M/V "SOUTH AFRICAN VICTORY"

I nterim Decision #1740

Aavaa Or M/V "Sorrm Aramaic Vicroxr"

In Fine Proceedings

NOL-10/61.284

Decided by Board February 13, 1967

Slam as intent to conceal one's self aboard a United States-hound vessel for the

purpose of obtaining passage thereon is an element essential to constituting

an alien stowaway within the meaning of section 273(d), Immigration and

Nationality Act, where the two aliens involved, longshoremen by occupa-

tion, boarded the ship in Colombia in search of food, thereafter fell asleep

until the vessel was at sea, and the evidence demonstrates they lacked any

intention whatsoever of obtaining passage to the United States, fine does not

lie wider section 278(d) of the Act, notwithstanding upon arrival they were

preoenti'd for Inspection as stowaways.

IN au: M/V "South African Victory," which arrived at the port of New Orleans,

La., from foreign, via another United States port, on August 17, 1960.

Aliens involved: Raul Sanchez-Pena and Isaic Aristobulo Mendoza-

Lopez.

ON BENALIP or ALITELLANT • J. Dwight LeBlanc, Jr., Esquire,

Chafe, McCall, Phillips, Burke, Toler & Hop-

kins

1500 National Bank of Commerce Building

New Orleans, Louisiana 70112

This appeal is directed to an administrative penalty of $2000, $1000

as to each of the aliens named above, which the District Director at

New Orleans has ordered imposed on Hansen & Tideman, Inc., as

agents for the vessel. The specific violation charged is failure to detain

the above-named aliens aboard the vessel, as stowaways, pursuant

to an immigration officer's order to do so.

It appears from the record before us that the following material

facts exist without substantial controversy. The above-named aliens,

natives and citizens of Colombia, are longshoremen by occupation.

They boarded the ship in Colombia in search of food, and thereafter

fell asleep in. a rope locker. They did not awaken until the ship was

well at sea, when they were discovered by a. crewman. Following their

discovery, an arrangement was made whereby they worked as deck

boys for their meals.

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Interim Decision #1740

The aliens were still aboard when the vessel made its first United

States port call at Mobile, Alabama, on August 14, 1966. They were

then and there presented to the boarding immigration officer by the

master for inspection, as stowaways. The boarding immigration offi-

cer ordered them detained on board the vessel and deported from the

United States thereon , as stowaways, serving appropriate notices to

that effect (Forms 1 25- 9) upon the vessel's master and agents.

While the vessel remained at the port of Mobile, the two aliens were

locked in the ship's hospital and professional guards were stationed

outside it, with the sole duty of preventing the escape of the aliens.

This same arrangement was put into effect after the vessel had pro-

ceeded coastwise to New Orleans, ante. Nevertheless, while the vessel

was still in that port, and specifically at approximately 10 :45 p.m. on

August 17, 1966, the aliens succeeded in breaking the lock on the door

of the ship's hospital and going ashore in the United States, while

the professional guard was on watch at the porthole on the other side

of the ship's hospital.

The escape was reported to the Immigration Service approximately

one-half hour after it occurred. One hour later, border patrol officers

of the Immigration and Naturalization Service took the aliens into

custody in a bar in the dock area. They were subsequently remanded

to the carrier's custody aboard the vessel and removed from the United

States thereon.

The District Director's decision to impose the fines herein is predi-

cated on the following factors :

(1) the master presented the aliens to the boarding Immigration officer for

inspection, as stowaways;

(2) that official ordered the aliens detained on board and deported, as stow-

aways;

(2) the aliens did eseape from the ship;

(4) it is unnecessary in fine proceedings such as this to go beyond the record,

or to delve into the thoughts of the aliens involved when they hid them-

selves aboard the vessel ; and

(5) it is immaterial that criminal prosecution of the aliens as stowaways was

declined by the appropriate United States Attorney.

We, however, conclude that the fines have been improperly ordered

imposed, for the reasons hereinafter set forth.

It has been judicially held * * a 'stowaway' * * * is one who con- ,

tealshimfbordnutgveslfohpr btaing

free passage." 1 The courts have also ruled that "* * * It is quite clear

that * * * the word 'stowaway' is used to indicate one who steals his

passage * * *." 2 Likewise, it has been judicially stated that to justify

oandrece v. Smith, 27 T.2c1 842.

D'Amato v. Williams, 198 F. 228.

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Interim Decision #1740

the conviction of a person for stowing away on a vessel it is necessary

to establish intent to go and remain on board without paying for a

ticket, and that an accidental remaining aboard does not suffice. 3

In our opinion, the foregoing eases establish that, under the general

principles of maritime law, a stowaway is one who conceals himself

on board a vessel about to leave port in order to obtain passage, and

that when he lacks such intent he is not properly classifiable as a

stowaway: On this point, while it may well be true that in oases in-

volving immigration laws a somewhat different rule may prevail,

e.g., a stowaway who is signed on the vessel's articles by the master

would be regarded as a seaman"; it must also be noted that such excep-

tions occur only where definitions peculiar to the immigration laws

are involved.° We find no such distinguishing feature present in the

instant case.

