F-1331
Decided by Board February 9, 1948
Fine — Failure to detain alien seaman on board after ordered to do so — Section 20, Immigration Act of 1924 — Effect of seaman's return to vessel, his reexamination, grant of shore leave, and nondeportation.
(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.
(2) If the inspecting immigration officer in his judgment deems such action necessary he has authority to do so under section 20, Immigration Act of 1924.
(3) If it is established that the alien seaman left the vessel contrary to the order of detention, it is immaterial that he was not subsequently deported; nor does the fact that the alien seaman returned to the vessel, was reexamined, and granted shore leave, have the result of cancelling the order of detention ab initio so as to negative the ground of liability. (See 1 IN Dec. 105, 523.)
BEFORE THE BOARD
Discussion: This is an appeal from the order of the Acting Commissioner dated October 15, 1947, imposing $1,000 fine against John C. Rogers Co., Inc., agents for the S.S. Stamo, which arrived at Philadelphia, Pa., December 5, 1946, for failure to detain on board the alien seaman J---- C---- D---- S----, after service of an order to do so, pursuant to the provisions of section 20, Immigration Act of 1924.
This section provides in pertinent part that —
The owner, charterer, agent, 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 office 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 a 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. No vessel shall be granted clearance pending the determination of the liability to the payment of such fine, or while the fine remains unpaid, except that clearance may be granted prior to the determination of such question upon the deposit of a sum sufficient to cover such fine, or of a bond with sufficient surety to secure the payment thereof approved by the collector of customs. The Attorney General may, upon application in writing therefor, mitigate such penalty to not less than $200 for each seaman in respect of whom such failure occurs, upon such terms as the Attorney General in his discretion shall think proper. This section, as amended, shall apply to all penalties arising subsequent to June 5, 1940.
The facts establish that the alien signed for a round-trip voyage on said vessel from Philadelphia to Nova Scotia and return. The vessel returned on the date stated, and an order to detain said seaman was served upon the agents on said date (December 5, 1946), and acknowledged. The seaman left the vessel on December 8, 1946, while said order was in effect. However, he returned to the vessel December 10, 1946, and was reexamined by the same inspector who issued the detainer and granted shore leave, the detention order being withdrawn as of December 10, 1946.
Counsel's principal contention in seeking reversal is that, the notice to detain having been withdrawn, no basis for liability remained.
We cannot accept counsel's view. Our position is that once an order to detain has been issued a failure in the duty to detain results in liability to a fine.
The immigration authorities possess unquestioned power to make inquiry into the status of arriving aliens and, in the case of alien seamen, to detain, after examination, if the inspecting immigration officer in his judgment deems such action necessary ( Yonejiro Nakasuji v. Seager, 3 F. Supp. 410, D.C. Cal., 1933). To that end he has authority to issue a detention order under section 20, Immigration Act of 1924, and thereafter, as already pointed out, the duty to detain becomes absolute ( Lloyd Royal Belge Societe Anonyme v. Elting, 61 F. (2d) 745, C.C.A.N.Y., 1932, cert. den., 289 U.S. 730; Compagnie Generale Transatlantique v. Elting, 298 U.S. 217 (1936), reversing C.C.A. 74 F. (2d) 209).
The statute provides a penalty against the party charged when he fails to detain or deport, when so directed. It is not required to consummate liability that deportation follow an order of detention, as contended by counsel ( Compagnie Generale Transatlantique, supra). For example, counsel's position, if upheld, would mean that where a seaman leaves the vessel, or escapes, while an order of detention is in force, liability would not lie until and unless he is apprehended and deported. This view would obviously effectively nullify the plain purpose of the statute. Such a view finds no sanction in the statute. The statute clearly provides for detention on board, both temporary and continued. The duty to detain becomes absolute when a notice to do so has issued, and a failure in that respect subjects the person upon whom the duty rests to liability ( Lloyd Royal Belge Societe Anonyme v. Elting, supra; Compagnie Generale Transatlantique v. Elting, supra).
The case of the Southern Prince, 4 F. Supp. 190, simply involved the point whether the vessel was liable for failure to deport the seaman ordered detained, even though the master attempted to so do without success; it does not stand for the proposition, as contended by counsel, that where the vessel is required to return the seamen to the point of engagement pursuant to the contract of seamanship, liability to fine for failure to detain does not arise.
Thus, it is established that the alien seaman left the vessel contrary to the order of detention, and, therefore, he was not detained as required. Whether or not he was subsequently deported is immaterial so far as liability goes. The fact that the alien seaman returned to the vessel and was examined and granted shore leave or otherwise admitted, and the detention order was thereupon withdrawn after examination and admission, in nowise resulted in cancellation of said order ab initio so as to negative the ground of liability. It often happens that an alien seaman is ordered detained for one reason or another, and later the cause being removed, the detention is lifted. But in such cases we do not find a violation of the order to detain. Here, to repeat, there was a clear violation in that the alien seaman left the vessel contrary to the duty which was imposed upon the agents ( British Empire Steam Nav. Co. v. Elting, 74 F. (2d) 204, C.C.A.N.Y., 1935; Lancashire Shipping Co. v. Elting, 70 F. (2d) 699, C.C.A.N.Y., 1934, reversing D.C. 1934, 5 F. Supp. 654, and cert. den. Elting v. Lancashire, 293, U.S. 594; U.S. v. International Freighting Corp., 20 F. Supp. 357, D.C.N.Y. 1937; Yonejiro Nakasuji v. Seager, supra; Compagnie Generale Transatlantique v. Elting, supra; Lloyd Sabaudo Societa Anonima v. Elting, 287 U.S. 329).
We have considered the remaining contentions which, basically, stem from the principal argument of counsel, but find they are without substance and in nowise affect liability. Under the applicable statute, the duty of the owner, charterer, agent, consignee, or master of a vessel arriving from a place outside the United States to detain an alien seaman after examination by an immigration officer does not arise unless and until detention is required by such officer, and such requirement must be communicated to the person on whom duty is to rest ( Compagnie Generale Transatlantique v. Elting, supra). These prerequisites, we find, are all present in the instant proceeding against the agents. The seaman was an alien when he arrived with the vessel and, therefore, was amenable to the immigration requirements applicable to aliens generally. The fact that the seaman returned (voluntarily) to the vessel (the record shows he was surrendered by his attorney) does not justify remission of fine on the basis of our holding in Matter of S.S. Aeas ( 1 IN Dec. 105). That holding has been restricted to cases where the escaped seaman is apprehended and returned to the vessel through the efforts of the party who had the duty to detain in the first instance. ( Matter of Baron Haig, 56118/598, Aug. 26, 1943, 1 IN Dec. 523.)
While the circumstances may justify mitigation of fine in accordance with section 20, upon which this proceeding rests, that is a matter within the jurisdiction of the Commissioner.
Order: The appeal is dismissed.