SS. CAPTAIN DEMOSTHENES

                                                  Interim Decision #1995




                MATTER OF SS. CAPTAIN DEMOSTHENES

                           In Fine Proceedings
                               LOS-10/2.283
                    Decided by Board July 11, 1969

(1) Liability to fine does not lie under section 254(a) (2) of the immigration
  and Nationality Act for failure to detain on board two alien crewmen
  denied conditional landing privileges who were apprehended while attempt-
  ing to swim ashore from the vessel, since, within the meaning of section
  254, they did not effect a landing, the element essential to establish a vio-
  lation of that section.
(2) Where reasonable precautions were taken by the responsible parties, a
  vessel's unduly prolonged port call because of the necessity for extensive
   repairs warrants a more generous mitigation of the fine arising under sec-
  tion 254 of the Act than in the usual rase.
IN RE: SS. CAPTAIN DEMOSTHENES, which arrived at the port of Los
         Angeles, California, from foreign via another United States port,
         on August 25, 1968. Alien crewmen involved: Nicolaos Buras,
         Georgios Cavril, Cons6ntinos Koumoutsos and Dimitrios Kefalinso

BASIS FOR FINES: Act of 1952—Section 254(a) (2) [8 U.S.C. 1284].
ON BEHALF OF APPELLANT:        Michael D. Dempsey, Esquire
                               600 South Spring Street
                               Los Angeles, California 90014


   The District Director at Los Angeles, in a decision dated April
10, 1969, held that W. H. Wickersham & Co., as agents for the
vessel, had incurred liability to administrative penalties of $4,000,
$1,000 as to each of the alien crewmen named above, fur failure
to detain them aboard the vessel at all times despite the fact that
they had not been granted conditional landing privileges. How-
ever, the District Director found present herein factors which, in
his opinion, merited mitigation of the fines to the extent of
$2,000, $600 as to each of the first two crewmen named above,
and $400 as to each of the other two crewmen. Thus, he permit-
ted to stand herein a penalty of $2,000, $400 as to each of the
first two named crewmen and $600 as to each of the other two
crewmen.

                                     345
    Tt appears from the record before us that the following mate-
 rial facts exist without substantial controversy. The vessel made
 its first United States port call on this trip at Baltimore, Mary-
 land, on August 1, 1968. Immigration inspection, which was then
 and there accorded its crew, resulted in the refusal of conditional
 landing privileges to ten alien members of the crew, Greek na-
 tionals, including the four named above. They remained aboard
 the vessel at all times while it was in the port of Baltimore.
    The vessel cleared Baltimore bound for the Far East. After
 transiting the Canal Zone, the crankshaft for the main engines
 broke and the vessel put into the port of Los Angeles on August
 25, 1968, for extensive repairs. It remained in that port for ap-
 proximately four months thereafter.
    On the night of November 17, 1968, while the vessel was an-
 chored just within the breakwater marking the boundary of Los
 Angeles harbor, the crewmen Nicholaos Buras and Georgios Cav
 ril attempted to swim ashore from the vessel. They were appre-
hended before reaching land by local police, turned over to immi-
gration officers, placed under deportation proceedings and
deported to Greece.
    On December 3, 1968, the vessel then being at dock side, the
crewman Constantinos Koumoutsos left the ship and made his
 way ashore in the United States. At the time the District Direc-
tor considered the case, he was still at large in this country. How-
ever, information has now been received by this Board that he
was eventually apprehended by immigration authorities in Bos-
ton, Massachusetts, and deported to Greece at the expense of the
vessel's owners)
    On December 8, 1968, the crewman Dimitrios Refaliuso suc-
ceeded in leaving the ship and making his way ashore in the
United States. Insofar as the record shows, he is still at large in
this country. The only additional comment required in this
connection is that professional guards were on duty at all times
at the gangway while the vessel was at dock side, but it was rid-
ing low in the water so that anyone could step from the ship to
the pier, and there was a heavy fog on the night he escaped.
    On the basis of the foregoing facts, we conclude that the Dis-

   I Ordinarily, we would remand the case to havc thin information Intro-
duced into evidence and considered by the District Director, but we will not
do so here because of the unavoidable administrative delay involved; because
the authenticity of the information does not appear to be subject to ques-
tion; and because the present posture of the case calla for final resolution of
all aspects of the problems presented, at one and the same time.


