a lien of $1,000.
The S.S. Sarcoxie arrived at New York, July 12, 1940, having on board the alien named, who was being deported from Canada. The master states that the alien was handcuffed and padlocked with chain attached to upright in a passenger room amidship and the outside door was locked, with the chief officer in possession of the only key to the door, and that a watchman was employed. It was discovered on the day following arrival that the alien had escaped. The master states in his report that the alien no doubt had some outside assistance, since the door was locked, the porthole bolted on the inside, handcuffs found to have been broken and padlock securing chain to handcuffs missing. In the letter of the Ocean Dominion Steamship Corporation, it is stated that every precaution was taken and the alien must have had outside assistance, and, in view of the fact that various officers were about the deck and nothing unusual noticed, they are at a loss to explain his escape.
It is on the basis of the claim that every possible means were employed to prevent the escape of the alien that the request is inferentially made that the company be not prosecuted for the unlawful landing of the alien. If the exercise of diligence were sufficient to exempt the company from prosecution, the contention would appear to have some merit.
Under the provisions of earlier immigration acts, it has been held by the courts that the master of a ship could not be held liable for the unlawful landing of an alien from his vessel, if he adopted due precautions to prevent it. Taylor v. United States (New York, 1907) 152 F. 1, 207 U.S. 120, was the case of a conviction of the master of a vessel under section 18 of the Immigration Act of March 3, 1903, which made it "the duty of owners, officers, and agents of any vessel bringing an alien to the United States to adopt due precautions to prevent the landing of such alien from such vessel at any time or place other than that designated by the immigration officers" and made the person who permitted any alien to land illegally guilty of a misdemeanor to be punished by fine or imprisonment or both. The defendant was the master of a vessel, and the alien involved was a seaman thereon. The seaman took shore leave with the intention of returning to the vessel, but changed his mind and remained in the United States. The court held that the section did not apply to bona fide seamen "when not only there was no ground for supposing that they were making the voyage a pretext to get here, desert and get in, but there was no evidence that they were doing so in fact."
In Hackfeld Co. v. United States, 197 U.S. 442, decided on April 3, 1905, the court was considering a violation of section 10 of the Act of March 3, 1891, which provided for the return to the port from whence they came of aliens who came to the United States in violation of law and placed the burden of paying the cost of maintenance while on land and the expense of their return upon the owner of the vessel on which the alien came. It provided a fine of not less than $300 for each offense in the case of refusal to receive such aliens back on board the vessel, for neglect to detain them, or for refusal or neglect to return them to the port from which they came or to pay the cost of their maintenance while on land. The court said:
The question is as to the effect of this requirement upon ship owners who have wrongfully brought aliens into this country, and who, having received them on board the vessel for the purpose of returning them to the place from whence they came, shall neglect to detain them thereon, or neglect to return them.
It was expressly stipulated that the defendants could not have anticipated the escape by the method employed and that they were not guilty of any want of care in the premises.
The Government contended that the statute imposed upon such persons the absolute duty of returning the aliens to the place from which they came, and that the word "neglect," as used, is equivalent to the word "fail" or "omit," and that the return of the immigrants is required at all hazards, and that the owner will be relieved only when the default is the result of vis major or inevitable accident. The court held that the statute being penal should be strictly construed and that:
This statute imports a duty and in the absence of a requirement that it shall be performed at all hazards, we think no more ought to be required than a faithful and careful effort to carry out the duty imposed.
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We think the Attorney General, in the case cited, laid down the true rule, which does not make the ship owner the insurer at all hazards of the safe return of the immigrant, but does require every precaution to detain him and prevent his escape.
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We think this statute was intended to secure, not the delivery of the immigrant, at all hazards, but to require good faith and full diligence to carry him back to the port from whence he came.
The Immigration Act of February 20, 1907, section 18, made it the duty of the owners, officers, or agents of any vessel, to prevent the landing of an alien in violation of the act, and declared that "the negligent failure" to comply with that provision should be deemed a misdemeanor. Under the 1907 and previous immigration acts as will be observed from the foregoing court decisions as well as from the wording of the act, negligence was a necessary element in the offense of permitting the escape of an alien.
