M/V SIGNEBORG

MAll Or 111/V SIGNEBORG

In FINE Proceedings

0111-10/4.6

MIL-10/4.2

Decided by Board July 7, 1060

Fine—Section 254(a)—Failure to detain on board—Multiple violations by same

crewman incur single fine.

Maximum penalty under aection 251(a) of 1062 Act for failure to detain crew-

man on board vessel in course of single trip to this country is $1,000 for

each such crewman despite successive violations at ports of call in United

States.

IN : M/V SIGNEBORG , which arrived at the ports of Chicago and Mil-

waukee from foreign, via other United States ports, on August 21 and

27, 1959, respectively. Alien crewmen involved: G—D—R— and .

J--S—E—.

BASIS FOR FINE: Act of 1952— Section 254 (8 U.S.C. 1284).

BEFORE THE BOARD

DISCUSSION: The District Director at Chicago, finding no

mitigation justified, ordered penalties totaling $3,000, imposed on the

Great Lakes Overseas, Inc., and the General Steamship Agencies,.

Inc., agents for the vessel at the respective ports involved, as follows:

$1,000 for failure to detain R— aboard the vessel at Chicago; and

$2,000 ($1,000 as to each) for failure to detain R— and E— aboard

at Milwaukee; and all pursuant to an order to do so. On Febru-

ary 24, 1960, this Board ruled that the penalty of $1,000 for failure

to detain R— aboard at Milwaukee was improperly imposed; we

mitigated the remaining fines to the extent of $200 in the case of

each crewman; and we permitted a total penalty of $1,600 ($800 as

to each crewman) to stand. The matter is again before us by way

of a Service motion requesting reinstatement of the District Direc-

tor's order, and urging error in our elimination of one of the fines

as to R– an won as in the reduction of the remaining penalties as

to both the crewmen. The motion will be denied.

The basic facts of the matter, which are established and unques-

tioned, require only brief recitation here since they have been ade-

quately discussed in our prior opinion and in the motion filed by the

6

Service. Both these crewmen were issued conditional landing per-

mits at Cleveland, where the vessel made its first United States port

call. Their landing permits were later cancelled and detention no-

tices executed as to them were served on the master (s). The crew-

men subsequently escaped from the vessel at the ports indicated; they

were thereafter captured and placed back aboard; and ultimately, at

Detroitr, the master refused to take them back aboard and the Serv-

ice had to keep them in custody. The final disposition of their cases

is not reflected in this record.

Section 254(a) provides that:

The . . . agent .. . of any vessel .. . arriving in the United States from

any place outside thereof who fails . . . (2) to detain any alien crewman on

board the vessel . . . after such [immigration] inspection unless a conditional

permit to land temporarily has been granted such alien crewman .. . shall

pay . . . the sum of $1,000 for each alien crewman in respect of whom any

such failure occurs. . .. (Emphasis supplied.)

The issue is whether the foregoing language can properly be con-

strued to support the imposition of a fine of $1,000 mull and every

time any one alien crewman who has been refused a conditional land-

ing permit leaves his vessel between the time of its first United States

port call and its next subsequent foreign sailing. The point has not

previously been presented in this light, despite the fact that this

statute has been on the books in substantially the same form since

1924. 1

There is no question but that the purpose of this legislation is to

provide close control over crewmen, and to place the burden thereof

upon carriers rather than the government; that this section of the

law should be construed in connection with every other part or sec-

tion of the 1952 Act so as to produce a harmonious whole; and that

where the meaning of the wording is doubtful, the purpose of the

Congress, as well as the evils intended to be remedied, may be con-

sidered.2 However, there are other applicable and well-recognized

rules of statutory construction which preclude reaching the result

sought by the Service, even though it might be most desirable from

a practical standpoint.

The key words here are, for the most part, ordinary and must be

given their usual and commonplace meaning. 3 The statute must be

strictly construed in all respects because of its quasi-penal nature'

As a matte]: of law, carriers must be favored in its conctruction. 5 In

other words, the language of the law cannot be enlarged beyond the

' Section 20(a), Act of May 26, 1924; former 8 U.S.C. 167.

