Compagnie Generale Transatlantique v. Elting, 120.

• Decision Date: 11 March 1935
• Docket Number: No. 120.,120.
• Citation: 75 F.2d 944
• Parties: COMPAGNIE GENERALE TRANSATLANTIQUE v. ELTING.
• Court: U.S. Court of Appeals — Second Circuit

75 F.2d 944 (1935)

COMPAGNIE GENERALE TRANSATLANTIQUE v. ELTING.

No. 120.

Circuit Court of Appeals, Second Circuit.

March 11, 1935.

Martin Conboy, U. S. Atty., of New York City (George B. Schoonmaker, Asst. U. S. Atty., of New York City, of counsel), for appellant.

John M. Lyons, of New York City (Roger O'Donnell, of Washington, D. C., of counsel), for appellee.

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

AUGUSTUS N. HAND, Circuit Judge.

The complaint sets forth four causes of action. In the first and second, the plaintiff seeks to recover the amount of fines imposed by the Secretary of Labor under section 16 of Immigration Act of 1924 (8 US CA § 216) for bringing in immigrants without appropriate immigration visas, and, in the third and fourth, the plaintiff seeks to recover the amount of fines imposed by the Secretary of Labor under section 9 of the Immigration Act of 1917, as amended by section 26 of the Immigration Act of 1924 (8 USCA § 145), for bringing in aliens afflicted with dangerous contagious diseases, when the existence of such diseases might have been detected at the time of embarkation by means of a competent medical examination. In each of the four cases the alien was deported and the fine was $1,000, plus the amount paid by the alien for passage to the United States. The court below directed a verdict for the plaintiff upon each cause of action. We think that none of the grounds for recovery should prevail and that the judgment must be reversed.

1. The passenger involved in the first cause of action was a Belgian who had been a resident of Paris, employed by a French concern known as the Establissement Textiles. From it he obtained a letter purporting to show that it was sending him to the United States to take orders for textile materials from convents and other religious institutions. By means of this letter he secured a nonimmigrant visa from the American consul in Paris as "an alien visiting the United States * * * temporarily for business." If the information which he gave the American consul had been correct, he would have been a temporary visitor under section 3 (2) of the act of 1924 (8 US CA § 203 (2), and the steamship would not have been subject to a fine under section 16 (a) and (b) of the act of 1924 (8 USCA § 216 (a, b), for transporting a quota immigrant having a visa which specified him as a nonquota immigrant. That he was not in fact a nonquota immigrant coming here "temporarily for business" is evident from a letter which he had from an American importer named Singer, living at Brighton, Mass. Singer had written him to come to this country to sell Belgian textiles, and had offered to guarantee him $2,500 for five months' service.

There can be no doubt that this salesman was an "immigrant" within the meaning of section 3 of the act 1924 (8 USCA § 203), and not an alien coming here "temporarily for business," and we understand that this was not disputed on the argument. Karnuth v. United States, 279 U. S. 231, 49 S. Ct. 274, 73 L. Ed. 677; United States ex rel. Di Rosa v. Day (C. C. A.) 37 F.(2d) 459. We also think that the steamship company could have ascertained, by the exercise of reasonable diligence, that the alien was a quota immigrant not coming temporarily for business. He carried Singer's letter with him, and his arrangement to come here for hire could have been as easily ascertained by the steamship company as it was by the immigration officials, who discovered it readily and at once. The company relied on the visa and made no independent examination. To secure remission of the fine, the statute placed upon the company "the burden of establishing, to the satisfaction of the Secretary, that it could not have been ascertained by the exercise of reasonable diligence that the alien was a quota immigrant." Lloyd Sabaudo Societa v. Elting, 287 U. S. 329, 341, 53 S. Ct. 167, 173, 77 L. Ed. 341. We cannot say that the plaintiff sustained this burden and that the Secretary did not have ground for holding that reasonable inquiry of the alien would have disclosed that he was coming to the United States as a contract laborer and not "temporarily for business."

2. Buonacore, the passenger involved in the second cause of action, was a quota immigrant not in possession of an immigration visa. He sought admission to the United States as a citizen by reason of his alleged birth in this country, and presented a United States passport which bore his photograph. He was excluded under the provision of section 13 (a) (1) of the Immigration Act of 1924, 8 USCA § 213 (a) (1), as an immigrant not in possession of an immigration visa. The evidence shows that he was not the person for whom the passport was originally issued, but that his photograph had been substituted for that of the real owner. The passport described the holder as having blue eyes and being 5' 1" in height, whereas the alien had brown eyes and was 5' 4½" in height.

There can be no doubt that the passport was not that of the person presenting it and that he was properly excluded as an alien who did not present an immigration visa. The only question is that of the exercise of reasonable diligence by the steamship company. In view of the danger of fraudulent entry through altered passports with which we have had to deal on other...