On the facts, the occupation of these aliens was that of longshore-

men, so that they cannot reasonably be held to fall within the provi-

sions of section 101(a) (15) (D) of the Immigration and Nationality

Act (8 U.S.C. 1101), which reads:

The term "immigrant" means every alien except an alien who is within one

of the following classes of nonitasnigranta — an alien serving in good faith as each

in any capacity required for normal operation and service on board a vessel

(other than a fishing vessel having its home port or an operating base in the

United States) or aircraft, who intends to land temporarily and solely in pursuit

of his calling as a crewman and to depart from the United States with the vessel

or aircraft on which be arrived or some other vessel or aircraft.

Nor do we think they can logically be held to fall within the terms

of section 101(a) (10) of the Immigration and Nationality Act (8

U.S.C. 1101) defining the term "crewman" as meaning:

a person serving in any capacity on board a vessel or aircraft.

The reason is that, in -view of the circumstances under which the aliens

were aboard this vessel, and absent evidence that they were signed on

the ship's articles (and there is none here), they cannot properly be

classified as members of the ship's crew or its company;' and they cer-

tainly were not engaged as such. Rather, in the eyes of the law, they

were properly classifiable as trespassers on board the vessel at their

own peril.°

In view of the foregoing, we are satisfied that the element essential

Mined States v. ilusso,172 F.2d 553.

°Norris, The Law of Seamen, Vol. 1, aeo. 7, pp. 8 & 9.

" United States v. Sandrev, 48 F. 550.

a See footnote 4, ante.

Norris, The Law of Seamen, Vol. 1, secs. 1 & 5.

8 The ease of the Western World. Malley v. Hupper, 31 F. Sapp. 340.

255

Interim Decision *rip

to constitute an alien a stowaway under section 273 (d) of the Immigra-

tion and Nationality Act (8 U.S.C. 1323) is the intent on the part of

the alien involved to conceal himself aboard a vessel bound for the

United States for the purpose of obtaining passage thereon. The evi-

dence of this record, however, definitely demonstrates that such intent

was not present in this case, it being conceded that the aliens involved

were longshoremen by occupation who boarded this ship in search of

food and thereafter fell asleep until the vessel was out at sea; and that

they lacked any intention whatsoever of obtaining passage to the

United States, free or otherwise. Therefore, we conclude that the charge

that the master and/or the agents failed to detain the stowaways on

board was improperly posited.

Contrary to the District Director, we find it immaterial that these

aliens were presented by the master to the boarding immigration officer

for inspection as stowaways, and that the immigration officer ordered

them detained on board and deported as such. The reason is that it is

substance rather than form which is controlling in such situations. To

illustrate this point, we need only refer to a prior precedent decision

of ours wherein an alien arriving in the United States aboard a vessel

was presented for inspection with a crew list showing him to be a

s 'workaway"; his name was transferred to a separate passenger mani-

fest, pursuant to instructions of the inspecting immigration officer; the

latter then admitted the alien (who was in possession of a B-2 visa)

as a' temporary visitor; and the alien was thereafter found. eligible for

adjustment of his status to that of a permanent resident, under section

945, Immigration and Nationality Act (8 U.S.C. 1255) .

We do not necessarily disagree with the District Director's views

that the failure of the appropriate United States Attorney to prosecute

these aliens criminally as stowaways, ostensibly under the provisions of

18 U.S.C., is not determinative in these proceedings. The only comment

required on this aspect of the case is that, in substance, said statute

defines a stowaway as a person who boards or secretes himself on a

vessel with the intent to obtain transportation; and that the evidence

of this record does not establish the existence of such intent. The only

other point worth noting, in this connection, is that the element of

intent not to pay for the transportation has been omitted from the

statute as being unnecessary, for the obvious reason that payment for

the transportation would have the effect of purchasing the master's

consent.

In conclusion, it is our opinion that there are certain rules of statu-

tory construction which have a specific and definite bearing on the

• Hotter of 9-0—, AL1277

. 4443, 83.A., 1/14/64; Int Dec. No. 1516.

256

Interim Decision #1740

disposition of this matter. In the first place, fine statutes such as this

must be strictly construed in all respects because of their quasi-penal

nature." Secondly, carriers must be favored in the construction of such

statutes, as a matter of law; and mere convenience of enforcement

cannot justify a strained construction of the statute." In this latter

connection, there would appear to be no sound basis for the possible

argument that our ruling herein will create an enforcement problem,

because of the availability of other sanctions found in the presently

existing framework of the law."

On the basis of all the foregoing, it is our conclusion that these fine

proceedings based on the charge that the master and/or the agents

failed to detain stowaways on board the vessel necessarily fall. We so

hold.

ORDER: It is ordered that the appeal be sustained and that the

fines be not imposed.

s° Miner v. Robertson, 260 U.S. 248.

31United States v. I. H. Winolmter d Co., 40 Ltd 472.

"Bee sections 287 and 271 of the Immigration and Nationality . Act (817.8.C.

1227 and 1821).

257