M/V "CLYDEFIELD"

                                                    Interim Decision #1262




                      MATTER OF 1,01/V "CLIEDEFIELD"


                          In FINE Proceedings

                               NYC-10152.392

                  Decided by Board January 81, 1963
(1) In determining mitigation of fine under section 254(a) (2) of the Immigration and Nationality Act, the following factors, among others, are to be
  considered : (1) proper precautions to detain the crewmen on board; (2) cooperation with the Service after the escape of the crewmen; (3) earnest
  efforts of the responsible parties to locate and/or apprehend the escapees; (4)
  apprehension of the escapees by the responsible parties or the voluntary
  return of the crewmen ; (5) prompt removal of the escapees by and at the
  expense of the responsible parties ana (a) apprehension by Service cancers on
  information of the responsible parties.
(2) In arriving at the extent of mitigation, it is the reasonableness of the precautions exercised, not necessarily their effectiveness, which is determinative.
BASIS FOR FINE: Act of 1952—Section 254(a) (2) [8 U.S.C. 12841.


  This appeal is directed to an administrative penalty totaling $2,000,
$1,000 as to each of the persons named above, which the District Director has ordered imposed on Sea Brokers, Inc., as owners, agents,
charterers or consignees of the B/I/V "Clydefield." Said official charges
that Pang Chui and Tse So are aliens; that they were serving as crew
members aboard this vessel at the time of arrival, ante; that they were
not granted conditional landing privileges insofar as the United
States was concerned; and that they were not thereafter detained
aboard the ship at all times. He has also found present herein no
factors which, in his opinion, merit mitigation of the fines to any extent.
  The basic facts of this matter are not in dispute. Pang Chui and
Tse So are aliens and they were serving as crewmen aboard the ship
at the time here involved. Immigration inspection was accorded the
crew of this ship immediately upon its arrival from foreign and
resulted in the refusal of conditional landing privileges to them and to
29 other Chinese members of the crew. Some time in the late evening
hours of September 5, 1962 or the early morning hours of September 6,
1962, these two crewmen absconded from the vessel and effected illegal
entry into the United States. They were not aboard the ship on the

                                      165
Interim Decision #1262
occasion of its next foreign sailing, and insofar as the record shows
they are still at large in the United States.
  The foregoing establishes, and it is uncontested, that the absolute
duty of detention imposed on Sea Brokers, Inc., by the statute as to
these crew members was not met and, therefore, that liability to the
fines has been incurred. The only issue presented for our consideration
is whether mitigation of the fines is merited and, if so, to what extent.
In our opinion, the District Director's refusal to authorize such relief
herein was clearly erroneous.
   There are many factors, and combinations thereof, to be considered
in arriving- at a determination as to whether mitigation is warranted
under this statute, as well as the amount thereof. Examples of such
factors would be :
    (1) Proper precautions to detain the crewmen on board, such as—
the hiring of professional. guards; lifting of the detainees' papers;
confining them to quarters; and having the ship constantly checked
by its officers to see to the crewmen's continued detention on board.
    (2) Cooperation with the Service after the escape of the crewmen,
such as—furnishing the Service prompt notice of their escape; turning over their papers; and furnishing information which might be of
use in apprehending them.
    (3) Earnest efforts of the responsible parties to locate and/or apprehend the escapees, such as—immediately searching the ship; hiring
private detectives; and posting rewards.
    (4) Apprehension of the escapees by the responsible parties or the
voluntary return of the crewmen.
    (5) Prompt removal of the escapees by and at the expense of the
responsible parties.
    (6) Apprehension by Service officers: on information of the responsible parties (a) with little ur nu extra effort; (b) with considerable
effort and/or expense.
The total amount of mitigation merited, then, would logically be the
sum of all the mitigating factors present therein. In this connection,
it is the reasonableness of the precautions—not necessarily their effectiveness—which is determinative. Of course, under the statute the
maximum mitigation is $800.
   Application of the facts of this matter in the light of the foregoing
convinces us that the total penalty herein should be reduced to the
extent of $1,200, $600 per crewman. Prior to this vessel's arrival, the
Master wired its agents to put them on notice that professional guards
would be necessary because of the make-up of his crew. At the time
here involved, one professional guard was on duty at or near the head
of the gangway, on an around -the- clock basis. Also, the pier guard
was notified twice, once telephonically and once personally, that no
                                  166
                                              Interim Decision #1262
Chinese members of the crew were to be permitted through the gate
unless they had a pass, and the names of the only four Chinese members of the crew who had passes were furnished him. In addition, one
Chinese quartermaster per shift was posted at the gangway, or under
shelter nearby in bad weather, to watch for any detainees leaving so
that they could be prevented from doing so. Moreover, a deck officer
and an apprentice were assigned to guard watch to see to it that no detainees left the ship. The ship's officers conducted periodic checks (at
least five a day) of the detainees and it was one of these that revealed
the absence of these crew members. It appears from the record that
the escape of these two crew members was promptly reported to the
Service telephonically. Their discharge books were turned over to an
immigration officer who came aboard to investigate their escape.
Their Hong Kong identification cards were forwarded to the appropriate British Consul.
  In the light of the foregoing, we cannot agree with the District
Director's conclusion that the hiring of only one professional guard
to enforce the detention of 31 detained crew members is not a mitigating factor. This is not to say, however, that such might not be
the case if it were the only factor present. But here we have other
equivalent factors which must be taken into consideration, such as the
assigning of a deck officer and an apprentice to duty to assist the
professional guard; the stationing of a quartermaster at the gangway
for a similar purpose; and notifying the pier guard. as was done here.
In our opinion, these aspects of the case coupled with the hiring of
one professional guard do constitute a proper precaution meriting
mitigation. When they are considered with the other factors mentioned above, then mitigation of the penalty to the extent indicated
clearly is warranted.
  Maximum mitigation of the penalties, to wit: down to $200 per
crewman, is not warranted. As pointed out by the District Director,
no apparent effort was made by the responsible parties to bring about
the location and/or apprehension of the escapees. They were not
confined to their quarters. Apparently, no information as to their
possible whereabouts in the United States could be furnished the Service by the responsible parties. Finally, since they are still at large
in the United States it is obvious that they have not been removed
from this country promptly by and at the expense of the responsible
parties. We will now enter an appropriate order accordingly.
  ORDER: It is ordered that the decision of the District Director
be modified to provide for mitigation of the penalty to the extent of
$1,200, $600 per crewman, and that as so modified the decision of said
official be and the same is hereby affirmed. The penalty permitted to
stand is $800, $400 as to each crewman.

                                  167