56068/170
Decided by the Board June 10, 1941.
Fines — Section 20, Immigration Act of 1924 — Failure to comply with order to detain alien seamen on board.
A fine has not been incurred under section 20 of the Immigration Act of 1924 when an alien seaman, having left the vessel in violation of the detaining order, thereafter is apprehended and deported on the vessel on which he arrived as the result of the efforts of the responsible parties.
Messrs. Rawle and Henderson, of Philadelphia, Pa., for the respondent.
Mr. George W. Stilson, Board attorney-examiner.
STATEMENT OF THE CASE: This is a fine proceeding under section 20 of the 1924 act against Costas Pateras, Master of the S.S. Aeas, which arrived at Philadelphia on November 9, 1940, for failure to detain on board and deport the alien seaman C---- G----. Protest has been filed by the attorneys named in behalf of the master.
The matter is now before this Board to determine whether fine should be imposed.
DISCUSSION: Section 20 of the 1924 act requires the imposition of a fine of $1,000 against the owner, charterer, agent, consignee, or master of a vessel entering the United States who fails to detain on board and deport an alien seaman after being ordered by the inspecting immigration officer to do so.
The S.S. Aeas arrived at Philadelphia on November 9, 1940, having on board the alien seaman named. He and others were ordered detained on board and deported from the United States. He escaped from the vessel on November 27, 1940. Efforts were made to locate him, however, by agents of the vessel, and he was apprehended and returned to the vessel on December 6, 1940, and sailed from the United States with the vessel on the following day.
It thus appears that although the alien succeeded in eluding the watchmen who were employed to enforce his detention on the vessel, efforts to comply with the requirement were continued and were successful so that the ultimate result was that the alien was detained on board and deported from the United States with the vessel when it sailed foreign. This object was accomplished by the exercise of diligence in the effort to comply with the requirement on the part of the master and others responsible for the vessel. The ultimate and principal object of the detention order, namely, the deportation of the alien, was effected. It is believed that the view should be taken that the requirement of the law has been substantially complied with and that a fine should not be imposed.
To hold that a fine has been incurred and must be imposed merely because an alien succeeds in leaving his vessel and notwithstanding the diligent and successful efforts of the responsible parties to re-apprehend and deport him from the United States is in effect the removal of all incentive on the part of those responsible for the vessel's entering the United States to attempt to comply with the requirements of the law to deport the alien, if and when he succeeds in leaving the vessel at all. Such a holding could have no other result than in cases such as the one now under consideration to defeat the object that it was the purpose of the law to attain.
The primary and principal purpose of the statute is the deportation of the alien from the United States with the vessel when it departs. The detention is not the primary purpose but is required only as the means of accomplishing the end that it is the purpose of the law to effect. It is self-evident that law should be so construed and so administered as to effect the object intended by the legislature if that can be done without transgressing the fundamental rule of construction that the purpose of a statute is to be sought primarily in the language used.
The provision of law here in question is section 20 of the act of 1924, which defines the offense involved in the present case in these words: "The owner, charterer, agent, consignee, or master of any vessel arriving in the United States from any place outside thereof * * * 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 Secretary of Labor [now the Attorney General] to do so, shall pay etc."
The principal seeming difficulty in construing this language as suggested in the foregoing discussion appears to lie in the fact that the requirement to detain and that to deport are placed in the disjunctive by the use of the word "or" instead of in the conjunctive with "and." Considering, however, the fact that the law was the expression of the intention of the legislature to prevent the illegal entry of aliens into the United States in the guise of seamen and that, in order to effect this object, it was deemed necessary to impose heavy penalties, it is a fair conclusion that the language was so framed, not with intent to emphasize the detention as an offense separate from the deportation, which the legislative history of the law clearly shows was the real intent of the statute, but rather to render execution of the law as simple, easy, and effective as possible by minimizing the necessary proof required in order to impose the penalty prescribed. This conclusion is supported by the language of paragraph (b) of said section which provides that nonappearance of alien's name upon the outgoing manifest, or the master's report that he deserted the vessel, "shall be prima facie evidence of a failure to detain or deport." The converse of this is that the appearance of his name on the outgoing manifest or lack of report of desertion by the master is prima facie indication that there was no failure to detain or deport. It appears a reasonable conclusion that when not only does the name appear on the manifest, but there is definite proof that he did depart on the vessel when it sailed out of the United States, there has been a compliance with the requirement to detain or deport.
