500-1480
Decided by the Board December 23, 1953
Fine — Section 256 of the Immigration and Nationality Act — Not applicable with respect to public vessels of the United States Navy.
Section 256 of the Immigration and Nationality Act has no application to the operation of public vessels of the United States Navy.
SECTION OF STATUTE INVOLVED:
Section 256 of the Immigration and Nationality Act ( 8 U.S.C., sec. 1286).
BEFORE THE BOARD
Discussion: This matter is before us by reason of an appeal from the decision of the District Director of Immigration and Naturalization, Seattle, Wash., bearing date May 22, 1953, wherein fine in the amount of $1,000 was imposed against O---- S----, master of the aforementioned vessel, which vessel arrived at the port and on the date hereinabove indicated from a foreign port or place for violation of section 256 of the Immigration and Nationality Act. The amount of penalty was mitigated to the extent of $500, the remainder of the fine, $500, was permitted to stand.
The specific violation complained of is discharging the alien crewman A---- J---- P----, who was employed on board the said vessel, without at first having obtained the consent of an officer of the Immigration and Naturalization Service.
Section 256 of the Immigration and Nationality Act ( 8 U.S.C., sec. 1286) provides in part a follows:
It shall be unlawful for any person, including the owner, agent, consignee, charterer, master, or commanding officer of any vessel * * * to pay off or discharge any alien crewman, except an alien lawfully admitted for permanent residence, employed on board a vessel or aircraft arriving in the United States without first having obtained the consent of the Attorney General. If it shall appear to the satisfaction of the Attorney General that any alien crewman has been paid off or discharged in the United States in violation of the provisions of this section, such owner, agent, consignee, charterer, master, commanding officer, or other person, shall pay to the collector of customs of the customs district in which the violation occurred the sum of $1,000 for each such violation. * * * Such fine may, in the discretion of the Attorney General, be mitigated to not less than $500 for each violation, upon such terms as he shall think proper.
The SS. General Mason M. Patrick is a public vessel of the United States, owned and operated by the Military Sea Transportation Service, Department of the Navy. The vessel has been issued a certificate of ownership dated March 1, 1950, signed by the Secretary of the Navy. This vessel is operated solely by and for the United States Government for the purposes of military sea transport and is a logistical component of the United States Navy. To perform her mission the vessel is manned by civil service seamen employed by the Military Sea Transportation Service and assigned to that vessel.
The evidence of record, as revealed in a report of an officer of the Immigration and Naturalization Service, Seattle, Wash., bearing date February 27, 1953, is to the effect that the alien seaman as aforesaid arrived at Seattle, Washington, on January 19, 1953, on the vessel indicated and the said seaman was granted conditional landing as seaman for a period not in excess of 29 days. Form I-489 filed by the Military Sea Transportation Service lists one A---- J---- P----, age 28, Panamanian, as being discharged. There was no request for a change of status and permission to so discharge this alien seaman was not granted. It is therefore contended by the Service that a violation of section 256 of the Immigration and Nationality Act occurred.
Counsel urges that section 256 of the Immigration and Nationality Act has no application to the operation of public vessels of the United States Navy, indicating that United States naval vessels are not engaged in foreign commerce.
It is further set forth by counsel for the United States Navy that, inasmuch as the vessel is a public vessel of the United States, operated by the Military Sea Transportation Service of the Department of the Navy, pursuant to the directive of the Secretary of Defense of August 2, 1949, which established within the national military establishment the unified organization for such transport for all departments of the national military establishment, the operation of the vessel is that of the sovereign. Accordingly, it is asserted that the principle is well established in law that the sovereign is excepted from the application of its own laws unless the legislation clearly expresses a contrary intent. The legislative history of section 256 of the Immigration and Nationality Act had as its main purpose, it is asserted, the correction of a deficiency in existing law. Counsel averred that the principle of strict statutory construction precludes the interpretation of the aforementioned section of the statute as applicable to United States naval vessels. In addition to the foregoing, it is contended by counsel that the alien seaman involved was not discharged as alleged, but that as a civil service employee of the United States Navy he was granted leave, and that he merely remained ashore between voyages, having subsequently sailed on March 23, 1953, aboard the same vessel for Korea.
The evidence in this case clearly shows that the alien seaman A---- J---- P---- continued in the service of the vessel as aforesaid and departed with her following the conclusion of his leave of absence, which was granted him under the provisions of his civil service employment. This evidence would lend support to the allegation that the alien was neither paid off nor discharged in the sense used in connection with commercial vessels.
Congress undoubtedly was concerned with commercial vessels acting in commercial capacity rather than Government-owned vessels manned and operated by the United States Navy and civil-service employees, as a public vessel.
In the Matter of SS. Atlantica, 56118/487, 2 IN Dec. 571, May 15, 1944, approved by the Attorney General June 9, 1944, in connection with an alleged violation of section 20 of the Immigration Act approved May 26, 1924, 8 U.S.C., section 167, this Board said, among other things:
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, 87 U.S. 251 (1873).
See also decision of this Board in the case of the Military Sea Transport Service, U.S.N.S. General H.B. Freeman, File 1200-48862 (April 15, 1953). This case, however, involved an alleged violation of section 16 of the act approved May 26, 1924 (8 U.S.C., sec. 216). The vessel there involved being operated by the United States Naval Service and in that case this Board held that the ship involved was a United States naval ship with a certificate of ownership bearing date March 1, 1950, signed by the Secretary of the Navy attesting to its status as a public vessel of the United States.
Of greater significance is the decision of this Board in the case of the SS. Wave Sovereign, F-0300-4912, Int. Dec. No. 468. That vessel was a Royal Fleet auxiliary operating under orders of the British Admiralty and the principal contention was that the vessel therefore "should enjoy sovereign immunity." The ship was engaged on Royal Naval service, was owned by Her Majesty's Government, and was operated by the British Admiralty as a Royal Fleet auxiliary vessel subsequent to her completion. As such she belonged to the Royal Navy, and accordingly was included in the British Navy list.
In that case, it was indicated that a foreign sovereign was immune from suit without its consent in the courts of the United States. We also said that a sovereign need not affirmatively assert this immunity. We further indicated in that opinion that foreign governments have been held immune from suits even though they had never been recognized by the Government of the United States. Certainly the Government of the United States as a sovereign is in no worse position from that of a foreign government and the same immunity would apply in the case under consideration.
Memorandum opinion of U.S.D.C., D. of C., In re investigation of world arrangements with relation to the production, transportation, refining and distribution of petroleum in possible violation of 15 U.S.C., section 23, December 15, 1952, Misc. No. 19:52: "The courts take judicial notice of the sovereign character of a party * * *."
It is the conclusion of this Board, after careful consideration of all of the evidence of record as well as the representations of counsel throughout, that the United States Government is not amenable to penalties under the provisions of section 256 of the Immigration and Nationality Act ( 8 U.S.C., sec. 1286) and that the appeal must therefore be sustained.
Order: It is ordered that the appeal from the decision of the District Director of Immigration and Naturalization, Seattle, Wash., bearing date May 22, 1953, be and the same is hereby sustained.