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Mr. EWERS. I should say, possibly, the foreign operations would predominate.
Senator KING. Yes.
Mr. Ewers. They certainly predominate by companies; I do not know whether they predominate by tonnage also.
There is one statement that Captain Petersen has made that I suggest be clarified. At the present time, section 20 of the 1924 act requires mala fide seamen to be ordered detained on board. The proposed legislation, the King and Dies bills, would require that they be taken off the vessels. It should be made clear whether the committee intends that section 20 is to be thereby repealed, because there is an implied repeal, at least, that might complicate the construction of the statute.
Supplementing what Captain Petersen has observed with respect to the procedure for the examination of seamen, which the legislation contemplates, there is an aspect of it which I think we have not heretofore made quite clear.
Under the bill no new cause for excluding alien seamen is given. In other words, under the present law they are ordered detained. Under the proposed statute, they would be taken off and given a board of special inquiry, with the right of appeal to the Secretary of Labor. So that instead of reducing the number of seamen who enter the United States, the number of seamen who enter would be increased, according to the number, if any, of the appeals sustained. Because, at the present time, under the decision of the courts of the United States, there is no appeal from a section 20 detention order. The jurisdiction of the inspector on primary examination is plenary and final, and to the extent that an appeal lies from his decision, just by that number. would the number of seamen coming in be increased.
And as Captain Petersen has pointed out, few, if any of them, have visas, and as visas are a condition precedent to the entry of immigrants, the carrying out of that procedure would be futile at the outset.
There is an administrative problem which arises there which I will illustrate by an extreme case. Take the case of Honolulu, Hawaii, which under the act of 1924 is a part of the United States and would be subject to the procedure described. I think about 14 days is the best time that the mails can be transmitted. So that when a man is landed and given a board of special inquiry, he will have an appeal to the Secretary of Labor, as the immigrants have a right to do. It would take 14 days for the appeal record to be received by the Department of Labor here in Washington.
Senator King. You say in a case from Honolulu?
Mr. EWERS. From Honolulu. That is an extreme case, but it illustrates the difficulty. The Department, after receiving the record, might be able to dispose of the case in a week or 10 days, and they could, possibly, then cable their decision on the appeal to Honolulu; but at the best some 20 or 25 days would be exhausted. Let us suppose that a seaman did not want to land permanently, but merely desired shore leave. By the time his appeal was sustained, granting him the right to shore leave, his vessel would have left. No provision is made in the legislation as to what is going to happen as to his wages, or as to who is going to provide for his return to the port of shipment; and those are questions which are always arising in the administration of statutes relating to seamen—the question of wages to the end of the voyage. And here, without any fault on his part, we leave the bona fide seaman stranded in a foreign country.
And that brings to mind the point that the importance and necessity of this legislation has been exaggerated, because if reference is made to the figures showing desertions from American vessels in foreign countries, as compared with the desertions from all vessels in American ports, it will be found that the numbers are not disproportionate. In the year that I recall, we had 1,100 desertions of alien seamen in the United States ports, and eight hundred-odd desertions from American vessels in foreign ports.
Senator King. Have you any figures showing the category into which the desertions fall-whether they are of bona fide or mala fide seamen?
Mr. EWERS. I do not think that would be a possible determination, Senator. There have been some estimates made from time to time. I think the Department of Labor is responsible for an estimate that in the neighborhood of two thirds of all deserting seamen ultimately reship. I am not prepared to confirm or dispute that estimate. My handling of cases involving seamen before the department and elsewhere would indicate that a surprisingly large percentage of them, immediately or mediately, had returned to the same means of livelihood; and even though they overstayed on the 60-day period now allowed by regulation, within 6 months, or sometimes within 90 days, they will go back to sea again.
With respect to the provisions of the statute permitting seamen to be detained on board (sec. 20) in some of the previous hearings some question has been raised as to the constitutionality of such procedure.
