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The question is one of negligence,—whether particular circumstances gave rise to a duty which had not been erformed. Discussing general principles, the Court observed in the Britt case, that infants had no greater right to go upon other peoples' land than adults and that the mere fact that they were infants imposed no duty upon landowners to expect them and to prepare for their safety. On the other hand, it was said that while “temptation is not invitation, it may be held that knowingly to establish and expose, unfenced, to children of an age when they follow a bait as mechanically as a fish, something that is certain to attract them, has the legal effect of an invitation to them although not to an adult.” The Court said that the principle if accepted should be very cautiously applied. We think that the present case falls within that appropriate application. Were the case merely one of an accessible wharf, it could not be said that the District would be subject to liability from the fact, without more, that a child strayed there and fell from the wharf into the water. The duty must find its source in special circumstances in which, by reason of the inducement and of the fact that visits of children to the place would naturally be anticipated, and because of the character of the danger to which they would unwittingly be exposed, reasonable prudence would require that precautions be taken for their protection. Here, on the face of the opening statement, the location of the wharf, unfenced, close to the street with the barrier partly down, taken with the use of the wharf for unloading sand, made it a likely place for children to play. Sandpiles close at hand would constitute "a bait” they would inevitably follow. According to the statement, they did follow it and they used the wharf as a playground at their pleasure. As the authorities of the District had reason to anticipate that use, there was a duty to take reasonable precautions either to

Statement of the Case.

291 U.S.

prevent it or to keep the wharf in such a proper state of repair that children would not be exposed to the danger of falling through holes.

Judgment reversed.

HAMBURG-AMERICAN LINE v. UNITED STATES.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE

SECOND CIRCUIT.

No. 343. Argued February 7, 1934.-Decided March 5, 1934.

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1. An alien resident of the United States returning from a tempo

rary visit abroad is a "non-quota immigrant." Immigration Act

of 1924, § 4 (b). P. 422. 2. By $8 10 (a), (b), (c), (f), and 13 (b), of the Immigration Act,

and regulations thereunder, a permit to reënter granted to an immigrant who has been legally admitted to the United States and who departs therefrom temporarily, is the equivalent of an immigration visa for the purpose of determining his right to readmission, under § 13 (a), and the liability of a steamship company

for bringing him back, under § 16 (a). P. 422. 3. Where a steamship company brings in a non-quota immigrant

without immigration visa or reëntry permit, it is liable to fine under § 16 of the Act notwithstanding that the Secretary of Labor, acting on discretionary authority assumed to be conferred by $ 13, admits him to the country, since subdivision (f) of § 13 provides that nothing in that section “shall authorize the remission or refunding

of a fine, liability to which has accrued under Section 16.” P. 425. 4. Where an immigrant, unlawfully brought in without visa or

reëntry permit, is nevertheless admitted, the fine of $1,000 can legally be imposed on the steamship company under § 16 (b)

without requiring it to pay the passage money. P. 426. 65 F. (2d) 369, affirmed.

CERTIORARI, 290 U.S. 615, to review the affirmance of a judgment dismissing the complaint in an action by a steamship company to recover a fine exacted under the Immigration Act.

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Mr. Roger O'Donnell, with whom Messrs. Wm. J. Peters and Lambert O'Donnell were on the brief, for petitioner.

Mr. J. W. Morris argued the cause, and Solicitor General Biggs, Assistant Attorney General Wideman, and Messrs. Paul A. Sweeney and H. Brian Holland filed a brief, for the United States.

MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.

Philip O'Reilly, a native of Ireland and resident in the United States, returned in October, 1928, on plaintiff's vessel, from a temporary visit abroad. He had neither an unexpired immigration visa nor a permit to reënter. On his arrival, the immigration officers ordered his exclusion, but he was eventually admitted by the Secretary of Labor. Later, the Secretary of Labor fined the plaintiff in the sum of $1000 for bringing the alien to the United States. Having paid under protest, plaintiff brought this action to recover the amount of the fine upon the ground that it was illegally imposed. Judgment dismissing the complaint on the pleadings was affirmed by the Circuit Court of Appeals. 65 F. (20) 369. This Court granted

2d certiorari, in view of the conflicting ruling in the Ninth Circuit. Rederiaktiebolaget Nordstjernen v. United States, 61 F. (2d) 808.

