THE LIMON

• Decision Date: 01 November 1927
• Docket Number: No. 17.,17.
• Citation: 22 F.2d 270
• Parties: THE LIMON.
• Court: U.S. Court of Appeals — Second Circuit

22 F.2d 270 (1927)

THE LIMON.

No. 17.

Circuit Court of Appeals, Second Circuit.

November 1, 1927.

W. Dale Williams, of New York City, for appellant.

Charles H. Tuttle, U. S. Atty., of New York City (Mary R. Towle, Asst. U. S. Atty., of New York City, of counsel), for the United States.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

MANTON, Circuit Judge.

This is an action to collect penalties for violation of section 33 of the Immigration Act of 1917 (39 Stat. 896 8 USCA ß 168). This section makes it unlawful, as well as a violation of section 32 of the same act (39 Stat. 895 Comp. St. ß 4289ºr), to pay off or discharge any alien employee on board any vessel arriving in the United States from any foreign port or place, unless duly admitted pursuant to the laws and treaties of the United States regulating the immigration of aliens. A proviso, however, is made that, in case any such alien intends to reship on board any other vessel bound to any foreign port or place, he shall be allowed to land for the purpose of so reshipping, under such regulations as the Secretary of Labor may prescribe to prevent aliens not admissible under any law, convention, or treaty from remaining permanently in the United States, and he may be paid off and discharged, and be permitted to remove his effects, anything in such laws or treaty to the contrary notwithstanding, provided due notice of such proposed action be given by the master or the seaman himself to the principal immigration officer in charge of the port of arrival.

The charge of the libel is illegally paying off and discharging two East Indian seamen on July 13, 1923. These seamen were hired in New York and joined the ship there. They sailed on April 11, 1923, for a voyage from New York to Cuba, Jamaica, and Central American ports and return to New York, and engaged in a similar trip and again sailed as members of the crew of this vessel to other foreign ports and return. They returned from the latter voyage on the 13th of July, 1923. An immigration inspector notified the master of the steamship to detain all East Indian members of the crew, the notice not specifying in particular these two aliens. They were not ordered to Ellis Island, although excludable aliens, but were paid off and discharged by the master. While section 32 of this act (39 Stat. 895) is pleaded as having been violated by the appellant, it is clearly stated not to be relied upon by the appellee to support the decree below. Reliance is placed solely upon the violation of section 33.

It is contended that Congress did not intend section 32 or section 33 to apply to bona fide seamen, who are entitled to shore leave, and reference is made to U. S. ex rel. Lum Young v. Stump (C. C. A.) 292 F. 354. Section 33 clearly refers to the class of seamen not permitted to land or remain permanently within the United States, and it permits the Secretary of Labor to prescribe regulations as to the manner of their coming into or reshipping out of the country. The aliens are excludable, in that they are admittedly natives of a country immigration from which to the United States is limited. In the Lum Young Case, it was sought to exclude the aliens under the Chinese Exclusion Acts. Those acts apply only to laborers, and it was there pointed out that, since the alien was not a laborer, he could not be excluded under them.

Congress made no distinction between aliens and alien seamen. In United States v. N. Y. & Cuba Mail S. S. Co., 269 U. S. 304, 46 S. Ct. 114, 70 L. Ed. 281, it was held that the act of 1917 "dealt specifically with `alien seamen,' using that term, as shown by its general definitions and various provisions, as meaning `aliens employed on any vessel arriving in the United States from a foreign port.'" And the court pointed out that they might be admitted into the United States as any other aliens, but, if not so admitted, they were prohibited from landing, except for certain temporary purposes, under regulations prescribed by the Secretary of Labor, and the act required the owner or master of any vessel coming from a foreign port to furnish a list of all its alien seamen and not to pay off or discharge them unless duly admitted or permitted to land.

The phrase of section 33 is clear, and forbids paying off and discharging, unless it be done within the proviso therein stated. Paying off and discharging a seaman is not the same as granting him shore leave, but is inconsistent with it, for, when a seaman is paid off and discharged from a...