It is concluded that when diligent efforts have been made that resulted in the removal of the alien from the United States at the expense of the vessel and parties involved, and such deportation is effected on the same vessel on which the alien seaman arrived and on the same voyage, such removal from the United States may be considered substantial compliance with the provisions of section 20 (a) and (b) of the 1924 act. Any other holding would in its effect defeat in a measure the object contemplated by the law and would, therefore, not be good administration thereof.
The foregoing discussion has been based upon the language of the law itself in the light of the known purpose of its enactment. Reference to court decisions have not been made therein because of the fact that the precise point does not appear to have been passed upon by the courts. The cases that have been brought before them for decision have not involved the question of what must constitute violation of section 20 in a case in which there has not been continuous detention every moment of the time the vessel is in our ports, but in which the alien has been deported with the vessel when it sailed. These cases have generally involved questions regarding the conditions under which the parties named in the law are subject to fine, to whom notice must be given, and whether notice to one of the parties will bind the others of them. The following is the nearest approach to the point under discussion that has been found in the reported cases, and, as will appear, it is in harmony with the conclusions expressed in the foregoing discussion.
In United States v. J.H. Winchester Co., 40 F. 2d 472, the court expresses the question before it and discussed the point as follows:
The matter left ambiguous is upon whom demand must be made to impose liability on others than the person notified * * *. The Government asks only that the statute be construed to permit notice to the master to bind all * * *.
An examination of the congressional history of section 20 of the Immigration Act of 1924 (8 U.S.C.A. 167) throws no light on the precise question. It does show that section 32 of the 1917 act had been found inadequate to prevent the unlawful entry of aliens posing as seamen and jumping ship upon arrival in this country, and that section 20 was intended to provide more effective means to combat this evil. Its provisions are much more stringent than those of the earlier act. The first clause of section 20 was new; it imposes an absolute duty upon each of the persons named to keep alien seamen on board until the immigration officer has inspected the crew. The second clause eliminated the element of "negligence" in penalizing the failure to detain after inspection "if required" by the immigration officer. A new remedy was provided by forbidding clearance of the vessel until the penalty was paid or secured; under the former statute the procedure was to file a libel. Paragraph (b) was also new and simplified the matter of proving violations.
In the case of Compagnie Generale Transatlantique v. Elting, 298 U.S. 217, the court said:
The purpose of the section is to prevent aliens from unlawfully gaining entrance into the United States under the guise of seamen, and to this end it makes provision for detention on board, both temporary and continued, and for imposing fines on those who, when under a duty to detain, fail to do so. It relates to all vessels arriving within from without the United States with alien seamen employed thereon.
The principal issue in the case was the question who is charged with the duty to detain and who is liable to fine if he fails to detain as ordered. It was held that the duty to detain arises only when the order to detain is served upon the party, who may be any one of the parties named in the law, the owner, charterer, agent, consignee, or master, "but none is charged with a duty so to detain unless he is notified of that requirement, and notice to one does not without more operate as notice to another."
In British Empire Steam Navigation Co., Ltd. v. Elting, 74 F. 2d 204, the case involved the S.S. Caroni River, owned by the appellant in the case, which arrived at New York on October 16, 1930. Among the members of its crew were 37 Chinese, who failed to satisfy the inspector that they did not intend to abandon their calling as seamen. In its opinion the court used the following language, stating first the facts and then discussing the merits of the case:
On October 16, 1930, an order of detention was served on the master of the vessel, and on the same day a notice was also served upon Furness Withy Co., Ltd., agents for this British corporation owned ship, directing it to detain the 37 Chinese members of the crew. Ten aliens escaped that evening about 10 p.m., all but 4 of whom were captured. [While the language of the court does not go further, the inference is clear that the 6 were returned to the ship.] Furness Withy Co., Ltd., the agent, was served with notices of hearing with respect to the imposition of fines amounting to $4,000 because of the failure to produce those who escaped.
