National Surety Co. v. Holtzman, 2986

• Citation: 43 F.2d 544
• Decision Date: 19 September 1930
• Docket Number: 3001.,No. 2986,2986
• Parties: NATIONAL SURETY CO. v. HOLTZMAN, Collector of Customs (two cases).
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

43 F.2d 544 (1930)

NATIONAL SURETY CO. v. HOLTZMAN, Collector of Customs (two cases).

Nos. 2986, 3001.

Circuit Court of Appeals, Fourth Circuit.

September 19, 1930.

Homer L. Loomis, of New York City, and John Philip Hill, of Baltimore, Md. (Loomis & Ruebush, of New York City, and John Henry Skeen, of Baltimore, Md., on the brief), for appellant.

A. W. W. Woodcock, U. S. Atty., of Baltimore, Md., for appellee.

Before PARKER and NORTHCOTT, Circuit Judges, and WATKINS District Judge.

NORTHCOTT, Circuit Judge.

These are actions brought in the District Court of the United States for the District of Maryland on bonds in which appellant was surety, in case No. 2986, with the Mutual Lloyd Marine Corporation, general agents of the steamship Emilia Pellegrina as principal, and in case No. 3001, with the captain of the steamship Dalmazia as principal. The condition of both bonds is similar, and recites that, whereas a claim is asserted by the collector of customs of the port against the steamships for a fine on account of their alleged failure to detain on board alien seamen, the condition is to the effect that the surety shall pay the collector of customs any and all fines for which the said steamships are liable under the provisions of sections 19 and 20 of the Immigration Act of 1924 (8 USCA §§ 166, 167).

Trial was had before the judge below, who gave judgment for the plaintiff in both cases, from which action this appeal was taken.

The same number of seamen were involved in each case, and, as the cases were argued together in this court and virtually the same points are involved in each, they will be considered together in this opinion. In the case of the Emilia Pellegrina, this ship arrived at the port of Baltimore in October, 1926, and when she came to clear the master went to the office of the assistant Commissioner of Immigration at Baltimore and reported that four members of the crew ordered to be detained had deserted, and, in order that she might clear, gave the bond sued on.

In the case of the Dalmazia, she came to the port of Norfolk in April, 1927, where she was notified by the immigration inspector, at that port, to detain on board all members of the crew, and on leaving that port for the port at Baltimore, for which she did not have to clear, notice was given the collector of customs of the port of Baltimore of the notice given in Norfolk. When the vessel cleared at the port of Baltimore, the captain acknowledged the desertion of four members of the crew of that vessel, and bond was given by the captain as principal and appellant as surety to pay any fine for which the vessel might be liable, in order that she might clear.

The sections of the statute, under which these proceedings were held, are sections 19 and 20, of the act of May 26, 1924 (8 USCA §§ 166, 167), and read as follows:

"(19) Landing of excluded seamen prohibited; temporary landing; deportation within three years. No alien seaman excluded from admission into the United States under the immigration laws and employed on board any vessel arriving in the United States from any place outside thereof, shall be permitted to land in the United States, except temporarily for medical treatment, or pursuant to such regulations as the Secretary of Labor may prescribe for the ultimate departure, removal, or deportation of such alien from the United States. Any alien seaman who shall land in a port of the United States contrary to the provisions of this subchapter shall be deemed to be unlawfully in the United States, and shall, at any time within three years thereafter, upon the warrant of the Secretary of Labor, be taken into custody and brought before a board of special inquiry for examination as to his qualifications for admission to the United States, and if not admitted said alien seaman shall be deported at the expense of the appropriation provided in section 156 of this title.

"(20) (a) Detention of seamen on board vessel until after inspection; detention or deportation; penalty; clearance to vessels. The owner, chatterer, 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...