Interim Decision #1362 

MATTER or M/S "BERLIN' 

In FINE Proceedings 

NYC-10/52.627 

Decided by Board June 23, 1964 

Liability to sae is not incurred under section 254(a) (1), immigration and 

Nationality Act, for failure to detain on board until after Inspection, since no 

landing occurred when 4 crewmen in the performance of their duty to expedite and assist passengers in landing left the vessel upon arrival and 

proceeded to their positions on the pier at the foot of the gangway, the immediate vicinity of which they did not leave. 

BASIS FOR FixEs : Act of 1952—Section 254(a) (1) [8 U.S.C. 12841. 

IN az: M/S "BERLIN" which arrived at the port of New York from foreign 

on March 25, 1964. Alien crewmen involved : Wilhelm Hermann, Edo 

Timmer. Carl Heinz Ohland and Hans Westendorf. 

The District Director at New York, in a decision dated May 1, 1964, 

held that North German Lloyd, Inc., as owners, agents, charterers or 

consignees of the M/S "Berlin," had incurred liability to administrative penalties totaling $4,000, $1,000 as to each of the alien crewmen 

named above, for failure to detain them on board the vessel until they 

had been completely inspected by an immigration officer, including 

a physical examination by a medical examiner. However, said official found present herein factors which, in his opinion, merited mitigation of the fines to the minimum amount permissible under the 

statute, to wit: down to $200 per crewman. Thus, the total penalty 

which he permitted to stand was $800. The appeal from his decision 

which brings the case before this Board. for consideration, will be 

sustained. 

It appears from the record before us that the follohing material 

facts exist without substantial controversy. Three of the alien crewmen named above were employed as stewards aboard the vessel, while 

the other alien crewman involved was its purser. Three of them had 

been so employed by the carrier for a, period of from six to ten years, 

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Interim Decision #1352 

while the other was comparatively new in the carrier's service. It was 

their duty, upon the vessel's arrival, to expedite and assist passengers 

in landing. 

During the period of their employment, cutter boardings had been 

used almost exclusively, and personnel assigned to assist passengers 

in landing were examined on board prior to the docking of the vessel. 

Thus, the normal and instinctive actions of these crewmen upon the 

docking of the ship was to immediately take up their positions on the 

pier at the foot of the gangway in order to discharge their duties in 

respect to the passengers landing. It was their anxiety to continue 

their excellent performance of duty which caused them to forget that 

the usual examination by immigration authorities had not been made 

in this instance. 

At no time did they leave the immediate vicinity of the gangway 

on. the pier in the performance of their duties. When the violation was 

brought to the attention of the carrier's personnel a responsible party 

was immediately posted at the gangway on board the vessel to remind 

all other crew members of the necessity of examination before leaving 

the ship. Also, these crewmen were all in uniform at the time for ready 

identification. They were subsequently presented for inspection and 

all were granted conditional landing permits. 

The element essential to the establishment of a violation of this section of the law is a "landing." It is our opinion that the foregoing 

does not establish that such an event occurred here within the purview 

of the statute. Rather, it demonstrates that the crewmen involved 

were at all times in close proximity to the gangway and their activities 

there were within the legitimate operation of the vessel. It is our opinion that to hold that violations had taken place under the circumstances 

outlined above would be to reach an absurd result, and no statute—

quasi penal or otherwise—should be so interpreted. 

ORDER : It is ordered that the appeal be sustained and that the 

fines be not imposed. 

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