Deppe v. Lufkin

• Decision Date: 30 December 1940
• Docket Number: No. 3605.,3605.
• Parties: DEPPE et al. v. LUFKIN.
• Court: U.S. Court of Appeals — First Circuit

116 F.2d 483 (1940)

DEPPE et al. v. LUFKIN.

No. 3605.

Circuit Court of Appeals, First Circuit.

December 30, 1940.

Charles R. Hickox, of New York City (Delbert M. Tibbetts and Kirlin, Campbell, Hickox, Keating & McGrann, all of New York City, and Bingham, Dana & Gould, of Boston, Mass., on the brief), for appellants.

Edward O. Gourdin, Asst. U. S. Atty., of Boston, Mass. (Edmund J. Brandon, U. S. Atty., of Boston, Mass., on the brief), for appellee.

Before MAGRUDER and MAHONEY, Circuit Judges, and PETERS, District Judge.

MAHONEY, Circuit Judge.

This action was brought for the recovery of certain immigration fines which had been imposed by the Secretary of Labor under Section 20(a) of the Immigration Act of 1924, 43 Stat. 164, 8 U.S.C.A. 167 (a),¹ and collected by the Collector of Customs of the Port of Boston. The District Court, sitting without a jury, heard the case on an agreed statement of facts and entered judgment for the defendant. The plaintiff has appealed.

When the action was begun Armement Deppe, a Belgian corporation and owner of the S. S. Louvain, was the original plaintiff. Subsequently the declaration was amended and Furness, Withy & Co., Ltd., the agent for the original plaintiff, was added as a party plaintiff. The original defendant, who was the Collector of Customs, died, and the executrix of his estate was substituted as party defendant. It has been stipulated that if the action can be maintained, Furness, Withy & Co., Ltd., is the proper plaintiff. Hence, in this opinion when we use the word "plaintiff" we refer to Furness, Withy & Co., Ltd.

The steamship Louvain arrived at the port of Boston from Antwerp on August 13, 1926, and the immigration inspector found that eleven alien members of the crew were not bona fide seamen and directed that they be detained on the vessel. The order to detain was dated August 13, 1926, and addressed to the "owner, agent, consignee, master, or officer in charge of" the vessel and was served on the master. While the vessel was still at Boston, four of the men who had been ordered detained escaped. On August 24, 1926, notice of liability for fines amounting to $4,000 on account of failure or refusal to detain the said aliens was served on Furness, Withy & Co., Ltd., as agent of the vessel. The notice of liability stated that it appeared that Furness, Withy & Co., Ltd., agent, had failed or refused to detain on board the vessel four of the aliens and that a fine should be imposed under the provisions of Section 20(a) of the Immigration Act of 1924; that if a hearing was desired as to whether the fine should be imposed, sixty days from the date of the notice would be allowed for such purpose; and that the vessel would be granted clearance papers upon condition that there be deposited with the Collector of Customs at Boston prior to the sailing the sum of $4,000, or a bond for that amount as security for the payment of the fines should they be imposed.

At the time the notice of liability was served on Furness, Withy & Co., Ltd., the steamship Louvain was still in the port of Boston, and desirous of obtaining clearance in order to sail therefrom. At this time there was on file in the office of the Collector of Customs a vessel term bond for $50,000, which had been executed on December 31, 1925, by H. L. Porter, as the principal obligor, the American Surety Company, as surety, and the United States of America, obligee. It recites that certain vessels consigned to the principal were expected to enter at and to clear from the port of Boston and it was conditioned to pay, among other things, as the parties have agreed, all immigration fines "found legally due". H. L. Porter was the manager of Furness, Withy & Co., Ltd. The trial judge found that as a condition to permitting the vessel to clear the port the defendant, collector of customs, made a charge against this bond to secure the $4,000 of fines. After this charge was made the vessel was given clearance and sailed. Thereafter, on August 27th, Furness, Withy & Co., Ltd., wrote to the Secretary of the Treasury requesting that the fines be not imposed and gave in substance as its reason that compliance with the notice of detention was impracticable. Under date of September 20, 1926, the Bureau of Immigration wrote to the Commissioner of Immigration in Boston recommending that the penalty be imposed. In October, 1926, the fines of $4,000 were imposed and on October 15, 1926, demand for payment was made by the collector of customs on Furness, Withy & Co., Ltd. Payment was made by it on October 19, 1926, and the amount so paid was deposited into the Treasury of the United States. At the time of payment, the vessel term bond was still on file and still charged with the fine.

