F-2491
Decided by Board September 24, 1948
Fine — Timely submission of outgoing manifest of crew — Section 36 of the Immigration Act of 1917.
1. Submission of outgoing list by means of delivery to the pilot, for redelivery to the immigration authorities, does not justify fine if same is received with reasonable promptness.
2. The practice in the New York district permits masters of outgoing vessels to deliver the manifest to the pilot for submission to immigration authorities, which is sanctioned on the theory that experience proved that last-minute changes occurred in vessel's crew which made it impracticable to deliver accurate information sooner.
BEFORE THE BOARD
Discussion: The issue presented by this appeal is whether appellant made timely submission of the outgoing manifest so as to nullify liability under section 36, Immigration Act of 1917, as amended.
Section 36, Immigration Act of 1917, provides in pertinent part:
The applicable regulation is section 120.8, title 8, Code of Federal Regulations.
That upon arrival of any vessel in the United States from any foreign port or place it shall be the duty of the owner, agent, consignee, or master thereof to deliver to the principal immigration and naturalization officer in charge of the port of arrival lists containing the names of all aliens employed on such vessel * * *; and before the departure of any such vessel it shall be the duty of such owner, agent, consignee, or master to deliver to such immigration and naturalization officer a further list containing the names of all alien employees who were not employed thereon at the time of arrival but who will leave port thereon at the time of her departure, and also the names of those, if any, who have been paid off and discharged and of those, if any, who have deserted or landed; and in case of the failure of such owner, agent, consignee, or master so to deliver either of the said lists of such aliens * * * departing * * * or so to report such cases of desertion or landing, such owner, agent, consignee or master shall, if required by the Attorney General, pay to the collector of customs, etc. * * * the sum of $10 for each alien concerning whom correct lists are not delivered or a true report is not made as required * * *. [Italics supplied.]
Thus the outgoing manifest requires pertinent hereto —
( a) the names of all alien employees who were not employed thereon at the time of arrival but who will leave port thereon;
( b) the names of those, if any, who have been paid off and discharged;
( c) the names of those, if any, who have deserted or landed.
Experience has shown that last minute changes frequently occur in a vessel's crew, in that seamen are paid off, left in the hospital or desert, necessitating the signing on of replacements at the last minute, too late to admit of the preparation and submission of complete and accurate crew lists and departure with the flow of the tide, and a literal compliance with the statute would not infrequently necessitate an unreasonable delay of the sailing. As a consequence the practice has been indulged of the master delivering the completed manifest to the pilot, relying upon the pilot to deliver or transmit the list either to the immigration office or to the vessel's agent who would effect such delivery. Report from the Immigration and Naturalization Service shows that such practice has been sanctioned by the local immigration office over a long period of time, and that it is presently sanctioned. Such procedure accounts for delay, frequently from one to several days, in the list reaching the immigration officer.
The reason for the hiatus which resulted in institution of fine proceedings without notice to the vessels, is not entirely clear. (See reports in the record from the New York office dated July 28, 1948 and September 2, 1948.)
The position of the New York immigration office has been, and is at present, to the effect that the fact a list is prepared, dated, and its submission begun prior to the departure of the vessel from the limits of the United States, constitutes substantial compliance with the requirements of the statute, even though received within a few days after the vessel's departure.
We agree that where the original or supplementary list is processed prior to the departure of the vessel from the limits of the United States and its submission to immigration office initiated by delivery to the pilot for mailing upon his return to shore from the vessel, and it is thereafter received by the immigration authorities with reasonable promptness, the receipt of such list by the immigration office within that time, may be considered substantial compliance with the applicable statute and regulations promulgated pursuant thereto. The record shows that in the case at hand the vessel sailed foreign on April 29, 1947, and the statement of the master concerning changes in crew was received on May 5, being 6 days after the vessel's departure. We think such filing was reasonably prompt, and accordingly the appeal will be sustained.
Order: It is ordered that fine be not imposed, the sum involved being $80; $10, for each of the aliens involved.