Interim Decision #1486 

MATTER or MTV "ZARATHUSTRA" 

In Fine Proceedings 

BAL-10/1.207 

Decided by Board July 6, 1965 

Liability to tine does not lie under section 254(a) (3); Immigration and Nationality Act, as to sin alien erowman inspected and reftiseeconditional landing privileges who escaped from the hospital, an installation under the supervision of the 'United States Government, to which he bad been removed 

by the agents for medical attention pursuant to Service permission, since the 

ability to control the crewman passed from the agents during his hospitalization and his escape from the hospital prevented his custody from reverting 

to the agents. Fine does not lie notwithstanding removal was at the request 

of the agents and with the understanding there would be np release from 

liability on the part of,the carrier should the crewman abscond. . 

Ix as: 31/V "ZARATHUSTRA," which arrived at the port • of Baltimore, 

Maryland, from foreign on August 8, 1964. Alien crewman involved: 

PANAGIOTIS HAGIESFSTBATIII 

BASIS. FOR FINE: Act of 1982—Section 254(a) (3) t$ v.5.0. 1284) 

.On March 24, 1965, the District Director at Baltimore directed 

that an administrative penalty of $800, $1,000 mitigated to the extent 

of $200, be imposed on the Terminal Shipping Company, as agents 

for the vessel, "for failure to detain and deport an alien (abovenamed) ordered detained on board." He then certified his decision 

to this Board for review, pursuant to our order of March 16, 1965, 

wherein we had remanded the case to said official to supply certain 

procedural deficiencies. 

This proceeding is concerned with an alien crewman of Greek 

nationality who was examined aboard the ship by an immigration 

officer at the time of its above-described arrival and refused conditional landing privileges. He later complained of illness and was 

examined aboard the ship by the carrier's physician. Thereafter, the 

agents . requested Service permission to take the crewman, undez: 

guard, to the United States Marine Hospital in. Baltimore for 

further evaluation of possible acute appendicitis. Thkiy also 

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quested parole procedure should the crewman be admitted to that 

institution as an in-patient,' with the understandinff

b 

 that should the 

crewman abscond to the United States there would be no relief 

from liability to fine on the carrier's part. 

On August 10, 1964, the crewman was hospitalized and paroled 

by the Service until September 10, 1964. Subsequently, the agents 

informed the Service that the crewman was fit for travel but not 

fit for duty, and requested permission to repatriate the crewman 

under safeguards satisfactory to the Service. The requested permission was granted, with the express understanding that such, action 

would not release the agents from liability to fine should the subject 

alien abscond in the United States. 

. When the agents' reprsentative called at the United States Public 

Health Service Hospital in Baltimore to take the alien into custody 

on. August 14, 1964, the date set for his discharge therefrom, it was 

learned that he had absconded from that institution the preceding 

night. Insofar as the record shows, he is still at large in the United 

States. 

The fundamental fact here is that the district directer has imposed this fine because an alien crewman who had been refused 

conditional landing privileges escaped from an installation under the 

supervision of the United States Government to which he had been 

removed by the agents pursuant to an immigration officer's order 

(Form 1-259), albeit at the agents' request. Under such circumstances, we do not think the fine should or can 'be sustained_ We 

so hold. 

Practically speaking, the duty to detain and/or deport depends 

upon ability to control. Acknowledgement of this reality is found 

within the framework of the Immigration and Nationality Act itself, since section 233(a) thereof specifically relieves carriers and 

their agents of responsibility for the safekeeping of aliens removed 

from a vessel or aircraft for examination under an immigration 

officer's order. The prOviso to that section does not operate against 

these agents because they obviously could not assume responsibility 

for the safekeeping of the alien in the United States Marine Hospital, a government installation operated and controlled by public 

officials. In other words, the ability to control this alien passed 

from the agents to the 'United States Government during the crewman's hospitalization. His escape from the United States Marine 

hospital prevented his custody from reverting to the agents. As 

kresult, his deportation by the agents became impossible of performance by reason of circumstances over which they had no restraining 

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power. Hence, to permit this lino to stand would lead to an 

absurd, unjust, or unreasonable result (see Matter of SS "AMA," 

1 I. 84 N. Dec. 418). No statute should be so construed, particularly 

not this iinasi-penal one which requires strict construction, in all 

respects, even to the extent of favoring the carrier and its agents 

(United States v. J. H. Winchester and Co., 40 F.2d -472): Viewed 

in the light of these controlling considerations, the agents'. "agreement" that the crewman's escape , would not act as a release of 

liability to this is of no legal consequence whatsoever. 

Support for our decision in this matter, if such be necessary, 

can he found in the regulations promulgated by the Service itself. 

Thus, in 8 CFR.253.1 (a) it is provided that "afflicted crewmen" shall 

be paroled to a medical institution in the custody of the agents 

except: "during the period of time he is in such medical institution)' 

While that specific exception is, not contained in the regulation 

applicable to this particular crewman's situation (8 CFR 253.1(d)), 

the explanation is that expreesio .eorum guae &coke intomt 

opemtur. 

Finally, for comparative purposes we will refer briefly to prior 

decisions of this Board involving somewhat similar problems. While 

the two cases to be cited are not controlling here because of factual' 

or technical differences, consideration thereof will serve to put this 

case in its proper perspective. 

Matter of M/S "Panaghia Theoslcepasti" (NYC-10/52489, BIA, 

8/92/83; Int. Dec. No. 1300), was based. on Notice of Intention to 

Fine charging "failure to detain on board the vessel at all times 

an alien crewman who had not been granted a conditional permit 

to land temporarily in the United States." The crewman therein 

had been refused conditional landing privileges, but the agents were 

later given permission to take him ashore for medical treatment 

(private), on condition that he be kept under guard at all times 

and returned aboard the ship. The ship's second officer was assigned 

the task of accompanying the crewman to the doctor and bringing 

him back to the ship, but the crewman eluded his guard en route to 

the doctor's office. We did not permit the fine to stand in that 

case because proceedings were predicated upon subsection (2) of 

section 254(a) of the Immigration and Nationality Act, rather 

than subsection (3) thereof as is the case here. 

In the foregoing case, we referred to the unreported case of the 

SS "Atlantic Unity" (PHI-10/99.161, BIA, 7/9/59) wherein, as 

here, there was a violation of section 254(a) (3) of the Act charged. 

Therein, the boarding immigration officer refused conditional land247. 
Interim Deciiion #1486 

ing privileges to an alien crewman, but the Service later consented 

to his removal from the ship for hospitalization. Such consent wet 

given upon' the responsible parties agreeing in writing, somewhat 

similarly to here, to the following conditions: that upon release from 

the hospital the crewman, would be promptly removed from the 

United Statei Without expense to the government; that he would 

be under guard after his release from the hospital until his deportation; and that the foregoing arrangement would not relieve the 

responsible parties front liability to fine proceedings and deportation 

costs if the crewman failed to so depart from.the United States. 

We think that the conditions imposed there correctly reflect the 

true conditions under which "a detained alien crewman's removal 

from the ship for hospitalization should be based. They obviously 

take into consideration the practicalities of hospitalization in a 

facility over which the agents have no control. And while we did 

sustain the fine in that case, the record there clearly reflected that 

the agents had regained custody of the crewman after his discharge 

from the hospital. 

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

fine be not imposed. 

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