F-0300-4912
Decided by the Board July 20, 1953
Fine — Failure to detain alien seamen on board and deport — Agents of vessel not liable where notice to detain not timely served — Master of vessel operating under orders of British Admiralty immune.
(1) Liability for fine under section 20 of the Immigration Act of 1924 by the agents of a vessel is not established when notice to detain on board and deport is served on such agents after the escape of the seamen involved.
(2) The master of a vessel which is a Royal Fleet auxiliary operating under orders of the British Admiralty, is an officer of Her Majesty's Fleet and is immune from fine proceedings.
BEFORE THE BOARD
Discussion: This matter is before us on appeal from an order denying a motion for reconsideration of determination of the district director of immigration and naturalization, New York district, bearing date January 31, 1952, and an affirmance thereof by the Acting Assistant Commissioner of Immigration and Naturalization, Adjudications Division, bearing date June 16, 1952, wherein fine in the amount of $8,000, $1,000 for each alien as aforesaid, was imposed against Bowring Co., agents of the vessel Wave Sovereign, for alleged violation of section 20 of the Immigration Act approved May 26, 1924 (8 U.S.C., sec. 167).
The specific violation alleged is failure to detain on board and deport the aforementioned alien crewmen pursuant to order to so detain.
The record reveals that the SS. Wave Sovereign arrived at the port of New York from a foreign port or place on September 17, 1951, having on board the aforementioned crewmen. Upon inspection by an officer of the Immigration and Naturalization Service, it was ascertained that these alien seamen were not in possession of appropriate travel documents under and pursuant to the requirements of Executive Order 9352, whereupon a notice to detain them on board at all United States ports and to deport the said alien seamen was served upon the master of the vessel on September 17, 1951, and upon the agents, Bowring Co., on October 4, 1951. The said notices were neither subsequently withdrawn nor cancelled. The said alien seamen were not on board the vessel when she departed foreign from New York on October 9, 1951.
Section 20 of the Immigration Act approved May 26, 1924 (8 U.S.C. 167), provides as follows:
( a) 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 officer 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 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.
When a notice to detain on board at all United States ports and to deport is served upon any of the persons mentioned in the statute the duty to so detain on board and deport becomes absolute (see Hamburg American Line v. United States, 52 F. (2d) 463).
Two questions are presented on the appeal: (1) Whether or not the duty imposed by statute arose in the instant case as to Bowring Co., and (2) whether or not liability for fine obtains against the master of the vessel inasmuch as the said vessel is an auxiliary of the Royal Fleet, operating under order of the British Admiralty.
The record in the case shows that receipt of notice to detain on board was acknowledged by A---- J---- G----, assistant manager of operations of Bowring Co., on October 4, 1951, and there is no receipt of notice to detain on board of record insofar as the master of the vessel is concerned.
It is alleged that notice to detain on board at all United States ports and deport was served upon the master of the vessel on September 17, 1951.
The evidence of record further shows that about 7 a.m. on September 18, 1951, the captain was informed by the chief officer that three Chinese crew members were absent without leave. Subsequently on September 18, 1951, additional watchmen were supplied. The last of the eight crewmen ordered detained on board the vessel left the ship on September 19, 1951.
It is contended that all of the eight alien seamen here involved escaped from the vessel prior to the service of notice to detain on board and to deport upon Bowring Co.
In the case of the British Empire Steam Navigation Company, Ltd. v. Elting, 74 F. (2d) 204, page 206, it was held by the court that a fine could not be imposed on a steamship owner's agent for failure to detain alien seamen where the agent was not shown to have been placed under duty to detain prior to a seaman's escape. The court said, "* * * the agent was not shown to have been placed under a duty to detain prior to the escape; therefore no fine should be imposed upon it * * *."
In the case of the Hamburg American Line v. Elting, 298 U.S. 217, the court said, "Our present concern is with a fine for failing to detain after examination. A duty so to detain does not arise unless and until such detention is required by the immigration officer. Obviously the requirement must be communicated to the one on whom the duty is to rest; otherwise he could not be regarded as `required' so to detain or as `failing' to do so * * *."
On the basis of the evidence of record and in the light of the holding of the courts in the cases cited hereinabove, no liability for fine obtains against Bowring Co., inasmuch as a violation of section 20 of the Immigration Act approved May 26, 1924 ( supra), is not established as to them in that notice to detain on board and deport was not served upon the said agents until after the escape of the eight alien seamen; consequently, the requirement of the statute was not timely communicated.
As to the second question herein presented it is contended that the SS Wave Sovereign is a Royal Fleet auxiliary operating under orders of the British Admiralty and that the said vessel therefore "should enjoy sovereign immunity."
