MATTER OF M/S "TENNA DAN" 

In FINE Proceedings 

PHI-10/99.213 

Decided by Board February 16,19E2 

Wine Section 254(a)(2)—Absolgte duty to detain. 

The temporary removal of a crewman from a vessel, by order of the Service, 

for fingerprinting after he has been refused landing privileges does not relieve the responsible parties from the absolute duty to detain the crewman 

on board after he has been returned to the vessel from fingerprinting. The 

effect of the "Refused" landing permit was not terminated but merely suspended until the crewman's return aboard the ship. 

Is M/S Tenna Dan, which arrived at the port of Philadelphia, Pennsylvania, from foreign, via ano•lier United States port on September 12, 

1961. Alien crewman involved: 

BEFORE THE BOARD 

DISCUSSION: This appeal is directed to an administrative penalty of $1,000 which the District Director at Philadelphia, finding 

no justification for mitigation, has ordered imposed on the Stockard 

Shipping and Terminal Corporation, as agents for the vessel. The 

District Director charges that said agents failed to detain the abovenamed alien crewman aboard the vessel despite the fact that he had 

not been granted a conditional landing permit. 

This vessel made its first United States port call at New York 

on September 9, 1961, where immigration inspection was accorded 

its crew. The result of such inspection was that this crewman was 

not granted shore leave privileges, as evidenced by a Form 1-95 

"Refused" issued as to him and served on the Master. On September 11, 1961, pursuant to written notice from the Service to the 

Master, the vessel's chief wireless operator escorted this crewman 

to the Immigration office at 20 West Broadway, New York, so that 

he might bo photographed and fingerprinted in connection with his 

application for a permanent type conditional landing permit and 

identification card, Form 1-184 (8 CFR 252.4). When this had 

been accomplished, the chief wireless operator escorted the crewman 

back to the vessel and informed the Master that the Service had 

issued no further orders or instructions with respect to the crewman. Under these circumstances, the Master believed that it was 

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no longer necessary fur him to guard the crewman and he did not 

do so. However, he did immediately notify the Service telephonically when it was reported to him on September 15, 1961, after the 

vessel had proceeded coastwise to the port of Philadelphia, that the 

crewman was missing from the ship. Five days after he had left 

it, and specifically on September 19, 1961, the escapee was taken into 

custody by a Marine guard when he returned to the pier where his 

ship had been berthed. He was then turned over to the Immigration Service and later removed from the United States by the responsible parties without expense to the Government on another 

vessel of the same line. 

This statute places upon the parties named therein as being responsible for the operation of a vessel, agents included, the absolute 

duty of detaining aboard the vessel at all times aliens serving 

thereon as crewmen, unless and until that duty of detention is lifted 

by an immigration officer granting the crewmen shore leave privileges. It is no defense to the imposition of a penalty thereunder 

that the Service later ordered the detainee taken ashore so that his 

further processing might be completed, because the crewman did 

not escape until after he had been placed back aboard the vessel and 

the "Refused" landing permit was then still outstanding. That is, 

the effect of the "Refused" landing permit was not terminated but 

merely suspended until the crewman's return aboard the ship. 

Upon the basis of all the evidence presented, as hereinbefore 

summarized, it is found— 

(1) that the M/S Tenna Dan arrived at Philadelphia on September 12, 1961, having on board the alien crewman SAC C , who was not granted a conditional landing permit; 

(2) that said crewman escaped from the vessel on or about 

September 14, or 15, 1961, and was at large in the United 

States for several days; and 

(3) that the Stockard Shipping and Terminal Corporation 

acted as agents for the vessel at Philadelphia. 

Accordingly, it is concluded— 

that under section 254(a) (2) of the Immigration and Nationality Act (8 U.S.C." 1284), liability to fine has been incurred by 

the Stockard Shipping and Terminal Corporation. 

The only issue remaining is whether mitigation of this fine is 

merited and, if so, to what extent. On the basis of the factors hereinafter discussed, it is our opinion that some reduction in the 

amount of the fine is warranted. However, we cannot agree with 

the carrier that mitigation thereof to the minimum amount permissible under the statute, to wit, down to $200, is warranted. 

It is established and uncontested that the vessel's Master telephonically informed the Service immediately upon learning of the 

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crewman's escape from the vessel. He also furnished such information with respect to the alien's possible movements in the United 

States as was available to him. Such action obviously demonstrates 

cooperation with the Service to an extent over and above that required by law under pain of penalty of $10 (section 251(b), (d), 

Immigration and Nationality Act; 8 U.S.C. 1281). Accordingly, 

we consider this as a factor calling for a reduction in the amount of 

the penalty to some extent. 

It is also established in the record and uncontested here that the 

responsible parties had this escapee removed from the United States 

aboard another vessel of the same line promptly and without expense to the government. We think that such prompt action in this 

respect by the responsible parties was not only beneficial to them, 

since they were required to remove him from the United States 

under pain of penalty of $300 under another section of the law 

(section 243(e) of the Immigration and Nationality Act; 8 U.S.C. 

1253), but was also beneficial to the Service in that it relieved them 

of the necessity of in3tituting deportation proceedings against the 

crewman and additional fine proceedings against the responsible 

parties. Accordingly, we believe that this factor must be considered in arriving at a just determination of the amount of mitigation warranted in the matter. 

Furthermore, in our estimation, the record demonstrates that the 

Master did not take the usual precautions to keep this crewman 

aboard the ship because of the Service's order to have the crewman 

brought ashore for further processing. This was a novel experience 

for the Master and a deviation from the usual routine followed as 

to crewmen aboard his vessel when previously in United States 

ports. We feel that this explains why he did not take all the precautions normally required as to a detainee and reflects that the 

violation was not an intentional disregard of the immigration laws 

of the United States on his part. .We, therefore, are of the opinion 

that this factor is also one properly to be considered in arriving at 

a fair amount of mitigation in this matter. 

Upon careful consideration of the foregoing, together with the 

representations throughout, we feel that this penalty should be 

reduced to the extent of $500; but we cannot agree with the carrier 

that it should be reduced to $200. No claim has been advanced or 

showing made that the responsible parties exerted any efforts of 

their own to locate and/or apprehend the escapee, and his ultimate 

apprehension is not traceable in any definite way to their efforts. 

ORDER: It is ordered that the decision of the District Director be 

modified to provide for mitigation of the penalty to the extent of 

$500 and that as so modified the decision of said official be and the 

same is hereby affirmed. The penalty permitted to stand is $500. 

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