2 United States v. National Surety yo., zo

Auers v. Phillips Petroleum Co., 25 F. Supp. 458; Shultz v. Morgan, 42 P..

254. '

4 mitter v. Robertson, 266 U.S. 243.

D United States v. J. H. Winchester tt Co., 40 F.2d 472.

7

ordinary meaning of its terms in order to carry into effect the gen-

eral purpose for which it was enacted.°

Applying the foregoing rules here, we conclude that the words.

"the sum of $1,000 for each alien crewman in respect of whom any

such failure occurs," cannot properly and reasonably be interpreted

as if they read "for each violation by an alien crewman," as urged

by the Service. We think the decisive words are "each, alien crew-

man." Appearing in juxtaposition to them, the words "the sum of

$1,000" limit the total penalty that can be imposed as to any one

crewman to that specified figure. This is particularly true since

both phrases are restricted by the use of the singular word "failure."

Actually, by using the words "for each alien crewman in respect

of whom any such failure occurs," the Congress meant nothing more

than that a separate penalty should be assessed for each crewman

who is not detained, as opposed to creating a single violation of the

statute per vessel, no mater how many detained crewmen might es-

cape from it? While there are no precedents on this point, because

of its general acceptance and recognition, we have found several un-

reported cases, including one under the 1924 Act (the first, infra),

wherein the Service has consistently interpreted this section to jus-

tify the imposition of only one fine as to each crewman, regardless

of the number of times he went ashore during any one trip of a

vessel to the United States, as follows:

SO. "Orcte"— P-0509/70, P.I.A., May 98, 1953. Notice to Detain on Board

was served on master and agents. Three days later the crewman left the ship

and went to the Cuban consulate to get his passport revalidated. He there-

after returned to the vessel, but subsequently deserted.

M/S "Rita"— i--0608/124, April 14, 1954. Two crewmen were granted

conditional landing permits at Mobile, Ala., the vessel's first port of call in

the United States. It thereafter proceeded coastwise to • Tampa, Fla., where

their landing permits were revoked and Detain on Board notices served. This

occurred on September 22, 1953.

One of the crewmen was questioned by a Service officer on November 10,

1953. He stated that he had gone ashore every night ; that he had married

on October 17, 1953; and that he spent every night ashore with his wife. He

sailed foreign with the vessel on November 25, 1953.

The other crewman was questioned by a Service officer on November 11, 1953.

He stated that he had been ashore twice that day, both in the a.m. and p.m.,

for food and coffee; and that he had been ashore each day the ship was in

port. He eventually deserted.

0/S "San - F-1007-38 11 39, P.I.A., tflay 29, 1933. Three crewmen

were refused conditional landing permits but went ashore on one or two occa-

sions thereafter during a considerable period of time the vessel was in San

Diego.

Prig "Madalan" PRO 10/11.1 •A 11.9, P.I.A., May 10, 1057. Thliteen crew-

men were refused conditional landing permits on arrival but later went ashore.

6 In re McDonough, 49 Fed. 360.

' See Grant Bros. Construchan Co. v. United States, 232 U.S. 647.

8

.t least three of them were ashore on two separate occasions, about three

weeks apart, when Service officers checked the vessel.

M/S "Maureen"—NOL-10/61.43, December 11, 1957. The crewman

was ordered detained on board at Houston, but was later jailed at Gulfport,

Miss., and was not aboard when the vessel sailed coastwise. However, the

responsible parties obtained his release and put him back aboard at Panama

-City. Florida. He later deserted at that port.

SS. "Dorion"— NOR-62, B.IA., June 5.5, 1558. The crewman was granted

D-1 conditional landing permit which was later revoked. He was then placed

back aboard the vessel and the master was ordered to detain him on board.

The crewman subsequently escaped, and was recaptured through the efforts of

the agents. He thereafter again escaped.

SIT "Sea Thunder"— DAL-1011.62, B.I.A., September 25, 1958. Crewman

was refused a conditional landing permit on arrival. Five days later the

master let him go to Washington, D. C., to obtain a passport He came back

aboard me same day, but about a month later deserted.