Congress thereafter enacted the Immigration Act of February 5, 1917. By section 10 of this act it is made the "duty" of the owners, officers, and agents of vessels to prevent the landing of aliens at a time or place other than as designated by the immigration officers, and it is further provided that "the failure" of any such person, owner, officer, or agent to comply with the foregoing requirements shall be deemed a misdemeanor and on conviction thereof shall be punished by a fine in each case of not less than $200 nor more than $1,000 or by imprisonment for a term not exceeding 1 year or by both such fine and imprisonment; or, if in the opinion of the Secretary of Labor it is impracticable or inconvenient to prosecute the person, owner, master, officer, or agent of any such vessel, a penalty of $1,000 shall be a lien upon the vessel whose owner, master, officer, or agent violates the provision of this section, and such vessel shall be libeled therefor in the appropriate United States Court.
When HR 10384, which became the Immigration Act of 1917, was being discussed in the House of Representatives (Cong. Rec. of March 28, 1916, pp. 5029-5030) and section 10 was read, Mr. Burnett proposed an amendment to insert the word "negligence." The following discussion ensued:
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Mr. BURNETT. Mr. Chairman, the insertion of this word simply continues the existing law. The gentleman from California (Mr. Hayes) asked me a few moments ago if you could punish a man criminally for an act done without intent. I answered him in the words of his bill (this bill probably intended), that it is proposed here to do precisely that thing. If a conductor upon a railroad which has not made the contract, or the keeper of an international bridge, permits, without negligence, a person to get off his railroad car or a bridge at some point other than designated by the immigration officials, he is guilty of a misdemeanor, although the alien may have knocked him down or clubbed him or gotten away and across the lien, and particularly in the case of the railroad which crosses the line at some place other than the place designated. Yet that man who had been pounded, who had been assaulted, could be brought up in the United States court, tried for misdemeanor, and, worse, if he be convicted the minimum penalty is mandatory and he could not be fined less than $200.
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Mr. BURNETT. This amendment I have offered is simply to continue existing law.
Mr. GARDNER. The word "negligent"----
Mr. BURNETT. Is in the existing law. Now, it is proposed to strike it out and provide when a man has an accident and by reason of that accident, when he acted in the utmost good faith — and I would like to get the attention of the lawyers, if not on the other side, on this side — as to whether they are going----
(There was an interruption, then he continued:)
as to whether they are going to vote to make a man guilty of a misdemeanor and punishable by a minimum fine — the maximum fine is $1,000-of $200 for doing an act without any intention of doing wrong, and over which he may have no control.
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Mr. GARDNER. To continue the existing law, which has the word "negligent" inserted before the word "failure," would be a great mistake.
Mr. Gardner went on to state that the Commissioner General had in 1911 submitted a draft of a new immigration law in which it was to be made "the mandatory and unqualified duty of every person, including owners, officers," etc., to prevent the escape of persons who have no right to land in this country. Mr. Gardner stated that the committee on immigration two or three years previously concluded that this "mandatory and unqualified" provision "ought not to be adopted, and yet that steps must be taken to prevent beyond peradventure the landing in this country of unauthorized persons." He quoted the Commissioner General's statement to the effect that the law needs to be strengthened because "various decisions of the courts, especially one by the Supreme Court ( 197 U.S. 442), under the rules of strict construction observed in criminal and penal matters, have almost destroyed this important requirement, particularly in the cases of Chinese seamen and other alien seamen, diseased, or criminal, or otherwise disqualified, whose cases are also covered in an alternative way by the succeeding two sections." Mr. Gardner, after mentioning the Commissioner General's explanation of the necessity of strengthening the law, said "That is what the committee tried to do by omitting the word `negligent', and I believe that the committee accomplished its purpose." A little further along in the discussion appears the following:
Mr. BURNETT. The word "negligent" was left out on the suggestion of the department, because if left in there it devolved upon the department first to prove that the transportation company was negligent, and the Chinese and others that were coming in in violation of law were escaping because the Government was not able to prove that the steamship company was negligent. It strikes me, Mr. Chairman, the case the gentleman speaks of is not failure — not any kind of failure. I do not believe that any court would ever charge a jury that where a railroad conductor or somebody had been knocked down and prevented by some kind of force, whether actual or constructive, that that was a failure, where it was prevented from being done. You see the danger of leaving "negligent" in there as the law did before. It was stricken out intentionally for the purpose of preventing that kind of failure of justice in the escape of the Chinese that were coming in in violation of the Chinese Exclusion Law.
