Interim Decision #1648

Interim Decision #1648

.I.ATTEE OF SS. CASTEL. FELICE

In Fine Proceedings• .

NYC 10/52.896

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Dooidod by Board Sopterabor 27, 1968

(1) Liability to fine lies under section 231(b) of 'the Immigration and Nationality Act for failure of the carrier to present the necessary departure

manifest for passengers (Form I 412) within SO calendar days from the

date of departure of the vessel, as required by 8 OFR 231.2(a), notwithstanding the delay in presenting the manifest was allegedly occasioned by

loss in the mails.

(2) There is no provision in section 231 of the Act for mitigation or remission of a tine provided for therein once liability thereto has been

established.

•

BASIS FOR Fnag: Act of 1952—Section 231(b) [8 U.S.O. 1221) end 8 CFR

231.2 (a).

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This matter originally came before us on appeal from a decision

of the District Director at New York dated January 26, 1966, directing that administrative penalties totaling $11,310, $10 as to each

passenger aboard the vessel at the time of its foreign departure, be

imposed on the Navcot Corporation, as owner, agent, charterer, or

consignee of the vessel, for failure to submit the required departure

manifests (Forms 1-418) as to the passengers in a timely manner.

On April 4, 1966, we withdrew that order of the District Director

and remanded the case to said official for the purpose of giving the

carrier an opportunity to fully support its claim that the necessary

manifests had been filed within the time required. Compliance was

had with that order, and on June 21, 1966, the District Director

again ordered the full fine imposed. He then certified the case to

this Board for final decision.

It appears from the record before us that the following material

facts exist without substantial controversy. On September 8, 1965,

the vessel departed 'from the port of New York for the port of

Southampton, England. The departure manifests (Forms 1-418)

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covering that foreign sailing of the ship were filed with the Immigration and Naturalization Service on October 12, 1065. This event,

then, occurred 34 days after the departure of the vessel for foreign.

The carrier originally contended that the required manifests were

handed by the ship's purser to its agents at Southampton, England,

with instructions that such documents were to be air-mailed to New

York. It submitted an affidavit from the company representative at

Southampton intimating that the manifests were mailed between

September 18, 1965 and September 21, 1965.

After the case was remanded to the District Director at New York,

the carrier alleged that the postal clerk employed by 'the vessel's

agents in Southampton franked and posted all the ship's mail received from the vessel on September 21, 1965 and September 22, 1965.

The affidavit submitted by the postal clerk also included a photostat

of "postbook" listing the mailings for September 20, 21 and 22, 1965.

Among the listings for September 21, 1065 appeared "a/c Castel F.

Ship's Mail L 3-11-8," which the carrier claimed contained the required manifests. As noted by the District Director, however, this

affidavit by the postal clerk merely gives rise to conjecture that the

manifests -were mailed, since the contention that they were was based

only upon the weight and cost of the package mailed. In this connection, the District Director also noted that the postal clerk was

in the habit of registering certain types of mail, but that the manifests were not registered.

The carrier has also stressed that if the manifests were mailed, as

it believes the foregoing establishes, they would have been received

in New York well in advance of the filing deadline, and that since

they were not so received it appears that they must have been lost

in the mail because they were never returned to the carrier. It also

stresses that on the morning of the vessel's departure from New York,

one of its representativei was on board the ship taking care of the

necessary departure procedures, and .at that time discussed the

preparation• of the necessary immigration, forms with the vessel's

purser and emphasized to the latter the importance of having the

passenger manifests completed promptly and accurately and mailed

back to the United States upon the vessel's arrival at its first port

of call which was to be Southampton. In addition, the carrier

places great reliance upon evidence of record showing that when

the ,manifests were not .received in the carrier's New York office

within the period of: time. reasonably to be expected, Is representative of the -carrier, made.persistent inquiry• abroad as. to the whereabouts-, of the• necessary documents, and that it was such persistence

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which resulted in new manifests being prepared and eventually sub'

mitted to the Service.

Despite the foregoing representations made by the carrier,' we feel

constrained to affirm. the District Director's decision to, impose the

full penalty herein. Subsection (b) of section 281 of the Immigration and Nationality Act contains a general provision requiring submission of departure manifestshefore the foreign: sailing of a vessel.