As a matter of fact, the principle has been recognized internally

in this case since, after the foregoing charged violations, both of

them crewmen left the vessel at Detroit, were captured and taken

back aboard by immigration officers; the master refused to accept

them and the Service had to keep them in custody but no fines were

ordered imposed by the District Director for these violations.

This construction of the statute by the executive branch of the

government charged with its enforcement gives weight to its inter

pretation, especially since it is of long standing. 8 Particularly after

36 years, and absent any substantial change in the phraseology of

the law, we are of the opinion that there is no legal or logical basis

for the position- presently taken by the Service.

Support for the foregoing, which is unnecessary, is provided in

section 254 (b) of the Immigration and Nationality Act, which reads:

Except as may be otherwise prescribed by regulations issued by the Attorney

General, proof that an alien crewman did not appear upon the outgoing mans--

fast of the vessel or aircraft on which he arrived id the United States from

any place outside thereof, or that he was reported by the master or command-

ing officer of such vessel or aircraft as a deserter, shall be prima facie evi-

dence of a failure to detain or deport such alien crewman.

This language indicates that the question of whether or not there

has been a violation of the law is determined as of the time a vessel

on which the crewman arrived sailed foreign. Its reasonable inter-

pretation is that, as to subsection (a), there can only be one violation

as to one alien crewman in the course of one trip of a vessel to the

United States. We so hold.

The Service argues that such a holding will enable carriers to dis-

regard the law with immunity. Tts thedry is that, after a detainee

escapes from his vessel once, they need do nothing to bring about

his apprehension and deportation because their liability has already

a Licrya Royal Bag° Societe Annernyme v. Elting, 61 F.2d 745: and Costanzo

v. Tillinghast, 287 U.S. 341.

9

been determined and their fine cannot be increased. This, however,

overlooks the point that, in the statutory scheme, efforts on the part

of carriers after the escape, to the end that the escapee's apprehen-

sion and deportation may be effected, can and do result in substantial

reduction in the amount of the penalty permitted to stand either by

the district director or this Board. Our experience is that this factor

has been most effective in obtaining the cooperation of carriers oper-

ating into coastal ports of the United States. We see no reason to

believe it will not have the same effect on carriers operating along

the St. Lawrence Seaway and the Great Lakes, where the novelty of

the operation has confronted them with difficulties proportionate to

the enforcement problems encountered-by the Service in that area.

But in any event, this matter of mitigation is the only answer to the

problem under the law as written. Mere convenience of enforcement

-cannot justify a strained construction of the statute .°

It also may well be, as the Service contends, that such a ruling

will place carriers in a better position where one crewman leaves his

vessel several times than in a situation where a number of crewmen

equivalent thereto leave only once. The answer, again, lies in the

framework of the law which we must interpret as it stands and are

powerless to change.- There was nothing to hinder the Congress

from making each consequence, i.e., each violation by a crewmen, a

-separate offense, but by its proper construction this section of the

law does not do so_ 10

This question of mitigation now brings us to the secondary issue

raised by the Service, to wit, justification for the mitigation previ-

ously authorized by this Board. We still are of the opinion that

such action was warranted for the reasons stated in our opinion,

'which need no repetition here. In addition, however, we will point

out that as the Service has encountered problems of enforcement

Along the Great. Lakes and the St. Lavin-enact Seaway, so too have the

carriers been confronted with difficulties not easy of solution. Due

to the novelty of the operation along this waterway, and the unex-

pected problems presented to the responsible parties, the precau-

tions normally taken by agents, owners and others at established

coastal ports are either unknown or unavailable. We think that

-these factors can and should properly be considered, particularly

since the record establishes that they enntrihnted to the detention,

'problems here.

ORDER: It is ordered that the motion be and the same' is hereby

-denied.

40 F.2d 472.

9 United States v. J. H. Winchester d Co.,

See Missouri, Kansas cE Texas Railway Co. of Texas v. United States, 231

10

U.S. 112.

10