56160/846.
Decided by Central Office March 14, 1946. Decided by Board July 1, 1946. Memorandum of Central Office July 18, 1946. Decided by Board August 6, 1946. Ruling of Attorney General March 14, 1946. Decided by Central Office December 20, 1946.
Fine — Failure to detain alien seamen until inspected — Section 20 of the Immigration Act of 1924 — Mitigation of fine — Section 20 of the Immigration Act of 1924, as amended.
1. The duty to detain alien seamen until inspected as prescribed by section 20 of the Immigration Act of 1924 is absolute and it is no defense to liability thereunder that there was an absence of negligence or bad faith.
2. Extenuating circumstances may justify a mitigation of fine imposed under section 20 of the Immigration Act of 1924, under authorization provided by the amendment to section 20 ( supra) by section 4 of the act approved December 19, 1944.
BEFORE THE CENTRAL OFFICE
(March 14, 1946)
Discussion: This is a fine proceeding instituted under section 20 of the Immigration Act of 1924 against Milne Co., agents for the S.S. Alacran, for failure to detain on board the above-named alien seamen until inspected.
The subject aliens were members of the crew of the S.S. Alacran when it arrived at New Orleans from foreign on December 10, 1944. The New Orleans office reports that it was not notified of the vessel's arrival and that no inspection was made until December 14, 1944, when the master called the office to inquire if there was a record of inspection. No such record being found, the ship was immediately inspected by an officer of this Service and it was found that the four seamen involved herein were not aboard the vessel. Notice of Liability for Fine was served on Milne Co., agents on December 16, 1944.
The record discloses that three of the subject aliens, on their return to the ship, were examined by an immigrant inspector on December 18, 1944, and the other alien subsequently returned to the vessel and voluntarily presented himself at the local office for inspection. The four crew members involved departed from the United States, three leaving with the ship when it sailed foreign and the fourth having been permitted to depart to Mexico via rail, his departure having been verified.
The respondent, in protest to imposition of fine, states that because of a change by the Immigration Service in the boarding hours, of which the agents were not aware, and because boarding representatives of other Government agencies had boarded the vessel and inspected the alien crew list at quarantine, the master believed that all formalities had been complied with and granted the crew permission to leave the vessel on ship's business and pleasure; that as soon as the master and the agents discovered that the vessel had not been inspected by the immigration authorities, a request for such examination was immediately made; that the four subject aliens were not present when the immigrant inspector boarded the vessel, two of them being ashore on ship's business and the other two being on leave; that the latter two seamen were brought back to the vessel and pointed out to the inspector, the others being subsequently presented to the Service for inspection; that three of the aliens involved sailed foreign with the vessel and the fourth departed for Mexico by rail; and that there was no intent to willfully violate the immigration laws of the United States.
Section 20 of the Immigration Act of 1924 imposes a duty, the violation of which is punishable by a fine of $1,000, on the owner, charterer, agent, consignee or master of any vessel arriving in the United States from any place outside thereof, to detain on board any alien seaman employed on such vessel until the immigration and naturalization officer in charge of the port of arrival has inspected such seaman.
The respondent's protest admits that the subject aliens were not detained until inspection by this Service and, according to the report of the New Orleans office, the seamen were ashore for about a week before being presented for examination. The duty, prescribed by section 20 of the Immigration Act of 1924, to detain on board alien seamen until inspected is absolute and even the absence of negligence or bad faith is no defense to liability under the statute. It is solely for the boarding inspector to determine whether an alien seaman shall be permitted to land. A vessel's master or agent has no such authority. There was no emergency involved in the present case; none of the seamen was sent ashore for urgent medical treatment.
In a previous case pertaining to an alien seaman who was not detained for inspection but who returned to, and sailed with, his vessel when it departed, the Board of Immigration Appeals imposed a fine, stating:
* * * That decision ( Matter of S.S. "Aeas", 56068/170 (June 10, 1941)) is not to be interpreted as a broad inroad upon the application of section 20 of the Immigration Act of 1924. That a seaman sailed out with the vessel on which he came has not been made a general defense available to responsible parties in all cases where a fine is sought to be imposed under section 20. The ruling in the "Aeas" case served the very practicable purpose of encouraging the responsible parties to try to apprehend escaped seamen. It was not intended to be a license to such parties to permit alien seamen to go ashore without inspection. If such were the rule, a master or agent, willing to take a chance that his men would return to the ship, could take the matter of granting or denying shore leave into his own hands. Obviously section 20 serves other purposes than the insurance that alien seamen depart with their ships. There are many reasons why certain persons should not be permitted to go ashore in the United States even for 1 hour. A seaman might be afficted with a dangerous, contagious disease. In time of war he may be in the service of the enemy. The statute required that the seaman in this case be detained on board until he was inspected and granted shore leave. No reason has been advanced why it was impossible or impracticable to comply with this requirement. We are of the opinion that fine has been incurred ( Matter of S.S. "Baron Haig", 56118/590 (Aug. 26, 1943)).
