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opinions referred to, had disclosed in the statutory barriers against the possible coming in of Chinese and other excluded immigrants. It can scarcely be questioned that in any ordinary use of language a sailor is a person employed on a vessel. Indeed for very many years almost those very words have constituted the legal definition of a seaman.

Every person, apprentices excepted, who shall be employed or engaged to serve in any capacity on board a ship, shall be deemed and taken to be a seaman."

R. S. Sec. 3612.

The petitioner nevertheless, insists that if any such construction be put upon section 32 of the Immigration Act of 1917 one of the purposes which Congress then had in mind will necessarily be defeated. It is argued that at that time the national legislature was very anxious to protect American seamen against the competition of lower paid and badly treated sailors of other nationalities and particularly against Asiatics, the poorest compensated of them all.

It is shown that the then Commissioner of Immigration had these considerations much in mind and brought them to the attention of the Committees of the two Houses which had the legislation under consideration. It is perhaps inferable that the majority of the members of these Committees were in general sympathy with his point of view but it is certain that they did not altogether accept his suggestions as to the wording of the section of the Act. in question. It is also demonstrated that both he and they knew that many aliens, among them a large number of Asiatics, who otherwise could not have gotten into this country at all in fact, succeeded in doing so because coming here as sailors they had contrived to escape attention and remained here permanently. Everybody was anxious to put a check to such practices so far as that was possible without unduly limiting the opportunities of alien seamen to leave the ship which brought them here with or without the consent of its master and in accordance with or in the teeth of their contract of employment on it.

The solution was sought as the Senate Committee reported (Senate Report 352, page 19, 64th Congress, 1st Session, Vol. 2) "by allowing the admittedly difficult task of so enforcing the Immi

370. gration and Seamen's Laws respectively as to avoid conflict and at the same time to prevent the privileges accorded under the seamen's laws from being used as a means of violating the Immigration statute, to be accomplishsed by such appropriate and expedient regulations as might be necessary, it being realized that the details of this matter could not well be handled in a law but must be worked out by the administrative officials carefully and adequately, especially as experience in the matter would probably demonstrate the necessity for modifying or extending the regulations from time to time, things which could not be accomplished if an attempt were made to cover the details of the matter in the statute itself."

At first the executive officials charged with this responsibility did not conceive it necessary to require a bond as a condition precedent to allowing a temporary landing, but their experience has apparently led them to a different conclusion. If the meaning and intent of sections 32 and 33 is as has been suggested herein, there is nothing unreasonable in providing that a bond must be given. In re Ah Kee 22 Fed. 519. In re Jam 101 Fed. 989.

The petitioner, however, contends that the words "alien. employed on board any vessel arriving in the United States from any foreign port or place" in section 32, however apt they might at times be to denote a seaman, cannot be held to do so therein, since such an interpretation of them would be inconsistent with the other sections of the Act. He contrasts the provisions of this and the succeeding section 33 with those of section 34. The first two he points out apply to "persons employed on any vessel arriving, etc." the latter to "alien seaman who shall land in a port of the United States" and he argues that each description is to be understood as exclusive of the other. In his view person employed" is one who pretends to be a seaman but is not in fact and describes only those individuals who, for the purpose of securing entrance into the United States, falsely represent themselves to be sailors. He would limit the provisions of section 32 and possibly those of section 33 to such pretenders only. Section 34 which authorizes the arrest, within three years of his landing, of any alien seaman landing here contrary to the provision of the Act for the purpose of bringing him before a board of special inquiry with a view to possible deportation, he insists provides the remedy and the only remedy available against an alien sailor who

1923 A. M. C.

seeks to take up a permanent residence among us. It is impossible to accept such a contention. In section 33 "any alien employed on board a vessel arriving in the United States etc." necessarily includes "the seaman himself" who by the same section may give notice of his desire to be discharged.

Moreover, it is not open to question that the words in section 35 "to have on board, employed thereon, any alien etc." necessarily include bona fide sailors; as in section 36 does the phrase "all aliens employed on such vessel."

