89 Ct. Cl. 307 | Ct. Cl. | 1939
delivered the opinion of the court:
This is an action by the Bio Cape Line, Ltd., owner of the steamship Chinese Prince, for the recovery of $15,000, being the amount of fines imposed and collected from plaintiff by the officials of the defendant because of the failure of the master of the Chinese Prinee to detain on board fifteen alien members of his crew after an order for their detention had been issued by an immigration inspector.
Plaintiff is a British corporation and its ship, the Chinese Prinee, arrived in Boston in September 1929, having an alien crew. An immigration inspector, after inspecting the crew, served on the purser of the vessel a notice or order that twenty of the crew should be detained on board. The purser signed a receipt of the notice “Thomas Goldsworthy, purser for master.” The vessel proceeded from Boston to New York and from New York to Newport News without any further notice, but an immigration inspector at Newport News found that fifteen of the seamen who had been ordered detained at Boston were not aboard.
Furness, Withy & Company, Ltd., were the agents of the vessel at Newport News and Norfolk. Shortly after the arrival of the vessel at Newport News the agents were served with notices from the immigration inspector there that fines in the amount of $15,000 were claimed on account of the escape of the fifteen seamen, and these notices granted sixty days’ time in which a defense might be offered showing why no penalty should be imposed.
The Chinese Prince sailed from Newport News on November 5, 1929. On April 1, 1930, Furness, Withy & Company, Ltd., paid to the Collector of Customs $15,000 which was deposited in the Treasury of the United States. No protest was made to the collector at the time of this payment but demand was made for the repayment thereof on February 19, 1936.
The plaintiff alleges that the amount of the fines was illegally and wrongfully collected from it on the ground that the plaintiff was not served with notice of the order to detain the members of the crew who subsequently escaped, and that the payment of the fines was not voluntary but was made under duress in order to obtain clearance papers for the steamship Chinese Primee so that it could continue its voyage.
The defendant contends that sufficient service was made to bind the owners, and that the fines were legally imposed and voluntarily paid.
The statute under which the fines were imposed is section 20 (a) of the Immigration Act of 1924, c. 190, 43 Stat. 164, 8 U. S. C. 167 (a), which provides:
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.
In Compagnie Generale Transatlantique v. Elting, 298 U. S. 217, 223, 224, it is said with reference to the imposition of a fine for failing to detain seamen after examination by the immigration officer that—
A duty so to detain does not arise unless and until such detention is required by the immigration officer. Obviously the requirement must be communicated to the one on whom the duty is to rest; otherwise he could not be regarded as “required” so to detain or as “failing” to do so.
A comparison of the facts in the case above cited with those which appear in the case at bar will show that the two cases are quite similar. In the case before us the
Here the requirement was communicated to the master of the ship but was not in any way brought to the knowledge of the owner; and yet the administrative officers imposed the fine on the latter. The court below sustained this administrative action on the theory that the master of a ship represents the owner, and therefore notice given to the master may and should be imputed to the owner. But in our opinion the section does not admit of the application of that theory. It contains nothing indicative of a purpose to regard notice to one of the enumerated persons as binding the others or any of them. On the contrary, it deals with all in the same way, includes each of them in the enumeration by reason of his relation to the vessel and his authority over her, and puts each on a plane of individual duty and liability regardless of any relation of one to another.
Also:
. A master in charge who is required by the immigration officer to detain alien seamen after examination becomes thereby personally charged with a duty to detain them, and, if he fails therein, becomes personally subject to the prescribed fine. The same thing is true of the owner, charterer, agent or consignee. But none is charged with a duty so to detain unless he is notified of that requirement, and notice to one does not without more operate as notice to another.
The court also cited with approval the decision in United States v. J. H. Winchester & Co., 40 Fed. (2d) 472, to the effect that an order served only on the master of a vessel did not impose any duty on the agent and therefore he was not
Nothing in the section indicates that notice to the master and a failure by him are to be imputed to the owner and made a basis for fining the latter.
