Interim Decision #1928 

MATTER OF M/V HALCYON WAVE 

In Fine Proceedings 

NYC-10/52.1402 

Decided by Board December 3, 1968 

Where 4 alien crewmen who had not been issued conditional landing permits 

were on board when the vessel left port but shortly thereafter were found 

missing, along with a lifeboat which was subsequently located on a nearby 

beach, fine lies under section 254(a) (2) of the Immigration and Nationality Act for failure to detain on boards however, since the parties responsible for the vessel's operation exerted all reasonable precautions to detain 

the crewmen on board, fine is mitigated to the extent of a remaining penalty of $200. per crewman. 

BASIS FOR FINES: Act of 1952—Section 254(a) (2) [8 U.S.C. 1284]. 

Ix BE: M/V Halcyon Wave, which arrived at the port of New York from 

foreign on April 1, 1968. Alien crewmen involved: Man Mau Yuen 

Chi, Chang Chun Piu, Chau Yun Fan and Miu Yuen Shing. 

ON BEHALF OF APPELLANT: Thomas M. McCaffrey, Esquire 

c/o Theodore F. Turner 

21 West Street 

New York, New York 10006 

The District Directot: at New York, in a decision dated September 1'7, 1968, held that Simpson, Spence & Young, Inc., as agents 

for the vessel, had incurred liability to administrative penalties 

totaling $4,000, $1,000 as to each of the alien members of the 

crew named above, for failure to detain them aboard the vessel at 

all times despite the fact that they had not been granted conditional landing privileges. However, said official found present 

herein factors which, in his opinion, merited mitigation of the 

fines to the extent of $1,600, $400 per crewman. Thus, he permitted to stand a total penalty of $2,400, $600 per crewman. 

It appears from the record before us that the following material facts exist without substantital controversy. Immigration 

inspection, which was accorded the crew of this vessel immediately upon its arrival in the United States, resulted in the denial 

92 
Interim Decision # 1928 

of conditional landing privileges to 34 Chinese' alien members of 

the crew, including the four named above. Having anticipated 

that some of the vessel's crew members would be refused conditional landing privileges upon arrival, the parties responsible for 

its operation had arranged to and did have five professional 

guards and one supervisor on duty at all times while the vessel 

was in port to prevent any and all detainees from leaving the 

ship and making their way ashore in the United States. The professional guards checked all the detainees just before the ship left 

the dock when it was sailihg foreign, and all were on board. The 

four alien crew members named above, and a lifeboat, were found 

to be missing from the ship shortly after it had sailed foreign. 

This was reported promptly to the Service, and the detainees' 

crewman's papers were subsequently made available to the Immigration and Naturalization Service. A copy of a report of the 

New York City Police Department shows that one of the vessel's 

lifeboats was found just off South Beach, Staten Island, New 

York Bay, apparently the day after the vessel's foreign sailing. 

The element essential to the establishment of liability to a fine 

under this section of the law is the "landing" of the crewman or 

crewmen involved. We are satisfied that the evidence of record, as 

hereinbefore recited, demonstrates the existence of this crucial 

factor here. The carrier has not introduced any evidence to the 

contrary and, in fact, has not challenged its liability to the fines. 

Accordingly, we will affirm the District Director's decision to impose a penalty. 

However, contrary to the District Director's opinion, we feel 

that the maximum mitigation permissible under the statute, to 

wit: dawn to $200 per crewman, is warranted in these premises. 

It is our judgment that the parties responsible for this vessel's 

operation exerted all possible and reasonable precautions to the 

end that their absolute statutory duty of detention existing as to 

these crewmen might be met. 

Professional guards were hired in sufficient number to prevent 

the landing of the detainees while the vessel was tied up in port. 

The record shows that the detainees were all on board at the time 

the vessel left its berth. Because of the problems inherent in 

clearing the port and getting under way to sea, we do not think it 

can seriously be argued that the parties responsible for the vessel's operation were lax in failing to prevent the escape of these 

four detainees in the manner outlined. Absent any evidence to the 

contrary, and we find none herein, we so hold. 

93 
Interim Decision #1928 

ORDER: It is ordered that the District Director's decision of 

September 17, 1968, be modified to provide for mitigation of the 

fines to the extent of $3,200, $800 per crewman, and that as so 

amended the decision of said official be and the same is hereby affirmed. The penalty permitted to stand is $800, $200 per crewman. 

94