In view of the fact that the record establishes an admitted failure to detain on board the subject aliens until inspected by an officer of this Service, in violation of section 20 of the Immigration Act of 1924, it is concluded that liability has been incurred herein.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the S.S. Alacran arrived at New Orleans, La., from foreign on December 10, 1944, having on board the alien seamen, Benito Escobedo, Felipe Gomez Llanos, Silviano Lara, and Lorenzo Zorrilla;
(2) That the subject aliens were not detained on board the vessel until inspected by an officer of the Immigration and Naturalization Service.Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 20 of the Immigration Act of 1924, a penalty has been incurred.Order: It is ordered that fine be imposed. The amount involved is $4,000, $1,000 for each alien concerned.
Discussion: On March 14, 1946, the Acting Commissioner ordered imposition of a fine in the sum of $4,000 against Milne Co., agents for the S.S. Alacran for failure to detain on board until inspection the alien seamen B---- E----, F---- G---- L----, S---- L----, and L---- Z----, pursuant to section 20, Immigration Act of 1924.
The evidence establishes that the vessel arrived at New Orleans on December 10, 1944, and was not boarded for inspection by the immigration authorities until December 14, 1944, although upon arrival inspection was conducted by other branches of the Government, i.e., Customs, Coast Guard, Security Control, and Public Health. The captain assumed that inspection had also been completed by the immigration authorities upon arrival of the vessel. As a result of this misapprehension, the captain permitted the four seamen in question to leave the vessel.
Upon the situation being brought to light (by inquiry of the captain) inspection was begun by the immigration authorities on December 14, 1944. At that time two of the seamen had already returned to the vessel and were aboard during inspection and were inspected; also while inspection was in progress the other two seamen returned to the vessel and they too were inspected.
With respect to the reason why the vessel was not inspected upon arrival, it appears that about 2 weeks prior thereto it had been the custom of the immigration authorities to board arriving vessels for inspection at 6:30 in the morning, but thereafter the inspection hours were staggered and inspection was not begun until 8:30 in the morning. The other Services of the Government, however, continued their inspection at 6:30 and the captain, unaware of the change in the hours of the inspection service at that port, assumed that inspection was also completed by them at the usual hour on December 10, 1944, when the vessel arrived at New Orleans.
In nullifying the possible application of the principle enunciated in Matter of "Aeas," 56068/170 (June 10, 1941), to the effect that where a seaman has been returned to the vessel which he left through the efforts of the responsible parties and departed therewith, no fine lies, the Commissioner cited Matter of S.S. "Baron Haig," 56118/590 (August 26, 1943), holding that an escape prior to inspection cannot be considered as a defense even though the seaman is thereafter apprehended and departs with the vessel.
Counsel, in his appearance before this Board, argued that the holding in the "Haig" case has no application to the instant case, in that here there was a substantial compliance with the requirements of the applicable statute. He also stressed the following points to support his argument for cancellation of the proceedings: (1) The fact that actual inspection was had of all four seamen; (2) The fact of staggering of inspection hours; (3) the reasonableness of the master's belief that he had complied with all requirements of the law.
The factual situations which obtained in the "Haig" case are by no means comparable to those in the instant case. In the latter, no reason had been advanced for failure to hold the seamen until inspection. Here, aside from the fact that the master was under a bona fide belief that the law had been complied with, and the fact that previous inspection hours had been staggered, there was actual inspection of the four seamen prior to the vessel's departure. In this respect therefore the ruling in the "Haig" case cannot equitably be applied and since, as stated, actual inspection was had of the four seamen prior to the vessel's departure, it cannot logically be maintained that there was no inspection, and on this premise a finding of liability cannot be legally and equitably justified.
In the "Haig" case it was also stated that no reason had been advanced why it was impossible or impracticable to comply with the requirement of detention for inspection. (See 1 IN Dec. 523, also 105.)
Order: It is ordered that the order of the Acting Commissioner dated March 14, 1946, imposing fine in the sum of $4,000, be reversed and the matter remanded for reconsideration in accordance with this opinion.
Discussion: The instant matter relates to a fine proceeding instituted under section 20 of the Immigration Act of 1924 against Milne Co., agents for the S.S. Alacran, for failure to detain on board the above-named alien seamen until inspection.
