Interim Decision #2696 

MATTER OF M/T "RAJENDRA PRASAD" 

In Fine Proceedings 

SFR-10/28.340 

Decided by Board March 30, 197.9 

(1) For purposes of an administrative fine proceeding under section 273 of the Immigration 

and Nationality Act, 8 U.S.C. 1323, there are essentially two categories of persons 

considered passengers: (a) those who have paid for passage an& have a contract with the 

carrier and (b) all those who do not fall into the category delineated by the terms "the 

master, the crew and the owner and his family and servants." 

(2) All passengers come within the fine provisions of section 273 of the Act, not merely 

paying passengers. Matter of S.S. Greystoke Castle and MIV Western Queen, 6 I. & N. 

Dec. 112 (BIA 1954; A.G. 1954); Matter of S.S. Saint Tropez, 7 I. & N. Dec. 500 (BIA 

1957), modified. 

(3) The provisions of section 273(b) of the Act, 8 U.S. C. 1323(b), calling for an assessment 

againbt the offending tteuteputtation company equal to the paaaage money paid by a 

visa-less passenger is a means of reimbursing a passenger, and does not serve to set a 

limit on the definition of the term "passenger" under this section. Matter of S.S. 

Greystoke Castle and liflV Western Queen, 6 I.& N. Dec. 112 (BIA 1954; A.G. 1954), 

modified. 

(4) Where the sole faction of an alien is to contribute to the morale of the ship's officers, 

but not to the functioning of the vessel itself, and the aliens have no background as 

seamen, no labor obligation to the vessel, are not paid as crewmen, and would not be 

classifiable as crewmen under maritime law, they must be considered passengers for 

purposes of section 273 of the Act. 

(5) The spouses and children of ship's officers are not crewmen for purposes of section 273 

of the Act, because they do not contribute to the functioning of the vessel itself, and the 

ship is amenable to line because the aliens were brought into the United States without 

the visa required of passengers, into which category they fall. 

In re: M/T "RAJENDRA PRASAD", which arrived in the United States at the port of 

San Francisco, California, from foreign, on April 4, 1977. Aliens involved: SA.DHANA. 

DABRAL, VIJAYA KAUL, VEENA MOD!, AMRIT VIVEKANAND, KAMADA R. 

VIVEKANAND, and NEROO WALIA. 

BASIS OF FINE: Act of 1952—Section 273(a) and (b), [S U.S.C. 1323(a) and (b)] 

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

Lilliek, MoRose & Charles 

500 Sansome Street 

San Francisco, California 94111 

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members 

In a decision dated July 25, 1977, the District Director found that the 

M/T "Rajendra Prasad" was subject to a $6,000 fine for having brought 

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Interim Decision #2696 

six aliens into the United States without valid unexpired visas. The 

shipping company appeals from this decision. The appeal will be dismissed. 

The essential facts in this case are not in dispute. On Apri14, 1977, the 

ship, owned by the Shipping Company of India, arrived at San Francisco, California, from Yokohama, Japan. On board, other than the 

usual crew members, were five women, the spouses of officers serving 

on the ship, and the son of the ship's master. The six aliens were listed 

on the "passenger list" and, according to the District Director, were 

presented to the immigration inspector as such. The six aliens did not 

have valid visas in their possession. They were paroled into the United 

States and left with the ship on May 6, 1977. On April 8, 1977, a "Notice 

of Intention to Fine Under Immigration and Nationality Act" was 

issued by the District Director. In this notice, he informed the ship's 

agents of his intention to levy a $6,000 fine under section 273(b) of the 

Immigration and Nationality Act, S U.S.C. 1323(b), on the ground that 

the "Rajendra Prasad" had brought six alien passengers into the United 

States without the required visas. In response to this notice, the ship's 

San Francisco agent stated that the six aliens involved were "noted as 

passengers on a separate listing presented to the inspector. . . ." He 

indicated that the aliens may have been so listed because the ship's 

agent in Yokohama may have misinterpreted the immigration regulations. A reevaluation of the fine was requested. After considering the 

information available, the District Director concluded that the vessel 

was liable to fine in the amount of $6,000 because the aliens had come as 

passengers without valid unexpired visas. 

On appeal, it is contended that the essential issue is the status of the 

aliens involved. Counsel for the "Rajendra Prasad" argues that they 

should be considered "crewmen," not passengers, and as crewmen that 

they were not required to have visas, and did not come within the fine 

provisions of section 273 of the Act, 8 U.S.C. 1323. 