The agent was not shown to have been placed under a duty to detain prior to the escape; therefore no fine could be imposed upon it. The owner was, however, placed under such a duty because of notice given to the master. This in turn imposed the duty upon the ship, for the master was in charge of the ship, and the corporate owner was thus notified through the master in charge. Since there was an inspection by the inspector and a detention order, if it was improperly served, it could be corrected by an appeal to the Department for a modification or revocation of the order. It was wrong to act in violation of the order of detention. The privilege of an alien seaman landing for a shore visit or his obligation to remain on shipboard must be determined by the immigration inspector who conducts the examination on board ship.
The court then discussed the examination required, which it held might be and often necessarily was brief and peremptory in character, using the following language in part:
Each case would necessarily vary, but with it all the examination must be fair and reasonable. We may not say that this examination was arbitrary because every Chinese member of the crew was detained or that each Chinese member was not individually examined. The inspector had the right to take notice of the fact that the Chinese are continuously smuggling themselves into this country, since they are prohibited entry by immigration laws.
The owner failed to detain the seamen, and under these circumstances the Secretary of Labor had no discretion. It was his duty to impose a fine which he had no authority to remit.
As will be noted, the courts have recognized the object of the law as hereinbefore stated, the legislative history of the law being mentioned in the Winchester case and the purpose being clearly stated in the Supreme Court case, a citation from which is hereinbefore given.
The British Empire Steam Navigation case, quotation from which has last been made, approaches nearest to the point involved in the instant case of any court decision. In that case 10 seamen escaped from the Caroni River, and thus were not continuously detained. Six of the 10 were captured and undoubtedly returned to the vessel. Fines were not imposed in these cases, which so far as the facts are stated in the opinion appear to be identical in the essential facts with the case we have now to decide. In that case the court stated, "The owner failed to detain the seamen, and under these circumstances the Secretary of Labor had no discretion. It was his duty to impose a fine which he had no authority to remit." The language was used with reference to the 4 seamen who escaped and were not captured and returned to the vessel. If the fact that detention was not continuous, as was true in the case of the other 6 who escaped but were returned to the vessel, required the imposition of a fine, then the language of the court as just quoted would necessarily mean that it was the Secretary's duty to impose a fine, which he had no authority to remit, also in the case of the 6, and not only in the case of the 4 who were not captured and returned to the vessel.
It cannot, of course, be said that the court held that fine was not required in the cases of the six since no fine appears to have been proposed in their cases, and the point was not brought before the court so as to require its ruling thereon. Perhaps it may be fair to assume that both the immigration authorities by not proposing a fine in the case of the six who were returned to the vessel, and the court by making no reference to the possible propriety of a fine in their cases, tacitly recognized that the ultimate result in the cases of the six was that they were detained and deported notwithstanding the fact that for a time they were not physically on board the vessel.
It is believed that, reasoning both from the statute itself in the light of the legislative history thereof and from the decisions of the courts, the conclusion is justified that, when by the exercise of diligence on the part of those responsible for the vessel, a seaman who has been ordered detained is in effect actually detained and deported with the vessel when it sails, even though he may have succeeded in escaping actual physical presence on the vessel for a temporary period, the requirement of the law has been fulfilled and a fine has not been incurred.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the S.S. Aeas arrived at Philadelphia on November 9, 1940, having on board the alien seaman C---- G----, who was ordered detained on board;
(2) That the seaman named escaped from the vessel on November 27, 1940, and was at large for several days;
(3) The seaman named was found and returned to the vessel on December 6, 1940, by the agents of the vessel and was deported from the United States when the vessel sailed.CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 20 of the 1924 act, a fine has not been incurred.
ORDER: It is ordered that fine be not imposed, and that the sum involved, $1,000, be returned to the depositor.