F-1320-380
Decided by Board May 14, 1956
Fine — Section 256, Immigration and Nationality Act — Payoff and discharge of crewman stricken at sea.
Liability to fine under section 256 of the Immigration and Nationality Act is incurred for discharging and paying wages of a crewman stricken at sea and transferring him to another vessel for return abroad without requesting and/or obtaining permission of the Attorney General, unless (1) the master does not pay off or discharge the crewman, but deposits his wages and papers with the appropriate consulate; (2) the crewman does not receive his wages and papers from the consulate until after he has been released from the hospital and has reported to the Service; (3) if the crewman is not fit for duty, the consulate sees to his repatriation; and (4) the matter of the crewman's hospitalization is reported to the Service prior to the foreign departure of the vessel on which he arrived.
BASIS FOR FINE:
Act of 1952 — Section 256.
BEFORE THE BOARD
Discussion: This matter is before us on appeal from a decision of the District Director at San Francisco, California, dated September 20, 1955, directing that fine of $1,000, mitigated to the extent of $500, be imposed on F----, W---- Co., Ltd., agents for the SS. Loch Avon, which arrived at the port of San Pedro, California, from foreign on June 5, 1955, for paying off and/or discharging the alien crewman R---- W---- without first having obtained the consent of the Attorney General. The penalty permitted to stand was $500.
The record shows that the crewman was admitted in D-1 status. According to the terms of such admission, he was permitted to remain in the United States while the vessel upon which he arrived was in port. In no event was he permitted to remain in the United States beyond 29 days. He was required to depart with the vessel on its next foreign departure. He could not be paid off and/or discharged in the United States without the prior permission of the Attorney General. However, Form I-489 (Statement of Changes in Crew) submitted for the next foreign departure of the SS. Loch Avon, reports the crewman as discharged. The record is clear that the permission of the Attorney General for his discharge was not requested and/or obtained.
This crewman was stricken at sea and was accorded a medical examination almost immediately upon arrival. Upon the advice of a physician that the services of the crewman be terminated and that he be returned to his home as a passenger, he was discharged from the SS. Loch Avon and placed aboard another vessel owned by the same line which was scheduled to return immediately to England as opposed to the vessel on which he arrived which was not due to return there for several months. At the time the crewman's transfer from one vessel to another was effected, he was signed off the articles of the SS. Loch Avon, and his wages were given to the company's agents for transmission to the appropriate British consul. His departure from the United States is established.
The contention here is that where an alien crewman is simply transferred from one foreign vessel to another foreign vessel of the same line, without landing on United States soil and there being paid off, that there is no violation of the spirit or purpose of section 256 of the Immigration and Nationality Act, particularly where he departs with the foreign vessel immediately and the pay-off vouchers are simply forwarded to the British consul of the port as a bookkeeping transaction within the technical paper work of the line. The argument is that there is at most a technical violation here. The claim is that an equally technical interpretation should be applied for the benefit of the ship, her master and agents. The point is then stressed that there was no intention to violate the law here.
We have carefully considered the entire evidence of this record together with the representations submitted in support of the appeal. On the basis of such consideration, we find that liability has been established. The crewman was signed off the articles of the vessel on which he arrived in the United States and his services and presence aboard such vessel were terminated ( 8 CFR 1.1 (b) (14)). The requisite permission of the Attorney General was not requested and/or granted.
The district director has cited as authority for his decision to impose a penalty here a prior decision of this Board in the Matter of SS. Ciudad de Barquisimeto, F-0300/5538, 6 IN Dec. 311 (B.I.A., Sept. 10, 1954). We held in that case that where alien crewmen were transferred to vessels other than the one on which they arrived in the United States, without the permission of the Attorney General for the transfer having first been obtained, a fine under section 256 of the Immigration and Nationality Act is incurred even though such crewmen may not have been "paid off" and may still have continued in the employ and under the pay of the same corporation. However, that is not precisely the situation that exists here since this crewman was to perform no services on the vessel to which he was transferred and was merely on that vessel to be transported to his home as a passenger.
The present case more nearly comes within the scope of a group of cases previously decided by this Board as exemplified by our opinions in the Matter of M/V Havmann (F-0300-5707, Feb. 18, 1955, unreported) and Matter of SS. Bjorn Stange (F-0300-5738, Aug. 31, 1954, unreported). Those cases involved crewmen who were removed from their vessel because of the necessity of emergency hospital treatment of such a nature that time could not be taken to first request and obtain the permission of the Attorney General to discharge and/or pay off the crewmen involved. In those cases we pointed out that there was, strictly speaking, a technical violation of the statute. We further pointed out that in view of this fact liability to fine had been incurred unless all of the following factors were present in the case: (1) the master does not pay off or discharge the crewman, but deposits his wages and papers with the appropriate consulate; (2) the crewman does not receive his wages and papers from the consulate until after he has been released from the hospital and has reported to the Service; (3) if the crewman is not fit for duty, the consulate sees to his repatriation; and (4) the matter of the crewman's hospitalization is reported to the Service prior to the foreign departure of the vessel on which he arrived.
We take the position that a fine lies in such cases unless all the foregoing elements are established to show substantial compliance with the law. Since they are not here, in view of the fact that it does not appear from the record that the Service was notified in this case prior to the foreign departure of the vessel on which this crewman arrived in the United States, the appeal will be dismissed. The case presents many sympathetic features, but these factors merely go to the question of mitigation of the penalty and the district director has already granted the maximum mitigation authorized by the statute.
Order: It is ordered that the appeal be and the same is hereby dismissed.