F-0300-7744
Decided by Board November 15, 1956
Fine — Section 256, Immigration and Nationality Act — Liability is not incurred when deserting crewman is paid off while Service has constructive custody of the crewman.
Liability to fine under section 256 of the act is not incurred for paying off or discharging a crewman without first obtaining consent of the Attorney General where the agent telephoned the Service upon the appearance of a crewman, landed in D-1 status, who had deserted and, after being advised by the Service to have the crewman report to the Service office, paid him his wages up to the date of desertion. The action of the agent placed the Service in at least constructive control of the crewman and in a position to acquire actual control of him immediately. Therefore, there was substantial compliance with the statute.
BEFORE THE BOARD
Discussion: This matter is before us on appeal from a decision of the District Director at New York dated July 30, 1956, directing that fine in the amount of $1,000, mitigated to the extent of $500, be imposed on Starboard Shipping, Inc., agent for the SS. Evimar, for paying off and/or discharging the alien crewman C---- Z---- without first having obtained the consent of the Attorney General. The penalty permitted to stand was $500.
When the vessel arrived in the United States on January 11, 1956, the crewman was admitted in D-1 status. Under the terms of that admission, he was permitted to remain in the United States for a period not to exceed 29 days; he could not be paid off and/or discharged in the United States unless the consent of the Attorney General to such action was first obtained; and he was required to depart from the United States on the next foreign sailing of the vessel on which he arrived. The vessel on which the crewman arrived departed foreign from the United States the day after its arrival, January 12, 1956, and the crewman was not aboard. Form I-489 (Statement of Changes in Crew) submitted for that departure reports him as a deserter. He has testified that he intended to ship out on the vessel, but that he got drunk and missed its sailing.
The district director's decision to impose a fine in this case is based on the fact that on February 2, 1956, approximately 3 weeks after the departure foreign of the vessel on which he arrived, the crewman appeared in the agent's office and was paid his wages earned to the date of his desertion. The district director was of the opinion that the payment of wages to a deserter after his vessel had departed foreign constituted, in effect, aid to the crewman to remain in the United States unlawfully. He held that this action was clearly in violation of the statute and, therefore, rendered the agent liable.
We previously considered this matter on appeal from a decision of the district director dated March 16, 1956, imposing a fine, as above. On June 20, 1956, we withdrew that order and remanded the case to the district director for the purpose of having the record clearly reflect why the crewman was paid his wages prior to the time the Service acquired control over him. The record has now been adequately amplified in this respect and, therefore, we will proceed to a decision on the merits.
When the crewman appeared in the agent's office on February 2, 1956, he apologized for his desertion, asked to ship out again, requested return of his seaman papers, and stated that he would like to receive his wages so that he might pay bills which he had incurred by remaining in the United States. Thereupon, the agent telephonically communicated with the Service, explained the situation to them and informed the Service that the company was ready to ship the crewman out again. After being told by the Service representative that the crewman should be sent to the Service office at 70 Columbus Avenue, New York City, the agent paid the seaman his wages. On the following day, February 3, 1956, the crewman proceeded to the Service office, as directed. The record indicates that warrant proceedings were then instituted. These resulted in authorization of voluntary departure for the crewman, with the provision for his deportation in the event he failed to so depart. He departed within the period authorized for his voluntary departure on one of the company's vessels.
Counsel contends that it is not a violation of the statute to pay a crewman his earned wages after he has deserted the vessel and his status as a deserter has been fixed and determined as of the date of the vessel's departure foreign. His argument is that the statute was clearly designed only to penalize carriers for taking action, paying off and discharging crewmen, which would induce desertion or make it easier for crewmen to desert, and that it cannot reasonably be interpreted to contemplate such action on the part of carriers after the fact of desertion. The theory is that D-1 status and the limitations placed thereon terminate upon departure foreign of the vessel on which the crewman arrived. Support for this position is sought in unreported Matter of SS. "Omnium Carrier", F-0300-7708, decided by this Board June 28, 1956.
The Service, on the other hand, takes the position that once a crewman has been admitted in D-1 status, the carrier cannot pay him off or discharge him at any time, whether before or after the vessel has departed, without first obtaining the consent of the Attorney General. The argument is that the payment of wages to a deserter after his vessel has left does constitute an "inducement" within the meaning of the statute, on the theory that it enables him to make his desertion effective in remaining in this country illegally. The claim is that the only way by which the Service can maintain over crewmen the strict control which the Congress specifically enacted the statute to provide, would be impossible of attainment if carriers were permitted to pay deserters their wages after their vessels had departed foreign. The Service points out the possibility that if counsel's arguments were accepted, then carriers could pay the deserters their wages without notifying the Service and thereby render its control over crewmen completely ineffective. The Service also alleges that the present case is clearly distinguishable from unreported Matter of SS. "Omnium Carrier," supra.
We did state in the Matter of SS. "Omnium Carrier," supra, that a crewman's status as a deserter was fixed at the time his desertion was established, to wit: the date of the foreign departure of the vessel on which he arrived. We reaffirm that statement here. We did hold in that case that the payment of wages to a crewman who had deserted did not constitute a "payoff" and/or "discharge" within the meaning of the statute, but the reason for that holding was the fact that at the time of payment of the wages to the deserter the Service had control over him and had consented to the payment of the wages. The facts of that case were as follows:
The crewman involved deserted that vessel under much the same circumstances as did the present one, and he was promptly reported as a "deserter" when the vessel sailed foreign. When the vessel returned to the United States about 3 weeks later, the crewman visited the master and requested payment of his wages, presenting the master a form issued by the Immigration Service authorizing his voluntary departure. Before paying the crewman the wages, however, the master communicated with the Service telephonically and was advised that the crewman could be paid his wages, at least he was furnished information to that effect. In addition, the master still refused to pay the crewman his wages and referred the matter to the agent who also received similar advice from the Service. Thereupon, the wages were paid and the crewman signed off the vessel's articles.
The distinction in the 2 cases urged by the Service appears to exist in the timing of the payment of the wages in the 2 cases. In the former case, it is clear that the wages were paid only after the Service had obtained actual control of the crewman and consented to the payment, whereas, in the present case the Service had not actually had the crewman in custody and had not so clearly consented to the payment of the wages. We, however, under the circumstances, find that there does not exist a sufficiently substantial distinction as to justify a different decision here. Here, the Service had at least constructive control over the deserter. The agent immediately contacted the Service upon the appearance of the crewman and thereby put the Service in a position to immediately acquire actual control over him. Obviously, in so acting the agent was cognizant of its obligations under the Statute and was seeking advice as to the proper means to meet them. Apparently, the agent was satisfied that the crewman was sincere in his representations that he would depart and the agent was in a position to enable him to do so. The Service appears to have been of the same opinion; otherwise, there was no reason for their failure to take steps to acquire immediate actual control over the crewman. Absent any instructions from the Service to the contrary, and we find none in the record, we think that the agent acted reasonably in the circumstances. Under such circumstances, we do not think that liability to fine has been established. Accordingly, we will sustain the appeal.
Order: It is ordered that the appeal be and the same is hereby sustained and that fine be not imposed.