Cunard SS Co. v. Elting

• Decision Date: 06 June 1938
• Docket Number: No. 316.,316.
• Citation: 97 F.2d 373
• Parties: CUNARD S. S. CO., Limited, v. ELTING, Collector of Customs.
• Court: U.S. Court of Appeals — Second Circuit

97 F.2d 373 (1938)

CUNARD S. S. CO., Limited, v. ELTING, Collector of Customs.

No. 316.

Circuit Court of Appeals, Second Circuit.

June 6, 1938.

COPYRIGHT MATERIAL OMITTED

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

Lamar Hardy, U. S. Atty., of New York City (William L. Lynch, Asst. U. S. Atty., of New York City, of counsel), for defendant.

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

SWAN, Circuit Judge.

These appeals involve four causes of action to recover the amounts of fines imposed upon the steamship company for bringing in aliens who were excluded. Three of the fines were imposed under section 16 of the Immigration Act of 1924, 8 U.S.C.A. § 216, for bringing in quota immigrants without immigration visas; one was imposed under section 20, 8 U.S.C.A. § 167, for failure to detain on board an alien seaman whose detention had been ordered by the immigration authorities. The case was tried before the court and a jury of one upon stipulated facts, and each side moved for a directed verdict. In effect, each cause of action is a separate case, although several of them present common questions.

Celeste Poloni: This alien arrived on June 7, 1929. He was travelling under the name of Rocco Visinoni, an American citizen, and presented the latter's passport issued at Washington, December 26, 1928. Upon questioning by the board of special inquiry, he at once admitted that the passport and the photograph attached thereto were Visinoni's, who, he said, was his cousin and had died in Italy during the spring. The alien having been excluded, a fine was imposed upon the steamship company for bringing in a quota immigrant who was not in possession of an immigration visa.

The company contends that the Secretary of Labor acted arbitrarily in holding that the carrier should have discovered in the exercise of reasonable diligence that Poloni was using a passport not his own. The burden is upon the carrier to establish to the satisfaction of the Secretary that reasonable diligence was exercised. Lloyd Sabaudo Societa v. Elting, 287 U.S. 329, 341, 53 S.Ct. 167, 172, 77 L.Ed. 341. The district court held that this burden was not carried; and, although the case is close, we cannot say this was error. The carrier's agent at Turin, Italy, reported that he sold the ticket to a person whom he identified with the photograph on the passport; and Poloni must have passed the scrutiny of officials at the Italian border and again at Cherbourg where he embarked. Consequently, the plaintiff's protest against imposition of the fine suggested that there may have been a substitution after the rightful holder of the passport had boarded the ship. This, however, was mere conjecture, without proof. It is true that the record of the inquiry at Ellis Island contains no statement that Poloni did not closely resemble the photograph of Visinoni attached to the passport; but an inference that he did not may be drawn from the fact that the examining inspector immediately asked him "Whose passport are you making use of?" We think the case is governed by Compagnie Generale Transatlantique v. Elting, 2 Cir., 75 F.2d 944; Navigazione Generale Italiana v. Elting, 2 Cir., 76 F.2d 885, and New York & Porto Rico S. S. Co. v. United States, 2 Cir., 66 F.2d 523, rather than by Transatlantica Italiana v. Elting, 2 Cir., 66 F.2d 515, where the alien's own photograph had been substituted so skilfully as to avoid detection by reasonable diligence.

The carrier contends that the fine was illegally imposed because ordered by an assistant to the Secretary of Labor and no proof was presented that he had considered the evidence and findings of the board of review. The decisions of the Supreme Court in the Morgan Case are relied upon. Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288; Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. ___, decided April 25, 1938. The first appeal held that it was error to strike from the bill of complaint allegations that the Secretary of Agriculture had made his order without having heard or read the evidence and without having heard or considered the arguments submitted, and that his sole information with respect to the proceeding was derived from consultation with employees in the department. The second appeal brought up the evidence which was introduced in support of these allegations, and the court held that the plaintiff had not been accorded the "full hearing" to which the statute entitled him. In the case at bar there is no proof that the assistant to the Secretary acted without considering the evidence and findings of the board of review; on the contrary, there is a presumption that he did his duty. In the absence of evidence to the contrary that is sufficient. British Empire Steam Nav. Co. v. Elting, 2 Cir., 74 F.2d 204, certiorari denied 295 U.S. 736, 55 S.Ct. 648, 79 L.Ed. 1684; Lloyd Royal Belge Societe Anonyme v. Elting, 2 Cir., 61 F.2d 745, 746, 747, certiorari denied 289 U.S. 730, 53 S.Ct. 526, 77 L.Ed. 1479; United States ex rel. Petach v. Phelps, 2 Cir., 40 F.2d 500.

Pasquale Pappalardo: This cause of action also seeks recovery of a fine imposed for bringing in a quota immigrant without an immigration visa. The same two contentions already discussed are likewise urged. They must suffer the same fate, for Pappalardo's case is weaker than Poloni's. He arrived at New York on September 21, 1928, claiming to be an American citizen by virtue of birth in Peekskill, New York, and he presented a passport issued by the United States Consul at Naples, May 14, 1928, which he stated he had obtained on the strength of his birth certificate. The certificate was not produced and he explained that the Consul or the carrier's agent had detained it. His signature corresponded with that on the passport and the photograph attached thereto, but the board of special inquiry noted that the passport bore evidence that the photograph had been substituted for one previously attached, and noted also that the description given in the passport did not accurately describe Pappalardo. He was 3½ inches taller than the passport description, and had dark brown hair and blue eyes, whereas the passport owner was described as having blond hair and brown eyes. There were also discrepancies in Pappalardo's testimony, but they need not be detailed as the passport alone was sufficient to justify the Secretary's conclusion that reasonable diligence would have detected the fraud. Compagnie Generale Transatlantique v. Elting, 2 Cir., 75 F.2d 944.

The steamship company further contends that the fine was invalid because the passport was not preserved and made a part of the record. For this it cites Kwock Jan Fat v. White, 253 U.S. 454, 40 S.Ct. 566, 64 L.Ed. 1010, and Ohio Bell Tel. Co. v. Public Utilities Commission, 301 U.S. 292, 303, 57 S.Ct. 724, 730, 81 L.Ed. 1093. These cases stand for the proposition that to constitute a fair hearing, the record must preserve "the essentials on which the executive officers proceed to judgment;" otherwise the limited review permitted to the courts is impossible. But in the case at bar preservation of the actual passport was not essential because the minutes of the inquiry adequately state the defects in the passport, namely, the substitution of a photograph and the discrepancies in personal description.

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