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International Mercantile Marine Co. v. Elting

January 14, 1935


Appeal from the District Court of the United States for the Southern District of New York.

Author: Hand

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

This was an action by a carrier to recover the sums paid upon twelve fines imposed for bringing in illiterate aliens. It recovered judgment upon one and appealed in eleven. Different considerations apply to each of these and we are obliged to consider them separately.

First Cause of Action.

This alien was a Cuban girl coming in for the first time. The case was tried in the District Court upon the record made before the board of special inquiry upon the exclusion of the alien, together with the departmental record of the proceeding to fine the carrier. The record of the board of special inquiry did not spread at large the card by which the girl's literacy was tested, but described it only by a reference number. In United States ex rel. Waldman v. Tod, 289 F. 761, we said that such a return was irregular, because we could not learn what had been the real test applied, and that in future the actual text must be supplied. In this remark the Supreme Court concurred. Tod v. Waldman, 266 U.S. 113, 45 S. Ct. 85, 69 L. Ed. 195. Our decision did not go upon that ground, but because even on the record as it was, it appeared that the examination had not been fair. In the case at bar the plaintiff was suing to recover the fine and had to make out its case, by showing that the test had not been fair. It should have supplemented the record by annexing the card, and cannot now support its charge by asking us to assume that the card was not a proper test. A bad return on habeas corpus does not make out a good cause of action in money paid. The assertion that the cards were kept secret is not substantiated by the record. The girl was abundantly proved to have been an illiterate, and the visa of the consul was no protection to the carrier, which could easily have detected her incapacity. The judgment is affirmed.

Second Cause of Action.

This was the case of an illiterate Jewess who could read neither Yiddish nor Hebrew. The same point is raised here as in the first cause of action and needs no comment. In addition the plaintiff says that as the alien had been once before admitted, there was reason to suppose that she would be admitted again. However, it appeared that she had been found illiterate at her first entry, and indeed it is not clear just why she was admitted then. It was very easy to ascertain that she could not read, and her earlier admission did not excuse some independent inquiry to verify any presumption that might arise from it. The judgment is affirmed.

Third Cause of Action.

This alien was a Greek, confessedly illiterate, whose only claim to admission was an unrelinquished domicil of seven years; that is, since 1918. He had been here apparently without interval between 1901 and 1915 when he left for Greece, staying away five years. He came back to the United States in 1920, left again in 1924, and came back in 1925, when he was excluded. He had a wife and two married children who had always lived in Greece; they must have been born before 1901 though the record is silent. The question is whether his domicil went back to 1915, for he was in Greece in 1918. He apparently had a steady job as a cement worker, and it is of course possible that in 1915 or earlier he had decided to make the United States his home; but the contrary is strongly indicated by the absence of his family for the whole fourteen years, and by his own residence for five years in Greece, whence, so far as appeared he never meant to remove his wife. Even though his failure to become naturalized may, as he asserted, have been because he could not read, the domicil was doubtful. The judgment is affirmed.

Fourth Cause of Action.

This case is very like the preceding but not so strong for the carrier. The illiterate had to trace back his domicil to November, 1917, at which time he had been here for only five years. He was an Arabian laborer with a wife and child in Palestine which was his home. At his exclusion he said that he was coming in only for six or seven years. The judgment is affirmed.

Fifth Cause of Action.

This illiterate was a Chilean seaman who shipped upon a vessel bound on a rount trip out of New York. The voyage was broken up in England and the carrier gave the alien a free passage back to New York; he had a visa which classed him as a returning immigrant, section 4 (b) of the Immigration Act of 1924 (8 USCA § 204 (b). He was allowed to come in for the purpose of reshipping, but the carrier was fined for bringing him. It defends on the theory that he was an alien "in transit" under section 3 (4) of the Act of 1924 (8 USCA § 203 (4). Clearly he was not; he was not going to any "foreign contiguous territory." Nor did he fall within section 3 (5) (8 USCA § 203 (5) or section 19 (8 USCA § 166) for he was not employed, or serving as a seaman, on board a vessel arriving here.It is argued that he could not otherwise have completed his original voyage and got the advantage of a new berth out of New York. It is true, that if their voyage ends ...

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