M ATTER OF YATCTT CARTRBEAN STAR 

In FINE Proceedings 

MIA-10/61.235 

Decided by Board May .12, 1961 

Fine—Payoff and/or discharge of alien crewman without permission—Temporary departure from United States without termination of services and with 

intention of returning to vessel. 

Liability to fine for paying off and/or discharging an alien crewman is not 

incurred where the crewman who has been paid earned wages plus a $50 

advance temporarily leaves the United States for Nassau to obtain papers 

necessary for his promotion to master of the vessel; his delay In rejoining 

the vessel has resulted from circumstances beyond the control of any of the 

parties concerned; and it is still intended that he will rejoin the vessel, 

when repairs are completed, as its master. 

Besis Foe FINE; Act of 1952—Section 250 (8 U.S.C. 1288). 

BEFORE THE BOARD 

DISCUSSION: This appeal is directed to an administrative penalty of $50Q ($1,000 mitigated to the extent of $500), which the 

District Director at Miami has ordered imposed on Edwin P. LeMay 

and Associates as owners and/or agents of the above-named vessel 

which arrived at the port of Miami, Florida, from foreign on September 1, 1960. The specific violation charged is the paying off 

and/or discharging of the alien crewman, G—W—A—, without prior 

permission from the Attorney General or his duly designated representatives. The appeal will be sustained. 

The vessel involved is a charter boat of British registry which, 

at the time of its last arrival (supra), was returning a charter party 

to the United States. This crewman, who was then its mate, was 

granted a D-1 conditional landing permit. Under the terms thereof, 

he was required to depart from the United States on the vessel's 

next foreign sailing; in no event was he to remain in this country 

in excess of 29 days; and he could not be paid off or discharged without prior permission from immigration officers, acting for the Attorney General. 

It had apparently been decided, prior to the vessel's arrival, to 

promote this crewman to the position of master of the vessel. This 

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necessitated his return to Nassau to obtain "papers" covering the 

latter rating. And, since the vessel was in need of minor repairs, 

it was agreed by the owners that the crewman should combine his 

business trip to Nassau with a vacation. It was the understanding 

of all parties concerned, however, that the crewman would return to 

the United States and assume command of the vessel as soon as it 

could be repaired. Accordingly, he was paid the wages he had 

earned to date, plus a $50 advance against future earnings. 

On September 3, 1960, the crewman left the United States for 

Nassau aboard an aircraft operated by Pan American World Airways. He then surrendered his D-1 conditional landing permit 

(supra) to that carrier, and the latter endorsed it to show his departure and forwarded it to the Service. According to the record, this 

was the procedure the crewman was told to follow by the immigration officer who admitted him. Apparently he had advised said 

officer of his intended brief trip to Nassau at the time of his 

admission. 

Now, however, it develops that the crewman is still in Nassau and 

has accepted part-time employment there. The reason given is that 

hurricane Donna wrecked the vessel, and that its owners have not as 

yet been able to raise the funds necessary to render it seaworthy 

again. Thus, the date of the crewman's resumption of his duties 

aboard the vessel is uncertain. But the record definitely demonstrates that he intends to rejoin it eventually, and that its owners 

still consider him its master. 

Under this section of the law, the element essential to establish a 

violation is the termination of the crewman's employment by an 

affirmative act of the parties responsible for the vessel or of the 

crewman himself (United States v. Seaboard Surety Company, 239 

F.2d 667). But there is no evidence of any character here to show 

the existence of that crucial factor. Therefore, we hold that liability 

to fine for paying off and/or discharging the crewman has not been 

incurred. 

The payment of wages in full to the crewman did not, in and of 

itself, constitute a breach of the statute (United States v. Seaboard 

Surety Company, supra). The granting of a leave of absence 

(vacation) to him did not, as we have consistently held, constitute a 

termination of the crewman's services aboard the vessel on which 

he arrived in the United States, being merely a temporary interruption thereof. His temporary departure from the United States 

did not sever his connection with the vessel and was obviously made 

with Service approval and in compliance with the conditions of his 

admission, at least from the time limitation standpoint. His delay 

in rejoining the vessel has resulted from circumstances beyond the 

control of any of the parties concerned, and certainly not from the 

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affirmative act or desires of any of them. Finally, no claim has 

been advanced or showing made that the crewman has been signed 

off the vessel's articles or given a discharge slip. 

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

fine be not imposed. 

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