It does, however, authorize the Attorney General to arrange the

delivery of manifests of outgoing persons at a. later date in the cases .

of vessels such as this making regularly scheduled trips to ports of

the United States. Subsection (e) of the statute also authorizes the

Attorney General to prescribe the circumstances and conditions

under which the manifests required' by subsection (b) thereof may

,

be waived.

Pursuant to the foregoing statutory authority, the Attorney General has promulgated S .0FR 231.2(a) which, insofar as here pertinent, required the departure manifests (Forms I-118) to be presented to the immigration officer at the port of departure within 90

calendar days from the date of departure. This is the only regulation here pertinent which the-Attorney General has seen fit to promulgate pursuant to the authority invested in him by section 281

of the statute. It has the force and effect of law and is binding on

all parties here concerned (Di ,gieri v. Uhl, 96 F.2d 92).

Our inquiry ,eridi with the establishMent of the fact that the requirements of the regulation promulgated pursuant to _statutory

authority have not been met. The evidence of record, as herein;

before summarized, establishes that we are confronted with precisely

such a situation here. It does' so not only to our satisfaction, but

irrefutably and concededly. - Thus, 'the requirements of subsection

(d) of the statute 'requiring the imposition of the fines have been

met. • There is. no authority to waive the manifest requirements' of

subsection (b) of the statute under circumstances or conditions Other

than those contained in the regulations promulgated by the Attorney

General pursuant to the authority contained in the statute.

We find wanting the claim that the efforts made by the carrier's

personnel to insure timely delivery of the manifests in this case, as

hereinbefore outlined, constitute the imposition of the penalties herein an unjust result and an undue hardship calling for remission or

substantial reduction in the amount of the fines.' The circumstances

relied on by the carrier in this respect are hazards of the trade which

it must overcome. Also, there is no provision in the statute 'for

mitigation or remission of the fines provided for therein once

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bility thereto has been established, as it has here. Moreover, as

pointed out by the District Director and conceded by the carrier,

the latter was well aware of the requirements in case such as this

• because of a similar delay in submission of manifests for this same

vessel's next prior foreign sailing from the United States on August

19, 1965.

We reject the carrier's argument that the fines should not be imposed here became the fqnr-day period beyond the date for filing

the manifests actually involved a weekend and a h-oliday and that,

accordingly, it cannot be seriously urged that the filing of the manifests on October 12, 1965, resulted in any inconvenience or expense

to the Service.2 8 CFR 1.1(11) provides that:

The term "day" when computing the period of time for taking any action

provided in this chapter, including the taking of an appeal, shall include

Sundays and legal holidays, except that when' the last day of the period

so computed falls on a Sunday or a legal holiday, the period shall run until

the end of the next day which is neither a Sunday nor a legal holiday.

The 30th and final day for the filing of the manifests in this case,

as required by the regulations, was October 8, 1965, a Friday. Obviously, Saturday intervened between that day and Sunday. That,

in turn, was followed by a Monday; October 12th (a Tuesday) was

not a federal legal holiday; and the carrier filed the manifests on

that clay with the Service, which was obviously open for business.

Further comment on this aspect of the case is unnecessary.

Finally, under predecessor legislation, as under the present law,

there was a general requirement for the submission of departure

manifests prior to the foreign sailing of the vessel. Under the former

law, however, there was no regulation promulgated as has been done

under the present statute. In the absence of such a regulation, there

was a long standing administrative policy to permit pilots to deliver

departure manifests to the Immigration Service after they had left

the ship and returned ashore. Under these circumstances, fines were

not imposed for the-delivery of the departure manifests later than

the law permitted, ntion the theory of substantial compliance, in those

cases where the ciecuniptances warranted such a finding. Under

the present law, however, there is a regulation which spells out what

substantial compliance is. Again, there is no. authority to waive

the manifest requirements of subsection (b) of the statute under

circumstances or conditions other than those contained in the regale-

2

.91pparently, the.eattier is tlum endeavoring to argue that the manifests

were only.stibudtted one (1) day late.

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Interim Decision 4t1648

tion promulgated by the Attorney General pursuant to the authority

contained in the statute.

In view of the foregoing, this Board has no alternative but to

uphold the District Director's decision to impose the fines in this

case. Said official's decision, therefore, is approved.

ORDER: It is ordered that the District Director's decision of

June 21, 1966, be and the same is hereby affirmed.

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