Bermuda & West Indies SS Co. v. Elting

• Decision Date: 31 July 1930
• Citation: 45 F.2d 411
• Parties: BERMUDA & WEST INDIES S. S. CO., Limited, v. ELTING, Collector of Customs.
• Court: U.S. District Court — Southern District of New York

45 F.2d 411 (1930)

BERMUDA & WEST INDIES S. S. CO., Limited, v. ELTING, Collector of Customs.

District Court, S. D. New York.

July 31, 1930.

Kirlin, Campbell, Hickox, Keating & McGrann, of New York City, for plaintiff.

Charles H. Tuttle, U. S. Atty., of New York City (John Rosenberg, of New York City, of counsel), for defendant.

COXE, District Judge.

This action presents the question whether the government was justified in imposing fines and directing passage money refunds for bringing to this country nine immigrants, who were subsequently excluded after examination at Ellis Island. The suit is properly brought against the collector. Cosulich v. Elting (C. C. A.) 40 F.(2d) 220. It is urged, however, that the determination of the Secretary in imposing the fines and directing the refunds was final and not subject to review. But it has been held repeatedly that "arbitrary action, in acting or refusing to act, would not defeat the * * * claim to a refund," and that "keeping the fine * * * without fairly passing on the issue presented to him — would be arbitrary." U. S. v. Compagnie (C. C. A.) 26 F.(2d) 195, 197; Clyde v. U. S. (D. C.) 33 F.(2d) 343; Svenska Amerika Linien v. Elting, 46 F.(2d) 178, opinion of Judge Thacher, May 15, 1929.

The government criticizes also the character and form of the proof submitted to the Secretary on the application for remission. This proof was accepted, however, without objection, and it is not open to the government now to insist that it was so informal that it should have been disregarded. It has never been the rule that strict formal proof was required in proceedings of this kind, and I can see no good reason for departing from that practice at this time.

In three of the cases presented, namely, Howe, Blondell and Aliexo, the immigrant was in possession of a nonquota visa, but was excluded after examination before the Board of Special Inquiry because found not to be entitled to nonquota classification. In these cases, the mere possession of the visa demonstrated the good faith of the steamship company. Compagnie v. Elting (C. C. A.) 19 F.(2d) 773. And neglect of the steamship company can hardly be predicated on a failure to discover facts which the American consul himself was unable to develop when he issued the visa. Spanish Royal Mail Line Agency v. U. S. (D. C.) 45 F. (2d) 404, opinion of Judge Thacher April 10, 1928. The steamship company was not content to rest solely on the visa, but made independent investigations in the three cases without finding anything to impugn the action of the consul. The only proper place to determine the correct facts with respect to these three immigrants was at New York. Compagnie v. Elting (C. C. A.) 19 F. (2d) 773. I think, therefore, that the steamship company has substantiated its claim, under section 16 of the 1924 act (8 USCA § 216), to remission or refund with respect to them.

In the Wilson, Every, Zilinski, and Hughes cases, there were no nonquota visas, but each immigrant claimed nonquota status, and the steamship company after investigation accepted the different immigrants as entitled to that classification. Wilson and Every submitted, when booking passage, proof to support their respective contentions that they had been previously lawfully admitted to the United States and were returning from temporary visits abroad. They also insisted that under the provisions of Executive Order 4027, nonquota visas were not required in their cases, as they were "aliens who have previously been admitted legally into the United States, have departed therefrom, and have returned within six months." I think the proof submitted by these two immigrants was sufficient to exonerate the steamship company under section 16 of the 1924 act. There was nothing to indicate that they had not been previously lawfully admitted to the United States, and I am satisfied that the steamship company exercised reasonable diligence to ascertain the true facts. The proper place to determine these facts was at New York. Compagnie v. Elting (C. C. A.) 19 F. (2d) 773.

With respect to Zilinski and Hughes, the showing made by the steamship company is not satisfactory. Zilinski stated when he booked passage that he was a naturalized citizen. He produced...