And I just want to repeat what I have stated to the committee before, and what I think you generally recognize, that the Supreme Court of the United States has repeatedly held, both as a regulation of immigration and as a regulation of commerce, that the Congress of the United States has plenary authority to determine what, if any, foreign or American vessels may enter our ports, and if so, under what terms and conditions; and in the case of Robertson against Baldwin, which was the leading case on the application of the thirteenth amendment to the seamen's cases (reported in 165 U.S. 215), the Supreme Court expressly ruled in that instance that that amendment had no more application to the contracts of seamen than it did to those who had enlisted in the military and naval service of the United States. And in any event, we have been successful, in my opinion, in administering the law by invoking section 20 for a period now of 9 or 10 years, without the constitutionality having been doubted. We have paid some rather heavy fines that we would have contested on that basis had there been any room for it at all.
Senator King. Have there been many cases where bona fide seamen, who were ultimately determined to be such, were detained under section 20, and subsequently the error was discovered that is to say, they were detained as being mala fide, whereas as a matter of fact they were bona fide seamen?
Mr. EWERS. Senator, you go right to the root of this whole controversy with that inquiry. From an immigration standpoint, “ bona fide” is determined principally according to whether or not an alien intends to remain in the United States or to reship foreign. We have the same inquiry to make in determining whether an alien is admissible as 'a visitor, involving purely a question of intention that it is very difficult to definitely determine. We have certain indicia to guide us, where our previous experience has indicated that a person is likely to remain here, such as cases where there are offers of employment. But the determining factor is largely in the back of his mind, and it is a very difficult thing to determine it.
I might say this, that when section 20 first came into operation in 1924 the practice was then to issue the orders at every port of call. And we had considerable confusion about seamen being found bona fide at one port and mala fide at another. But at the present time, pursuant to adjudication, the section 20 order which is issued at the first United States port of arrival controls at all subsequent United States ports.
Going back for a moment to the appellate procedure, under the general rule of law permitting judicial review of administrative determination, it has been repeatedly held that the administrative official in charge of making that determination must have some evidence upon which to predicate a finding. Of course, they have further said that, even though that is slight, if it is there, his finding will not be changed.
At the present time, when an immigration inspector examines a seaman, no stenographic transcript of the hearing is made. The inspectors must, in many instances, be governed largely by the appearance of the man-whether they believe he is telling the truth or not. And when you invoke the appellate procedure you have only the cold typewritten record without the opportunity to view the witness and determine for yourself whether he is telling the truth. And if appellate procedure were used in this class of cases, I feel confident it would be very difficult, if not impossible, to obtain a b.s.i. record that would support the Secretary's denial of the appeal. It is largely done on matters which are too indefinite to be capable of reduction to a written record.
Senator King. Has any detention of a bona fide seaman under section 20 been challenged on the ground that he was being held upon shipboard in violation of the thirteenth amendment?
Mr. EWERS. We did not have it come up in quite that way, Senator. I will say that I do not believe any shipping counsel have taken such a contention very seriously. In the case of the Limon, reported in 22 Federal (2d)—I do not recall the page number—a similar contention was made originally against section 33 of the 1917 act, which prohibits paying off and discharging seamen except under regulations with the approval of the Secretary of Labor. It was obvious that that section interfered with a seaman's right to shore leave. And the court in passing upon that contention dismissed it upon the authority of the decisions of the United States Supreme Court, affirming the right of Congress to regulate immigration and the decision quoted the numerous decisions which have been rendered by the tribunal in that connection.
Senator KING. Well, Mr. Furuseth claims that a large number of cases have come to the courts, in which they have held that a bona fide seaman might not, upon the ground that he was a mala fide seaman, be detained on shipboard, because that would be an infringement of his rights of liberty and in violation of the thirteenth amendment to the Constitution of the United States.
Mr. EWERS. At a previous hearing that statement was made, and Mr. Furuseth was asked if he could give us the citations to any case in which there had been such an adjudication. He quoted the case of the James C'lark, which involved a question of an American citizen seaman, where the writ was granted, the immigration statute being in nowise involved. And also the case of In re Farrell, reported in the New York Law Journal January 2, 1917. In that case, Judye Hough dismissed the writ of habeas corpus and adverted to the fact that while, under the Seaman's Act terminated all remedies for desertion, it did not follow from that that the courts should infer that it released the seaman who was detained on board. The point decided in the Farrell case, however, was simply that the court would not release a seaman who was apparently not an American citizen, had not signed the articles and really had no better rights than those of a stowaway. Even the steamship line, under the immigration law, could not land such a person in this country.
