In the Matter of the S.S. Atlantida

Board of Immigration AppealsJun 9, 1944
2 I&N Dec. 571 (B.I.A. 1944)

56118/487.

Decided by Board May 15, 1944. Approved by Attorney General June 9, 1944.

Fine — Failure to detain alien seaman, after notice — Section 20 of the Immigration Act of 1924 — Duty absolute — No exception because vessel owned by or on bareboat or time charter to the United States Government.

A fine under the provisions of section 20 of the Immigration Act of 1924 for failure to detain an alien seaman on board after notice to do so is properly imposed where such absolute duty has not been fulfilled and such fine is not erroneously imposed merely because the vessel may be owned by or on bare-boat or time charter to the Government of the United States.

BEFORE THE BOARD


Discussion: This record relates to a fine proceeding under the provisions of section 20 of the act approved May 26, 1924 (8 U.S.C. 167) against the Standard Fruit Steamship Co., agents of the aforementioned vessel, which vessel arrived at the port and on the date indicated for failure to detain on board the alien, Jeremiah Brooks, pursuant to written order to so detain served upon the master, J.A. Cowler, and Mr. J. Low, marine superintendent of the Standard Fruit Steamship Co. Notice of liability for fine under the immigration laws was served upon the agents herein mentioned and receipt thereof was acknowledged on December 18, 1942.

In protest to the proposed fine there has been submitted by the agents an affidavit of J---- A. C----, master of the vessel, in which it is set forth that immediately following the receipt of notice to detain on board he issued orders that watchmen be placed at the gangplank where the vessel was docked at the Press Street wharf, New Orleans, La. He issued orders as to which members of the crew were to be detained on board by order of the United States immigrant inspector, and that these aliens were not allowed to proceed ashore. It is asserted that strict watch was maintained, but that notwithstanding, when arrangements were being made to convoy the detained seamen to the immigration office J---- B---- was not found on board. This fact was reported forthwith.

The master requested, in view of the precautions taken, that consideration be given these circumstances with a view to remission of the fine incurred.

When a notice to detain on board is served on the master, agent, owner, or consignee of the vessel, there is an absolute duty to prevent landing of alien seamen, and where an alien escapes fine has been incurred irrespective of the diligence of the vessel.

See Lloyd Royal Belge Societe Anonyme v. Elting, 55 F. (2d) 340.

After careful consideration of all of the facts on June 21, 1943, this Board concluded that a violation of section 20 of the act approved May 26, 1924, was established, and that fine in the amount of $1,000 had been incurred, whereupon fine in the amount stated was imposed. In a communication of November 16, 1943, the Assistant General Counsel of the United States War Shipping Administration states: "In this case fine was paid by the agent, apparently without knowledge of instructions of that agency not to pay and that the agent is, therefore, in the difficult position of not being able to obtain reimbursement for the fine either from the underwriters or the War Shipping Administration." It is contended by the United States War Shipping Administration that "immigration fines and penalties" should not be assessed against vessels, agents, or masters where the vessel is owned by or under bare-boat charter to the War Shipping Administration, and is being operated by an agent under its standard agency agreement, as the amounts paid would ultimately be for the account of the United States and would constitute a situation of one Government department paying to another Government department.

The question thus presented is whether or not fine in this case was erroneously imposed on June 21, 1943, or more broadly, whether the agents, master, charterer, or consignee of a vessel owned by or on bare-boat or time charter to the United States Government (War Shipping Administration) is subject to a penalty provided by statute when a violation of such statute is established, and the vessel is being operated by an agent under the standard agency contract.

The pertinent portion of the statute here involved is section 20 of the Act approved May 26, 1924 (8 U.S.C. 167), which provides in part:

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 to 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 Legal Division of the War Shipping Administration in a communication dated January 21, 1944, addressed to this Board, expresses the opinion that liability for immigration fines and penalties has been assumed by the United States in its general agency agreement, and that the reserved right to disallow expenses does not apply to immigration fines. We are unable to agree with this conclusion as drawn from the agreement by the War Shipping Administration.