Section 273 of the Aet states in part: 

(a) It shrill be unlawful for any person, including any transportation company; or the 

owner, master, commanding officer, agent, charterer, or consignee of anv vessel 

or aircraft, to bring to the United States from any place outside thereof (other 

than from foreign contiguous territory) any alien who does not have an unexpired 

visa, if a visa was required under this Act or regulations issued thereunder. 

(b) If it appears to the satisfaction of the Attorney General that any alien has been so 

brought, such person, ... 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 po 

brought.. . 

Part (c) of this provision provides for remission or refund of the fine if 

it was not known and could not have been ascertained by the exercise of 

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reasonable diligence that the individual involved was an alien and that a 

visa was required. 

This section of the Act has been interpreted as applying only to 

passengers. Matter of S.S. Saint Tropez, 7 I. & N. Dec. 500 (BIA 1957). 

Stowaways and crew members have been specifically excluded as persons whose presence would subject the vessel to fine proceedings under 

section 273 of the Act. Matter of S.S. Greystoke Castle and MW Western Queen, 6 I. & N. Dec. 112 (BIA 1954; A.G. 1954); Matter of S.S. 

Saint Tropez, supra. 

This being the case, it is clear that if the six aliens were "crewmen", 

they did not come within the the provisions of the section. Conversely, if 

they were "passengers", they did. Unfortunately neither of these two 

terms is free of ambiguity. In the International Maritime Dictionary, 

5th edition (Ed. de Kerchove), a passenger is defined as: 

One who travels on a ship by virtue of a contract with the carrier and who is paying a 

fare. The term "passenger" includes any person carried in a ship other than the master, 

the crew, and the owner and his family and servants. 

This definition sets up two categoric of persons considered passengers. The first is those who have paid for passage and have a contract 

with the carrier. The second category encompasses all those who do not 

fall into other defined classes. Here the aliens have not paid for their 

transportation and have no apparent contract with the shipping company. They do not therefore fall into the first category of "passengers". 1 

 That still leaves the second category, those persons who are not the 

"master, the crew and the owner and his family and servants." 

The defense that has been interposed is that the aliens were "crewmen" and did not therefore come within the section 273 of the Act. As 

defined in section 101(a)(10) of the Act, 8 U.S.C. 1101(010), the term 

"crewman" means a "person serving in any capacity on board a vessel or 

aircraft." A second section, 101(a)(15)(D), dealing with nonimmigrant 

classification of bona fide crewmen refers to "an alien crewman serving 

in good faith as such in any capacity required for normal operation and 

service on board a vessel. . . ." As this Board has previously interpreted these provisions, persons as varied as shipboard dancers and 

part-time chefs have come within the term "crewman". Steamship Nassau., 1957 AMC 877; Matter of Marsden, unreported A14 692 553 (BIA 

1966). To fit within this definition, a person must have a function or 

board the vessel. On appeal, counsel contends that the aliens' function is 

Greystoke Castle and Saint Tropez, supra, could be interpreted to mean that only 

pawing passengers come within the provisions of section 273 of the Act. For reasons 

apparent in this decision, we consider such an interpretation Incorrect and hold here that 

all passengers come within this section. We therefore recede from the position taken in 

these cases. 

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Interim Decision #2696 

to enhance the ship's morale and to improve labor relations. Under this 

interpretation, the society, comfort and consortium provided by the 

wives of the officers are an "aid to navigation". The argument can then 

be reduced to the simple formula that all those who "aid in navigation" 

are "crewmen". 

This contention has also arisen in various contexts in regard to other 

statutes. Courts have generally set forth three elements in defining a 

"member of a crew", the same criteria proposed by counsel for the 

vessel. These criteria include: (a) that the ship be in navigation; (b) that 

there be a more or less permanent connection with the ship; and (c) that 

the worker be aboard permanently to aid in navigation. McKie v. 

Diamond Marine Co., 204 F.2d 132, 136 (5 Cir. 1953); Harney v. 

William M. Moore Building Corp., 359 F.2d 649, 654 (2 Cir. 1966). As is 

so often the case, though, this apparently simple formula in theory is far 

from simple in application. In the cases cited above, the questions rais ed 

concerned the meaning of the term "member of crew" within the context 

of the Jones Act, 36 U.S .C. 688. In other contexts, the results could be 

different. As the Supreme Court has stated, whether or not a person is a 

member of a crew turns en questions of law and fact and "does not have 

an absolutely unvarying legal significance." South Chicago Coal and 

Dock Co. v. Bassett, 309 U.S. 251, 258 (1940). 

