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Interim Decision #1308

MATTER OF HMS "BOUNTY"

In FINE Proceedings

BOS-10/11.73

Decided by Board December 10, 1963

(1) Even though the vessel was touring the United States engaged in a pro

motional scheme for a motion picture rather than in a "normal commercial maritime operation,” fine lies under section 256, Immigration and Nationality Act, for paying off and discharging 5 alien crewmen without first having

obtained the consent of the Attorney General. (2) Section 256 provides for the imposition of a separate penalty for each

crewman who is illegally paid off or discharged, as opposed to a single penalty per vessel regardless of the number of crewmen involved.

IN RE: HMS “BOUNTY" which arrived at the port of Boston, Mass., from foreign,

via other United States ports, on August 25, 1962. Alien cewmen involved : Michael Lushington, Hugh Boyd, Ellsworth G. Coggins, Eric S. Hillis and Percy Coffin.

BASIS FOR FINE: Act of 1952-Section 256 (8 U.S.C. 1286).

The District Director at Boston, Mass., in a decision dated April 12, 1963, held that the Boston Shipping Corp., as agents for the HMS “Bounty," had incurred liability to administrative penalties totaling $5,000, $1,000 as to each of the alien crewmen (Canadian nationals) named above, for paying them off and/or discharging them without prior permission from an immigration officer acting for the Attorney General. However, said official found present herein factors which, in his opinion, merited mitigation of the fines to the extent of $2500, $500 per crewman. He then permitted fines in like amount to stand. The appeal from his decision, which brings the case before this Board for consideration, will be dismissed.

The HMS "Bounty” is a wooden sailing vessel, a replica of the original historic vessel of the same name, which was constructed for the purpose of making a motion picture entitled "Mutiny on the Bounty." Upon completion of filming, it was decided to send the vessel on a promotional tour. Said tour was to include port calls at several ports on both coasts of the United States.

The first such call was made at Seattle, Wash., on June 22, 1962. Immigration inspection was then and there accorded the vessel's crew, with the result that the crewmen here involved were granted D-1 conditional landing privileges. Under the terms thereof, they were permitted to land in this country for the time the vessel was to remain in United States ports, but in no event to exceed 29 days; and they could not be paid off and/or discharged without permission of the Attorney General, acting through an immigration officer.

The vessel sailed coastwise from Seattle and eventually arrived at the port of Boston, Mass., on August 25, 1962. From that port, it was scheduled to sail foreign for France, but these five crew members did not desire to continue the voyage further. Accordingly, they were "separated" from the ship, they were paid off and discharged before the Canadian Consul at Boston, and they returned to their homes in Canada.

The facts recited in the foregoing paragraph constitute this case a classic example of a “pay off or discharge” as those terms are used in the statute here under consideration. Therefore, the fines have properly been ordered imposed unless appropriate permission had first been obtained.

Appellant's claim that the requisite permission was obtained rests on an affidavit submitted by the Master. It recites that when the vessel arrived at the port of Boston, it received a tumultuous welcome and was met by a large number of visitors and port officials. It states that one such official, believed to be an immigration officer, was informed of plans to permit these five crewmen to leave the ship. It concludes that he informed the Master it was permissible to do so. This affidavit, however, is unavailing-for several reasons.

First, since the vessel merely sailed coast wise from Seattle to Boston no further immigration inspection was required at the latter port by the regulations. Second, according to the record no immigration officer boarded the ship at Boston to make such an inspection, or otherwise. Third, the regulations spell out a procedure for obtaining permission to “pay off or discharge” crewmen entirely different from that followed by the Master. Fourth, the Service record indicates that the specified procedure was not followed, and no claim has been advanced that it

Fifth, the parties responsible for the vessel's operation-including the agents and Master-are charged with knowledge of the pertinent regulations. Finally, the record reveals that the Master is an experienced mariner who presumably had personal knowledge of them.

* See arirval manifest (Form 1-418) ; Section 252 (a) (1), Immigration and Nationality Act (8 U.S.C. 1282); and 8 CFR 252.1(d) (1).

? See manifest (Form 1-418) submitted for the vessel's foreign departure on August 31, 1962.

3 U.S. v. Seaboard Surety Co., 239 F. 2d 667.
*8 CFR 251.1 and 252.1.
$ 8 CFR 2.32.1 (d) and (f).

We cannot agree with appellant that it would be unconscionable to permit the fines to stand because this vessel was engaged in an enterprise of great public appeal rather than in a normal commercial maritime operation. Factually, we find no logic in this argument since the ship was touring the United States as a "promotional” scheme which obviously involved the “profit motive." Legally speaking, moreover, the statute applies to "any vessel" so that it includes even privately owned pleasure craft engaged in no commerce whatsoever. While there have been cases in which the question of “normal commercial maritime operation” was discussed, those cases involved the question of "sovereign immunity," to wit: public vessels operating solely for the public purposes of a sovereign nation, which is not the situation presented here.

We also reject the contention that this section of law limits the fine that can be imposed hereunder to $1,000 per vessel no matter how many crewmen are involved. The decisive factors on this point are that the statute makes it unlawful to pay off or discharge "any alien crewman" and provides for the imposition of a penalty “in the sum of $1,000 for each such violation.” The clear meaning of the quoted phraseology is that the Congress meant nothing more than that a separate penalty should be assessed for each crewman who is paid off and discharged, as opposed to creating a single violation of the statute per vessel—no matter how many crewmen were involved. While there are no precedents precisely on this point, the fact remains that it has been generally accepted and recognized, by a long line of administrative and judicial interpretation, that this section does justify the imposition of a fine of $1,000 as to each crewman involved. We so hold.