The trial judge ruled that the penalty was not validly imposed. The notice to detain was served on the master and not on the plaintiff, as agent, and the notice of liability was served on the plaintiff, as agent, and not on the master. The judge found that because of this procedural defect in the service, the collector could not successfully have maintained an action to collect the fines. However, he did find that the payment of the fine was voluntary, not the result of duress, and that it was not made under protest.

The question raised on this appeal is whether the plaintiff is entitled to recover from the defendant the $4,000 fines plus interest which were paid on the demand of the collector of customs. In our opinion the plaintiff is not entitled to recover.

There is no question, and we do not understand the defendant to have raised any, but that the trial court was correct in holding that the plaintiff had a good defence to any attempt on the part of the collector to collect the fines. The Supreme Court has held that such a fine cannot be collected unless the notice to detain the aliens was served upon the party upon whom the fine has been imposed. Compagnie Generale Transatlantique v. Elting, 1936, 298 U.S. 217, 56 S.Ct. 770, 80 L.Ed. 1151. The case further holds that notice to the master of a vessel is not notice to its owners or agents, as in this case, since for the purposes of the statute the former is not the agent of the latter. The case has been followed in several opinions. Cunard S. S. Co. v. Elting, 2 Cir., 1938, 97 F.2d 373, 377; Law et al. v. United States, D. C.Mass.1937, 18 F.Supp. 42. It is clearly the law that owing to the procedural defects in the serving of the various notices, the collector could not successfully have forced payment of the fines by the plaintiff.

However, though the defendant admits he could not have forced collection of the fines from the plaintiff because of procedural difficulties, he insists that the payment of the fines by the plaintiff was not made under protest but was a voluntary payment which precludes recovery in this action. The plaintiff, on the other hand, argues that the payment was made under protest, and was involuntary because made under duress. We agree with the defendant.

There is no evidence at all that the payment of the fines was made under protest. The plaintiff's letter of August 27, 1926, to the Secretary of the Treasury requested remittance of the fines on the ground that the master had done everything practicable to comply with the order of detention. This is not a protested payment of fines; it is a protest against the proposed imposition of liability for payment, an assertion that the fines have not been incurred. The ground alleged to justify remittance was not an admissible one since due care is no defence to a fine for failure to detain aliens after service of an order so to do. The Bureau of Immigration properly rejected the protest against the imposition of the fines and ordered that they be imposed. The defendant, by letter of October 15, 1926, notified the plaintiff of the final imposition of the fines and demanded payment. It should be noted that in the first letter of the Immigration Service to the plaintiff notifying it of the proposed fines, dated August 24, 1926, the plaintiff was allowed sixty days to request a hearing as to whether the fines should be imposed. When payment was demanded on October 15, 1926, there were still nine days left to the plaintiff to request a hearing and produce good reason why the fines should not be imposed. No request for a hearing was made; the plaintiff in no way indicated that it did not accept as correct the final determination of the Bureau of Immigration. On October 19, 1926, five days before the expiration of the period within which a hearing could be requested, the plaintiff paid the fines. There is no evidence that any protest as to the invalidity of the fines was made at the time of payment. In the light of the admitted facts, the trial judge was obviously correct in finding that the payment of the fines was not made under protest.

The plaintiff further argues that the payment was involuntary and made under duress. The basis of the contention appears to be that the plaintiff was forced to pay the fines in order to get clearance for its vessels and prevent the serious curtailment of its business. We do not believe that there was any threat to deny clearance papers to the plaintiff's ships in the present circumstances. The statute provides that: "No vessel shall be granted clearance pending the determination of the liability to the payment of such fine, or while the fine remains unpaid, except that clearance may be granted prior to the determination of such question upon the deposit of a sum sufficient to cover such fine, or of a bond with sufficient surety to secure the payment thereof approved by the collector of customs." If there were no statutory provision for the posting of a bond, there might be some argument that the payment in this case was made under duress. See, Oceanic Navigation Co. v. Stranahan, 1909, 214 U.S. 320, 29 S.Ct. 671, 53 L.Ed. 1013. But the statute here in question does provide for the...