F-0502-106
Decided by the Board January 7, 1954
Fine — Sections 231 (d) and 273 (d) of the Immigration and Nationality Act — Liability where presence of stowaways not known — Mitigation.
A transportation line is liable for fine under section 231 (d) of the Immigration and Nationality Act for failure to deliver to the immigration officers at the port of arrival a manifest containing the names of the stowaways, and under section 273 (d) of that act for failure to detain on board alien stowaways until such stowaways have been inspected by an immigration officer. Such fine liability exists even though the line had no knowledge of the stowaways being aboard the ship until the discovery of the stowaways in the United States. There is no provision for mitigation of penalty under these sections.
BASIS OF FINE:
Sections 231 (d) and 273 (d) of the Immigration and Nationality Act ( 8 U.S.C., secs. 1221 and 1323).
BEFORE THE BOARD
Discussion: This matter is before us by reason of an appeal from the decision of the district director of Immigration and Naturalization, Baltimore, Md. bearing date April 29, 1952, wherein fine in the amount of $7,070 was imposed against Furness, Withy Co., Ltd., agents of the aforementioned vessel, which vessel arrived at the port and on the date hereinabove set forth for violation of sections 231 (d) and 273 (d) of the Immigration and Nationality Act ( 8 U.S.C., secs. 1221 and 1323).
The specific violation complained of is failure to deliver to the immigration officers at the port of arrival typewritten or printed lists or manifests for the aliens herein named and for failure to detain on board the said alien stowaways until such stowaways had been inspected by an immigration officer.
E---- C---- d'O---- F---- S---- S---- J---- F---- J---- M---- V---- M---- Z---- J---- L---- A---- C----
Notice of intention to fine under the Immigration and Nationality Act was served upon the master and the agents of the vessel on December 26, 1952 at Norfolk, Va. by Immigrant Inspector Morris and both the agents and the master refused to acknowledge receipt of the said notice.
Sections 231 (a) and (d) of the Immigration and Nationality Act ( 8 U.S.C. section 1221) provide in part, as follows:
(a) Upon arrival of any person by water * * * at any port within the United States from any place outside the United States, it shall be the duty of the master or commanding officer, or authorized agent, owner, or consignee of the vessel * * * having any such person on board to deliver to the immigration officers at the port of arrival typewritten or printed lists or manifests of the persons on board such vessels or aircraft. Such lists or manifests shall be prepared at such time, be in such form and shall contain such information as the Attorney General shall prescribe by regulation as being necessary for the identification of the persons transported and for enforcement of the immigration laws. * * *
(d) If it shall appear to the satisfaction of the Attorney General that the master or commanding officer, owner, or consignee of any vessel * * *, or the agent of any transportation line, as the case may be, has refused or failed to deliver any list or manifest required by subsections (a) * * *, or that the list or manifest delivered is not accurate and full, such master or commanding officer, owner, or consignee or agent, as the case may be, shall pay to the collector of customs at the port of arrival or departure the sum of $10 for each person concerning whom such accurate and full list or manifest is not furnished, or concerning whom the manifest or list is not prepared and sworn to as prescribed by such section or by regulations issued pursuant thereto. * * *
Section 273 (d) of the Immigration and Nationality Act ( 8 U.S.C., sec. 1323) provides in part, as follows:
(d) The owner, charterer, agent, consignee, commanding officer, or master of any vessel or aircraft arriving at the United States from any place outside thereof who fails to detain on board or at such other place as may be designated by an immigration officer any alien stowaway until such stowaway has been inspected by an immigration officer, or who fails to detain such stowaway on board or at such other designated place after inspection if ordered to do so by an immigration officer, or who fails to deport such stowaway on the vessel or aircraft on which he arrived or on another vessel or aircraft at the expense of the vessel or aircraft on which he arrived when required to do so by an immigration officer, shall pay to the collector of customs of the customs district in which the port of arrival is located the sum of $1,000 for each alien stowaway, in respect of whom such failure occurs.
8 C.F.R., section 231.21 (e), provides as follows:
(e) Stowaways. Any stowaway shall be manifested on the last numbered form, and notation "stowaway" shall be entered in the last column of the form opposite the name of each stowaway.
On December 26, 1952, Acting Immigrant Inspector Johnson of Norfolk, Va., submitted the following report to the District Director, Baltimore, Md.:
"At 7:30 a.m., this date the detective bureau, Norfolk, called the writer and advised they had three stowaways off a Spanish vessel in custody. I called at the station and interviewed the three through Mr. U----, interpreter in Portuguese, and determined they were E---- C---- d'O----, F---- S---- S----, and J---- F---- J----. They all stated that seven total had been rowed in a rowboat at Lisbon about 2 a.m., on December 5, 1952, to a vessel bearing a cork cargo which was destined to New York according to the newspapers. They brought with them 100 cans of sardines and tuna fish, as well as 30 quarts of water, and 5 pounds of cheese. They claimed no assistance from anyone and saw no one when they went up the pilot's ladder at Lisbon, after which they immediately went down an open escape hatch into a hold forward making a hole in among the cork and hiding. They remained under cover till the vessel reached Norfolk and sometime after 11 p.m., they came up the same escape hatch and through cork on board and over the side of the vessel at the pier at the grain elevator. The first three went toward the Naval Operating Base where they were apprehended by Norfolk police, at which time "J----" sprained an ankle trying to flee. He was placed in the Marine Hospital for treatment.