Finally, the request that the fines be further reduced must be and is denied. The reason is that the penalty provided for in the statute cannot be reduced to less than $500 per crewman, and the District Director has already granted this relief.

ORDER: It is ordered that the appeal be and the same is hereby dismissed.

7

* See Vatter of SS "Wave Sovereign," 5 I. & N. Dec. 336.

See Grant Brothers Construction Co. v. U.S., 58 L. ed. 776; and see also the Kathlambra, 18 F. 2d 113.

* See the Limon, 14 F. 2d 153, and 22 F. 2d 270.

MATTER OF MONASTRA

In SECTION 341 Proceedings

A-11079022

Decided by District Director
Approved by Assistant Commissioner December 12, 1963

(1) A naturalized citizen of the United States who by operation of law auto

matically reacquired Italian nationality in 1940 following 2 years' residence in Italy did not upon that basis lose his U.S. citizenship under section 401 (a) of the Nationality Act of 1940 when he voted in a political election in Italy in 1946, loss under that section being limited to naturalization obtained "upon his own application," but expatriated by performing an act separately desig.

nated as expatriatory in section 401 (e) of that Act. (2) A child of such naturalized citizen who acquired U.S. citizenship at birth in Italy in 1930, under sec. 1993, R.S.; who acquired Italian nationality in 1940 upon the automatic reacquisition of such nationality by her father; and whose father, until he voted in 1946, performed no act that might possibly have been regarded as a manifestation of acceptance of Italian nationality was not subject to compliance with the provisos to section 401 (a), Nationality Act of 1940, or section 349(a) (1), Immigration and Nationality Act, at the time of her first entry into the United States in 1957 when 27 years of age.

The applicant was born in Italy on April 15, 1930. Her father was then a citizen of the United States having been naturalized on November 19, 1928. The father resided in the United States after his naturalization until 1929, from 1932 to 1935, from 1935 to November 1938, and from May 1958 to date. The applicant acquired United States citizenship at birth under section 1993, U.S.R.S., by virtue of the fact that her father was a United States citizen at the time of her birth and had resided in the United States prior thereto. The applicant entered the United States for the first time on July 27, 1957, in possession of a United States passport, at which time she was twenty-seven years of age.

At the time of applicant's birth in Italy her father had ceased to be an Italian citizen,' and thus the applicant did not acquire Italian nationality at birth. Italian law as to nationality at birth is based on the principle of "jus sanguinis” [See Articles I and III of the Italian Nationality Law of June 13, 1912, then in effect]. Upon completion of two years' residence in Italy in 1940, the applicant's father automatically reacquired Italian nationality ? [See Hackworth, Digest of International Law (1942) p. 212]. Article XII of the Italian Nationality Law conferred Italian citizenship upon applicant in 1940, as she was then the minor child of a person reacquiring Italian citizenship pursuant to the provisions of Article IX. Thus, the applicant acquired dual nationality subsequent to her birth, in 1940, in accordance with Italian law.

1 When applicant's father became a naturalized citizen of the United States he lost his Italian Nationality pursuant to the provisions of Article VIII (1) of the Italian Nationality Law of June 13, 1912, which provided that "One loses citizenship when he of his own free will acquires a foreign citizenship and establishes or has established his residence abroad."

At the time applicant and her father acquired Italian nationality, section 2 of the Act of March 2, 1907, [34 Sta. 1228; 8 U.S.C. 17] provided in pertinent part that any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws. The issue to be resolved in her case, therefore, is whether their automatic acquisition of Italian nationality imposed upon her the necessity of complying with the provisions of section 401(a) of the Nationality Act of 1940 [54 Stat. 1168; 8 U.S.C. 801] or section 319(a)(1) of the Immigration and Nationality Act.

Section 401(a), which became effective January 13, 1941, provided as follows:

A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by :

(a) Obtaining naturalization in a foreign state, either upon his own application or through the naturalization of a parent having legal custody of such person: Provided, however, That nationality shall not be lost as the result of the naturalization of a parent unless and until the child shall have attained the age of twenty-three years without acquiring permanent residence in the United States: Provided further, That a person who has acquired foreign nationality through the naturalization of his parent or parents, and who at the time is a citizen of the United States, shall, if abroad and he has not heretofore expatriated himself as an American citizen by his own voluntary act, be permitted within two years from the effective date of this Act to return to the United States and take up permanent residence therein, and it shall be thereafter deemed that he has elected to be an American citizen. Failure on the part of such person to so return and take up permanent residence in the United States during such period shall be deemed to be a determination on the part of such person to discontinue his status as an American citizen, and such person

* Article IX of the Italian Nationality Law of June 13, 1912, provided “He who has lost citizenship ... may reacquire it ... (3) after two years of residence in the Kingdom if the loss of citizenship has been due to the acquisition of foreign citizenship.”

2 Article XII of the Italian Nationality Law of June 13, 1912, provided that “minor nonemancipated children of those who acquire citizenship become citizens."

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