United States v. JH Winchester & Co.

• Decision Date: 07 April 1930
• Docket Number: No. 255.,255.
• Parties: UNITED STATES v. J. H. WINCHESTER & CO., Inc.
• Court: U.S. Court of Appeals — Second Circuit

40 F.2d 472 (1930)

UNITED STATES v. J. H. WINCHESTER & CO., Inc.

No. 255.

Circuit Court of Appeals, Second Circuit.

April 7, 1930.

Charles H. Tuttle, U. S. Atty., of New York City (Mary R. Towle, Asst. U. S. Atty., of New York City, of counsel), for the United States.

Haight, Smith, Griffin & Deming, of New York City (E. R. Kraetzer, of New York City, of counsel), for appellee.

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

SWAN, Circuit Judge.

This action was brought to recover penalties under section 20 of the Immigration Act of 1924 (8 USCA § 167) for failure to detain on board the Norwegian steamship Erle two alien seamen, after the master had been required by an immigration officer to detain them. A written demand to detain them was served on the master after inspection of the crew at the quarantine anchorage on a Saturday afternoon. The defendant, local agent of the vessel's foreign owner, had no knowledge of it until the following Monday, and in the meantime the aliens had deserted and escaped at Edgewater, N. J., whither the vessel had proceeded from quarantine. Subsequently, and after the vessel had been allowed to clear with knowledge by the immigration officials of the seamen's desertion, a demand was made upon defendant for the payment of $2,000 penalty. The appeal presents a single question of narrow compass, namely, whether the notice to the master constitutes a sufficient notice to the defendant to impose liability upon it.

The relevant portions of the section are as follows:

"Sec. 20. (a) The owner, charterer, 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 examination by the medical examiners), or who fails to detain such seaman on board after such inspection or to deport such seaman if required by such immigration officer or the Secretary of Labor to do so, shall pay to the collector of customs of the customs district in which the port of arrival is located the sum of $1,000 for each alien seaman in respect of whom such failure occurs. No vessel shall be granted clearance pending the determination of the liability to the payment of such fine, or while the fine remains unpaid, except that clearance may be granted prior to the determination of such question upon the deposit of a sum sufficient to cover such fine, or of a bond with sufficient surety to secure the payment thereof approved by the collector of customs.

"(b) Proof that an alien seaman did not appear upon the outgoing manifest of the vessel on which he arrived in the United States from any place outside thereof, or that he was reported by the master of such vessel as a deserter, shall be prima facie evidence of a failure to detain or deport after requirement by the immigration officer or the Secretary of Labor."

This section finds its origin in section 32 of the Act of February 5, 1917 (39 Stat. 895), which it expressly repealed. Section 32 imposed liability only for the "negligent failure" to detain or deport, and made "notice in writing by the immigration officer" a condition precedent to liability for the penalty. Sinclair Nav. Co. v. United States, 32 F.(2d) 90 (C. C. A. 5); The Kathlambra, 18 F.(2d) 113 (D. C. E. D. N. Y.); The E. W. Sinclair, 1 F.(2d) 453 (D. C. S. D. Fla.). Although the provision for a written notice is not expressly contained in section 20 of the Immigration Act of 1924 (8 USCA § 167), the practice of the immigration officials has been to continue to use under the later act the same form of notice as was used under the earlier; and it seems clear that the nature of the situation, as well as the phrase, "if required by such immigration officer," necessitates some form of demand upon the owner, charterer, agent, consignee, or master before any of the persons named becomes liable for failure to detain the particular alien seaman whom the immigration officer has selected for detention. The matter left ambiguous is upon whom the demand must be made to impose liability on others than the person notified.

It is not argued that notice to any one of the named classes of persons would suffice to bind all the others. The government asks only that the statute be construed to permit notice to the master to bind all. Indeed, its contention is even narrower, for it urges the desired construction merely in respect to foreign owned vessels. But the statute makes no distinction between foreign owned and domestic vessels, so that whatever construction is adopted must apply to both alike. The appellee contends, on the other hand, that notice must be given to the person to be held, or to his authorized agent. Concededly, the master is under ordinary circumstances the agent of the owner only. See American Asiatic Co. v. Robert Dollar Co., 282 F. 743, 749 (C. C. A. 9); The Penza, 9 F.(2d) 527 (C. C. A. 2); cf. Suzuki v. Nat. Surety Co., 290 F. 942 (C. C. A. 2).

An examination of the congressional history of section 20 of the Immigration Act of 1924 (8 USCA § 167) throws no light on the precise question. It does show that section 32 of the 1917 act had been found inadequate to prevent...