I am informed by an agent of the department that there are very few of these that have come in, so far as railroad companies are concerned, and this proposition is leveled at the steamship companies, that they are the ones that have been bringing in these people, and if the Government has to prove that it is negligently done, it puts on the Government a burden it will be hard to carry. I hope the amendment will not be adopted.
The amendment was rejected.
In the report of the Committee on Immigration of the Senate, which accompanied the bill, the following comment was made:
SECTION 10. This is section 18 of the existing law, so drawn as to meet the rule of construction regarding responsibility to prevent escapes laid down by the Supreme Court in discussing a somewhat similar provision of the Immigration Act of 1891 ( Hackfeld Co. v. United States, 197 U.S. 442, 450, 451); and also so as to have it apply to those operating ordinary vehicles of conveyance, with the addition of an alternative method of punishing violators thereof, experience having demonstrated that it is often impracticable to hold a ship's master where it is possible to hold the vessel itself.
From the foregoing it will be seen that Congress in enacting section 10 of the 1917 act intended to make it an offense on the part of a person providing a means for an alien to come to the United States to permit such alien to land in the United States illegally even though he was not guilty of negligence in doing so. It was the deliberate intent of Congress to remove the element of negligence which had been a necessary ingredient of violation of the corresponding provision in prior laws, and to make such person guilty of a misdemeanor if the escape occurred, though without negligence, and this was done because it was found that the law as it previously was could not be effectively enforced for the reason that it required that negligence be shown in order to prove violation. The change in the law was made for the express purpose of overcoming the effect of the Supreme Court's decision in the Hackfeld case, which held that no more ought to be required, under the law as it then was, than a faithful and careful effort to carry out the duty imposed by the law. It was intended not only to require "every precaution to detain him and prevent his escape," as stated in the Hackfeld case, but to require that the alien be prevented from escaping. The motive of Congress was the conviction "that steps must be taken to prevent beyond peradventure the landing in this country of unauthorized persons."
In the case of The Nanking, decided by the Circuit Court of Appeals for the Ninth Circuit on July 2, 1923 ( China Mail S.S. Co., Ltd. v. United States, 290 F. 769), the court briefly referred to the provisions of the prior laws and to the change that has been made by section 10 of the act of 1917, and stated that "it seems reasonably clear that the intention of the statute was to make imperative the duty of preventing such unlawful landing of aliens." Although the decision in that case did not go so far as to state that the owner of the vessel is an absolute insurer against the illegal landing of aliens in the United States, it did hold that the escape of aliens might have been prevented by the exercise of the degree of diligence required by the statute. The decision did not further define the degree of diligence required by the statute, but its language would seem to indicate that nothing less than force over which those connected with the vessel could have no control would be sufficient to excuse the unlawful landing of aliens from vessels.
It is clear in the instant case that the master and other responsible persons did not prevent the landing of the alien, B---- F----, and that nothing in the circumstances was of a nature to be beyond the control of those responsible for the vessel.
The present section 10 of the act of 1917, as amended by section 27 of the act of 1924, makes the same requirement as the original section 10 of the act of 1917 hereinbefore discussed with slight change of wording evidently intended to improve and clarify the language, and adds a provision that the failure of the alien to present himself at the designated time and place for examination by immigration officers shall be prima facie evidence that the alien has landed in the United States at a time or place other than as designated by immigration officers. This added provision is intended to facilitate the conviction of those whose duty is to prevent the illegal entries when they fail to do so. It does not merely require diligence in attempting to prevent the landing but makes it a positive duty to prevent it.
In the case of the Santos Maru, United States v. Osaka Shosen Kaisha Line, 84 F.2d 482, the circuit court of appeals referred to the earlier law which used the phrase "bringing an alien to the United States," and mentioned the construction of this phrase in the Taylor case hereinbefore mentioned to mean "transporting with intent to leave in the United States" and the holding in that case that an intent on the part of the owners and officers of the vessel that the alien transported should enter the United States was necessary before the law was violated, for which reason it would not apply to the crew of a vessel. The court in the Osaka Shosen Kaisha case then said:
The present act adds the phrase "or providing a means for an alien to come to the United States" after the phrase "bringing an alien to the United States." The act is somewhat ambiguous and deals with transportation by land as well as by sea, but Congress was endeavoring to solve an everpresent problem in a practical way. If through passengers on a ship could leave her at a port of the United States at will, that would be an easy way to evade the immigration laws.
