Interim Decision #2609 

MATTER OF M/V "Rio CALCHAQUI" 

In Fine Proceedings 

SFR 10/28.322 (T-3) 

Decided by Board August 25, 1977 

Form 1-259, Notice to Detain, Deport, Remove or Present Aliens, must be served on the 

carrier before liability for fines under section 273(d) of the Immigration and Nationality 

Act can attach. Listing of persons to be detained on Form 1-410, "Receipt for Crew 

List," furnished the Master of the Vessel, standing alone, does not provide sufficient 

notice under section 273(d) of the Act. 

In re: MN "RIO CALCHAQUI", which arrived at Oakland, California from foreign, on 

January 26, 1976. Alien passengers involved: Roberto Cortez-Portillo, dose 

Clement* Lafaux-Ortiz, Modesto numprmn Cedeno-Montes. Jose Luis 

Garces-Valencia 

Basis for Fine: Act of 1952—Section 273(d) [8 U.S.C. 1323(d)] 

ON BEHALF OF CARRIER: Transpacific Transportation Co. 

650 California Street 

San Francisco, California 94108 

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

This matter comes to us on certification from the District Director for 

review and final decision. He found that the carrier's agent, Transpacific 

Transportation Company, had incurred liability for a fine in the total 

amount of $4,000, to be imposed under section 273(d) of the Immigration 

and Nationality Act, as amended. We do not agree and hold that 

liability to fine has not been incurred in this case. 

This case arose as a result of the carrier's failure to detain four alien 

stowaways on board when so ordered by an immigration officer. The 

stowaways had boarded the vessel in Colombia and were discovered on 

the high seas. The Service was notified of their presence before the 

vessel's arrival at Oakland, California, on January 26, 1976. The inspecting immigration officer ordered them detained and deported from the 

United States by service of Form 1-259 on the agent. The vessel then 

departed from Oakland for Canada with the stowaways detained on 

board. Canadian Immigration refused permission to land the stowaways 

for the purpose of their repatriation. 

The vessel returned to the United States and arrived at Vancouver, 

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Washington, on February 4, 1976, at which time the stowaways were 

again ordered to be detained on board. This was done without the 

issuance of another Form 1-259. However, the immigration officer did 

sign and deliver to the Master of the vessel a "Receipt for Crew List" 

(Form 1-410) which listed the four stowaways under "Detentions." The 

receipt bears a notation "IMPORTANT NOUICE" which states, inter 

alia, "The crewmen listed under "Detentions" are to remain on board 

the vessel at all United States ports on the voyage. Failure to detain will 

result in fine proceedings." The above form was attached to the Form 

1-418 Crew List. The vessel then sailed coastwise and arrived at San 

Francisco on February 6, 1976. Shortly thereafter, the four stowaways 

eluded the custody of the vessel and illegally entered the United States. 

Their escape allegedly was affected by the aid of an outside agent, 

unconnected with the vessel. Two of the above-named aliens, CortezPortillo and Garces-Valencia, were later apprehended and deported. 

Cedeno-Montes was also apprehended by the Service. Lafaux-Ortiz 

apparently is still at large in the United States. 

The District Director contended that the inspecting officer in Vancouver properly ordered the stowaways detained on board, notwithstanding that a second Form 1-259 was not served on the carrier. 

Although conceding that the stowaways were securely incarcerated and 

escaped only through outside assistance, the District Director further 

contended that the statute places an absolute duty on the carrier to 

detain stowaways on board when so ordered by an immigration officer. 

The District Director concluded that the carrier, therefore, had incurred liability for a fine despite the cautions taken or the diligence used 

to detain the stowaways on board, citing Matter of British f IV 

"Spencer", 5 I. & N. Dec. 563 (BIA 1953). The District Director reconirn-ended that a fine of $4,000 or $1,000 for each stowaway be imposed, 

under the provisions of section 273(d) of the Act, with no mitigation 

thereof. 

Under section 273(d), liability for a fine is incurred by a carrier for 

failure to detain on board any alien stowaway until such stowaway has 

been inspected by an immigration officer, or for failure to detain such 

stowaway on board or at such other designated place after inspection if 

ordered to do so by an immigration officer. 

It appears from the record that there is no dispute as to the basic facts 

in this matter. Nevertheless, we agree with the contention made in 

behalf of the carrier that when the vessel departed from California and 

sailed to a foreign port, the carrier's duty under the Form 1-259 served 

upon it in Oakland on January 26, 1976, was fully discharged and the 

order then became a nullity. In any event, a new Form 1-259 was not 

se:rved on any party when the vessel returned to the United States in 

February, 1976. Forms 1-410 and 1-418 were served on the Master, but 

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there is no evidence to show that either or both of these notices came to 

the attention of the carrier before the escape of the stowaways. It is an 

essential prerequisite to imposition of a fine that both notice to detain 

and notice of liability be served upon the one fined. Since the vessel 

actually touched foreign, a new notice to detain (Form 1-259) should 

have been served on the carrier. This was not done. On the basis of the 

foregoing, it is clear that the carrier was under no duty to detain the 

stowaways after the return from Canada because it was not notified to 

do so. 

Liability to fine presupposes a duty to detain.' In this instance, that 

duty was never created by notice to the carrier. See Matter of SS 

"Morning Light," 7 I. & N. Dec. 280 (INA 1956). Accordingly, we find 

that imposition of a fine on the carrier is not -warranted in the circumstances of this case. 

ORDER: It is ordered that no fine be imposed on the carrier. 

See Gordon & Rosenfield, Vol. 2, Chap. 9.13, wherein it is pointed out that under this 

particular phase of section 272(d) of the Act, notice is a prerequisite to liability and a fine 

cannot be imposed against a party to whom an order was not communicated. 

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