Interim Decision 40611

Interim Decision 40611

AIATiza OF M/V "Tam AN"

In Fine Proceedings

BA -1O/1.254

Decided by Board Alma 28, 1966

(1) Where, following immigration Inspection, the master of the vessel lifted

the seaman papers of the ST crew members denied conditional landing privileges, two professional guards were placed on duty on an around-the-clock

1Y-C71 3 crewmen escaped and the

basis, the Service was promptly no-La -in.-a1,

master and his officers were very cooperative with the Service, the $1,000

fine imposed as to each crewman under section 254(a) (2), Immigration and

Nationality Act, is mitigated to the extent of $500 per crewman; however,

further mitigation is unwarranted se the crewmen refused landing permits

were not confined to quarters, they were not periodically checked by the

ship's officers, there does not appear to have been any earnest effort by responsible parties to locate and/or apprehend the escapees nor have they

furnished any information leading to apprehension of the escapees, who, still

at liberty in this country, have not been promptly removed by and at the

expense of the responsible parties.

(2) In determining the extent of mitigation, it is incumbent upon the parties

responsible for the vessel's operation to afilrmatively establish the existence

of reasons for the relief of mitigation.

IN RE: 11/V "TUNG AN" which arrived at the port of Baltimore, Md., from foreign, on February 26, 1960. Alien crewmen involved: Lee Tim,

Leo Chi Wfd, and Ip Shui Chung.

Beers von FINE: Act of 1952 ,--Section 254(a) (2) [8 13.8.0. 1284].

The Acting District Director at Baltimore has held that the

vessel's Master, Eryl Hughes, and/or its agents, Rukert Marine

Corporation, have incurred liability to administrative penalties of

$3000, $1000 as to each of the alien crewmen named above, for

failure to detain them aboard the vessel at all times despite the

fact that they had not been granted conditional landing privileges.

However, said official found present herein factors which, in his

opinion, merited mitigation of the fines to the extent of $900, $300

per crewman. Thus, he permitted to stand. a total penalty of

$2100, $700 per crewman. The appeal from his decision, which

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Interim Decision #1611

. brings the case before this Board for consideration, seeks maximum

mitigation of the fines, to wit: down to $200 per crewman, for a

total penalty of $600.

It appears from the record before us that the following material

facts exist without substantial controversy. Immigration inspection, which was accorded the crew of this vessel immediately upon

its arrival from foreign (ante), resulted in the denial of .conditional landing privileges to 37 alien members of the crew, including the three named above. Accordingly, Forms I-95A "Refused"

were executed as to them and copies thereof handed the Master.

Thereafter,

and specifically on March 9, 1958, these three crewmen

disembarked from the ship and have not been located to date.

The foregoing establishes that liability to these fines has been

incurred, and this is uncontested. The statute makes no provision

for remission of the fines, so that they cannot be forgiven in full.

Thus, the only issue presented, for our consideration is whether more

mitigation than has already been authorized by the Acting District

Director is warranted in these premises and, if so, to what extent.

Two professional guards per shift were on duty on an around-theclock basis at all times while the vessel was in the port of Baltimore, with one guard being stationed at the gangway and the

other on the pier. The seaman's papers of the crew members who

had been refused conditional landing privileges were lifted by the

Master and retained in his possession at all times until turned over

to the immigration officer who investigated the escape of these three

crew members. The Master notified the Service of their escape

approximately one hour after it was brought to his attention. The

Acting District Director's opinion reflects that the Master and his

officers aboard the ship were quite cooperative with the investigating

Service officers.

The Acting District Director was of the opinion that the foregoing factors merited mitigation of the fines to the extent of $300

per crewman. It is our opinion that they call for $200 additional

mitigation per crewman, which means that we will permit to stand

a fine of $500 per crewman, for a total penalty of $1500. We cannot, however, agree with the appellant that reduction of the fines

to a point below that figure is warranted here, for the reasons

hereinafter discussed.

It is neither asserted nor demonstrated that the members of the

crew of this ship who were refused conditional landing privileges

were confined to their quarters. It is neither claimed nor demonstrated that the ship's officers were assigned the duty of constantly

checking to see to the continued presence of the detainees on board,

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Interim DecisiOn #1611

or that they' did so. The parties responsible for this vessel's operation have'furnisfled• no information which might lead to the apprehension of the escapees. It does not appear. that' earnest and continuing efforts were 'exerted by the parties-responsible for the

vessel's operation to the end that the escapees would be located

and/or apprehended. Since the record indicates that they are still

at large in the United States, it is readily apparent that they have

not been removed from this country promptly by and at the expense

of the parties responsible for the -vessel's operation. Under these

conditions; 'reduction of the fines to an extent over and above that

herebibefore indicated just is not warranted.

We note the claim by the agents that the professional guards it

employed to watch over these . detainees were guilty of negligent

performance Of their duty on various occasions. This, how -ever, is

no, basis for further reduction of the fines against . the 'agents who

are clearly responsible for the actions of the parties on whom they

relied to meet the absolute statutory duty of detention' existing in

this case. In addition, thti record clearly reflects that the deficiencies

on the part of the guards were called to the attention of their

superiors and corrected well before the time herein involvid.

We also note that the agents have claimed that clear guidelines.

should be laid down for the benefit of all agents and other parties

responsible for the operation of vessels with alien crews arriving

in United States ports so thit detention orders of the Immikration.

and Naturalization Service as to crewmen may be properly implemented. Suffice it to say,.in this connection, that Such guidelines

have long -since been. laid down by this Board (Matter of .117V

"Clydefl,e7,d," 10 L & N. Dec. 165), and our experience shows that

shipping circles at various ports throughout the country are thoroughly familiar with them. The only further comment required on this

point is that, obviously, those guidelines are, as they must be, gen-

eral in nature and have to be viewed in the light of the factual circumstances presented by each individual case in arriving at's proper

evaluation of the mitigation to be authorized in any particular

instance.

We further note that the agents have indicated that the Acting

District Director's decision is unfair in that it fails to state clearly

the reasons why he did not authcirize maximum mitigation of these

lines. This complaint overlooks the fact that it is incumbent upon

the parties responsible for the vessel's operation to of

establish the existence of reasons for the relief of mitimttion. It

cannot meet this duty in a negative manner.

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Interim -Decision. *1611

Finally, it is of no assistance to this appellant that five additional

professional guards were hired after these three crewmen escaped.

Clearly, this action on their part had no bearing whatsoever upon

the matter now under consideration. Again, in this connection,

the number of professional guards hired and the mitigation awarded

on the basis thereof depends on the facts and circumstances peculiar

to each case, and the other -precautionary measures taken in conjunction therewith by 'the parties responsible for the vessel's operation. Hdre, only two professional guards were on duty over a

considerable period of time to watch over 87 detained alien crewmen. Those crewmen were not confined to quarters, thaii:were not

periodically checked by the ship's officers and it has not been

shown that the layout of the pier at which the vessel was berthed

was of such a nature as to be of assistance to the two professional

guards on duty in keeping the crewmen confined aboard the vessel.

Under these circumstances, mitigation of the fines to the extent of

$500 per crewman is all that is warranted.

ORDER: It is ordered that the Acting District Director's decision of May 10, 1966, be amended to provide for mitigation of the

fines to the extent of $1500, $500 per crewman, and that as so

amended the decision of said officials be and the same is hereby

affirmed. The penalty permitted to stand is $1500, $500 per crewman.

703