Law v. United States, 5862.

• Decision Date: 27 January 1937
• Docket Number: No. 5862.,5862.
• Citation: 18 F. Supp. 42
• Parties: LAW et al. v. UNITED STATES.
• Court: U.S. District Court — District of Massachusetts

18 F. Supp. 42

LAW et al. v. UNITED STATES.

No. 5862.

District Court, D. Massachusetts.

January 27, 1937.

G. Philip Wardner, of Boston, Mass., for plaintiffs.

Francis J. W. Ford, U. S. Atty., by Edward O. Gourden, Asst. U. S. Atty., both of Boston, Mass., for defendant.

BREWSTER, District Judge.

This is a suit to recover a penalty which plaintiffs say was unlawfully exacted. It was heard upon agreed facts.

The statute imposing the penalty is section 20(a) of chapter 190 of the Immigration Act of May 26, 1924 (8 U.S.C.A. § 167(a). This statute reads:

"§ 167. (a) Detention of seamen on board vessel until after inspection; detention or deportation; penalty; clearance to vessels. The owner, charterer, agent, consignee, or master of any vessel arriving in the United States from any place outside thereof who fails to detain on board any alien seaman employed on such vessel until the immigration officer in charge at the port of arrival has inspected such seaman (which inspection in all cases shall include a personal physical examination by the medical examiners), or who fails to detain such seaman on board after such inspection or to deport such seaman if required by such immigration officer or the Secretary of Labor to do so, shall pay to the collector of customs of the customs district in which the port of arrival is located the sum of $1,000 for each alien seaman in respect of whom such failure occurs. 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."

The stipulated facts, stated briefly, are that on April 8, 1932, the British steamship Traprain Law, David Roberts, master, arrived at the port of Boston. An immigration inspector boarded the vessel on April 9 and gave to the chief officer a notice to detain on board and deport nine of the crew who were Chinese. While the notice was addressed to the "Owner, Agent, Consignee, Master or Officer in Charge" of the steamship, it was served only on the chief officer. One of the Chinese escaped on April 10, following which the Commissioner of Immigration for the Boston District served upon the ship's agent at Boston notice of liability for a fine of $1,000 for failure to detain the escaped seaman. This notice was served by mail upon the agent only.

In order to obtain clearance, the master gave a bond in the sum of $1,000 to the Collector of Customs of the Port of Boston, with the Indemnity Insurance Company of North America as surety. This bond recited that the master might incur liability for penalties or fines imposed under the provisions of the statute above quoted; and the condition of the bond was that the principal should pay the collector "any and all fines * * * found by the Secretary of Labor to be due and payable under the provisions of said Immigration Act of 1924."

The plaintiffs filed with the Secretary of Labor a written request that the fine be not imposed, setting forth their reasons why they had not incurred liability.

On May 20, 1932, the Board of Review, after hearing counsel for the plaintiffs, ordered that the fine be imposed. It does not appear, however, that following this action of the Board of Review the Secretary of Labor formally imposed the fine. On May 26, 1932, the Commissioner General of Immigration wrote to the Commissioner of Immigration at Boston directing that the fine be imposed, and so advised plaintiffs' attorney by letter. Thereafter the Treasury Department, through the office of the Collector of Customs at Boston, informed the Indemnity Insurance Company of North America that unless the penalty under the bond was paid, the Department would declare all bonds in the Port of Boston in default. The plaintiffs, on August 9, 1932, under protest paid the fine...