Indemnity Ins. Co. of North America v. United States, 7338.

• Decision Date: 26 November 1934
• Docket Number: No. 7338.,7338.
• Citation: 74 F.2d 22
• Parties: INDEMNITY INS. CO. OF NORTH AMERICA v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

74 F.2d 22 (1934)

INDEMNITY INS. CO. OF NORTH AMERICA v. UNITED STATES.

No. 7338.

Circuit Court of Appeals, Fifth Circuit.

November 26, 1934.

J. Gaillard Hamilton, of Mobile, Ala., for appellant.

Alex C. Birch, U. S. Atty., and J. E. Meredith, Asst. U. S. Atty., both of Mobile, Ala.

Before BRYAN, HUTCHESON, and WALKER, Circuit Judges.

HUTCHESON, Circuit Judge.

The suit was against the surety on a clearance bond¹ given under 8 USCA § 167 (a).

The complaint was a simple one. It set out the bond and averred breach of its conditions. Against the petition more than forty-three demurrers were leveled and eight pleas. All of defendant's demurrers were overruled. All of plaintiff's demurrers to the eight pleas were sustained. The trial resulted in a judgment on the bond. Assigning as error only rulings on the pleadings, appellant does not bring up the statement of facts on which the case was tried. It relies for reversal entirely upon two points raised on the pleadings. The first is that the bond is invalid as a statutory bond because it provides for the determination by the Commissioner General, instead of by the Secretary of Labor, and is invalid as a common-law bond because given under the duress of the vessel's detention. Its second point is that the notice to detain the alien seaman was not given by the immigration officer in charge, that it was given arbitrarily and not upon adequate grounds.

But for the energy and resource with which defendant has labored its points we should have thought the case a simple one of a detained vessel, an agreement voluntarily entered into by a surety to abide the determination of the Commissioner General as to liability on the bond, and a breach of that agreement. Because of its counsel's earnestness we have examined the positions they take and the arguments they advance in support of them, with the greatest care. We do not find them meritorious.

After all is said and done, the case is at last one of a simple suit on a bond, the conditions of which have been breached, for it is quite plain that the statute requiring the detention of aliens is clear and absolute in its terms, requiring and admitting of little construction.² It unequivocally subjects a vessel to the payment of $1,000 for each alien seaman whom the master has failed to detain on board after he has been served with a detention order by the immigration officer in charge, or some one acting for him. Lloyd Royal Belge Societe Anonyme v. Elting (D. C.) 55 F.(2d) 340; Id. (C. C. A.) 61 F.(2d) 745. It makes no provision for, it does not contemplate, inquiry into the grounds of the order. Denholm Shipping Co. v. Elting (D. C.) 55 F.(2d) 422. The only question for determination under it is whether the order was served and there has been failure to detain. Sinclair v. United States (C. C. A.) 32 F.(2d) 90. To secure payment of the fine the statute prohibits the clearance of vessels while the fine remains unpaid, but provides that clearance may be granted prior to the determination of liability upon the deposit of a sufficient sum, or the execution of bond with sufficient sureties. Having the option to make bond or deposit cash, the master cleared his vessel by tendering bond. Under no compulsion to do so, and with full knowledge of the claimed duress, 21 R. C. L. § 48; Oak v. Dustin, 79 Me. 23, 7 A. 815, the protest of the master being noted at the foot of the bond, appellant signed as surety. Because of the making and tender of the bond, the vessel was released. Under these estopping circumstances, appellant has a heavy burden to point out some illegality or invalidity nullifying the obligation it assumed. 21 R. C. L. § 47; United States, to Use of Hine, v. Morse, 218 U. S. 493, 31 S. Ct. 37, 54 L. Ed. 1123, 21 Ann. Cas. 782; State v. U. S. Fidelity & Guaranty Co., 81 Kan. 660, 106 P. 1040, 26 L. R. A. (N. S.) 865; Town of Point Pleasant v. Greenlee, 63 W. Va. 207, 60 S. E. 601, 129 Am. St. Rep. 971; Oliver v. Warren, 124 Ga. 549, 53 S. E. 100, 110 Am. St. Rep. 188, 4 L. R. A. (N. S.) 1020 and note; 9 R. C. L. § 18; Fountain v. Bigham, 235 Pa. 35, 84 A. 131, Ann. Cas. 1913D, 1185; United States v. National Surety Co. (D. C.) 20 F.(2d) 972, 973.

Appellant, citing United States v. Tingey, 5 Pet. 115, 8 L. Ed. 66, Constable v. National Steamship Co., 154 U. S. 51, 14 S. Ct. 1062, 38 L. Ed. 903, Oceanic Steam Navigation Co. v. Stranahan, 214 U. S. 329, 29 S. Ct. 671, 53 L. Ed. 1013, argues that it carries this burden when it proves that an officer of the government has, under color of the statute, exacted a bond containing conditions more burdensome than those fixed by law. It insists that the bond sued on so burdens its principal beyond its statutory duty as to avoid it.

We cannot agree with appellant. We think it plain that the agreement that the determination should be made by the Commissioner General is not in burdensome violation of the statute. Jessup v. United States, 106 U. S. 147, 1 S. Ct. 74, 27 L. Ed. 85, United States v. Bradley, 10 Pet. 343, 9 L. Ed. 448; Carnegie v. Hulbert (C. C. A.) 70 F. 209. We think, too, that this is a case not within the rule, but within the exception United States v. Tingey announced at page 129 of 5 Pet.: "It would be very different where such a bond was by mistake or otherwise voluntarily substituted by the parties for the statute bond, without any coercion or extortion by colour of office," for it plainly appears here that, though there was protest and objection to the recitations in the bond that the fine had been incurred, there was none to the designation of the Commissioner General as the one to determine the liability. The reason there was none becomes plain when the statute is turned to, for...