United States v. Columbus Marine Corporation

• Decision Date: 16 January 1933
• Docket Number: No. 137.,137.
• Parties: UNITED STATES v. COLUMBUS MARINE CORPORATION et al.
• Court: U.S. Court of Appeals — Second Circuit

62 F.2d 795 (1933)

UNITED STATES v. COLUMBUS MARINE CORPORATION et al.

No. 137.

Circuit Court of Appeals, Second Circuit.

January 16, 1933.

Loomis & Ruebush, of New York City (Homer L. Loomis, of New York City, of counsel), for appellants.

George Z. Medalie, U. S. Atty., of New York City (Mary R. Towle, Asst. U. S. Atty., of New York City, of counsel), for the United States.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

The action was first to recover fines of $6,000 from the defendant, Columbus Marine Corporation, and, second, upon a bond for $5,000 posted by that company and the other defendant, National Surety Company, as guarantor to secure any fines imposed. The complaint not drawn by the attorney appearing on this appeal, is so insufficient that it is difficult to ascertain what the pleader intended, but, as we dispose of the case upon the merits, we shall assume that it attempted to lay a complaint for fines against the ship's agent, the defendant, Columbus Marine Corporation, under section 20 of the Immigration Act of 1924 (8 USCA § 167) for the escape of six alien seamen; and against both defendants upon a bond to secure all fines levied against any person, under which the ships might be denied clearance. The facts were as follows: The S. S. Iris, of which the Columbus Marine Corporation was agent, arrived in the port of New York in April, 1925, with four alien seamen aboard, whom the immigration inspector directed the master to detain, but who escaped. The agent learned of the order of detention, though never served with it, and tried to detain the aliens, no doubt considering itself also charged by the order to the master. The ship left for Norfolk, and was about to clear from there on May second, when, apprehending that she might be held up, the agent, on May first, offered the Commissioner of Immigration a bond, guaranteeing any fines which might be levied, and on the next day posted the bond in suit. On May fourth, the agent received from the Commissioner a letter, addressed to itself as agent of the ship, stating that "apparently penalties had been incurred under sections 19 and 20 of the act 8 USCA §§ 166, 167." The letter gave it thirty days "for that purpose," if it should "desire a hearing as to whether a fine should be imposed," and added that the ship might clear upon giving a deposit or posting a bond as security. On June eleventh, the collector of customs, at the direction of the Bureau of Immigration, informed the agent that a fine of four thousand dollars had been imposed, upon whom it did not say. Substantially the same course was followed in the case of another steamer, the Carnia, of which also the Columbus Marine Corporation was agent. During the following August she brought in two alien seamen, whom the visiting inspector directed the master to detain. Again, the agent helped the master to detain them, but they escaped. The Commissioner then gave the agent sixty days' notice of a similar hearing, and imposed a fine of two thousand dollars, once more without declaring who was responsible. We shall assume that the bond secured all fines imposed against any person who could be fined, and was given to procure the release of any ships for which the agent acted.

We held in U. S. v. J. H. Winchester & Co., 40 F.(2d) 472, that a ship's agent was not liable for the escape of an alien seaman if the inspector had not served him with a detention order. The clause, "if required," in section 20 (a), meant, we thought, that the "owner, charterer, agent, consignee or master," to become liable, must be personally ordered to detain the alien. If that be true, though the agent learned of the orders directed to the master, the information did not impose any duty upon it; nor the escapes, any fine. It is true that both orders were addressed to all the persons mentioned in the statute, but that, as we view it, made no difference. The master was not the agent of the others — except perhaps of the owner — to receive the notice; each person must be ordered to detain the seamen, on whom any duty was to be imposed. As an action to collect the fines, the cause therefore fails.

This does not, however, dispose of the action on the bond, if, as we are assuming, this was meant to cover all fines levied upon any person, which would prevent the ships' clearances. On that theory a valid fine against the master would be enough, and the foundation for such a fine was laid by the inspector's orders to detain the seamen. Nevertheless, the bond secured only valid fines, and if there were none, it was not forfeited. The question therefore arises whether there was any condition upon the liability to a fine except an escape after the obligor had been "required" to detain the seamen. Explicitly there was none, as there is for example in section 16 (b) and (c) of the Immigration Act of 1924, 8 USCA § 216 (b) and (c), and in sections 7, 9, 14, 18, 35, and 36, of the Immigration Act of 1917 (8 USCA §§ 143, 145, 150, 154, 169, 171), under which some action by the Secretary of Labor is contemplated before any liability can arise. Section 20 (a) of the...