Yonejiro Nakasuji v. Seager, 7335.

• Decision Date: 08 October 1934
• Docket Number: No. 7335.,7335.
• Citation: 73 F.2d 37
• Parties: YONEJIRO NAKASUJI v. SEAGER et al.
• Court: U.S. Court of Appeals — Ninth Circuit

73 F.2d 37 (1934)

YONEJIRO NAKASUJI v. SEAGER et al.

No. 7335.

Circuit Court of Appeals, Ninth Circuit.

October 8, 1934.

J. Edward Keating and Theodore E. Bowen, both of Los Angeles, Cal., for appellant.

Peirson M. Hall, U. S. Atty., and Robert Winfield Daniels and Joseph John Irwin, Asst. U. S. Attys., all of Los Angeles, Cal., for appellees.

Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.

SAWTELLE, Circuit Judge.

Appellant instituted this action to recover from the Collector of Customs, for District No. 27, a $5,000 fine levied against appellant for failure to deport five Japanese alien seamen, as required by an order of the immigration department, dated March 6, 1931. The fine was imposed under section 20 of the Immigration Act of 1924 (8 USCA § 167), which provides, in part, that:

"The owner * * * 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, * * * 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."

That section also provides that:

"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."

In accordance therewith, appellant was required to deposit with the Collector the amount of the fine to allow his vessel, the Western Enterprise, to clear from port pending final determination as to liability for the fine.

The following facts are not in dispute. The Western Enterprise cleared from San Pedro, Cal., for Ensenada, Mexico, on March 4, 1931, proceeding in ballast. On March 5, 1931, at Ensenada, appellant signed on as additional members of his crew the said five aliens, and the vessel then returned to San Pedro, in ballast. On March 6, 1931, when the vessel arrived at San Pedro, an inspector of the United States Immigration Service boarded the boat and delivered to appellant, its master, a notice "to detain on board and deport from the U. S." the five Japanese aliens.

The vessel remained in San Pedro with its crew, including the five aliens, until March 15, 1931, when it cleared for Mexican waters, proceeding to Magdalena Bay, where the five aliens were not landed but stayed aboard the boat and engaged in fishing. The vessel then returned and remained at San Pedro until April 13, 1931, when it again cleared for Mexican waters to fish. At all these times the five aliens remained aboard.

The vessel returned to San Diego on May 21, 1931, at which time the United States Immigration Service served a notice on appellant "to detain on board while in U. S. ports" the said five alien members of the crew. This notice was similar to the previous one, dated March 6, 1931, except that the earlier order required appellant to "detain on board and deport" the aliens.

The vessel then proceeded to San Pedro, where it remained while repairs were being made to its engines. The aliens remained aboard at all times. On June 11, 1931, an immigration officer made application to the Secretary of Labor for a warrant for the arrest of the aliens on the ground that they had remained in the United States for a longer time than permitted by the Immigration Act of 1924.

On July 6, 1931, the United States Immigrant Inspector, acting for the inspector in charge of the immigration service at San Pedro, served on appellant, "notice of liability for fine," for "failure to detain on board and deport alien seamen." Appellant filed with the United States Immigration Service an answer and protest against the imposition of the fine. Pending final determination as to liability for fine, and after a hearing in the deportation proceedings instituted against the aliens, the Secretary of Labor, on August 3, 1931, in accordance with recommendations of a Board of Review, made the following order as to each of the aliens:

"It is therefore recommended that unless the Master of the SS `Western Enterprise' now agrees to effect the deportation of this alien in the manner contemplated by law, the said alien be deported on another vessel at the expense of the vessel on which he arrived, and such vessel shall not be granted clearance until such expense has been paid, or its payment guaranteed to the satisfaction of the Secretary of Labor, pursuant to paragraph (c), section 20, of the Immigration Act of 1924 8 USCA § 167."

Thereupon the aliens were deported by appellant, aboard the Western Enterprise, by clearing from San Pedro on August 24, 1931, and proceeding to Ensenada, Mexico, where they were landed. However, as above stated, the Western Enterprise was not allowed to clear until the sum of $5,000 was deposited with the Collector to secure payment of the fine, which deposit appellant made under protest on August 24.

Thereafter, on September 29, 1931, appellant's protest against the imposition of the fine was overruled and the Secretary of Labor ordered that h...