Articles 7, 8, and 16 of service agreement for vessels of which the War Shipping Administration is owner or owner pro hac vice, provide as follows:
Article 7.
The United States shall reimburse the general agent at stated intervals determined by the United States for all expenditures of every kind made by it in performing, procuring or supplying the services, facilities, stores, supplies, or equipment as required hereunder, excepting general and administrative expense (as presently itemized in General Order No. 22 of the United States Maritime Commission), advertising expense, taxes (other than sales and similar taxes or foreign taxes of any kind to the extent determined by the United States to be classifiable as voyage expenses hereunder) and any other expenses which are not directly and exclusively applicable to the maintenance, management, operation or the conduct of the business of the vessels hereunder. The general agent shall be reimbursed for sales and similar taxes or any foreign taxes of any kind to the extent determined by the United States to be classifiable as voyage expenses hereunder if the general agent shall have used due diligence to secure immunity from such taxation. To the extent not recovered from insurance, the United States shall also reimburse the general agent for all crew expenditures (accruing during the term hereof) in connection with the vessels hereunder, including without limitation, all disbursements for or on account of wages, extra compensation, overtime, bonuses, penalties, subsistence, repatriation, travel expense, loss of personal effects, maintenance, cure, vacation allowances, damages or compensation for death or personal injury or illness, and insurance premiums, required to be paid by law, custom, or by the terms of the ship's articles or labor agreements, or by action of the Maritime War Emergency Board, any payments made by the general agent to a pension fund in accordance with a pension plan in effect on the effective date of this agreement with respect to the officers and members of the crew of said vessels who are entitled to benefits under such plan, on the effective date of this agreement, for the amount of any social security taxes which the general agent is or may be required to pay on behalf of the officers and crew of said vessels as agent or otherwise. The United States may disallow, in whole or in part, as it may deem appropriate, and deny reimbursement for, expenses which are found to have been made in wilful contravention of any outstanding instructions or which were clearly improvident or excessive.
Any moneys advanced to bonded persons by the general agent for ship disbursements which are lost by reason of a casualty to the vessel on which the money so advanced is carried shall in the event of such loss be considered an expense of the general agent, subject to reimbursement as is in this article 7 provided.
The United States may advance moneys to the general agent to provide for disbursements hereunder in accordance with such regulations or conditions as the United States may from time to time prescribe.
Article 8.
The United States shall, without cost or expense to the general agent, procure or provide insurance against all insurable risks of whatever nature or kind relating to the vessels assigned hereunder (which insurance shall include the general agent and the vessel personnel as assureds) including, but without limitation, marine, war and P. I. risks, and all other risks or liabilities for breach of statute and for damage caused to other vessels, persons or property, and shall defend, indemnify, and save harmless the general agent against and from any and all loss, liability, damage, and expense (including costs of court and reasonable attorneys' fees) on account of such risks and liabilities, to the extent not covered or not fully covered by insurance. The general agent shall furnish reports and information and comply fully with all instructions that may be issued with regard to all salvage claims, damages, losses, or other claims. Neither the United States nor the insurance underwriters shall have any right of subrogation against the general agent with respect to such risks. The United States may assume any of the foregoing risks except those relating to P. I. risks and collision liabilities. At all times during the period of this agreement, the United States shall at its own expense provide and pay for insurance with respect to each vessel hereunder against protection and indemnity marine and war risks, and collision liabilities without limit as to liability as to the amount of any claim or the aggregate of any claims thereunder. The United States at its election may write all or any such insurance, including that against P. I. and collision liabilities, in its own fund, pursuant to a duly executed policy or policies. Neither the United States nor the insurance underwriters shall have any right of subrogation against the general agent with respect to any of the foregoing risks. All insurance hereunder shall cover both the United States and the general agent.
Article 16.
(a) The United States shall indemnify, and hold harmless and defend the general agent against any and all claims and demands (including costs and reasonable attorneys' fees in defending such claim or demand, whether or not the claim or demand be found to be valid) of whatsoever kind or nature and by whomsoever asserted for injury to persons or property arising out of or in any way connected with the operation or use of said vessels or the performance by the general agent of any of its obligations hereunder, including but not limited to any and all claims and demands by passengers, troops, gun crews, crew members, shippers, third persons, or other vessels, and including but not limited to claims for damages for injury to or loss of property, cargo or personal effects, claims for damages for personal injury or loss of life, and claims for maintenance and cure.
(b) In view of the extraordinary wartime conditions under which vessels will be operated hereunder, the general agent shall be under no responsibility or liability to the United States for loss or damage to the vessels arising out of any error of judgment or any negligence on the part of any of the general agent's officers, agents, employees, or otherwise. However, the general agent may be held liable for loss or damage not covered by insurance or assumed by the United States as required under article 8 of this agreement, if such loss or damage is directly and primarily caused by wilful misconduct of principal supervisory shoreside personnel or by gross negligence of the general agent in the procurement of licensed officers or in the selection of principal shoreside personnel.
(c) In the event that the general agent shall perform any stevedoring, terminal, ship repair or similar service for the vessels hereunder at commercial rates, the general agent shall have all the obligations and responsibilities of the person performing such services under the standard or other approved form of contract with the United States or, in the absence of such standard or approved form. under usual commercial practice.
(d) The general agent shall be under no liability to the United States of any kind or nature whatsoever in the event that the general agent should fail to obtain officers or crews for the operation of the vessels, or fail to arrange for the fitting out, refitting, maintenance or repair of said vessels, or fail to perform any other service hereunder by reason of any labor shortage, dispute or difficulty, or any strike or lockout or any shortage of material or any act of God or peril of the sea or any other cause beyond the control of the general agent whether or not of the same or similar nature; or shall do or fail to do any act in reliance upon instructions of military or naval authorities.

It should be noted that under the articles of the agreement quoted supra, the Government of the United States undertakes to reimburse, defend, and hold harmless, the agent for all crew expenditures including penalty, and from all loss, liability, danger, and expense to the extent not covered by insurance. In subsequent portions of the same articles, the Government reserved the right to disallow reimbursement to the agent if it appears that liability or expense has been incurred by willful contravention of instructions or which is clearly improvident or excessive, or has been caused by willful misconduct of principal shoreside personnel, or by gross negligence of the general agent in hiring licensed officers. Specific mention of masters or other of the responsible parties described in the immigration laws is not made in the agreement, other than that masters and agents are employees of the Government with full and complete control and responsibility over the officers and men and over the navigation and management of the vessel.

