Ex parte T. Nagata

• Decision Date: 19 February 1926
• Docket Number: No. 7570.,7570.
• Citation: 11 F.2d 178
• Court: U.S. District Court — Southern District of California
• Parties: Ex parte T. NAGATA.

11 F.2d 178 (1926)

Ex parte T. NAGATA.

No. 7570.

District Court, S. D. California, S. D.

February 19, 1926.

Herbert N. Ellis and J. Edward Keating, both of Los Angeles, Cal., for petitioner.

Samuel W. McNabb, U. S. Atty., and J. Geo. Channesian, Asst. U. S. Atty., both of Los Angeles, Cal., for respondent.

JAMES, District Judge.

Petitioner, a native of Japan, had for more than five years prior to October, 1924, been a resident of the United States. His employment was that of a fisherman. On October 4, 1924, he was employed by the owner of a motor fishing vessel called the Washington. The Washington was owned by an alien Japanese, but its home port was Los Angeles, in the state of California, where it was regularly numbered in the records of the customs office of the district. It is conceded that the Washington had the status of an American vessel engaged in foreign commerce.

On October 4, 1924, the Washington, with petitioner on board as one of the crew, visited nearby Mexican waters for the purpose of fishing. It returned to the port of Los Angeles on November 4, 1924. Petitioner was there detained by the immigration officers on the ground that he was not entitled to enter the United States. The particular charge made was that the alien entered on the 4th of November, 1924, "by means of false and misleading statements, thereby entering without inspection, and that he was a person likely to become a public charge at the time of his entry." A hearing was had in the usual course, and the Secretary of Labor later issued a warrant of deportation.

The question involved is as to whether the going by the petitioner outside the territorial limits of the United States constituted a departure so as to give the character of an original entry to his arrival on the return trip. Petitioner did not leave the ship from the time it left the port of Los Angeles until it returned to the same port. There was no intention on his part to land or remain in foreign territory permanently or temporarily. These facts bring the case directly within the case of Weedin v. Okada, 2 F.(2d) 321 (C. C. A. 9th), decided November 24, 1924, and In re Hersvik and Kongsvik (D. C.) 1 F.(2d) 449, decided August 13, 1924. Respondent admits that, under the facts, the decisions cited being considered, petitioner is entitled to be discharged, but argues that, in view of expressions of the Supreme Court of the United States in certain cases, an American ship is not to be considered as American ground while in foreign waters. To this point is cited Scharrenberg v. Dollar S. S. Co. et al., 38 S. Ct. 28, 245 U. S. 122, 62 L. Ed. 189, and U. S. v. N. Y. & Cuba Mail S. S. Co., 46 S. Ct. 114, 70 L. Ed. ___, decided by the Supreme Court on December 14, 1925. I find nothing inconsistent with what was decided in the Hersvik and Okada Cases in either of the decisions of the Supreme Court which respondent notes. In the Scharrenberg Case the court had the question to consider as to whether an alien employed on an American ship should be considered as performing labor in the United States so as to make the steamship company liable for the criminal penalty provided in a special act of Congress (34 Stat. 900, ß 4) designed to punish a corporation for assisting or encouraging the importation of contract laborers "into the United States," where the seamen had been employed at a foreign port. The court in that case said:

"Equally unallowable is the contention that a ship of American registry engaged in foreign commerce is a part of the territory of the United States in such a sense that men employed on it can be said to be laboring `in the United States' or `performing labor in this country.'"

Nor does the decision of the court in the N. Y. & Cuba Mail S. S. Co. Case afford better support for the contention of respondent. In that case there was considered the application of a special act (Act Dec. 26, 1920, 41 Stat. 1082 Comp. St. Ann. Supp. 1923, ß 4289ºsss), which provided for hospital treatment of "diseased alien seamen." The court declared:

"The general principle that an alien while a seaman on an American vessel is regarded as being an American seaman in such sense that he is under the protection and subject to the laws of the United States (In re Ross, 11 S. Ct. 897, 140 U. S. 453, 479, 35 L. Ed. 581) has no application to the question whether aliens employed on American vessels are included within the terms of a special statute dealing solely and specifically with `alien seamen,' as such."

It will be noted there that the court expressly recognized the Ross Case as containing a correct statement of...