56106/602
Decided by the Board April 17, 1943.
Fines — Section 20, Immigration Act of 1924 — Failure to comply with order to detain on board.
When an alien arriving from a foreign port upon inspection is adjudged to be a bona-fide seaman and is granted shore leave and no notice is served to detain him on board, detention cannot properly be authorized at a later time.
Mr. Anthony L. Montaquila, Board attorney-examiner.
STATEMENT OF THE CASE: This proceeding is against the Standard Oil Co. of New Jersey, agents for the S.S. Salvator, which vessel arrived at the port of Norfolk, Va., December 5, 1941, from Aruba, Dutch West Indies, for failure to detain on board and deport the alien members of the crew, J---- B----, H---- H. S----, and D---- C----.
DISCUSSION: When the vessel arrived in Norfolk, Va., December 5, 1941, notice to detain on board and deport was served upon both the agents and the chief officer of the vessel and acknowledged. The notice contains the name of D---- C---- but not the names of the other two seamen.
On December 9, 1941, notice of liability for fine covering all three seamen was served upon the agents, who made acknowledgment thereof on December 10, 1941.
It is conceded that the seaman D---- C---- was ordered held aboard the vessel because of lack of proper documents. These documents, it is established, were received in the Norfolk office on December 8, 1941, the day after the vessel sailed therefrom for Aruba. It is reported that after D---- C---- left the vessel he allegedly met with foul play, and "when he woke up in jail he tried to call the immigration authorities and the master of the vessel but was not permitted to use the telephone." On December 16, 1941, he was brought to the Norfolk office of the Immigration and Naturalization Service by a representative of the Standard Oil Co. and arrangements were made for him to reship on the first available vessel. He was permitted to proceed to New York for this purpose, and presumably reshipped.
The district director, Immigration and Naturalization Service, Baltimore, Md., recommends that since documents for the seaman D---- C---- were received only 1 day after the vessel upon which he arrived sailed, that fine be not imposed. Presumably, the implication is that he was in all other respects a bona fide seaman. However, since this seaman was not detained on board the vessel as required and since he did not depart the United States on the same vessel upon which he arrived, liability to a fine under the statute has been established.
With respect to the cases of the seamen J---- B---- and H---- H. S----, it will be observed that the notice to detain on board and deport was served December 5, 1941, on the agents and on the chief officer covering these two seamen. The record establishes that upon arrival of the vessel at Norfolk, December 5, 1941, the two seamen in question were examined and found qualified for shore leave. They were not ordered detained on board. The issuance of the notice of liability for fine has been justified on the ground that the two seamen were cleared from the vessel and discharged without notice to, or permission from, the Immigration and Naturalization Service. The district director states that while this had been the practice at one time, General Order C-31 now presumably requires that the master obtain permission from the local immigration authorities before discharging seamen from a vessel. Our attention, in this connection, has been directed to the following notation in paragraph 3, page 12, Lecture on Seamen, by Mr. Zimmerman, April 19, 1942: "* * * no alien seaman may be discharged or paid off in the United States without due notice being given to the immigration authorities by the seaman or the master of the ship on which he arrives." The Norfolk office interprets the foregoing to mean that a master is not free to pay off and clear from his vessel any alien members of the crew, without permission, just because the boarding immigrant inspector did not order him detained and passed him for shore leave.
With that interpretation we disagree. The fact remains that the two seamen were examined and passed for shore leave. The statute, namely, section 20, Immigration Act of 1924, does not authorize an order to detain a seaman except upon the decision of the inspecting officer on the arrival of the vessel from foreign. It does not authorize a detention order at a later time than on the occasion when the vessel is first inspected. Therefore, if, on the occasion of arrival, a seaman is adjudged to be a bona-fide seaman in pursuit of his calling and is granted shore leave, it is not competent to thereafter order him detained. In the instant case, not only were the seamen examined and passed for shore leave, but, as stated, notice to detain them on board never issued.
The purpose of the statute, as construed by the courts and as understood by us, is to prevent aliens from unlawfully gaining entrance into the United States under the guise of seamen. That section makes provision for imposition of fines on those who, when under such a duty to detain, fail to do so. Each of the persons named in this section is made individually liable. Therefore, the duty to detain does not arise unless and until such detention is required by the immigration officer. Obviously, the requirement must be communicated to the one upon whom the duty is to rest, otherwise he cannot be regarded as "required" to do so or as "failing" to do so. In other words, such notice to detain is an essential prerequisite under the statute.
Clearly, the interpretation of the local immigration authorities would do violence to the provisions of the statute. Rather, we are of the opinion that the statement in the lecture of April 19, 1942, has reference to the seamen who have not been passed for shore leave. At any rate, when a decision has been made that a seaman is bona fide and has been granted shore leave, there is no legal justification to thereafter reexamine him for that purpose.
It is our judgment, therefore, that the agents are not guilty of violation of section 20 with respect to the two seamen under discussion.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the S.S. Salvator arrived at the port of Norfolk, Va., on December 5, 1941, from Aruba, Dutch West Indies, having on board the three seamen named above;
(2) That the seaman D---- C---- left the vessel after notice to detain him on board had been served;
(3) That said seaman was ordered detained because of lack of proper documents under Executive Order 8429;
(4) That said documents were delivered to the Norfolk office December 8, 1941, the day after the vessel sailed foreign;
(5) That said seaman was detained in jail because of circumstances that arose after he absconded from the vessel;
(6) That the seamen J---- B---- and H---- H. S----, upon arrival at Norfolk, Va., on December 5, 1941, were examined and found qualified for shore leave.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 20, Immigration Act of 1924, the agents for the vessel, the Standard Oil Co. of New Jersey, have incurred liability to a fine in the case of the seaman D---- C----;
(2) That under section 20, Immigration Act of 1924, said agents have not incurred liability to a fine in the cases of the seamen J---- B---- and H---- H. S----.
ORDER: It is ordered that fine be imposed in the case of the seaman D---- C----. The sum involved is $1,000.
It is further ordered, That fine be not imposed in the case of the seamen J---- B---- and H---- H. S----. The sum involved is $2,000.