The asumption of liability by the Government of the United States (the War Shipping Administration) for the payment of immigration fines and penalties incurred by its agents or employees, if it exists at all, and this we do not concede, is to be found in the general agency agreement as hereinabove set forth, which it has uniformly entered into with its various agencies.

A careful reading of these articles leads this Board to the conclusion that the War Shipping Administration has not assumed liability for the payment of fines and penalties under immigration laws and regulations. It should be noted that section 20 of the act approved May 26, 1924, provides that in the event of violation of the statute, the violator 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. If the collector of customs is unable to effect collection, suit may be instituted and eventually the matter will be referred to the General Accounting Office pursuant to the provisions of title 31, U.S.C. 71.

8 U.S.C. 167.

All claims and demands whatever by the Government of the United States or against it, and all accounts whatever in which the Government of the United States is concerned, either as debtor or creditor, shall be settled and adjusted in the General Accounting Office (R.S., sec. 236, June 10, 1921; ch. 18, sec. 305, 62 Stat. 24).

Thus, it is obvious there could be no reimbursement of any agent for a violation of any statute unless the settlement thereof was made in accordance with the provisions of the stautes herein mentioned. This procedure would necessarily require a finding that a violation has been established and that penalty therefor has been incurred.

It is significant that the United States Government itself is not amenable to penalties either administrative or otherwise under immigration laws and regulations because the sovereign is excepted from the application of its own laws unless expressly named therein.

25 Ruling Case Law 783; United States v. Herron, 20 Wall. 251.

Obviously, the answer to the question here involved appears to be twofold, namely: (1) The United States has never undertaken to answer for even tort delinquencies of its agents or employees except in rare instances. A fortiori the United States does not undertake to answer for the criminal delinquencies of agents and employees.

Sloan Shipyards v. United States Fleet Corporation, 258 U.S. 549, 566-568; The Western Maid, 257 U.S. 419, 433; Peabody v. United States, 231 U.S. 530, 539; Bigby v. United States, 188 U.S. 400, 404; Schillinger v. United States, 155 U.S. 163, 167, 168.

In an unreported decision of May 5, 1924, of the Attorney General of the United States on the question of whether the United States Shipping Board vessels may be denied clearance for the purpose of enforcing payment of fines incurred by its agents or employees under the immigration laws, the Attorney General ruled that there was no authority in law to deny clearance to United States Shipping Board vessels for the purpose of coercing or insuring payment by the Board or its agents of fines imposed under such laws. The question decided by the Attorney General did not deal with the power or authority to impose fines but rather dealt with the availability of one of the methods of enforcing collection of such fines. The right to impose such fines on agents and employees of Government-owned vessels was specifically indicated. Of course the payment of fines imposed against agents of vessels owned by the War Shipping Administration may not be coerced by denial of clearance but it is equally patent that such fines may be imposed. In the opinion referred to, the Attorney General stated it would be a strange application of the rule of statutory interpretation to hold that in one part of a general law the United States had penalized certain described misconduct on the part of its agents and employees and in a different part of the same statute had itself assumed liability for the payment out of public funds of fines or penalties imposed. This is precisely the situation in the present issue. To hold that a fine has not been incurred would be tantamount to an acknowledged intent that the War Shipping Administration may and has contracted to permit violations of the immigration laws.

Many fines are incurred because of deliberate violation of immigration laws and regulations or because of a wanton and careless disregard of their provisions on the part of agents or masters as in the instant case in which there was an absolute failure to detain on board the alien so ordered detained. Certainly, full compliance with the laws of the United States are part of the implied, if not express, instructions of the War Shipping Administration to its agents and employees. The willful contravention of those instructions would justify the United States in refusing reimbursement. It would be an absurdity to assert that the general agency agreement requires the United States to reimburse either the agent or the master for a fine imposed against either for a violation established against either.

It is the opinion of this Board that the general agency agreement does not obligate the United States Government to indemnify the agent for all immigration fines and penalties. The persons made responsible for fines and penalties under the immigration laws (other than the Government itself) are therefore amenable to such fine proceedings.

An obligation must first be incurred before any one could be called upon to ascertain whether reimbursement must be made under the contract. We determine whether a fine or penalty has been incurred. Collection, reimbursement, and methods of enforcement are in the hands of others.

Nothing in the way of evidence has been presented which would justify a modification or reversal of our previous order imposing fine since it is concluded there was no error in the imposition of such fine.

Order: It is ordered that no change be made in decision of June 21, 1943, wherein it was ordered that fine in the amount of $1,000 be imposed.

In view of the application of the War Shipping Administration, this decision is considered important as establishing a precedent. We, therefore, certify that a question of difficulty is involved and respectfully refer this decision to the Attorney General for review of our action pursuant to section 90.12, title 8, C.F.R.


BEFORE THE ATTORNEY GENERAL (June 9, 1944)

Order approved.