"V---- and Z---- were apprehended by Konnen and Settimo of the Border Patrol Unit on Hampton Boulevard near the vessel's berth, as they had slept near one of the large gas tanks at the Esso Standard Oil Co. yards and were en route into town.
"Because of the inability of the first three to name the ship on which they arrived, the first-named d'O---- was taken to the vessel and after going aboard he went right to the escape hatch between No. 1 and No. 2 holds and went down and scratched in some of the cork and there were two sardine cans, two Portuguese tobacco wrappers, a Portuguese coin, and a man's dirty handkerchief. About 10 feet away on a steel beam was excrement. The stowaway said there was no doubt that this was the cork ship on which he arrived yesterday. The other two stated they came with him. As to V---- and Z---- they admit coming on the Spanish Monte Monjuich and with the first three, and last two who up until now have not been apprehended.
"All of the stowaways questioned stated they came here with the idea of remaining permanently, and they had no immigration visas, and were unable to find work in Portugal."
It would appear that deportation proceedings were instituted against all of the alien stowaways herein named.
Counsel in connection with the present appeal concede that there was a failure to comply with the pertinent sections of the Immigration and Nationality Act as alleged. But it is contended that there was a complete lack of knowledge on the part of any members of the crew of the involved vessel as to the presence of the seven stowaways aboard the ship. It is further set forth that because these men were almost immediately apprehended that this fact should be given great consideration in the imposition of any fine, and for this reason counsel requests that the amount of penalty be mitigated.
So far as the Immigration and Nationality Act is concerned we find no provision in the sections violated for mitigation of the amount of penalty. Perhaps in connection with this application for mitigation of penalty a history of the provisions of section 273 might be helpful. Originally in H.R. 5678 and S. 2550 which were the immediate predecessors of the present act, there was a section in the said bills designated as section 273 (e) containing a mitigation clause where reasonable diligence was exercised. In the joint hearings before the Senate committee in 1951 there was a statement submitted by and in behalf of the National Federation of American Shipping, Inc., on March 9, 1951, directing attention to the fact that the carrier would be absolutely liable for failure to detain until inspection such stowaways as came to the United States. Similar representation was made by the chairman and the counsel of the Transatlantic Passenger Conference on the same date. It was recognized that the carriers were not happy because of the absolute liability imposed under the provisions of subdivision (d) of section 273 of the Immigration and Nationality Act pertaining to stowaways. When the matter was before the House of Representatives on April 24, 1952, there was a proposed amendment striking section 273 of the bill containing the mitigating clause. The final result was the passage of the bill in its present form which provides no mitigation whatsoever.
Affidavits of the first and second officers of the SS. Monte Monjuich have been submitted and both of these officers assert that they did not know of the seven stowaways on board the ship during the voyage in question and that they knew only of the presence of these stowaways following their detention in Norfolk, Va. A similar affidavit was submitted by the captain of the said ship. Counsel asserts that it is their understanding from conferences with the ship's agents that no officer or other member of the crew of the ship was aware of the presence of these stowaways aboard their vessel and that no one saw them either board the ship at Lisbon or depart while at Norfolk, Va.
The sole evidence supporting this proceeding is the report of Acting Immigrant Inspector Johnson of Norfolk, Va. to the District Director of Immigration and Naturalization at Baltimore, Md. bearing date December 26, 1952. Counsel has conceded the representations therein contained and the evidence therefore stands uncontroverted.
This Board has carefully considered all of the evidence of record as well as all of the representations of counsel throughout, and it is our conclusion that violation of sections 231 (d) and 273 (d) of the Immigration and Nationality Act ( 8 U.S.C. sections 1221 and 1323 (d) are established adequately in that upon arrival of the vessel from a foreign port or place there was a failure to deliver a list containing names of the aforementioned stowaways and there was also a failure to detain such stowaways on board the ship until inspected. In this regard the seven alien stowaways were subsequently apprehended by police officers and the Service without the assistance of any member of the crew of the steamship. Consequently, the appeal from the decision of the District Director of Immigration and Naturalization, Baltimore, Md., must necessarily be dismissed.
Order: It is ordered that the appeal from the decision of the district director of Immigration and Naturalization, Baltimore, Md., bearing date April 29, 1953, be and the same is hereby dismissed.