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                                                Interim Decision #1995 -

trict Director has improperly order fines imposed as to the crew-
men Nicolaos I3uras and Georgios Cavril who were taken into
custody by local police while attempting to swim ashore and
therafter given over into the custody of immigration officers
and made the subject of deportation proceedings. The reason is
that we do not think it can logically be held that they effected a
"landing," which is the element essential to establish a violation
of this section of the law."
   Judicial decisions indicate that the term "landing" is a word of
art. The Supreme Court of the United States has defined it
thus: " 'to land' means to go ashore" and " 'landing from such ves-
sel' takes place and is complete the moment the vessel is left and
the shore is reached." " This language was later quoted verbatim
by the Court of Appeals for the Ninth Circuit. 4
   We were called upon to apply the foregoing definition in a
somewhat similar situation involved in the case of Adorno Dub-
biosi, Boatswain ex SS "Enrico.", NOR-87, BIA, 5/13/59, unre-
ported. Therein, an alien serving as boatswain abroad a vessel
was charged with liability to fine under section 271 (a) of the Im-
migration and Nationality Act (8 U.S.C. 1321) for4ailure to pre-
vent the "landing" of four other aliens whom he had assisted to
stowaway aboard the vessel in Italy, and whom he had concealed
throughout the trip to the United States. On the vessel's arrival
in the United States, Service officers discovered the stowaways
just as they were ready to go ashore. Said officers then took the
stowaways and the boatswain into custody and ashore for possi-
ble criminal prosecution. In the light of the foregoing judicial
definition of the term "landing," and in view of the penal nature
of this statute requiring for it strict construction in all respects, 5,
we held that no "landing" was effected. We so hold here, finding
no valid reason to do otherwise.
   With respect to the foregoing, the United States District Court
for the Eastern District of Virginia, Norfolk Division, ruled to
the same effect in connection with the question of whether the
alien boatswain involved in the case before us had made an
"entry," holding he should have been made the subject of exclu-
sion proceedings rather than the expulsion proceedings which the
Service had brought against him." All we can add, in this connec-

   The KatIdambra, D.C. N.Y., 1926, 

18 F.2d 113

.
   Taylor v. United States, 

207 U.S. 120

 (190'7).
 4 Niven v. United States, 

169 Fed. 782

 (1909).

 5 Miller v. Robertson, 

366 U.S. 243

 (1924).

 G In re Dubbiosi, 

191 F. Supp. 65

 (1961).



                                    347
Interim Decision #1995
tion, is that it is immaterial from the fine liability standpoint
that it may not have been the efforts of the parties responsible
for the vessel's operation which prevented the crewman from ef-
fecting a landing in the United States for the reason that the
landing is the essence of the violation and without it there can be
no fine.'
   As to the other two crewmen, the District Director's opinion
reflects that the parties responsible for the vessel's operation ex-
erted diligent efforts to keep them on board. Professional guards
were hired and on duty at all times while the vessel was at dock
side. Their seaman's documents were lifted and made available to
the Service after their escape. The fact that they had left the ship
was reported to the Service with reasonable promptness.
   Ordinarily, under these circumstances we would be inclined to
view as adequate the mitigation ($400) already authorized by the
District Director as to these two crewmen. However, it appears
in this instance that the vessel's port call was unduly prolonged
because of the necessity for extensive repairs. Obviously, this
complicated the ordinary difficulties of detaining the crewmen on
board. In such situations, we have consistently held that more
generous mitigation is warranted than in the usual case, provided
reasonable precautions were taken by the responsible parties, as
they were here. And, as we have already pointed out herein, one
of the two remaining detainees was subsequently removed from
the United States by and at the expense of the parties responsible
for the vessel's operation. Accordingly, we will reduce the penalty
to the statutory minimum of $200 as to him, and reduce the pen-
alty as to the other detainee by an additional $200.
   ORDER: It is ordered that the appeal be sustained insofar as
the crewmen Buras and Carril are concerned, and that no fines
be imposed on to them.
   It is further ordered that the District Director's decision be
otherwise amended to provide for $200 more mitigation as to the
crewman Kefalinso and $400 more mitigation as to the crewman
Koumoutsos, and that as so modified the decision of said official
be and the same is hereby affirmed.
   It is further ordered that the penalty permitted to stand in this
 :ase be $600, $400 as to the crewman Kefalinso and $200 as to
 he crewman Koumoutsos.


  1 S ee Matter of SS "Reline," NOR-10/33.103, BIA, 1960, 

9 I. & N. Dec. 348

                                                Interim Decision 42031

section 349 (a) (2) of the Act as it was a concomittant of his non-
expatriating marching and not a separate and distinct act. 5
  ORDER: It is ordered that no change be made in the order of
the special inquiry officer and that the applicant be admitted to
the United States as a United States ciizen.




  5 Matter of V—L—,       5 I. & N. Dee. 497   (BIA, 1953) ; Moldoveanu v.
Dulles, 

168 F. Supp. 1

 (E.D. Mich., 1958).

                                   511