The subject aliens were members of the crew of the S.S. Alacran when it arrived at the port of New Orleans, La., from foreign on December 10, 1944. The New Orleans office reports that it was not notified of the vessel's arrival and that no inspection was made until December 14, 1944, when the master called the office to inquire if there was a record of inspection. No such record having been found, the ship was immediately inspected by an officer of this Service and it was then ascertained that the four seamen involved herein were not aboard the vessel. (The agents, in their protest to imposition of fine, however, state that the captain did not arrange for inspection until December 16, 1944, due to a misunderstanding, and a change in the New Orleans office's inspection schedule.) Notice of Liability for Fine was served on Milne Co., agents, on December 16, 1944. The respondent admits that the four aliens were ashore at the time of crew inspection, but claims that two were brought back to the vessel and pointed out to the inspector and that the other two crew members were presented for inspection later. (The New Orleans office, however, states that three of the subjects were inspected on their return to the ship on December 18, 1944, and that the fourth alien later returned to the vessel and voluntarily presented himself at the immigration office for examination.) The record discloses that three of the seamen concerned departed with the vessel while the fourth was given permission to go to Mexico via land, his departure having been verified.
On March 14, 1946, the Acting Commissioner of Immigration and Naturalization considered the matter and entered an order imposing a fine in the sum of $4,000, $1,000 for each alien concerned, against the agents for failure to detain on board the four seamen until inspected. Upon appeal by the respondent, the Board of Immigration Appeals on July 1, 1946, reversed the Acting Commissioner's order on the following grounds:
(1) That the master was under a bona fide belief that the law had been complied with;
(2) That prior to the vessel's arrival the New Orleans office had changed its inspection hours; and
(3) That as actual inspection was had of the four seamen prior to the vessel's departure, it cannot logically be maintained that there was no inspection, and on this premise a finding of liability cannot be legally and equitably justified.
That the master was under a bona fide belief that the law had been complied with, and that the responsible parties were not aware that the inspection hours had been revised, manifestly do not constitute a valid defense under section 20 (a) of the Immigration Act of 1924, for failure to detain the alien seamen for inspection. The aforementioned duty imposed by the statute is absolute; neither the absence of negligence or bad faith, nor ignorance of the law or of changed schedules will excuse a failure to comply with the statutory obligation.
It is conceded that the four aliens were ultimately inspected and that they departed from the United States. However, it is equally well established and admitted by the respondent that the four crew members involved were ashore when the primary inspector originally boarded the vessel for inspection. The Board, in the last sentence (p. 511) of its order, states that since "actual inspection was had of the four seamen prior to the vessel's departure, it cannot logically be maintained that there was no inspection, and on this premise a finding of liability cannot be legally and equitably justified."
The foregoing basis for reversing the Acting Commissioner's order is not considered valid. Section 20 (a) prescribes a duty to detain on board alien seamen until inspected. The instant proceeding was instituted for failure to detain on board four members of the crew until examined. It is not denied that the subjects were inspected prior to the vessel's departure, but such inspection is immaterial inasmuch as the evidence of record clearly establishes that the four aliens were permitted to go ashore before they were examined by an officer of this Service. It is untenable that the delayed examination which was accorded the four seamen a few days after the regular crew inspection may be substituted for, or absolve the responsible parties of liability for failure to detain on board the aliens until inspection. Authority to grant or deny shore leave rests solely with the primary inspector and not with the master or agents ( Empire Steamship Nav. Co. v. Elting, 74 F. (2d) 204).
The Acting Commissioner quoted from the Board's decision in Matter of S.S. "Baron Haig," 56118/590 (Aug. 26, 1943) to support the imposition of fine herein. The Board now attempts to distinguish the "Baron Haig" case from the instant matter, contending that in the former proceeding no reason had been advanced for failure to hold the seamen until inspection. It is believed that neither the setting forth of a reason for failure to detain until inspection (unless dictated by extreme emergency, such as the urgent need for medical treatment), nor subsequent inspection should be accepted as a substitute for compliance with the law. Admittedly, the penalty prescribed by section 20 is often harsh where the violation is technical in nature and the seaman returns in time to be accorded a delayed inspection, following which he departs with his vessel on the same voyage. However, since December 19, 1944, when Public Law 503 was approved and thereby amended section 20 so as to authorize the Attorney General, in his discretion, to mitigate fines imposed to a sum not less than $200, there is a remedy available to a respondent to apply for reduction of penalty. It is not believed that a statute couched in clear language and prescribing an absolute and unqualified duty should be unnecessarily distorted in order to avoid the imposition of a comparatively heavy penalty. This is especially true where the statute provides for leniency in meritorious cases, as section 20 does.
The facts in the case, as well as the conclusions of this Service and the Board of Immigration Appeals, are fully set forth in the orders of March 14, 1946, and July 1, 1946. It is not believed that the Board's decision should be accepted on the basis that it is an individual case founded upon a peculiar set of facts. The Board's opinion could conceivably become a troublesome, if not dangerous precedent — an opening wedge leading to further loopholes — eventually rendering meaningless the clear intent of Congress and unjustifiably modifying the absolute nature of the duty to detain on board alien seamen pending inspection. Accordingly, the case is returned to the Board of Immigration Appeals for reconsideration of its order and, in the event that it does not see fit to rescind same, then for certification to the Attorney General.