In connection with the said second question Her Majesty's Ambassador for the United Kingdom addressed a communication to the Department of State under date of May 16, 1952, indicating, among other things, that the British consul general in New York wrote on February 8, 1952, to the district director of immigration and naturalization stating that the Wave Sovereign is a Royal Fleet auxiliary vessel engaged on royal naval service and therefore claimed immunity for the vessel and her captain from United States jurisdiction. The British Ambassador set forth that the vessel is owned by Her Majesty's Government and has been operated by the British Admiralty as a Royal Fleet auxiliary vessel since completion of building. As such she belongs to the Royal Navy and is, accordingly, included in the British Navy list. The officers act under the orders and control of the Admiralty and the names of senior officers are included in the British Navy list. The vessel is used exclusively in support of the Royal Navy and is now engaged in operations in support of naval units in Korean waters. The voyage of the vessel to New York to which the present proceedings relate was not a commercial voyage. The vessel was dispatched to obtain a cargo of oil for supply to the Mediterranean Fleet.
Accordingly, the British Ambassador fully reserved the rights of Her Majesty's Government.
The Department of State, in a communication of September 9, 1952, addressed to Mr. Francis A. Vallat, United Kingdom delegation to the United Nations, stated:
Although no full report from the Department of Justice has yet been received the Department considers that the information now before it is sufficient on which to base a view as to the public character of the vessel. Accordingly, the Attorney General is being informed that the Department has concluded that the SS. Wave Sovereign is a public vessel of the British Government such as would be entitled to immunity from the jurisdiction of United States courts. The Attorney General is being advised that this conclusion is without prejudice to other considerations which may be involved in the proceedings before the Board of Immigration Appeals.
The Attorney General was similarly informed under date of September 9, 1952, by the legal adviser of the Department of State and the Secretary of State.
In a memorandum opinion of Judge James R. Kirkland, United States District Court for the District of Columbia (in re Investigation of World Arrangements with Relation to the Production, Transportation, Refining and Distribution of Petroleum in Possible Violation of Title 15, U.S. Code, secs. 1-23, bearing date December 15, 1952, Misc. No. 19-52) the court indicated that courts take judicial notice of the sovereign character of a party and in case of doubt address their own inquiries to the executive. In the case under consideration such correspondence is contained in the file.
Judge Kirkland further indicated:
A foreign sovereign is immune from suit, without its consent, in courts of the United States. The Exchange v. McFadden, 7 Cranch 116; L'Invincible, 1 Wheat. 238; Ex parte, Muir, 254 U.S. 522; Hannes v. Kingdom of Roumania Monopolies Institute, 6 N.Y.S. 2nd 960; Mexico v. Hoffman, 324 U.S. 30. The foreign government may adopt the procedure of asking the State Department to allow immunity or they may also present their claim of immunity by appearance in the matter. Republic of Mexico v. Hoffman, supra. Both English and American courts have held that a sovereign need not affirmatively assert this immunity. Cardashian v. Snyder, et al., 57 Washington Law Reporter (1929) 738. Mighell v. Sultan of Johore, (1894) 1 G.B. 149; Nankivel v. Omsk All Russian Government, et al. 237 N.Y. 150, 142 N.E. 569; Mason v. Inter-colonial Ry. of Canada, 197 Mass. 349, 83 N.E. 876; Puente v. Spanish Nat'l. State (1940) 116 F. (2) 43 (C.C.A. 2, 1940). Foreign governments have been held immune from suits even though they had never been recognized by the Government of the United States. Wulfson v. Russian Socialist Federated Sovict Republic, 234 N.Y. 372, 138 N.E. 24; Nankivel v. Omsk All Russian Government, et al., supra.
It appears unnecessary to dwell at length on the contention of counsel that the master of the vessel Wave Sovereign, an officer of Her Majesty's British Fleet is immune from the present proceeding. That fact is established adequately in the evidence of record. Although it appears unnecessary to answer this question definitely because no violation has been established under the provisions of section 20 of the act of 1924 ( supra) against Bowring Co., we have merely answered this second question at the request of counsel in this case and it is our conclusion on the basis of decisions extant that no violation can be imputed to the master of the R.F.A. SS. Wave Sovereign.
Re Muir 254 U.S. 522; the Carlo Poma, 255 U.S. 219; Hewitt v. Speyer et al., 250 Fed. 367; courts of the United States will not adjudicate upon the validity of the acts of a foreign nation, performed in its sovereign capacity, within its own territory, nor will persons involved with such government in the performance of such acts be subjected to a civil liability therefor.
Accordingly the appeal from the denial of the motion will be sustained and it will be further ordered that no fine be imposed against Bowring Co., agents of the said vessel.
Order: It is ordered that the appeal from the denial of motion be and the same is hereby sustained.
It is further ordered that for the reasons hereinabove set forth no fine be imposed against Bowring Co., agents of the vessel.