270 F. 206 | 5th Cir. | 1921
The appellant libeled the schooner Con-iscliff, a vessel registered under the laws of the United States, for $88 claimed to be due on his wages as mate of that vessel. The claimant (appellee here) admitted that the amount stated was due, but successfully resisted the demand on the ground that the vessel was required to pay, and did pay, more than that amount to the United States Marine Hospital at Mobile for and on account of treatment of the appellant for syphilis. After the appellant, who is an alien, was employed and entered upon service as mate, he contracted the loathsome and contagious disease mentioned through his own fault while ashore in Porto Rico during the vessel’s stop there. When the vessel arrived at Mobile, the disease had manifested itself, and the medical officer who examined the appellant ordered him to be sent to the Marine Hospital for treatment. This was done over appellant’s protest. He remained at that hospital some time and was cured. In consequence of a lack of funds to maintain the Marine Hospital Service, due to a failure of Congress to pass an urgent deficiency bill, a charge was made for the treatment given the appellant, and demand was made that the vessel pay the amount of such charge, which it did.
“See. 32. Tliat no alien excluded from admission into tlie United States by any law, convention, or treaty of the United States regulating the immigration of aliens, and employed on hoard any vessel arriving in the United States from any foreign port or place, shall be permitted to land in the United States, except temporarily for medical treatment, or pursuant to regulations prescribed by the Secretary of Uabor providing for the ultimate removal or deportation of such alien from the United States, and the negligent failure of the owner, agent, consignee, or master of such vessel to detain on board any such alien after notice in writing by the immigration officer in charge at the port of arrival, and to deport such alien, if required by*208 such immigration officer or by the Secretary of Labor, shall render such owner, agent, consignee, or máster liable to a penalty not exceeding $1,000, for which sum the said vessel shall be liable and may be seized and proceeded agairist by way of libel in any district court of the United States having jurisdiction of the offense.”
“Sec. 35. That it shall be unlawful for any vessel carrying passengers between a port of the United States and a port of a foreign country, upon arrival in the United States, to have on board employed thereon any alien afflicted with idiocy, imbecility, insanity, epilepsy, tuberculosis in any form, or a loathsome or dangerous contagious disease, if it appears to the satisfaction of the Secretary of Labor from an examination made by a medical officer, of the United States Public Health Service, and is so certified by such officer, that any such alien was so afflicted at the time he was shipped or engaged and taken on board such vessel and that the existence of such affliction might have been détected by means of a competent medical examination at such time; and for every such alien so afflicted on board any such vessel at the time of arrival the owner, agent, consignee, or master thereof shall pay to the collector of customs of the customs district in which the port of arrival is located the sum of $50, and pending departure of the vessel the alien shall' be detained and treated in hospital under supervision of immigration officials at the expense of the vessel; and no vessel shall be granted clearance pending the determination of the question of the liability to the payment of such fine and while it remains unpaid: Provided, that clearance may be granted! prior to the determination of such question upon the deposit of a sum sufficient to cover such fine: Provided further, that such fine may, in the discretion of'the Secretary of Labor, be mitigated or remitted.”
Under the last-quoted provision a finding that the vessel, or one acting in its behalf, was at fault in the respect stated when the excluded alien was shipped or engaged and taken on board is made a prerequisite to the enforced treatment in a hospital of such alien at the expense of the vessel. It is not thought that a statute which makes provision, in stated circumstances, for the medical treatment of an excluded alien at the expense of the vessel which brought such alien to this country, properly can be given the effect of authorizing immigration officials to subject .a vessel to such an expense in a case not provided for by statute. The circumstance that the right to exercise the power granted was made subject to specified conditions indicates the absence of intention to confer the power unconditionally and without qualification, or in respect of a vessel not shown to be within the terms of section 35, to wit:
“Any vessel carrying passengers between a port of the United States and a port of a foreign country.”
Because of the error committed by sustaining that counterclaim or defense, the decree is reversed.