Order: It is ordered that pursuant to 8 C.F.R. 90.3, the case be returned to the Board of Immigration Appeals for reconsideration and, in the event that it does not see fit to withdraw its prior order of July 1, 1946, for certification to the Attorney General.
Discussion: By our order of July 1, 1946, the order of the Acting Commissioner dated March 14, 1946, imposing fine in the sum of $4,000 was reversed and the matter remanded for reconsideration in accordance with our opinion.
The Commissioner disagrees with the order of this Board and has returned the case for reconsideration with the request that in the event the order of the Board were not changed, the case should be certified to the Attorney General because of disagreement.
There is no dispute as to the facts, which are adequately recited in our opinion of July 1, 1946. The Commissioner states that the opinion of this Board "could conceivably become a troublesome, if not dangerous precedent — an opening wedge leading to further loopholes — eventually rendering meaningless the clear intent of Congress and unjustifiably modifying the absolute nature of the duty to detain on board alien seamen pending inspection."
This Board does not share the views expressed in the foregoing quoted statement. We desire to stress certain matters which will make our order of July 1, 1946, clear and assist the Attorney General in deciding the disagreement.
It is not an uncommon practice to defer inspection in cases of arriving vessels for one reason or another. In the present case proceedings were initiated because of the failure to hold four seamen until inspection. The confusion arose because of a staggering of the hours of inspection.
All other agencies concerned had completed inspection and the master labored under the impression that the immigration authorities, too, had completed inspection, but as soon as he ascertained otherwise he called this fact to the attention of the local immigration authorities. While inspection of the vessel and members of the crew was under way by the immigration authorities, two of the seamen had returned and were on board, and the other two appeared on board during the process of inspection. Hence inspection was had of all seamen. There is no question of escape involved. The simple fact is that there was a misunderstanding because of a change in the hours of inspection at the particular port involved, and not a violation of law in fact. This Board therefore reaffirms its previous position that in this case a clear finding of liability to fine is not justified.
Order: It is ordered that the order of July 1, 1946, be reaffirmed.
This case is certified to the Attorney General for review of its decision because of the disagreement expressed by the Commissioner.
The decision and order of the Acting Commissioner of Immigration and Naturalization Service dated March 14, 1946, are hereby approved.
Discussion: This record relates to a fine proceeding instituted under section 20 of the Immigration Act of 1924 against Milne Co., agents for the S.S. Alacran which arrived at the port of New Orleans, La., on December 10, 1944, for failure to detain on board the abovenamed alien seamen until inspection. This Service, having considered the matter and having concluded that liability had been incurred, entered an order on March 14, 1946, imposing fine in the amount of $4,000, $1,000 for each alien concerned. On appeal by the respondent, the Attorney General, on August 13, 1946, approved this Service's decision dated March 14, 1946.
Under date of November 18, 1946, application was filed by counsel for the respondent requesting that the fine imposed be mitigated to the full extent authorized by section 20 of the Immigration Act of 1924, as amended by section 4 of Public Law 503, approved December 19, 1944.
The respondent admits that the subject aliens were not detained on board until inspected by this Service. However, in explanation and extenuation of such failure, the responsible party contends that because of a change in the boarding hours, of which the agents were not aware, and because boarding representatives of other government agencies had boarded the vessel and inspected the alien crew at quarantine, the master believed that all formalities had been complied with and granted the crew permission to leave the vessel on ship's business and pleasure. It is also set forth that as soon as the master and the agents discovered that the vessel had not been inspected by the immigration authorities, a request for such examination was immediately made; that the four seamen involved were not present when the immigration inspector boarded the vessel, two of them being ashore on ship's business and the other two being on leave; that the latter two seamen were brought back to the vessel and pointed out to the inspector, the others subsequently being presented to the Service for inspection; that three of the aliens concerned sailed foreign with the ship and the fourth departed for Mexico by rail; and that there was no intent to willfully violate the immigration laws of the United States. This Service's New Orleans office has confirmed the fact that the four subject aliens returned to the vessel, were inspected and departed from the United States.
Considering the instant application in the light of the pertinent statute and the evidence of record, the question to be determined is whether the facts justify any mitigation of the fine heretofore imposed, and, if so, to what extent. Whereas the record satisfactorily establishes that the responsible parties were not guilty of bad faith, that the four alien crew members returned to the vessel before it departed, that thereafter said seamen were presented to this Service for inspection, and that the four aliens then departed foreign, it is concluded that maximum mitigation to the extent of $800 with respect to each of the seamen involved is warranted herein.
Order: It is ordered that the $4,000 fine imposed herein on March 14, 1946, be mitigated to the extent of $3,200; the fine to be $800.