Interim Decision #2286 

MATTER OF M/S VALIANT TRADER 

In Fine Proceedings 

SFR 10/28.212 

Decided by Board May 7, 1974 

Where an alien crewman was injured on board ship after it left San Francisco 

(en route to Yokohama); he was removed by launch and admitted to the U.S. 

Public Health Service Hospital; the carrier advised the Service that the 

crewman would be continued on the vessel's payroll following injury and 

would rejoin his ship at Yokohama; and the day of his release from the 

hospital, the crewman flew to Japan to rejoin his vessel, fine under section 256 

of the Immigration and Nationality Act was improperly imposed since there 

was no evidence whatsoever that there was a payoff and discharge of the 

alien. 

BASIS FOR FINE: Act of 1952—Section 256 [8 U.S.C. 1286] 

IN RE: M/S "VALIANT TRADER," which arrived at the port of Honolulu, 

Hawaii, from foreign on June 20,1972'. Alien crewman involved: TONG 

BACK AN 

ON BEHALF OF CARRIER: A.R. Blackburn 

Lilly Shipping Agencies 

One California Street 

San Francisco, Calif. 94111 

This case presents an appeal from a decision of the District 

Director at San Francisco, California, wherein a fine in the 

amount of $1,000, mitigated to the minimum sum of $500, was 

imposed upon Lilly Shipping Agencies, for violation of section 256 

of the Immigration and Nationality Act, as amended. The appeal 

will be sustained and the order imposing a file will be withdrawn. 

The specific violation complained of was failure of the MIS 

"Valiant Trader" to obtain consent of the Attorney General before 

paying off and discharging an alien crewman, Jong Back An. The 

vessel had arrived first at Honolulu for Nagoya, Japan on June 26, 

1972, at which time the alien had been granted a conditional 

permit to land temporarily. He was injured after the vessel left 

San Francisco on the evening of July la, 1072. The alien suffered a 

fractured skull and was bleeding profusely from one ear, nose and 

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mouth. He was removed from the vessel by launch and admitted 

to the United States Public Health Service Hospital. The M/S 

"Valiant Trader" continued on its trip to Yokohama, Japan as 

scheduled, without the alien. Two weeks later, on July 27, 1972, the 

alien was deemed fit for duty and released from the hospital. He 

flew to Tokyo the same day to rejoin his vessel, at no expense to 

the United States Government. The foregoing facts are not in 

dispute. 

The carrier was notified by the District Director of his intention 

to impose a fine under section 256 of the Act for unlawfully paying 

off and discharging the alien crewman without first having obtained the consent of the Attorney General. In reply to the 

charges by the District Director, it was alleged in behalf of the 

carrier that since the alien had been removed from the vessel 

"during non-office hours, it hardly seemed sensible to contact your 

office before entering him into the hospital." It was further alleged 

that in a telephone conversation the following morning with a 

person speaking for the Service, the carrier was assured that it 

would be sufficient if the alien was noted on the crew change 

report filed by its customs broker. The instruction was followed 

and it was the carrier's position that the intent of the law to 

prevent alien seamen from remaining in this country was not 

violated. In any event, the carrier advised the Service that the 

alien crewman would be continued on the vessel's pe.yrull following 

his injury and would rejoin his ship at Yokohama, Japan. 

The District Director, noting that an unintentional violation of 

the statute is not a basis for exception, concluded that liability to 

fine definitely had been established. He found, however, that 

discretionary mitigation of the statutory fine of $1,000 was merited 

in this instance, to the extent permitted under section 256 of the 

Act, namely, the absolute minimum of $500. On appeal, it is 

contended by the carrier that the Service contributed to the 

violation and that "... a $500.00 fine is completely out of line." 

We have carefully reviwed this matter and conclude that the 

fine was improperly imposed. Under 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 only exception to this rule is an alien 

lawfully admitted for permanent residence. There is no indication 

whatsoever that there was a payoff and discharge of the alien in 

this instance. Since the statute we administer is penal in nature, 

strict proof of a violation is required. The Service has failed to 

meet its burden. As we stated in Matter of Yacht Caribbean Star, 9 

I. & N. Dec. 272 (BIA 1961), under section 256 of the Act, "the 

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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." On the record 

before us, we are persuaded that there was no such affirmative 

act. Rather, it appears that the alien was not paid off; that he was 

kept on the crew list; and rejoined his vessel in Japan. 

Although this ease involves a rather unusual set of circumstances, we cannot agree with the District Director's conclusion 

that liability to the fine of $1,000, mitigated to the sum of $500, has 

been incurred. There has been substantial compliance with the 

law and we are satisfied that the penalty was improperly ordered 

imposed on the carrier. CL Matter of SS. "Loch Avon," 7 L & N. Dec. 

215 (BIA 1956). Accordingly, the appeal will be sustained. 

ORDER: The appeal is sustained; the order of the District 

Director on October 5, 1972 is reversed; and the fine is remitted. 

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