M/T "DONA MARIA"

Interim Decision *1579




                     MATTER of M/T "Dom Maaire
                           In Fine •Proceedings
                               LOS-10/2.141
                     Retailed by Board May 2, 1966

Where an alien - crewman, inspected and denied conditional landing privileges
 upon arrival, was subsequently reported missing from the ship by the master
 of the vessel and was zo reported on the departure manifest, liability to fine
 lies under section 254(a) (2), Immigration and Nationality Act, for failure
 to detain the crewman aboard the vessel, absent a showing by the carrier
 that an illegal landing was not made by the crewman.
Tiv aza M/T "DONA. MARIA." which arrived at the port of Los Angeles, California, from foreign, on May 23, 1964. Alien crewman involved:
         Wing Pin So
Bents non Fitts: Act of 1952—Section 254(a) (2) [8 U.S.C. 1284]


 This appeal is directed to an administrative penalty of $500, $1000
mitigated to the extent of $500, which the District Director at Los
Angeles has ordered imposed on the vessel's agents, Lilly Shipping
Agencies, and/or its Master, Frederick W. Ridley, for failure to detain the above-named alien crewman aboard the vessel . at all times .
despite the fact that he had not been granted conditional landing
privileges.
  It appears from the record before us that the following material
facts exist without substantial controversy. Immigration inspection
was accorded the crew of this vessel immediately upon its arrival
from foreign, ante. As a result, 46 alien crew members, including
the one named above, were denied conditional landing privileges.
However, on May 26, 1964, at 11:30 pan., the Master of the vessel
reported that the above-named alien crewman was migqing from the
ship. A search of the vessel by the ship's officers and crew failed to
produce the missing crewman. The vessel sailed foreign at 12:30
pm. on May 27, 1984. The manifest (Form 1-418) submitted for
that departure reported the crewman as not on board.
  The carrier asserts that while the vessel was anchored about a mile
offshore at El Segundo, California, this alien crewman left the ship

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and endeavored to swim ashore. It asserts that to its knowledge he
never landed in this country. It claims that it has no_resson to believe that he has been seen alive since he _was .found missing from
the ship. -It argues that it is as reasonable -to assume that he
drowned attempting to swim ashore as it Is Co' conjecture that he
landed in the United States. It contends that no fine should be im!
posed, on the theory that an illegal landing is essential to 'a violation
of this section of the law and that none has been established here.
   Excerpts from records of the El Segundo, Police Department, to
which department this crewman's escape was reported, contain:evidence indicating that the crewman in question may actually have
succeeded in reaching the shore. But regardless of whether he did
or not, the appellant's argument in this respect overlooks the provisions of subsection (b) of section' 254 of the Immigration and
Nationality Act, which provide that:
  Proof that an alien crewman did not appear upon the outgoing manifest of
the vessel * • * on which he arrived in the -United States … or that he
was reported by the Master or Commanding Meer of such vessel * • • as a
deserter, shall be prima facie egidence of a failure to detain or deport such
alien crewman. (Emphasis supplied.)
Here, the crewman was missing from the ship and so reported, including on the departure manifest. These factors bring into play
subsection (b) of the statute. That being the case, under the law
the carrier then had the burden of proceeding to show that an
illegal landing was not made by the crewman. Absent same, the
fine lies.
   If, as pointed out by the Service, it had the burden of producing
the corpus delicti before it could institute fine proceedings, then the
Congressional purpose of providing for close control -over Crewmen
would be frustrated in many, if not most, cases. The wording of
the statute supports the Service in this respect. If, on the other
hand, the carrier's claim that the crewman jumped. overboard and
unsuccessfully attempted to swim ashore is ultimately established,
then the carrier has an appropriate remedy by way of a motion for
reconsideration.
  The only remaining issue is whether -more mitigation than has
already been authorized by the District Director ($500) is warranted
in these premises and, if so, how much. In this connection, two professional guards per shift were on duty bn an around-the-clock
basin to guard the detainees aboard this vessel, both while it was
docked and while it was finishing its loading a mile offshore. The
District Director has indicated in his opinion that the Master and
the agents of this vessel did attempt diligently to detain the crew-

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Interim Decision #1579
man on board the vessel at all times. Said official has also indicated
in his opinion that said parties did cooperate in an attempt to locate
the escapee after his desertion. The record before us • adequately
establishes continuing efforts on their part to the end that the escapee's apprehension and/Or location might ba effected. Accordingly, and in view of the unusual circumstances presented by this
case, it is our considered opinion that $300 more mitigation is
merited. That is, we feel that maximum mitigation permissible
under the statute is merited in these premises.
  ORDER: It is ordered that the District Director's decision of
February 10, 1966, be modified to provide for $300 additional mitigation, and that ac so amended the decision of said official be and
the same is hereby affirmed.: The penality ..permitted to stand is $200.