F-0612-517
Decided by Board July 26, 1956
Fine Proceedings — Section 273 (d), Immigration and Nationality Act — Notice to detain.
An essential prerequisite to liability for fine under section 273 (d) of the act is that both notice to detain and notice of intention to fine be served on the same party. Hence, fine will not be imposed on the agents of a vessel for failure to detain an alien stowaway when the record shows that the notice to detain was served only on the master.
BEFORE THE BOARD
Discussion: This matter is before us on appeal from a decision of the Acting District Director at New Orleans, Louisiana, dated April 30, 1956, directing that fine in the amount of $1,000 be imposed on the States Marine Corporation, as agents for the SS. Morning Light, which arrived at the port of New Orleans, Louisiana, from foreign on February 22, 1956, for failure to detain the alien stowaway R---- I---- aboard the vessel pursuant to an order to do so.
The basic facts of this case can be set forth briefly. Upon the vessel's arrival, the alien stowaway was presented to the inspecting immigration officer. Said official served Form I-259 (Notice to detain on board and deport stowaway) on the master and said form bears the master's signature in acknowledgment of receipt thereof. Subsequently, the stowaway escaped from the vessel, was recaptured, and was ultimately deported. Accordingly, Form I-79 (Notice of Intention to Fine under Immigration and Nationality Act) was served on the States Marine Corporation as agents for the vessel.
On the basis of the foregoing, we conclude that liability to fine has not been established in these premises. Therefore, we will sustain this appeal and direct that fine be not imposed. The reason is that notice of intention to fine and notice to detain and deport stowaway were not served upon the proper parties.
Section 273 (d) of the Immigration and Nationality Act ( 8 U.S.C.A. 1323 (d)), relating to alien stowaways, provides that:
The owner, charterer, agent, consignee, commanding officer, or master of any vessel * * * who fails to detain * * * any alien stowaway * * * if ordered to do so * * * shall pay * * * the sum of $1,000 for each alien stowaway, in respect of whom any such failure occurs. * * *
Section 20 (a) of the Immigration Act of 1924 (8 U.S.C.A. 167 (a)), replaced by section 273 of the 1952 act, relating to the control of alien seamen, provided that:
The owner, charterer, agent, consignee, or master of any vessel * * * who fails to detain on board any alien seaman * * * shall pay * * * the sum of $1,000 for each alien seaman in respect to whom such failure occurs. * * *
It is clear from the foregoing that the language of section 273 (d) of the Immigration and Nationality Act and section 20 (a) of the Immigration Act of 1924 is almost identical. Hence, the decisions under the latter apply equally to the former.
The courts, in interpreting the latter section, have held that no fine lies where the party sought to be charged with liability has not been "ordered" to detain; and that it is an absolute requirement that liability to a fine must depend upon a duty to detain which, in turn, is contingent upon notice. Thus, it has been held that imposition of a fine for violation of the immigration laws in failing to detain an alien seaman, without having in fact made an order to detain him, was illegal. So also, it has been determined that it is an essential prerequisite to imposition of fine that both notice to detain and notice of liability be served upon the one fined. Furthermore, it has been decided that notice to one of the persons specified in section 20 (a), supra, does not, without more, operate as notice to another, for the reason that such notice creates a personal liability.
Lancashire Shipping Co. v. Durning, 21 F. Supp. 588 (D.C.N.Y., 1937), rev. on other grounds 96 F. (2d) 1018 (C.C.A. 2, 1938), vacated and affirmed 98 F. (2d) 751 (C.C.A. 2, 1938), followed in Atlantic Transport Company v. Durning, 98 F. (2d) 793 (C.C.A. 2, 1938), cert. den. Lancashire Shipping Co. v. Durning, 305 U.S. 635 (1938).
Compagnie Generale Transatlantique v. Elting, 298 U.S. 217, 56 S. Ct. 770, 80 L. Ed. 1151.
West Indian Co. v. Root, 151 F. (2d) 493 (C.C.A. 3, 1945).
Form I-259 (Notice to Detain, Deport, or Remove Aliens) directing detention aboard of this alien stowaway was addressed to the States Marine Corporation, but was served only on the master. There is nothing in this record to show that this notice ever came to the attention of the agents, the addressee, before the stowaway's escape. Notice of intention to fine (Form I-79) was addressed to the States Marine Corporation, the agents, and was served on them. There is nothing in the record to show that such notice was ever given to the master.
On the basis of the foregoing, it is clear that the agents here were under no duty to detain the stowaway because they were not notified to do so. Therefore, there is no basis for the fine imposed here. The reason is that liability to fine presupposes a duty to detain. That duty was never created as to these agents, the party on whom liability has been ordered imposed. Hence, we will sustain the appeal.
Order: It is ordered that the appeal be and the same is hereby sustained and that fine be not imposed.