Bank Line v. United States

• Decision Date: 04 April 1938
• Docket Number: No. 260.,260.
• Parties: BANK LINE, Limited, v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

96 F.2d 52 (1938)

BANK LINE, Limited, v. UNITED STATES.

No. 260.

Circuit Court of Appeals, Second Circuit.

April 4, 1938.

Lamar Hardy, U. S. Atty., of New York City (Charles J. Nager, Asst. U. S. Atty., of New York City, of counsel), for the United States.

Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (Delbert M. Tibbetts, of New York City, of counsel), for appellee.

Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

This is an appeal from a judgment for the plaintiff in an action brought under the Tucker Act, 28 U.S.C.A. § 41(20), to recover a fine unlawfully imposed for allowing the escape of an alien seaman. The facts are as follows. While the steamer "Trentbank", of which the plaintiff was the owner, was in Philadelphia on December 16, 1929, the immigration officer in charge at that port served notice upon the master to detain a Chinese seaman during her stay at all United States ports where she might thereafter touch. At Baltimore, the vessel's next port of call, the seaman deserted; and on December 30th, when the ship was about to clear from Newport News, her clearance papers were refused. To secure her release the master, as principal, and a surety company, as surety, posted a bond on the same day with the collector, conditioned on the payment of all fines which the Secretary of Labor should find to be due, the principal to have the privilege of making payment under protest without prejudice to his right of recovery. The immigration authorities never gave to the master the notice required by Immigration rule 23, subd. B, of their intention to impose a fine upon him; but on December 20th — presumably before the bond was posted — the district director served notice upon the owner's agents at Norfolk, requiring them within sixty days to submit any defence they might have against the imposition, under section 20(a) of the Act of 1924, 8 U.S.C.A. § 167(a), of a fine of $1000. On February third the attorneys for the owner wrote to the Commissioner of Immigration requesting a remission of the fine, and giving their reasons for this relief; this letter was accompanied by an affidavit of the master giving his own excuses for the escape. The Secretary imposed the fine on February 28th, and gave notice of its imposition, and demanded payment, on March 28th in a letter to the master, copies of which were sent to the surety and the owner's agents. On May 8th the owner's attorneys under protest paid the fine, "pursuant to the terms of the bond". On April 9, 1936, a demand was made upon the Treasury for a refund and this suit followed. The judge granted judgment because the liability upon the master had never been followed by a notice to him of intention to impose the fine.

No fine could have been collected from the owner, or the agents, because a notice to detain had been served only upon the master. Compagnie Generale Transatlantique v. Elting, 298 U.S. 217, 56 S.Ct. 770, 80 L.Ed. 1151; United States v. J. H. Winchester & Co., 2 Cir., 40 F.2d 472; United States v. Columbus Marine Corporation, 2 Cir., 62 F.2d 795; Lancashire Shipping Co. v. Elting, 2 Cir., 70 F.2d 699. Again, no fine could have been levied upon the master, because he was not given the notice required by rule 23, subd. B, with opportunity to defend under subdivision C. United States v. Columbus Marine Corporation, supra, 62 F.2d 795. The collector would also have failed for the same reason, if he had sued on the bond; no fine had been validly "found by the Secretary of Labor to be due", which was its condition. Nevertheless, the escape created a liability, regardless of the procedural omissions which prevented a default upon it from being a breach of condition of the bond; and perhaps from ripening into a valid cause of action. Had the master, being under that liability, paid the amount of the fine, he could not have recovered it; it was due from him and the action, being for money had and received, would have lain only in case he were entitled to it in equity. There would have been no equity in such a claim. Therefore, so far as the...