The Nanking
| Decision Date | 02 July 1923 |
| Docket Number | 3863. |
| Citation | 290 F. 769 |
| Parties | THE NANKING. v. UNITED STATES. CHINA MAIL S.S. CO., Limited, |
| Court | U.S. Court of Appeals — Ninth Circuit |
A libel was filed in admiralty on behalf of the United States to subject the steamship Nanking to penalties aggregating $4,000, under four counts charging the landing of four Chinese at Honolulu from said steamer, in violation of the provisions of section 10, c. 29, of the Immigration Act of February 5, 1917, 39 Stat. 881 (Comp. St. 1918, Comp. St Ann. Supp. 1919, Sec. 4289 1/4ee). The libel alleged in each count that in the opinion of the Secretary of Labor 'it is impracticable and inconvenient to criminally prosecute the person, owner, master, officer, or agent of said steamship ' The appellant answered, denying that it unlawfully permitted such landing, and alleging in defense that the escape from the vessel occurred, notwithstanding that it took every reasonable and proper precaution to prevent it, and that no Chinese passenger left the vessel without exhibiting a proper pass, issued by the inspector of immigration at Honolulu, and that the escapes must have been effected by the fraudulent use of passes issued by the United States inspector of immigration at Honolulu to Chinese residents of Honolulu who had lawful business on said ship. The appellee excepted to the answer as insufficient, and the court ruled that the answer failed to disclose a meritorious defense, and sustained the exceptions, and ordered that, unless the appellant should amend its answer within 10 days, decree might be entered according to the prayer of the libel. There was no amendment, and the court accordingly entered a decree as prayed for.
Smith Warren, Stanley & Vitousek, L. J. Warren, and R. A. Vitousek, all of Honolulu, Hawaii, for appellant.
John T. Williams, U.S. Atty., and T. J. Sheridan, Asst. U.S. Atty., both of San Francisco, Cal., and Wm. T. Carden, U.S. Atty., of Honolulu, Hawaii.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
GILBERT Circuit Judge (after stating the facts as above).
The appellant contends that it was error to hold that under section 10 of the act of February 5, 1917, it was the absolute duty of those engaged in bringing aliens to a seaport of the United States to prevent under all circumstances the landing of aliens at any time or place other than that designated by the immigration officers, and that the penalty of the section will apply if the alien effects his escape from the vessel without their knowledge or consent, and notwithstanding that they may have exercised due diligence and taken every reasonable and proper precaution to prevent such landing. A previous statute on the subject, section 8 of the act of March 3, 1891, 26 Stat. 1086, made it the duty of the officers and agents of vessels to adopt due precautions to prevent the landing of any alien immigrant at any place or time other than that designated by the inspection officers, and provided that:
'Any such officer or agent, * * * who shall either knowingly or negligently land or permit to land any alien immigrant at any place or time other than that designated by the inspection officers, shall be deemed guilty of a misdemeanor.'
The Immigration Act of February 20, 1907, by section 18 (34 Stat. 904), had made it the duty of owners, officers, or agents of any vessel to prevent the landing of an alien in violation of the act and had declared that 'the negligent failure' to comply with that provision should be deemed a misdemeanor. In Hackfeld & Co. v. United States, 197 U.S. 442, 25 Sup.Ct. 456, 49 L.Ed. 826, the court construed the act of March 3, 1891, and held that it did not make the shipowner or master an insurer against the escape of an alien from the vessel, but required him only to take precaution to prevent such escape, and to exercise the care and diligence required by the circumstances. Congress thereafter amended the statute by the act of February 5, 1917, and made it 'the duty' of the owners, officers, and agents of vessels to prevent the landing of the alien, and provided:
'The failure of any such person, owner, officer, or agent to comply with the foregoing requirements shall be deemed a misdemeanor and on conviction thereof shall be punished by a fine,' etc.
It seems reasonably clear that the intention of the statute was to make imperative the duty of preventing such unlawful landings of aliens. This is further indicated by the report of the House committee on immigration in explanation of the bill while it was on its passage. Nor are we...
To continue reading
Request your trial
-
Navigazione Libera Triestina v. United States
...279, 24 S. Ct. 719, 48 L. Ed. 979; United States v. New York S. S. Co., 269 U. S. 313, 46 S. Ct. 114, 70 L. Ed. 281; China Mail S. S. Co. v. U. S. (C. C. A.) 290 F. 769; United States v. Curran (C. C. A.) 12 F.(2d) 395; The Limon (C. C. A.) 22 F.(2d) 272. Congress also has the power, throug......
-
Cosulich Line of Trieste v. Elting
... ... It is highly improbable that Congress intended to both impose a fine of $1,000 for each reason why the alien is not admissible and at the same time impose a sum equal to the passage money for each reason for exclusion. The Nanking (C. C. A.) 290 F. 769. Under the statute, the imposition of that part of the penalty which requires payment of the passage money is as necessary and indispensable as payment of the $1,000 fine. The Secretary of Labor was without power to change the fine or penalty fixed by Congress, and any excess ... ...
-
United States v. American President Lines
... ... See Taylor v. United States, 207 U.S. 120, at page 126, 28 S.Ct. 53, 52 L.Ed. 130; The Habana, 2 Cir., 63 F.2d 812, distinguishing The Nanking", 9 Cir., 290 F. 769 cited by the Government ... The Taylor Case, supra, was examined in Osaka Shosen Kaisha Line v. U. S., 300 U.S. 98, 57 S.Ct. 356, 81 L.Ed. 532, and as restricted to alien members of the crew, was approved. It was distinguished as to a passenger ... \xC2" ... ...
-
THE PRESIDENTE WILSON
... ... The precise point appears never to have been ruled before, except in The Bremen (D. C.) 18 F.(2d) 960, a decision of the same judge who passed upon the case at bar. The query thrown out in The Nanking, 290 F. 769 (C. C. A. 9), has never been answered by the court which put it, and indicated no opinion at the time. The Coamo, 267 U. S. 220, 45 S. Ct. 237, 69 L. Ed. 582, does not touch it. Thus we are free to decide the case upon principle, as we see it, and we hold that when it affirmatively ... ...