United States v. Compagnie Generale Transatlantique

• Decision Date: 07 May 1928
• Docket Number: No. 123.,123.
• Citation: 26 F.2d 195
• Parties: UNITED STATES v. COMPAGNIE GÉNÉRALE TRANSATLANTIQUE.
• Court: U.S. Court of Appeals — Second Circuit

26 F.2d 195 (1928)

UNITED STATES v. COMPAGNIE GÉNÉRALE TRANSATLANTIQUE.

No. 123.

Circuit Court of Appeals, Second Circuit.

May 7, 1928.

Charles H. Tuttle, U. S. Atty., of New York City (Frank Chambers, Asst. U. S. Atty., of New York City, and W. S. Ward, Asst. Atty. Gen., of counsel), for the United States.

Joseph P. Nolan and John M. Lyons, both of New York City (Roger O'Donnell, of Washington, D. C., of counsel), for defendant in error.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

MANTON, Circuit Judge.

The Secretary of Labor fined the defendant in error, a steamship line, because its vessels brought into the United States three aliens who were excluded and ordered deported by the immigration officials.

The first immigrant, Taboada, of Spain, sought admission on December 12, 1924, having in his possession a "nonquota" visa issued by the American vice consul at Vigo, Spain. Section 4(b), Immigration Act 1924 (8 USCA § 204(b). He was returning after a temporary visit abroad. The complaint alleged he was a seaman by occupation and came to the United States to reship to a foreign port, having secured a leave of absence from his ship to visit Europe. His final destination was a Central American port and therefore he may have been considered as a temporary visitor under clause 2, § 3, of the Act of 1924 (8 USCA § 203(2). Subdivision (f), § 2, of the Act of 1924 (8 USCA § 202(f), provides that a visa shall not issue if it be believed that the alien is inadmissible. He was excluded as a quota immigrant. The Department of Labor finally conceded his status as a nonquota immigrant and granted permission to him to ship foreign one way, but he was deported before he could avail himself of such privilege. The Commissioner of Immigration imposed a fine of $1,000 and a refund of passage money under the provisions of section 16 of the Immigration Act of 1924 (8 USCA § 216), which were paid. The ship was notified that it would be granted clearance papers on condition only that the amount of the fine and passage be deposited with the collector of the customs in accordance with the provisions of section 16. At the time of his embarkation at the foreign port, the inadmissibility of this alien was unknown to the appellee.

The second immigrant, Bengoa, who had a "nonquota" visa issued by the American consul at Balboa, Spain, was returning to the United States after a temporary visit abroad, when he applied for admission in May, 1925. He, too, was a seaman by occupation, and was returning, intending to pursue that calling, which had been interrupted by a seamen's strike. He intended to reship, but was excluded as a quota immigrant. The privilege of signing on foreign one way, which in effect recognized his nonimmigrant status, was given him, but he was deported before he could avail himself of this privilege. A like fine and the amount of the passage money was imposed under section 16 and paid under protest.

The third immigrant embarked, as coming from Lucerne, Switzerland, with a nonimmigrant visa issued by the American consul there, it being stated that he was a temporary visitor and that his purpose was to visit his father in Colorado. He had a return ticket and cash when he reached New York, but was excluded as a quota immigrant. The steamship was justified, under the circumstances, in accepting him as a passenger intending a temporary visit here. The Commissioner of Immigration imposed a fine in a like sum and the amount of the passage money, which was paid.

The recovery sought is based upon the provisions of section 24 of the Judicial Code (28 USCA § 41), which grants to the District Court jurisdiction "concurrent with the Court of Claims, of all claims not exceeding ten thousand dollars founded upon the Constitution of the United States or any law of Congress, or upon any regulation of an Executive Department, or upon any contract, express or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable, and of all setoffs, counterclaims, claims for damages. * * *"

Section 16, subds. (a) and (b) of the Immigration Act of 1924 (8 USCA § 216 (a), (b), gave authority to the Secretary of Labor to impose a fine of $1,000 for each immigrant brought in by a steamship company in addition to a sum equal to that paid by the immigrant for his transportation, where the immigrant is excluded because he does not have an unexpired immigration visa or where a quota immigrant has an immigration visa, which specifies him as a nonquota immigrant. And subdivision (c) of the same section (8 USCA § 216 (c) provides that "such sums shall not be remitted or refunded, unless it appears to the satisfaction of the Secretary of Labor that such person, and the owner, master, agent, charterer, and consignee of the vessel, prior to the departure of the vessel from the last port outside the United States, did not know, and could not have ascertained by the exercise of reasonable diligence, (1) that the individual transported was an immigrant, if the fine was imposed for bringing an immigrant without an unexpired immigration visa, or (2) that the individual transported was a quota immigrant, if the fine was imposed for bringing a quota immigrant the visa in whose immigration visa specified him as being a nonquota immigrant."

And section 26 of the act amends section 9 of the Immigration Act of 1917 (8 USCA § 145), and excepts from the penalty of this fine transportation companies who bring in aliens who are by any of the provisions of the exceptions of section 3 of the Act (8 USCA § 203) exempt from the excluding provisions of the section. Among others, section 3 permits immigrants to enter who are visiting the United States temporarily for business or pleasure, and section 4 (8 USCA § 204) exempts aliens who are returning from a temporary visit abroad, and seamen also come within the exceptions.

The plaintiff in error argues that the claims are not founded upon a law of Congress, and that, therefore, this action may not be maintained under the Tucker Act (section 24, Judicial Code (28 USCA § 41 (20). The judgment below was granted because the fines were improperly or arbitrarily retained when, under section 16(c) of the act of 1924, the Secretary of Labor should have refunded the sums paid, for the reason that each alien embarked under circumstances by which the defendant in error did not know, and could not have ascertained by the exercise of reasonable diligence, that the aliens were not entitled to their visas. Indeed, it is questioned if, in fact, the Secretary...