Interim Decision 4frL637 

MATTER OF SIT "GRAND ZENITH" 

In Fine Proceedings 

SFR-10/28.333 

Decided by Board August 19, 1977 

(1) Appellant carrier paid off and discharged the involved crewman without first obtaining 

the consent of the Attorney General as required by section 256 of the Immigration and 

Nationality Act. The Service fined the carrier under two provisions of the Act—section 

256 for the unauthorized pay-off and discharge, and under section 254(a)(2), for failure 

to detain on board a crewman who was refused a conditional landing permit. 

(2) The fine imposed under section 256 of the Act was proper because the crewman was 

paid off and discharged without first receiving the consent of the Attorney General. 

(3) Since the carrier was fined for discharging the crewman under section 256, it was not 

proper to- assess a fine under section 254(a)(2) because in these circumstances the 

Service is restricted from imposing two fines for the same misfeasance by the carrier. 

In re: SIT "GRAND ZENITH," which arrived at the purl. of Los Angeles, 

from foreign on August 11, 1976. Alien crewman involved: RONG-YIH KUO 

Basis for Fine: Act of 1952—Section 254(a)(2)—E8 U.S.C. 1284(a)(2)] Section 256 [3 U.S.C. 

1288) 

ON BEHALF OF APPELLANT: Charles M. Haid, Jr., Esquire 

Lillick, McHose & Charles 

500 Sansome Street 

San Francisco, California 94111 

BY: Milhollan, Chairman; Wilson, Appleman, and Maguire, Board Members 

This is an appeal from a decision of the District Director at San 

Francisco, California, dated December 7, 1976, wherein. a fine of $1,000 

($2,000 mitigated to the extend of $1,000) was impossd_ on the vessel's 

agents, Norton, Lilly, and Company, under section 254(a)(2) of the 

En-migration and Nationality Act for failure to detain on Board an alien 

crewman who was refused a conditional landing perrnit, and under 

section 250 of the Act for unlawfully paying off and discharging the alien 

crewman without first having received the consent of the Attorney 

General. 

The basic facts of record are these: (1) the vessel arrived at Los 

Angeles and was inspected by the immigration authorities; (2) the 

master of the vessel was ordered to detain Rong-Yih Kuo because his 

passport was not in order; (3) the vessel proceeded to Pittsburgh, 

California, where the master requested the vessel's local agent to ar460 
/111+VJ..L.1././ „VG..10.M11 IT 

range for the seaman's repatriation to Taiwan; (4) on August 27, 1976, 

the above-captioned alien was presented to the Immigration Service in 

San Francisco for processing his repatriation; he had previously been 

paid off and discharged from the vessel by the master; and (5) the 

appellant did not obtain the consent of the United States Immigration 

Service prior to discharging the alien crewman here involved. He was 

repatriated to Taiwan without expense to the Government. 

We have determined that the fine imposed pursuant to section 256 of 

the Act was properly imposed. Under the terms of section 256 of the 

statute, the carrier has an absolute duty not to pay off or discharge any 

alien crewman employed on board a vessel or aircraft arriving in the 

United States without first having obtained the consent of the Attorney 

General. The element essential to establish a violation is termination of 

the crewman's employment by an affirmative act of the parties responsible for the vessel's operation—including the agents and masters, who 

are charged with knowledge of the pertinent regulations, Matter of 

HMS "Bounty," 10 L & N. Dec. 391 (BIA 1963). Fines imposed pursuant to this section are in the nature of an in rem liability of the vessel, 

assessable against any one of the persons responsible for the vessel and 

named in such section regardless of which of them actually performed 

the physical act of paying off or discharging an alien seaman, and such 

fine is not merely the liability of the person performing the physical act 

of paying off, United States v. Seaboard Surety Company, 239 F.2d 667 

(4 Cir. 1957); Matter ofM IV "Bergen Juno," Interim Decision 2554 (BIA 

1977). The record in this case supports the conclusion that the alien 

seaman was paid off and discharged without first receiving the consent 

of the Attorney General to do so. See: The Limon, 22 F.2d 270 (2 Cir. 

1927); Matter of SS. "Republic," 5 I. & N. Dec. 663 (BIA 1954); Matter 

of SS. "Federal Commerce," 8 I. & N. Dec. 366 (BIA 1959); Matter of 

SS_ "Loch Avon," 7 I. & N. Dec. 215 (BIA 1956); Matter of SS. "Captain 

K. Papzoglou," 5 I. & N. Dec. 567 (BIA 1953); Matter of SS. "Ciudad 

De. Barquisirneto," 6 I. & N. Dec. 311 (BIA 1954). 

Basically, the requirements of detention in Section 254, specifically 

subsection (3), and section 256 are aimed at controlling alien crewmen, 

and their ultimate removal if they are found to be inadmissible. In this 

case the carrier was fined under both section 254(a)(2) (failure to detain 

on board the vessel until proper permission is given by the Service) and 

section 256 (to pay off or discharge an alien crewman without first 

having obtained consent of the Service). We believe that in these circumstances, the Service is restricted from imposing more than one fine 

for the identical misfeasance. )Consequently, we shall order that the fine 

See: Navigezione Generale Italian v. Elting, 66 F.2d 537 (2 Cir. 1933); Lloyd 

Sabaudo Societe, Anoninza Per Azioni v. Elting, 80 F.2d 869 (2 Cir. 1936); Cosutich Line 

of Trieste v. Elting, 40 F.2d 220 (2 Cir. 1980). 

461 
Intenm .uecision vzoo 

imposed under section 254(a)(2) be remitted in full. Accordingly, the 

following order will be entered. 

ORDER: The District Director's decision of December 7, 1976, is 

modified to provide remission in full of the fine imposed under section 

254(a)(2), and as so amended the decision is affirmed. The penalty 

permitted to stand is $500.00. 

462