56096/837
Decided by the Board February 19, 1943.
Fines — Section 20, Immigration Act of 1924 — Failure to comply with order to detain on board.
When, after service of an order to detain on board an alien seaman, the responsible parties permitted him to be removed from the vessel for hospitalization without the permission of the immigration authorities, they are not liable for fine under section 20 of the Immigration Act of 1924.
Mr. C.R. Dunham, of New York City, for the respondent.
Mr. Joseph Minton, for the Immigration and Naturalization Service.
Mr. Anthony L. Montaquila, Board attorney-examiner.
STATEMENT OF THE CASE: This proceeding is against the Booth American Line, agents for the S.S. Annik, which vessel arrived at the port of New York on July 26, 1941, for failure to detain on board and deport the seaman R---- J----, after notice to do so had been served upon them. The notice to detain on board was served on the master July 26, 1941, and on the agents July 28, 1941, and acknowledged. The vessel departed from the United States on August 9, 1941, on which occasion the seaman named was not on board. Notice of liability for fine was served upon the agents September 9, 1941, and acknowledged.
DISCUSSION: In protest to imposition of fine there have been submitted statements signed by the master, dated October 16, 1941, to the effect that seaman named was ordered removed ashore by a quarantine doctor on arrival at the port of New York on July 26, 1941, and sent to the Marine Hospital, Staten Island; that when the vessel was ready to sail on August 8, 1941, the hospital informed him that the seaman was too ill to leave the hospital; that on October 16, 1941, he was informed by the hospital by telephone that the seaman was still hospitalized, and he adds that possibly the seaman was suffering from pneumonia when the doctor ordered him to be removed from the vessel; that these facts were incorporated in the ship's log.
Apart from the master's statement, the protest adds that the seaman left the hospital October 16, 1941, and reshipped aboard the S.S. Lueva Andalucia on October 23, 1941.
Proof has been submitted establishing that the seaman was hospitalized on July 26, 1941, and that his illness was diagnosed as lobar pneumonia, and that the seaman was discharged from the hospital on October 16, 1941. Proof was also submitted of the alien's departure from the United States as claimed.
Section 20 (a) of the Immigration Act of 1924 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 having been ordered by the inspecting immigration officer to do so.
Section 20 (b) of the said 1924 act provides that the nonappearance of an alien's name upon an outgoing manifest, or the master's report that he deserted the vessel, shall be prima facie evidence of a failure to detain on board and deport.
It has been held that under the above statute the duty to detain is an absolute one and where a violation is established fine must be imposed ( Lloyd Royal Belge Societe Anonyme v. Elting, 55 F. 2d 340; Compagnie Generale Transatlantique v. Elting, 298 U.S. 217).
In the present case, there is no dispute as to the fact that the alien was seriously ill and the fact that he was admitted to the Marine Hospital at Staten Island, N.Y., on July 26, 1941, and that on examination he was found to be afflicted with lobar pneumonia of the right lung. It will be observed, however, that this proceeding is against the agent, who was served with notice to detain on July 28, 1941, after the seaman had been removed to the hospital. Whether the agent had notice to detain him on board prior to his being removed is not indicated. However, it is a fact that the master did have such notice. However, in view of the disposition to be made in this case, it is unnecessary to reconcile this point by further inquiry upon the port or by directing that notice of liability for fine be served upon the master.
It will be observed that this case does not involve the escape of the seaman from the vessel. It is true, however, that the immigration authorities were not advised of the necessity for having the seaman removed, nor were they advised thereafter of the fact that he was sent to the Marine Hospital. This, of course, should have been done for their records. We do not doubt that had they had such notice the detainer order would have been lifted. Although we feel that the person or persons who may be liable under the statute should in a case of this kind abide by the required procedure, nevertheless, we are of the opinion that liability to a fine has not been incurred. No doubt had the immigration authorities been notified of the seaman's condition he would have been entitled to be removed from the vessel for treatment in accordance with rule 7, subdivision G, Immigration Rules and Regulations of January 1, 1930, as amended (now section 120.36, Part 120, title 8, Code of Federal Regulations).
The statute upon which this proceeding is based is primarily intended to prevent the unlawful entry of aliens posing as seamen and deserting their vessel upon arrival in the United States. The question then resolves itself into whether, in the circumstances of this case, there was a failure to detain the alien seaman on board the vessel as required. The matter then becomes one of statutory interpretation. The primary rule is that the intent of the legislation is to be carried out. The meaning of the statute is to be found in its works, without resort to any materials dehors the words of the statute itself, since it is presumed that the legislature chose apt words to express its intention. But these rules of statutory construction must yield in situations in which it can be demonstrated that adherence to them would defeat the intention of the legislature. It has been said that canons of construction were evolved as aids in determining the intention of the legislature in enacting statutes, not as limitations in determining such intention ( Barrett v. Van Pelt, 268 U.S. 85; Van Camp Sons Company v. American Can Company, 278 U.S. 245; Danciger v. Cooley, 248 U.S. 319; Boston Sand and Gravel Company v. United States, 278 U.S. 41).
A well-recognized basis for departing from the rule that a statute must be given its strict literal interpretation exists where application of the rule would lead to an absurd, unjust, or unreasonable result. One of the classic illustrations of departure from the strict letter of a statute is the case reported in Plowden, which held that the statute of one Edward II, which provided that a prisoner who breaks jail should be guilty of felony, did not extend to a prisoner who breaks out because the prison was on fire. "For he is not to be hanged because he did not stay to be burnt" ( United States v. Kirby, 7 Wall. 482).
We do not believe that Congress in enacting section 20, supra, had in mind its application to a situation such as that which obtained in the case involved in this proceeding. We find, therefore, that there has been no violation of the statute in this case.
FINDINGS OF FACT: Upon the basis of the evidence presented, it is found:
(1) That the S.S. Annik arrived at the port of New York July 26, 1941, having on board the seaman named;
(2) That notice to detain on board and deport said seaman was served upon the master July 26, 1941, and upon the agents July 28, 1941;
(3) That said seaman was removed to the United States Marine Hospital, Staten Island, N.Y., on July 26, 1941;
(4) That the immigration authorities did not have notice of the seaman's removal and, therefore, the detainer was still in effect;
(5) That said seaman was discharged from the hospital October 16, 1941, and he departed the United States on October 23, 1941, ex-S.S. Lueva Andalucia;
(6) That notice of liability for fine was served upon the agents September 9, 1941.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 20, Immigration Act of 1924, a fine has not been incurred in this case.
ORDER: It is ordered that fine be not imposed. The sum involved is $1,000, which should be returned to the depositor.