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January 22, 1951


The opinion of the court was delivered by: BYERS

This is a motion- presumably under Rule 12, Fed.Rules Civ.Proc. 28 U.S.C.A.- TO dismiss an information which charges a violation of the Statute covering the unauthorized landing of aliens, Title 8 U.S.C.A. § 146(a), in the case of a stowaway who escaped from the S.S. Edward P. Ripley on June 15, 1946.

The information was filed nearly 20 months later, on February 5, 1948, and this motion was heard on January 15, 1951, or about 4 1/2 years after the occurrence.

Those who complain of the law's delay are not without supporting data.

 The defendant was either an agent or a sub-agent under a General Agency Agreement made with the War Shipping Administration; the Government being the owner of the ship, her Master was its agent and employee according to the terms of that contract, and he engaged the officers and crew. This is a circumstance which may explain the apparent diffidence of one department of the Government in seeking to visit this alleged violation of law upon the agent of another, in view of the ultimate burden which may have to be borne as the result of asserting a cause which was intended to affect the conduct of private enterprise.

 The material provisions of the Statute involved are: '(a) It shall be the duty of every person, including owners, masters, officers, and agents of vessels of transportation lines * * * bringing an alien to * * * the United States, to prevent the landing of such alien in the United States at any time or place other than as designated by the immigration officers. Any such person * * * or agent who fails to comply with the foregoing requirements shall be guilty of a misdemeanor and on conviction thereof shall be punished * * *.' (Fine $ 200.00 to $ 1,000.00 or imprisonment not to exceed one year.)

 The defendant urges (a) that it is not an agent within the purview of this statute; and (b) that, if it is, reimbursement must be made to it by the United States for any fine which may be herein imposed, pursuant to the terms of the Agency Agreement, hence the Government is engaged in the task of levying a fine against itself.

 As to the first contention, little is required to be written. The fact that defendant was a shoreside husband-man, Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S. Ct. 1317, 93 L. Ed. 1692, does not prove that under appropriate circumstances it could not be held to have incurred the penalty prescribed in the statute. That would depend upon the proof.

 For instance, even an agent having so closely circumscribed a function conceivably could be in a position to prevent the landing of an alien by detaining him physically while entering a pier rented and occupied by it, at which the carrying vessel might be berthed. It is unnecessary to point out more than the possibility that the statutory offense could be brought home to such an agent as the defendant, depending upon the evidence adduced in a given case.

 It is not so clear, however, that the owner or agent of this ship was 'bringing an alien to, or providing a means for an alien to come to, the United States * * *', the alien being a stowaway whose presence aboard the ship was not caused by the permission of any one described in the statute, according to the affidavit upon which this motion was based, which is not controverted. See Taylor v. United States, 207 U.S. 120, at page 126, 28 S. Ct. 53, 52 L. Ed. 130; The Habana, 2 Cir., 63 F.2d 812, distinguishing The Nanking, 9 Cir., 290 F. 769 cited by the Government.

 The Taylor Case, supra, was examined in Osaka Shosen Kaisha Line v. U.S., 300 U.S. 98, 57 S. Ct. 356, 81 L. Ed. 532, and as restricted to alien members of the crew, was approved. It was distinguished as to a passenger.

 The statutory history is referred to in The Habana, supra, opinion, which should be consulted, and likewise a comment appearing in The Presidente Wilson, 2 Cir., 56 F.2d 742, at page 744, which dealt with the duty of the Court in a proceeding in rem based upon subdivision (b) of the same statute.

 It must be apparent that in a criminal prosecution, something more must be shown and by the requisite margin of proof, than that a defendant was an agent of the owner of a ship. There is nothing criminal in that status.

 The requisite showing by the prosecution in such a case would comprehend, I should suppose: (1) knowledge by the agent of the presence of the alien on the ship, (2) means available to the agent to prevent his landing, and (3) failure by the agent to employ those means.

 Perhaps the second of these is debatable, but I fail to understand how a person can be convicted of this crime, unless it be made to appear that he exercised the option to refrain from doing that which he was in a ...

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