United States v. National Surety Co.

• Decision Date: 28 July 1927
• Parties: UNITED STATES v. NATIONAL SURETY CO.
• Court: U.S. District Court — Southern District of Alabama

20 F.2d 972 (1927)

UNITED STATES v. NATIONAL SURETY CO.

District Court, S. D. Alabama, S. D.

July 28, 1927.

Alex C. Birch, U. S. Atty., of Mobile, Ala.

Pillans, Cowley & Gresham, of Mobile, Ala., for defendant.

ERVIN, District Judge.

This is a suit on a bond made by the defendant surety company, to recover $11,000 on the following facts:

The Greek steamship Chelatros arrived in Mobile, having on board 30 aliens signed up as seamen, and the immigration officer located in Mobile, pursuant to the provisions of section 20 of the Immigration Act of 1924 (Comp. St. § 4289lj), notified the master of the ship in writing that he must detain on board the ship 17 of these named seamen; that the master failed to detain on board 11 of the 17 named seamen, for which the immigration officer entered a fine of $1,000 for the failure to detain each of these 11 men; that the vessel desired to sail before the final determination of the liability for the payment of said fine, and the bond sued on was given and the vessel cleared by the collector of customs at Mobile.

The bond recites: "(1) If the said principal shall pay to the collector of customs at the port of Mobile, Alabama, promptly on demand, the amount of penalty finally imposed on the vessel, her owners, or master, for violation of the above act, and shall promptly pay any other costs, charges, penalties, or other sums found legally due the United States of America from the vessel, her owners, or master, on account of such violation, * * * then this obligation is void; otherwise, it shall remain in full force and effect."

Demand was made upon the defendant for the payment of the amount, and upon its failure this suit was brought.

Demurrers have been filed to the complaint, questioning the right of the immigration officer to require detention on board the vessel of bona fide seamen, and reliance is had upon the case of United States v. Stump (C. C. A.) 292 F. 354, construing the Act of February 5, 1917, 39 U. S. Stat. at Large, pt. 1, p. 895 (Comp. St. § 4289La et seq.)

I agree to the construction placed upon the act of 1917 by the Stump Case, and also to the proposition that the Secretary of Labor could not add to or extend an act of Congress by a rule. That case was decided July 5, 1923, and on May 26, 1924, the act in question was passed. It repeals the act of 1917, but re-enacts section 32 (Comp. St. § 4289Lr) as section 19 (Comp. St. § 4289lii), and then adds section 20 (Comp. St. § 4289lj), which takes the place of the rule that had been passed by the Secretary of Labor with certain variations.

So we are not now concerned with the power of the Secretary to pass a rule, but have for construction an act of Congress itself. Sections 3, 19, and 20, so far as they bear on the question, read as follows:

Act of May 26, 1924, United States Statutes at Large, vol. 43, p. 154 (Comp. St. § 4289laa). Definition of "Immigrant." Sec. 3. "When used in this act the term `immigrant' means any alien departing from any place outside the United States destined for the United States, except * * * (5) a bona fide alien seaman serving as such on a vessel arriving at a port of the United States and seeking to enter temporarily the United States solely in the pursuit of his calling as a seaman."

Section 19, p. 164. Alien Seamen. "No alien seaman excluded from admission into the United States under the immigration laws and employed on board any vessel arriving in the United States from any place outside thereof, shall be permitted to land in the United States, except temporarily for medical treatment, or pursuant to such regulations as the Secretary of Labor may prescribe for the ultimate departure, removal, or deportation of such alien from the United States."

Section 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.

I recognize the rule that, where the meaning of words used in an act are doubtful, the purpose of Congress may be looked to, and the expressions of this purpose, as shown in the committee reports and statements of its members to Congress, can be looked to, as well as the evils intended to be remedied by the enactment. I have looked to these sources, and I find that the Congressional Record shows very decided differences between Senators Reed of Pennsylvania and Shipstead as to the meaning of the words used in the act, so far as seamen are concerned.

Reed claims that the act does not affect bona fide seamen, that by reason of section 3 they are excepted, while Shipstead contends that, while section 3 excepts them, sections 19 and 20 bring them under the...