There is no evidence in the instant case that the detention notice was served upon either the agents or the owner and no claim is made that either of them had any knowledge thereof except as acquired after the escape of the seamen by reason of the notice of the proposed fine being served. It seems clear that so far as the owner or agents are concerned, the provisions of the statute as construed by the Supreme Court had not been complied with. In the case now on trial it is sought to hold the owner liable by reason of service of the notice of detention upon the master. This, under the rules laid down by the Supreme Court, cannot be done.
It is contended on behalf of defendant that the fines were paid voluntarily and having been so paid cannot be recovered.
We think that even if it had appeared that the fines were paid voluntarily, this would not prevent a recovery thereof if they were in fact unlawfully collected, but it is not necessary to so hold in the case before us. When the notices of liability were issued by the immigration inspector at Newport News together with bills for the amount thereof, copies of the notices and bills were delivered to the Collector of Customs and also to the Newport News office of the owner of the vessel. The Collector of Customs was authorized on receipt of such notices and bills to refuse clearance of the vessel until the amount named therein had been deposited with the collector, or a bond satisfactory to the collector furnished, and the notices of liability under the fine stated that the vessel would be granted clearance papers upon a deposit of the amount of the proposed fine or upon furnishing a satisfactory bond. We think that when a vessel could not obtain a clearance to continue its voyage until these conditions were complied with, the filing of the bond by the agent and
It is further urged on behalf of the defendant that the action of the plaintiff in presenting to the Immigration authorities a letter from the master of the vessel giving his version of the matter constituted a full appearance in the case and ratified all the proceedings with reference to the notices. The notice of liability for the fine was directed to and served upon the agents of the owner. It advised the agents that they would be allowed a period of sixty days in which to offer a defense showing why, in their opinion, no penalty should be imposed. To this notice the agents responded enclosing a letter from the master giving reasons why, in his opinion, the fine should not be imposed. The Board of Beview considered the statement of the master, treated it as a protest against the imposition of the fine, but recommended that the penalty be imposed. There was nothing in the action taken by the agents and the master that validated the failure to make a foundation for the case by a proper service of the notice of detention. To sustain this contention on behalf of the defendant the case of United States v. S. Manessis, Master of Panamanian Steamship “Mount Ossa,” and National Surety Corporation of New York, decided November 12, 1938, by the District Court of the United States for the Eastern District of Virginia (Norfolk Division) is cited. The opinion rendered in that case shows that the notice of detention was served upon the master and the fine was imposed upon the master. But the opinion distinguishes it from the case of Compagnie Generate, supra, where, like the case at bar, neither the agents nor the owner had any knowledge of the service of the notice to detain until after the escape. The Manessis case, supra, is not therefore any authority to sustain the defendant’s contention.
The plaintiff also contends that the notice of detention was not such as was required by the statute. It is said that the statute requires the notice to be given by “such
Lastly, the defendant contends that this court is without jurisdiction to entertain the action. More specifically stated, the defendant’s contention is that this suit is on a contract implied in law and is not maintainable under the Tucker Act. In support of this contention the defendant cites United States v. Algoma, Lumber Co., 305 U. S. 415; Alabama v. United States, 282 U. S. 502; and Baltimore Mail Steamship Co. v. United States, 76 Fed. (2d) 582. The cases relied upon by defendant involve altogether different facts from those which appear in the instant case. In fact, the nature of the actions and the circumstances of each case are so dissimilar to the case at bar that we do not think it is necessary to review them. The decisions therein furnish no foundation for the contention made by the defendant.
Nor do we think it is necessary to consider defendant’s contention that suits to recover penalties under the immigration statutes are not maintainable under the Tucker Act. In many such cases the courts have entered judgment in favor of the plaintiff,' and while the matter has not been directly passed upon by the Supreme Court the judgments of the lower courts have been affirmed.
Plaintiff is entitled to recover the amount of fines paid and judgment will be entered accordingly.