56118/408 and 56118/413
Decided by the Board July 1, 1943.
Fines — Section 36, Immigration Act of 1917 — Failure to furnish crew lists.
When a vessel sails foreign for the first time from a port in the United States with alien seamen employed thereon, there is no liability for fine under section 36 of the Immigration Act of 1917, as amended, for failure to furnish lists covering the vessel.
Mr. Anthony L. Montaquila, Board attorney-examiner.
STATEMENT OF THE CASE: The vessels named were formerly American-owned and were taken over by British interests at Baltimore, Md., on August 30, 1942. On that date they sailed foreign from Baltimore via New York.
Eighty-one members of the crew of both vessels signed articles in England and were sent to the United States to join those vessels. They arrived at the port of New York on August 16, 1942, and proceeded to Baltimore. The remaining eight members were signed on locally, that is, at Baltimore.
In neither case was a crew list furnished the immigration authorities at Baltimore when the vessels proceeded to New York from whence they sailed foreign. It is indicated, however, that a crew list for the S.S. Northland was furnished the immigration authorities at Baltimore on October 24, 1942, some 2 months after the vessel sailed. Whether crew lists for both vessels were furnished the immigration authorities at New York is not indicated, although the agents intimate that such crew lists were to be furnished the immigration authorities at the latter port.
Because of failure to furnish the crew lists at the time the vessels departed from Baltimore, notice of liability for fine was served upon the agents October 14, 1942, which was acknowledged by them on October 16, 1942.
DISCUSSION: In seeking remission of fine the agents assert that since the vessels had not been to any foreign port before their departure from Baltimore, the requirement of section 36 did not apply. It is established that the vessels, prior to their departure from Baltimore on August 30, 1942, had not been to any foreign port and were engaged exclusively in coastwise trade.
Section 36, Immigration Act, February 5, 1917, as amended (ch. 6, 171, title 8, U.S.C.A.) provides:
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, stating the positions they respectively hold in the ship's company, when and where they were respectively shipped or engaged, and specifying those to be paid off and discharged in the port of arrival; * * *; 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 the port thereon at the time of her depature, * * *.
Section 120.10 of Part 120, title 8, Code of Federal Regulations, promulgated as an aid in the execution of the requirements of section 36, supra, provides that when a vessel calls at several United States ports, the list of arriving seamen, required by section 36, shall be delivered to the official in charge at the port of arrival, etc., as well as the list of departing, deserted, and landed seamen required by that section; and that the official in charge at any port of call or final clearance foreign shall promptly notify the official in charge at the port of initial entry (where the incoming crew list is filed) of any and all changes occurring in the crew of any vessel subsequent to departure from such initial port of arrival, etc.
It will be noted that the list required before the departure of the vessel relates to a vessel that had previously arrived from a foreign port or place. The vessels involved in this proceeding, according to the record, sailed foreign for the first time on August 30, 1942, when they were taken over by British interests. Section 36 stresses arrival from foreign of a vessel, and employment of alien seamen thereon is, of course, a necessary corollary thereof. In other words, both facts must be established, that is, the vessel must have been carrying alien seamen, and it must have arrived from a foreign port or place. In the instant case the vessels had not arrived from a foreign port or place.
We hold, therefore, that since there was no requirement to furnish lists in the case of these two vessels, liability on the part of the agents has not been established.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the S.S. President Warfield and the S.S. Northland sailed from the port of Baltimore, foreign, via New York, having employed thereon 89 members of the crew;
(2) That 81 members signed articles in England and were brought to the United States to take over said vessels;
(3) That 8 members of the crew were signed on at Baltimore;
(4) That the vessels, prior to their departure from Baltimore had not previously arrived from any foreign port or place, but were engaged exclusively in coastwise trade;
(5) That the lists specified in section 36, Immigration Act of 1917, were not furnished to the immigration authorities at Baltimore, Md., when the vessels departed therefrom foreign, via New York;
(6) That a list was furnished for the S.S. Northland on October 24, 1942, some 2 months after the vessel departed from Baltimore.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 36, Immigration Act of 1917, the Furness, Withy Co., Ltd., agents for the vessels named, are not subject to fine for failure to furnish lists covering said vessels at the time of their departure foreign.
ORDER: It is ordered that fine be not imposed. The sum involved is $430 in the case of the S.S. President Warfield and $460 in the case of the S.S. Northland.