The fine was imposed under § 16 of the Immigration Act of 1924, 43 Stat. 153, 163; 8 U.S.C. 216. The provision is explicit and the case falls directly within its terms. The section makes it unlawful for a transportation com

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This section provides:

Sec. 16. (a) It shall be unlawful for any person, including any transportation company, or the owner, master, agent, charterer, or consignee of any vessel, to bring to the United States by water from any place outside thereof (other than foreign contiguous territory) (1) any immigrant who does not have an unexpired immigration visa, Opinion of the Court.

291 U.S.

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pany to bring to the United States "any immigrant who does not have an unexpired visa.” The alien was a "nonquota immigrant” within the definition of the statute. Id., § 4 (b), 8 U.S.C. 204 (b). If it appears to the satisfaction of the Secretary of Labor that "any immigrant has been so brought," the transportation company must pay to the collector of customs the sum of $1000, and in addition, for the benefit of the immigrant, an amount equal to that paid for his transportation. Section 16 further provides that "such sums shall not be remitted or refunded” unless the Secretary of Labor is satisfied that it could not have been ascertained, with reasonable diligence, that the person so transported was immigrant.

Plaintiff insists that the admission of the alien took the case out of the statute. Section 16 makes no such excep

an

or (2) any quota immigrant having an immigration visa the visa in which specifies him as a non-quota immigrant.

"(b) If it appears to the satisfaction of the Secretary of Labor that any immigrant has been so brought, such person, or transportation company, or the master, agent, owner, charterer, or consignee of any such vessel, shall pay to the collector of customs of the customs district in which the port of arrival is located the sum of $1,000 for each immigrant so brought, and in addition a sum equal to that paid by such immigrant for his transportation from the initial point of departure, indicated in his ticket, to the port of arrival, such latter sum to be delivered by the collector of customs to the immigrant on whose account assessed. . .

"(c) Such sums shall not be remitted or refunded, unless it appears to the satisfaction of the Secretary of Labor that such person, and the owner, master, agent, charterer, and consignee of the vessel, prior to the departure of the vessel from the last port outside the United States, did not know, and could not have ascertained by the exercise of reasonable diligence, (1) that the individual transported was an immigrant, if the fine was imposed for bringing an immigrant without an unexpired immigration visa, or (2) that the individual transported was a quota immigrant, if the fine was imposed for bringing a quota immigrant the visa in whose immigration visa specified him as being a non-quota immigrant."

420

Opinion of the Court.

tion. But plaintiff invokes § 13 of the Act of 1924 (Id., 8 U.S.C. 213)? which, after providing generally in sub-division (a) for the exclusion of an immigrant who is without an unexpired immigration visa, creates a particular exception in sub-division (b) to meet the case of immigrants “who have been legally admitted to the United States and who depart therefrom temporarily.” Immigrants of that sort may be admitted to the United States “ without being required to obtain an immigration visa.” The exception is limited. It applies only “in such classes of cases and under such conditions as may be by regulations prescribed.” Acting under this authority, regulations were prescribed, which provided for the admission of such im

Section 13 contains the following provisions:

“Sec. 13. (a) No immigrant shall be admitted to the United States unless he (1) has an unexpired immigration visa or was born subsequent to the issuance of the immigration visa of the accompanying parent, (2) is of the nationality specified in the visa in the immigration visa, (3) is a non-quota immigrant if specified in the visa in the immigration visa as such, and (4) is otherwise admissible under the immigration laws.

“(b) In such classes of cases and under such conditions as may be by regulations prescribed immigrants who have been legally admitted to the United States and who depart therefrom temporarily may be admitted to the United States without being required to obtain an immigration visa.

“(d) The Secretary of Labor may admit to the United States any otherwise admissible immigrant not admissible under clause (2) or (3) of subdivision (a) of this section, if satisfied that such inadmissibility was not known to, and could not have been ascertained by the exercise of reasonable diligence by, such immigrant prior to the departure of the vessel from the last port outside the United States and outside foreign contiguous territory, or, in the case of an immigrant coming from foreign contiguous territory, prior to the application of the immigrant for admission.

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(f) Nothing in this section shall authorize the remission or refunding of a fine, liability to which has accrued under section 16."

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