In the case at hand, it has not been alleged that the six aliens are 

crewmen in the traditional• dense- of those who have signed the ship's 

articles. See South Chicago Coal and Dock Co. v. Bassett, id., at 257; 

International Maritime Dictionary, supra. The contention is essentially that the aliens' presence contributes to the functioning of the 

vessel's mission, but not to the functioning of the vessel itself. See 

Harney v. William M. Moore Building Corp., supra. It is clear that 

they have no background as seamen and that they have no labor obligation to the vessel. They are not paid as crewmen and probably do not 

associate with the crew members or sleep in the crew quarters. It is 

clear that they would not be classifiable as crewmen under maritime 

law. Matter of Quintero-Correa, 11 1. & N. Dec. 343 (BIA 1964). Their 

presence on board the ship is attributable to the shipping companyr's 

interest in insuring that the ship is run smoothly through providing the 

officers companionship. While this is a commendable policy, it is an aid 

to the shipping company's labor relations, not to the ship's functionir3g 

per se. Having had no training in any type of shipboard operation, and 

not being expected to provide either labor or expertise to the ship's 

running, we find no basis on which they can be classified as "crewmen". 

This is even more the case when their personal status is considered. 

There is nothing to prevent them leaving the ship when they pleas e. 

This is not the case with true crew members who have contractual 

obligations to remain on board until their service expires or they are 

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otherwise released by the ship's master.' This means that the aliens do 

not in fact have a more or less permanent connection with the ship. See 

South Chicago Coal and Dock Co. v. Bassett, supra. 

In reaching this conclusion, we are not unmindful of counsel's contention that fine statutes are to be strictly construed. As he has correctly 

pointed out, carriers must be favored in the construction of such statutes, and mere convenience of enforcement cannot justify a strained 

construction. Matter of MIV "South African Victory," 12 I. & N. Dec., 

253 (BIA 1967). In this case, however, the issue is not primarily that of 

strict construction of the statute. We agree that section 273 of the Act 

only applies to "passengers". The issue here, however, is the definition 

of "passenger" and "crewman". To contend that only those who pay for 

passage should be considered "passengers" would be to accept an interpretation that would emasculate the statute. Section 273(b) does, it is 

true, call for an assessment equal to the passage money paid by a 

visa-less alien passenger to the offending transportation company. We 

see this though as a means of reimbursing a passenger who has been 

inconvenienced by the negligence of the company and who will, in most 

cases, have made a fruitless journey at no small expense. This provision, 

therefore, has nothing to do with setting the limits for the definition of 

"passenger" under section 273(b) of the Act. 3It is clear that such an 

interpretation could lead to an anomalous situation in which friends or 

companions or children of crew members who are not required to pay for 

their transporation would be placed in a favored category by the ship's 

master or shipping company. We note that earlier, on January 19, 1977, 

three of the aliens were granted waivers of the nonimmigrant visa 

requirement. They were then on notice such a visa was required. 

Taking the purpose of these provisions into account then, along with 

the criteria used in deciding whether a person is a passenger or a 

crewman, we are satisfied that both logically and legally the six aliens 

here were not "crewmen" and that they have to be considered passengers brought without valid unexpired visas. The vessel is thus subject 

to the fine provisions of section 273(b) of the Act. As there has been no 

showing that the ship's master or owners or other responsible persons 

did not know or could not have "ascertained by the exercise of reasonable diligence" that a visa was required there is no basis on which the 

2In this regard, it could be added that "Unlike men employed on land, the seaman, 

when he finishes his day's work, is neither relieved of obligations to his employer nor 

wholly free to dispose of his leisure as he sees fit." Waterman SS Carp. v. Jones, 318 U.S. 

724, 731, 732 (1943). 

3 On this point of statutory interpretation we also disagree with Grepeoke Ouz el°, 

supra. We withdraw from the position expressed there concerning the significance of the 

shipping company's obligation to reimburse passengers brought without visas. 

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fines can be remitted or refunded. Section 273(c) of the Act, 8 U.S.C. 

1323(c). The appeal will accordingly be dismissed. 

ORDER: The appeal is dismissed. 

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