F-0612-440.
Decided by Board February 7, 1955.
Fine — Section 256 of Immigration and Nationality Act — Liability of agent for master's action.
Under section 256 of the Immigration and Nationality Act, the agent of a transportation line is liable for payment of fine when the master of the vessel, without first obtaining the consent of the Attorney General, effects his own discharge by turning the command of the vessel over to another even though the agent had nothing to do with replacement of the master. ( See also, 5 IN Dec. 567 and 663.)
BEFORE THE BOARD
Discussion: This matter is before us on appeal from a decision dated February 2, 1954, of the District Director at Miami imposing a $1,000 fine, mitigated to the extent of $500, for paying off and discharging an alien crewman without permission of the Service in violation of section 256 of the Immigration and Nationality Act.
The vessel involved in this proceeding (SS. KAMMA DAN) arrived at New Orleans on October 23, 1953, and departed from that port for the Canal Zone on November 6, 1953. On November 16, 1953, a notice of intention to fine was served on West Coast Line, Inc., as agents for the owner of the vessel, which notice indicates that the violation related to one M---- O---- who had been paid off and discharged without permission of the Service.
O---- made a sworn statement before an American consular officer in Denmark to the effect that he was in command of the SS. KAMMA DAN when it arrived at New Orleans; that he expected to be relieved by the regular commander of the vessel whom he had temporarily replaced; that upon making inquiry of the immigration officer relative to obtaining a D-2 landing permit, it was suggested that the matter of securing such a permit be deferred until the officer who was to relieve him appeared; and that subsequently, because of the pressure of work, he overlooked having his D-1 permit changed to a D-2 permit until November 12, 1953 (after his arrival in New York City) when he informed the owner's agent there, who in turn notified the Service. The report of the master concerning changes in crew (Form I-489) shows M---- O---- as having been discharged. He departed from the United States on November 17, 1953.
W---- M---- A----, an officer of West Coast Line, Inc., made an affidavit that his company had nothing to do with the replacement of M---- O----; that the latter received his instructions from the owners of the vessel; and that West Coast Line, Inc., did not arrange for a replacement nor have anything to do with determining when or where M---- O---- would leave the vessel. It was also asserted in the affidavit that West Coast Line, Inc., did not discharge nor pay off M---- O---- and that the funds which had been placed with him were for the account of the owners and that no funds were earmarked for the payment of M---- O----'s account with the owner for his services aboard the vessel.
We have carefully considered the points urged by counsel in his brief on appeal. One contention is that section 256 of the Immigration and Nationality Act permits the imposition of fine only upon the person or persons who paid off or discharged a nonresident alien crewman without permission, and a fine cannot, therefore, be imposed upon the agent here since the agent did not participate in the matter in any way. Counsel is aware that we have previously ruled against that contention but he asks us to reconsider our position concerning the matter. Section 256 of the Immigration and Nationality Act provides, in part, as follows:
Matter of SS. REPUBLIC, F-0612-423, 5 IN Dec. 663 (decided February 1, 1954).
Sec. 256. It shall be unlawful for any person, including the owner, agent, consignee, charterer, master, or commanding officer of any vessel or aircraft, to pay off or discharge any alien crewman, except an alien lawfully admitted for permanent residence, * * * without first having obtained the consent of the Attorney General. If it shall appear to the satisfaction of the Attorney General that any alien crewman has been paid off or discharged in the United States in violation of the provisions of this section, such owner, agent, consignee, charterer, master, commanding officer, or other person, shall pay to the collector of customs of the customs district in which the violation occurred the sum of $1,000 for each such violation. No vessel or aircraft shall be granted clearance pending the determination of the question of the liability to the payment of such sums, or while such sums remain unpaid, except * * *.
Counsel argues that the phrase "such * * * other person" in the second sentence must refer only to a person who actually paid off the alien crewman and that, therefore, "such * * * agent" must also be limited to an agent who has done so. We do not think that such a result follows. The second sentence repeats the same persons specifically named in the first sentence and we believe the addition in the second sentence of "other person" was merely because the words "any person" in the first sentence could include others than those specifically named. In other words, the classes of persons specifically enumerated in the first sentence were not supposed to be all-inclusive.
If Congress had intended that only the person who actually paid off or discharged the seaman was to be liable for the fine, much of the second sentence was unnecessary and it could have been simply stated as "Any person who violates the provisions of this section shall pay to the collector of customs * * *." It is our considered opinion that the second sentence does not contemplate that the Attorney General shall reach a determination as to who was responsible for the discharge of the alien crewman but rather that it shows clearly a congressional intention that as soon as it has been established that an alien crewman was paid off or discharged without permission, a fine has been incurred; that the persons named, as well as any other person involved, are equally liable; and that the fine may be imposed against any of them. We believe this is further borne out by the provision that clearance is to be denied to the vessel pending the determination of the question of liability for the fine and the payment of such fine. We adhere, therefore, to our former determination of this question.
The remaining contention of counsel is that no fine should be imposed because of the extenuating circumstances. We agree that there are extenuating circumstances in this case. However, the statute does not permit any exception to be made for that reason but places a duty to impose a fine where there has been a violation. There is no authority to remit or reduce a fine except where Congress has specifically granted that power. In addition, although there are appealing factors in this case, they are not more so than in other cases in which we have found it necessary to sustain the imposition of fine. These extenuating matters may be considered only in connection with the question of the mitigation of the fine, and the amount of the penalty in the instant case has already been mitigated to the extent permitted by the statute. Accordingly, we have no alternative but to dismiss the appeal.
25 Opinions Attorney General 336 (1905).
Matter of SS. CIUDAD DE BARQUISIMETO, F-0300-5538, Int. Dec. No. 639 (decided September 10, 1954); Matter of SS. CAPTAIN K. PAPZOGLOU, F-0500-387, 5 IN Dec. 567 (decided December 18, 1953).
Order: It is ordered that the appeal be and the same is hereby dismissed.