Savelis v. Vlachos

• Decision Date: 25 November 1955
• Docket Number: Misc. No. 460.
• Citation: 137 F. Supp. 389
• Parties: Efstratios SAVELIS, Theodoros Fragidokis, and Photios Theofanou, Petitioners, v. E. VLACHOS, Master of the Greek S. S. Michalakis, E. O. Douglas, Jr., Immigration Inspector at Newport News, Virginia, Paul E. Johnson, Supervisory Immigration Officer at Norfolk, Virginia, and T. A. Esperdy, Deputy Regional Commissioner of Immigration at Richmond, Virginia, and Gilbert Zimmerman, Immigration Service, Richmond, Virginia, Respondents.
• Court: U.S. District Court — Eastern District of Virginia

137 F. Supp. 389

Efstratios SAVELIS, Theodoros Fragidokis, and Photios Theofanou, Petitioners, v. E. VLACHOS, Master of the Greek S. S. Michalakis, E. O. Douglas, Jr., Immigration Inspector at Newport News, Virginia, Paul E. Johnson, Supervisory Immigration Officer at Norfolk, Virginia, and T. A. Esperdy, Deputy Regional Commissioner of Immigration at Richmond, Virginia, and Gilbert Zimmerman, Immigration Service, Richmond, Virginia, Respondents.

Misc. No. 460.

United States District Court E. D. Virginia, Newport News Division.

November 25, 1955.

COPYRIGHT MATERIAL OMITTED

Morewitz & Morewitz, Newport News, Va., Jacob L. Morewitz, Newport News, Va., for petitioners.

William F. Davis, Asst. U. S. Atty., Norfolk, Va., and Gilbert Zimmerman, Richmond, Va., Regional Counsel for the Immigration and Naturalization Service, for the Government respondents.

Vandeventer, Black & Meredith, Hugh Meredith and Walter B. Martin, Jr., Norfolk, Va., for the Master and shipowner respondents.

HOFFMAN, Judge.

The three petitioners herein were, at the time of their arrival in this country, bona fide alien crewmen employed on board the Greek vessel Michalakis. The vessel was involved in a collision with a United States Navy ship on or about the 17th day of October, 1955, and immediately went to a shipyard at Newport News for repairs.

Petitioner, Savelis, applied for a writ of habeas corpus, an application for a declaratory judgment and/or an injunction in a proceeding instituted in this Court on November 1, 1955. Counsel for petitioner stated to the Court that the petitioner was not then being detained by the Immigration authorities or the Master of the vessel, but petitioner nevertheless insisted upon the issuance of an order to show cause on the petition for writ of habeas corpus. No notice of any hearing on an application for temporary injunction was given (although the pleading requested an injunction) and, for this reason, no hearing was scheduled. This Court declined to issue the order to show cause for the reason that petitioner admittedly was not being detained at the time. At the request of counsel for petitioner, the file in that case was forwarded to Chief Judge John J. Parker of the Circuit Court of Appeals for the Fourth Circuit. In a brief order the action of the District Court was affirmed, with the right reserved to petitioner to apply to the full Court for an order in the nature of a writ of mandamus. The Circuit Court of Appeals has not acted on petitioner's request. The District Judge therefore assumes that his action in refusing to sign the order to show cause was proper. It will be noted that the District Court was not requested to rule upon any phase of this case except the matter affecting habeas corpus, and the Court expressly reserved consideration of the declaratory judgment issue. Had a specific request, accompanied by a proper notice, been made as to a temporary injunction, this Court would have granted a hearing.

On November 9, 1955, the three petitioners, one of whom was the petitioner in the prior action, were taken into actual physical custody by the Immigration officials pursuant to 8 U.S.C.A. § 1282(b). Upon such showing on November 10, 1955, this Court issued an order to show cause on petitioners' application for habeas corpus, declaratory judgment and/or injunction. Notice of a request for temporary injunction was given the respondent Immigration officials and the Master of the vessel. The order to show cause and request for temporary injunction were made returnable at 3 P. M. on November 11, 1955, and the hearings followed.

