The opinion of the court was delivered by: HERLANDS
Whether the doctrine of economic duress applies to the facts of this case is the question presented by plaintiff's motion for summary judgment and defendant's cross-motion for summary judgment.
In this action, commenced on December 21, 1955, plaintiff seeks to recover a $ 1,000 fine paid to defendant under the Immigration Act of 1924 (8 U.S.C.A. § 167 and 8 C.F.R. 160. 14). Plaintiff, the owner of the motor-vessel Ferncape, is a Norwegian corporation. Defendant is the Collector of Customs for the Port of New York.
On August 26, 1954, the District Director of Immigration and Naturalization Service served upon plaintiff's agent, Dichmann, Wright & Pugh, Inc., a Notice Of Intention To Fine Under Immigration And Nationality Act (Exhibit C attached to plaintiff's moving affidavit; Exhibit 6 attached to defendant's opposing affidavit).
The violation for which the imposition of a $ 1,000 fine was indicated in 1954 had taken place in April or May, 1948. The violation consisted of plaintiff's 'failure to detain on board vessel and deport' an alien seaman, Salvatore Alongi, who had arrived on the Ferncape at the port of Norfolk, Virginia.
The Notice Of Intention To Fine contained, inter alia, the following provisions: (1) plaintiff's agent was granted thirty days to file a written defense 'setting forth the reasons why a fine should not be imposed or if unpaid, why it should be mitigated or remitted'; (2) plaintiff's agent was given the opportunity for a 'personal interview,' the privilege of having counsel present, and of 'presenting evidence' and submitting a brief in support of its contentions; and (3) 'The vessel * * * on which the alien * * * arrived will be granted clearance papers when ready to depart and allowed to proceed upon the outward-bound voyage on condition that you deposit with the collector of customs at this port, prior thereto, the sum of One Thousand dollars, or, where permitted by the Immigration and the Nationality Act, a bond with sufficient surety to secure the payment of the fine should it be imposed.'
The evidence establishes that the Immigration and Naturalization Service duly notified plaintiff in writing, on April 16, 1948, to detain on board the Ferncape at all United States ports, a certain alien seaman, one Salvatore Alongi (Exhibit 1 attached to opposing affidavit of Burton S. Sherman). Alongi had been deported from the United States on or about February 10, 1940, as a narcotics peddler, with a record of a number of convictions under the Federal narcotics laws.
For the purpose of these motions, plaintiff admits 'that the Collector of Customs was entitled to asses a fine' (moving affidavit of Walter A. Darby, Jr., p. 2); and 'that had the United States proceeded in timely fashion, it would have been an offense for which the Ferncape, or its owners, would be subject to the possibility of paying a fine' (replying affidavit of Walter A. Darby, Jr., p. 1).
On April 20, 1948, the Ferncape sailed from Newport News, Virginia, bound for New York. On April 21, 1948, the New York District Director of Immigration and Naturalization was officially notified to detain Alongi on board the Ferncape upon its arrival in New York. When that vessel arrived in New York, plaintiff was ordered to detain Alongi on board the vessel.
While the Ferncape was in the Port of New York, Alongi jumped ship. On May 17, 1948, the Immigration and Naturalization Service was notified of that fact.
It was not until March 12, 1954, that Alongi was located and arrested. When questioned, he admitted that he had jumped ship on 1948.
At the time of Alongi's apprehension on March 12, 1954, administrative proceedings had not been instituted to fine plaintiff for its failure to detain Alongi on board the Ferncape.
After receiving the Notice Of Intention To Fine, dated August 26, 1954, plaintiff's agent posted a $ 1,000 bond in favor of the United States of America, pursuant to 8 U.S.C.A. § 1284, and Immigration migration Regulations 8 C.F.R. 160.14. The bond was delivered to the Collector of Customs on September 24, 1954. This bond in entitled: 'Bond For Payment of Sums and Fines Imposed Under Immigration Act of May 26, 1924' (Exhibit 7 attached to defendant's opposing affidavit). Plaintiff's agent executed this bond as principal. The National Surety Corporation executed the bond as surety.
On September 24, 1954, when the bond was delivered, the vessel was in the Port of New York.
The bond contains, inter alia, the following recitals:
'Whereas, the owner, master, agent * * * of the said vessel may incur liability for fines * * * imposed by the Attorney General pursuant to the provisions of sections 16, 20, and/or 26 of the Immigration Act of 1924 in connection with aliens brought to the United States on the said vessel; and
'Whereas, under the said Immigration Act no vessel shall be granted clearance pending the determination by the Attorney General of the question of such liability or while such fines remain unpaid, provided that clearance may be granted prior to the determination of such question upon the deposit of an amount sufficient to cover such fines, or of a bond with sufficient surety to secure the payment thereof approved by the Collector of Customs;
'Now, Therefore, the condition of this obligation is such, that if the above-bounden principal shall pay to the Collector of Customs of the said port any and all fines imposed by the Attorney General under the said sections of the said Act against the owner, master, agent * * * of the said vessel; then this obligation shall be void, otherwise it shall remain in full force and effect; the said principal to have, however, the privilege of making such payments under protest, and without prejudice to any and all legal rights of recovering by appropriate action or proceedings any and all sums paid under this bond.'
On September 24, 1954 (when both plaintiff's agent and the National Surety Corporation assumed an obligation on the bond) they knew that the Notice Of Intention To Fine was based upon a violation of Section 20 of the Immigration Act of 1924, which had taken place in April or May 1948.
On October 21, 1954 (pursuant to Immigration Regulations 8 C.F.R. 160.14 et seq.) plaintiff filed a protest to the imposition of the fine with the District Director on the ground that 'the applicable statute of limitations had run' and that the fine should not be imposed (complaint, paragraph Fifth).
On November 5, 1954, the District Director denied plaintiff's protest and ordered the imposition of the fine.
On November 12, 1954, plaintiff appealed to the Board of Immigration Appeals.
On April 15, 1955, the Board of Immigration Appeals dismissed plaintiff's administrative appeal from the District Director's decision and ordered imposition of the fine.
In its decision (Exhibit 8 annexed to defendant's answering affidavit), the Board of Immigration Appeals rejected as 'not valid' plaintiff's contention that 28 U.S.C.A. § 2462 completely bars any enforcement by the Government of the fine. The Board's opinion, distinguished between (1) an affirmative suit by the Government to collect the fine, as to which suit the statute of limitations 'may have run against the Government'; and (2) a formal finding that the detention order had been violated and that the statutory find should be imposed. As to the latter, the Board took the position that the statute of limitations did not preclude such findings and imposition; nor did it prevent the Government ...