Matter of D-

NOR-81

Decided by Board May 13, 1959

Fine — Section 271(a) of 1955 act — Not imposed where aliens dld not "land.-

Assisting and concealing alien stowaways on board vessel will not subject ship's officer to fine under section 271(a) of the 1902 act when a "landing" is not actually effected.

Ix RE: A—D—, boatswain ex SS. ENRICO C, which arrived at the port

of Newport News. Va., from foreign on April 23, 1959. Alien stow- aways involved: U , P—S—, T-11— and 11— G—.

Stasis row FINE: Act of 1952—Section 271(a) (8 U.S.C. 1321 (a) 1.

BEFORE THE BOARD

Discussion: This appeal is directed to an administrative penalty

of $4,000, $1,000 as to each of the alien stowaways, which the dis-

trict director has ordered imposed on the above-named officer of the

vessel for failure to prevent their landing. He also ordered that the

penalty be mitigated to the dollar equivalent of 1,200,000 lire. He

Len Lime or dered that the fine be remitted in its entirety, conditioned

upon the vessel's officer named above executing a release as to any

claim of right or title to the 1,200,000 lire, in favor of its return to

the four named stowaways. The appeal will be sustained and the

fine remitted in its entirety, without condition.

The alien here sought to be charged with responsibility was serv-

ing as boatswain on this vessel. He assisted the four named stowa-

ways to board the vessel in an Italian port. He concealed them

throughout its voyage to the United States. He continued their

concealment until immigration inspection of the crew had been com-

pleted, upon arrival. However, Service officers later boarded the

vessel and discovered the stowaways on the main deck, in readiness

to go ashore. They also found 1,200,000 lire which the boatswain

had received from the stowaways.

Thereafter, the stowaways and the boatswain were taken into

immigration custody. They were then taken ashore for possible

criminal prosecution. Apparently, the four stowaways were con-

rioted and sentenced under section 275 of the Immigration and

Nationality Act (8 II.S.C. 1325), but the boatswain was acquitted.

This statute makes it the duty of every person, including °file.,

of the vessel, "to prevent the landing" of aliens. Clearly, therefore,

the element essential to the establishment of a violation herein is a

"landing." That is, the initial issue raised is the presence or absence

of this fundamental feature.

Judicial decisions on the point, particularly those based on prede-

cessor legislation,' indicate that the term "landing" is a, word of

art. The Supreme Court of the United States has defined it thus:

"'to land' means to go ashore" and " 'landing from such vessel' takes

place and is complete the moment the vessel is left and the shore is

reached." This language was later quoted verbatim by the Court.

of Appeals for the Ninth Circuit.' Accordingly, and in view of the

penal nature of this statute, requiring for it strict interpretation,

we hold that no "landing" was effected here. In so doing, we find

unavailing the district director's efforts, with citations, to equate.

the taking ashore of these aliens to an "entry" for purposes of this

proceeding, and we are not herein called upon to decide the validity

of this argument as it relates to other sections of the Immigration

and Nationality Act and expulsion proceedings thereunder.

Order: It is ordered that the appeal be sustained and that no

fine be imposed.

°See. 18, Act of March 3, 1503; 32 Stat. 1213. Sec. 18, Act of Feb. 20, 1907; 34 Stat. 898. Sec. 10, Act of Feb. 5, 1917; 39 Stat. 874; former 8 U.S.C. 146.

Taylor v. United States, 207 U.S. 120, involving sec. 18 of the 1903 act,i, supra.

Neer. v. United States, 169 Fed. 782, also involving sec. 18 of the 1903 act.