The court upheld the right of the Commissioner General under the authority of the law to make the regulation that had been made permitting through passengers to land temporarily if the examining officer is satisfied that they will leave with the vessel but refusing such permission to land if the examining officer is not so satisfied, in which case he should notify the master in writing that the privilege of landing is denied the alien. The court further held:
We consider that when a vessel arrives at a port of the United States with an alien through passenger on board who unlawfully lands in the country, the ship has provided a means for the alien to come to the United States within the meaning of the law. It is not necessary to show that the owners of the ship intended that the alien should land in the United States before the penalty for negligently permitting him to land may be imposed. Under the present law on the facts presented in this case, we do not consider that Taylor v. United States controls.
The Supreme Court granted certiorari in this case and decision was rendered by the Supreme Court as recorded in Osaka Shosen Kaisha Line v. United States, 300 U.S. 98. The court called attention to the contention that had been made that one who transports an alien passenger from one foreign country to another does not bring him to the United States within the meaning of section 10 by entering, with the alien on board, an American port of call on the way, and continued:
If it were not for a sentence contained in the opinion of this court in Taylor v. United States, infra, of which we shall speak later, we might dispose of this contention by simply saying that it is contrary to the unambiguous terms of the section. Nothing can be plainer than that a ship which enters one of our ports has come to the United States, and a passenger on board obviously has come with the ship, and consequently has been brought by the ship to the United States. And this remains none the less the fact although the ship continue on her way to a foreign port and although it was intended that the passenger should go with her and not be left in the United States. To say that the passenger has not been brought to the United States unless the intent was to leave him here is not to construe the statute but to add an additional and qualifying term to its provisions. This we are not at liberty to do under the guise of construction because, as this court has so often held, "where the words are plain there is no room for construction." * * * The duty of the ship is to prevent the landing of through alien passengers except by permission. The United States has no obligation to permit the temporary landing of such passengers at its ports at all. A detention order is not necessary, although one was issued in this instance; for the case is not one where landing is permitted if not forbidden by the immigration officials, but where it is forbidden unless permitted.
At this point the court distinguished between section 10, which forbids landing unless permitted, and section 20, where the duty to prevent landing after inspection arises only if ordered by the immigration officials, and the court concluded: "Under section 10, however, the duty is imposed by statute and not by requirement of the immigration officials."
In distinguishing the case from that in Taylor v. United States, the court said:
"The intent to leave" is right enough as applied to a seaman on the ship, but it may not be extended to include an alien through passenger.
The court was dealing with and thinking of a sailor and not of an alien through passenger and its language must be read accordingly for "it is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case they may be respected, but ought not to control the judgment in a subsequent suit where the very point is presented for decision." The point to be observed in the Taylor case is that the transportation of the sailor was merely as "an incident to employment on the instrument of transport." That is to say, the sailor was one of the agencies which brought the ship in rather than an alien brought in by the ship. When we consider the relation of the sailor to the ship — that he is for all practical purposes a part of it and not like a passenger apart from it — it is quite apparent that the word "alien" as used in section 10 does not, and was not intended to, include an alien sailor.
The Supreme Court upheld the decision of the circuit court of appeals to the effect that the line was responsible and subject to a penalty under section 10 for failing to prevent the landing of the alien in the United States.
The instant case is similar to the case under consideration by the court in Osaka Shosen Kaisha Line v. United States. The alien involved was a through passenger on a vessel calling at a United States port. The only difference is that in the case of the Sarcoxie, B---- F---- was a passenger on the vessel because being deported from Canada instead of a voluntary paying passenger. It is evident that a violation of section 10 of the 1917 act, as amended, has occurred. If the Ocean Dominion Steamship Corporation, the agent of the vessel, is willing to accept service of process, it appears that it is practicable and convenient to prosecute in personam.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the S.S. Sarcoxie arrived at New York on July 12, 1940, having on board the alien named;
(2) That the alien escaped from the vessel and his landing was not prevented by the agents who provided a means for him to come to the United States.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That a violation of section 10 of the act of 1917, as amended, has occurred.
ORDER: It is directed that the matter be referred to the Criminal Division with advice that a violation of section 10 of the act of 1917, as amended, has been established, and that it has been found practicable and convenient to institute proceedings in personam against the Ocean Dominion Steamship Corporation, providing they are willing to accept service. Although we do not undertake to interpose our judgment for that of the court, it might be suggested that in our opinion penalty in the minimum amount of $200 be considered satisfactory, taking into consideration the mitigating circumstances in the case.