The opinion
MATTER OF SS. BELLINA
In FINE Proceedings
NOR-10/33.103
Decided by Board Auguet 26, 1960
Fine—Section 254—Liability not incurred where crewman's attempt to land is
thwarted by drowning.
No fine liability Is incurred under section 254 of the Immigration and Nation-
ality Act. for failure to detain on board an alien crewman whose body was
found floating near the shore line, having apparently drowned while attempt-
ing to escape from the vessel. Landing is the essence of the violation un-
der section 254; and, here, no landing was accomplished.
IN RE: SS. Bellina, which arrived at the port of Norfolk, Virginia, from for-
eign on April 11, 1960. Alien crewman involved : L--V—.
BAsts cos FINE: Act of 1952—Section 254 (8 U.S.C. 1284).
BEFORE THE BOARD
DISCUSSION: This appeal is directed to an administrative pen-
alty of $200 ($1,000 mitigated to the extent of $800), which the
District Director at Washington, D.C., has ordered imposed on
W. J. Browning & Company, agents for the vessel, for failure to
detain on hoard the vessel the above-named alien crewman who was
not granted a conditional landing permit. The appeal will he sus-
tained and the fine remitted.
The basic facts of this case are undisputed. Upon arrival, the
above-named alien crewman was not granted a conditional landing
permit and a Form I-95 "Refused" was issued as to him. The
master immediately picked up the crewman's passport, retained it in
. his possession, and instructed the crewman that he could not advance
him any money while the vessel remained in the United States and
that he was not to leave the vessel. As a further precaution, the
master had the vessel's agents arrange for shore guards to stay
aboard from 7:00 a.m. until 12:00 midnight each day, which were
the hours that the ship-to-shore launch was running while the vessel
was anchored in the stream about 2000 yards offshore. The shore
guards remained on the vessel from April 11, 1960, until the vessel
sailed foreign on the night of April 14, 1960. Thereafter, on the
morning of April 15, 1960, the body of this crewman was found
62
floating in the -water near the Newport News shoreline. He had
apparently jumped overboard after having donned a life jacket and
strapped a plastic bag to his waist in which he placed about $700 in
American money. The cause of his death was determined to be
drowning.
We have carefully considered the opinion of the district director
in this case, the entire evidence of record, and the representations of
counsel for the agents and the Service. On the basis of such con-
sideration, we hold that liability to fine hai not been incurred in
this case.
The statute placed upon the agents, among others, the absolute
duty of detaining this crewman aboard the vessel at all times until
he was granted a conditional landing permit. But the purpose of
this statute is to prevent the illegal landing of crewmen. And, obvi-
ously, on the facts of this record, the purpose of the statute was
accomplished. The drowning of the crewman prevented his landing.
Secondly, it is a well-recognized rule of statutory construction that
no statute should be st, construed as to lead to an absurd result. We
are of the opinion that the facts peculiar to this case bring it clearly
within that rule.
For the reasons hereinbefore stated, we think it is immaterial from
a fine liability standpoint that it may not have been the efforts of
the agents which prevented the crewman from effecting a landing
in the United States. The landing is the essence of the violation
and without it there can be no fine.
Additionally, we are aware, as the Service representative has
pointed out, that we have consistently held that where a crewman
has made even a brief contact with shore, except for the purpose- of
carrying on ship's business, there has been a landing and a technical
violation of the law. But here it is conceded that there was no land-
ing. Hence, those decisions are not binding in this instance.
ORDER: It is ordered that the appeal be sustained and that no
fine be imposed.