Navigazione Libera Triestina v. United States

• Decision Date: 17 December 1929
• Docket Number: No. 5875.,5875.
• Citation: 36 F.2d 631
• Parties: NAVIGAZIONE LIBERA TRIESTINA v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

36 F.2d 631 (1929)

NAVIGAZIONE LIBERA TRIESTINA v. UNITED STATES.

No. 5875.

Circuit Court of Appeals, Ninth Circuit.

December 17, 1929.

Lawrence Bogle, Cassius E. Gates, and Claude E. Wakefield, all of Seattle, Wash., for appellant.

Anthony Savage, U. S. Atty., and Jeffrey Heiman, Asst. U. S. Atty., both of Seattle, Wash.

Before DIETRICH and WILBUR, Circuit Judges, and LOUDERBACK, District Judge.

LOUDERBACK, District Judge.

This is an appeal from a judgment dismissing plaintiff's amended complaint. The dismissal is based upon a demurrer interposed by the defendant to the said amended complaint, and sets forth four grounds of demurrer. At the hearing before the trial court, the demurrer was ordered overruled as to the first ground and sustained as to the fourth ground, to wit, that the amended complaint failed to state facts sufficient to constitute a cause of action. The second and third grounds were not considered. Plaintiff was allowed a period of seven days to amend its amended complaint, and plaintiff elected not to amend. When this said period had elapsed, a judgment of dismissal was made and entered. It is from the judgment dismissing the action that the plaintiff now appeals.

The amended complaint alleges the facts which follow. The plaintiff is an Italian steamship company, and operates the motorship Cellina. Giovanni Prigl was the master of the vessel, and two citizens of Italy, Domenico Lachich and Constantino Camalich, were bona fide seamen on the vessel when it left Vancouver, British Columbia. The vessel arrived at the port of Seattle, Wash., on March 17, 1927. No one from the Immigration Department inspected the crew until the following day at 10 o'clock a. m. when United States Inspector Rafferty came on board, although prior to the arrival of the vessel the immigration authorities at Seattle were duly and properly advised of the intended arrival of the vessel on the 17th instant. Inspector Rafferty made a brief inspection. The members of the crew of the said vessel, and more particularly the said Domenico Lachich and Constantino Camalich, were not examined by the inspector as to their right to enter or land, nor were they or any of them properly physically examined, nor did they have an opportunity of proving their right to land. The inspector issued a blanket order of detention for "all of the members of the crew of said vessel." This blanket order of detention was improper and arbitrary. The master refused to accept the same, and the inspector left immediately after issuing said order. Despite the care of the captain, officers, and agents of said vessel, the said two seamen escaped after the order of detention was issued. The plaintiff does not know the whereabouts of said two seamen. Within twelve days previous to the detention order, the two seamen had been examined by the United States Immigration officials at the ports of Los Angeles and San Francisco, and neither was ordered detained. A fine of $2,000 was levied for failure to detain said two seamen, and such fine was unlawful, arbitrary, and without authority. The complaint prays for a return of the $2,000, together with the costs incurred.

The issue before this court is whether the action of the trial court in its judgment of dismissal can be sustained. This involves the determination of whether the amended complaint sets forth a cause of action.

Congress has the power to forbid aliens or classes of aliens from coming within the borders of the United States. Chinese Exclusion Case, 130 U. S. 581, 9 S. Ct. 623, 32 L. Ed. 1068; Wong Wing v. U. S., 163 U. S. 228, 16 S. Ct. 977, 41 L. Ed. 140; Oceanic Navigation Co. v. Stranahan, 214 U. S. 320, 29 S. Ct. 671, 53 L. Ed. 1013; United States v. Williams, 194 U. S. 279, 24 S. Ct. 719, 48 L. Ed. 979; United States v. New York S. S. Co., 269 U. S. 313, 46 S. Ct. 114, 70 L. Ed. 281; China Mail S. S. Co. v. U. S. (C. C. A.) 290 F. 769; United States v. Curran (C. C. A.) 12 F.(2d) 395; The Limon (C. C. A.) 22 F.(2d) 272.

Congress also has the power, through legislation on matters exclusively within its control, to impose appropriate obligations, and to authorize their enforcement by reasonable money penalties, and to give administrative officers the power to inforce such penalties without the necessity of invoking the judicial power. United States v. Ju Toy, 198 U. S. 253, 25 S. Ct. 644, 49 L. Ed. 1040; Oceanic Navigation Co. v. Stranahan, 214 U. S. 321, 29 S. Ct. 671, 53 L. Ed. 1013; United States v. New York S. S. Co., 269 U. S. 313, 46 S. Ct. 114, 70 L. Ed. 281; Hampton & Co. v. United States, 276 U. S. 406, 48 S. Ct. 348, 72 L. Ed. 624.

It is provided under section 19, c. 190, Act of Congress of May 26, 1924, 43 Stat. 164 (8 USCA § 166), that "no alien seaman excluded from admission into the United States under the immigration laws and employed on board any vessel arriving in the United States from any place outside thereof, shall be permitted to land in the United States, except temporarily for medical treatment, or pursuant to such regulations as the Secretary of Labor may prescribe for the ultimate departure, removal, or deportation of such alien from the United States."

It is further provided under ...