There is not the slightest doubt in my mind as to the constitutionality of a section 20 order. And certainly, where section 20 has been the basis of fines against various steamship companies which I have represented from time to time, if there had been even a suspicion of its unconstitutionality, that would have heretofore been adjudicated. The Assistant Solicitor of the Department of Labor, Mr. Reitzel, at a previous hearing, in response to a suggestion as to the unconstitutionality of section 20 orders, said, “No; we are successfully holding them on board every day.” That can be found in the Senate committee proceedings, under section 7, page 137.
Furthermore, it will be observed that section 20 does not require the detained seaman to perform any service; it merely requires that he be detained on board.
Now, with respect to the so-called " ineligible classes," we believe that the legislation goes unnecessarily far to accomplish its avowed purpose. The avowed purpose, and what has appealed to most people about this legislation, is keeping these ineligible seamen out of the United States.
We respectfully submit that, as an immigration statute, the way to keep them out is, as at present, to order them detained on board.
There have been no protests which have come to my attention since the act of 1924 from any foreign nation complaining that section 20 was invoked in this connection. But there have been numerous protests filed—and they have been referred to in previous hearings-about taking seamen off the vessels and returning them as passengers. For two reasons, largely:
In the first place, in commerce, the nations amongst themselves have to give and take a great deal. Our idea of what is right and wrong may not coincide exactly with the British idea of what is
right and wrong, or the French idea, or the German idea, or the Chinese. So while we have, under the Supreme Court adjudications, an admitted right to determine what class of seamen shall be on those vessels, as a matter that is well defined in international law and has been long recognized, the maritime nations of the world have found it necessary to refrain as far as possible from interfering with the operation of foreign vessels which call at our ports to trade. And if we persist in attempting to announce such legislation as this bill proposes, we are certain to be retaliated against, if not by the same provision, at least by one that is equally
The committee knows unquestionably that there was recently agreed to by every maritime nation of the world a convention for the safety of life at sea, which would apply to American vessels entering foreign ports.
As an illustration of the comity that I have described, the American vessels have been exempted for a reasonable period to give the United States an opportunity to ratify that convention.
We run into conflicts between the radio requirements of the various nations. Some of them want two radio operators; others want only one; others want one and an automatic alarm. And we are always : having to iron out these differences in national views.
Further, with respect to taking these ineligibles off of vessels, and particularly those vessels upon which they are nationals, even though colonials, I direct the committee's attention to the situation as described by Mr. Justice Fields, in the case of Ross against McIntyre, in which he said:
No act of any nation had created as much national indignation as the action: of the British Government just prior to 1812, boarding our vessels and removing our seamen. The seamen on those vessels partook of the national character, and of the immunities which attend national character.
We have had sufficient protests, it seems to me, from the maritime nations of the world, to caution us that a similar indignation might be created were this legislation enacted.
And with one other thought I will conclude. With respect to the so-called " full-crew” provisions of the statute, this is the only provision of the statute that the Department of Labor has ever approved, should be amended so as to permit steamship companies to comply with it—not necessarily by taking the same number out on the departure on the same voyage. Give us an opportunity to take those replacements out on another vessel of the same line, or on a vessel on the next departure of that ship.
The status quo, insofar as it is proposed to be affected by the legislation, is there, and our vessels are not subject to possible delay, or unnecessary delay-and I cannot overemphasize that, because it is the cardinal principle of steamship operation that vessels should be turned around as quickly as possible. We have estimated on some of the largest ships that for every hour of the detention the vessel loses in the neighborhood of $2,000. It is a very expensive thing to shipowners to be tied up at the dock.
Senator King. There ought to be some legislation, it seems to me, to prevent vessels which come in with a full crew going out with an inadequate number of members of the crew; because they might