Respondent Immigration authorities urge the legality of petitioners' detention under 8 U.S.C.A. § 1282(b), which is as follows:

"Pursuant to regulations prescribed by the Attorney General, any immigration officer may, in his discretion, if he determines that an alien is not a bona fide crewman, or does not intend to depart on the vessel or aircraft which brought him, revoke the conditional permit to land which was granted such crewman under the provisions of subsection (a) (1) of this section,¹ take such crewman into custody, and require the master or commanding officer of the vessel or aircraft on which the crewman arrived to receive and detain him on board such vessel or aircraft, if practicable, and such crewman shall be deported from the United States at the expense of the transportation line which brought him to the United States. Until such alien is so deported, any expenses of his detention shall be borne by such transportation company. Nothing in this section shall be construed to require the procedure prescribed in section 1252 of this title to cases falling within the provisions of this subsection."²

While the initial question concerned only the legality of petitioners' detention, the vessel left this country on November 12, 1955, and hence the ultimate question in this case as to the declaratory judgment and/or injunction is now before the Court and is admittedly far-reaching. The issue strikes at the discretionary power vested by Congress in the Immigration officers and the Attorney General's regulations prescribed. Title 8, U.S. C.A. § 1282(a) (1) and (2) provides:

"(a) No alien crewman shall be permitted to land temporarily in the United States except as provided in this section and sections 1182(d) (3), (5) and 1283 of this title.³ If an immigration officer finds upon examination that an alien crewman is a nonimmigrant under paragraph (15) (D) of section 1101(a) of this title⁴ and is otherwise admissible and has agreed to accept such permit, he may, in his discretion, grant the crewman a conditional permit to land temporarily pursuant to regulations prescribed by the Attorney General, subject to revocation in subsequent proceedings as provided in subsection (b) of this section, and for a period of time, in any event, not to exceed —

"(1) the period of time (not exceeding twenty-nine days) during which the vessel or aircraft on which he arrived remains in port, if the immigration officer is satisfied that the crewman intends to depart on the vessel or aircraft on which he arrived; or

"(2) twenty-nine days, if the immigration officer is satisfied that the crewman intends to depart, within the period for which he is permitted to land, on a vessel or aircraft other than the one on which he arrived."

The so-called conditional permits referred to in section 1282 are commonly classified as D-1 and D-2 permits; the former indicating that the crewman must depart on the vessel on which he arrived; the latter stating that the crewman may depart on a vessel other than the one on which he arrived. It will be noted that Congress, in both instances, imposed a condition precedent to satisfy the Immigration officer of the crewman's intentions. How, then, is this requirement to be satisfied?

The economic effects of this decision could completely demoralize commerce between this nation and foreign countries. To deprive Immigration officers of the discretionary powers vested by Congress would spell disaster to foreign vessels visiting our ports. When and how should a crewman be permitted to signify his intentions? To allow the seaman to wait until immediately prior to the sailing of the vessel and then declare an intention to reship foreign on another vessel would result in foreign vessels' being stripped of their crews and would delay departure at great expense to the transportation company. Certainly this would be the case as to "key" employees. In short, the vessel and its owners would be subjected to unreasonable demands for the settlement of claims having little or no value which, in order to secure departure of the vessel, would have to be paid to assure a full complement of men in the crew.

This Court is fully aware of the fact that seamen are wards of the court and entitled to protection as such. It is also recognized that Immigration officers are at times inclined to be arbitrary and unreasonable, thus leading to discriminatory acts in isolated instances. However, this is not a case apparently falling within this classification. The issue, simply stated, is this:

"May an alien crewman, having previously been granted and having accepted a D-1 conditional permit, thereafter change his mind and elect not to depart on the vessel on which he arrived and, without satisfying the Immigration officer as to his ability to reship foreign on another vessel within the 29 day period, demand the issuance of a D-2 conditional permit?"

As to this issue the evidence presented is not in dispute. The three petitioners retained the same counsel. None of them furnished any oral or written statement indicating his ability to reship foreign on another vessel within the 29 day period. One petitioner, Fragidokis, testified that he held a letter from the Assistant Engineer of the Michalakis permitting him to obtain employment on another vessel owned by the same transportation company. The letter was never exhibited to the Immigration officials, nor were its contents mentioned by the petitioner, although Fragidokis stated that his counsel knew of the letter. The letter was not introduced in evidence. In short, there is no contention by any of the petitioners or their counsel that any oral or written statement was made indicating their ability to reship foreign at any time. The sole contention urged is that any alien crewman has an absolute right to accept a D-1 permit and thereafter, at any time prior to the sailing of the vessel, the alien crewman may insist upon a change of status and obtain a D-2 permit without indicating any evidence of his ability to reship foreign within 29 days. If such is the law, there would be no need for the use of D-1 permits. They would, in effect, be meaningless.

This case is one of a series of similar actions instituted by the same counsel representing different Greek seamen. To prevent this question from being moot, the Court elected to hold ...