I have carefully considered the able, elaborate and painstaking brief submited on behalf of the petitioner. It demonstrates that the Secretary of Labor and the Commissioner of Immigration in office at the time of the enactment of Sections 32 and 33 believed it to be unnecessary and probably inexpedient at that time to to require a bond from persons situated as the petitioner is, but it apparently shows nothing else and certainly does not tend to the conclusion that the provisions of section 32 should not be interpreted to mean what they say or that if in 1922, the Department was of the opinion that a bond should be required it was without power to demand it.

I am aware that Judge Mayer sitting in the Southern District of New York held that a Chinese sailor in the situation of the petitioner could not be required to give bond as a condition precedent to landing, but I have been favored with a stenographic report not only of what he said but of all the proceedings before him. I find that the case was apparently argued upon the theory that there had been no material change in the statutory law since Judge Learned Hand decided U. S. vs. Jamieson, supra.

To my mind that assumption is unfounded. Section 32 was to my understanding enacted to provide a means by which the executives might by appropriate regulations deal with such cases.

It follows that the writ must be discharged and the petition dismissed.

1

The case referred to is that of United States ex rel Ho Chung vs. Robert E. Todd, Commissioner of Immigration, New York, an oral opinion handed down August 10th, 1922.

THE BAYARD-THE BEAVER.

AKTIESELSKABET BONHEUR, Appellant,

08.

SAN FRANCISCO & PORTLAND STEAMSHIP COMPANY, Appellee. In the United States Circuit Court of Appeals for the Ninth Circuit, March 5th, 1923.

DEMURRAGE-DAMAGES FOR DETENTION AFTER COLLISION-BURDEN OF PROOF-WAR REGULATIONS.

1. Although during the period consumed in repairing collision damage sustained by a vessel, freight was offering in abundance and there was a demand for her use, where it also appears that she would not have been employed in fact, because of war-time regulations of the U. S. S. B. and Inter-allied Chartering Committees, with which it appears her owner would not have complied during such period, no demurrage or damages for detention can be recovered.

2. Where demurrage or damage for detention during the period consumed in repairing collision damages is disallowed, expenses (such as watchman's wages, galley coals and victuals) incurred during such period are referable to the demurrage claim, and will also be disallowed. 3. The burden of proof rests on libellant to establish damage sustained on account of loss of vessel's earnings during period consumed in repairing collision damage.

Before: GILBERT and HUNT, Circuit Judges, and WOLVERTON, District Judge.

NATHAN H. FRANK and IRVING H. FRANK, for Appellant.

FARNHAM P. GRIFFITHS, MCCUTCHEN, OLNEY, WILLARD, MANNON and GREENE, for Appellee.

Appeal from the District Court of the United States for the Southern Division of the Northern District of California.

WOLVERTON, District Judge:

On the evening of November 3, 1917, the steamer Beaver collided with the motor vessel Bayard, while the latter was lying at anchor, in the harbor of San Francisco, opposite pier 30 and about one mile distant therefrom. The appellant libeled the Beaver, claiming damages for injuries sustained by the Bayard, and also for loss sustained by reason of the boat's detention from operation while under repairs. The appellee is the claimant. It will be convenient to refer to the parties as libellant and claimant.

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The claimant admitted liability for the collision, at the trial, but denied liability on account of demurrage. The trial court gave damages for injuries to the vessel, but denied relief for her detention. The Bayard was detained, in making repairs, from November 3 to December 21, inclusive.

The Bayard and the Brazil, which was a companion ship, were both owned in Norway, a neutral country in the war. Fred Olsen & Co., of Christiania, Norway, were their managing owners, and the Norway-Pacific Line Agency, of which F. W. Kutter was secretary, was the agent of such owners in San Francisco. Geo. A. Moore & Co. had chartered the Bayard for two trips previously, and on November 3, 1917, made an offer to the San Francisco agent of $400,000 lump sum, for a charter round trip from San Francisco to two points in the Philippines and return. Moore & Co. were advised that the offer would be cabled to Norway, and consideration would be given to it. However, no further negotia. tions seem to have been had respecting the offer.

[The owners then began negotiations for another charter, but it was necessary that all charters at that time be approved first by the U. S. Shipping Board Chartering Committee at Washington and then by the Interallied Chartering Committee at London as to the rate of hire, voyage and cargo to be carried, and nationality of charterer, on all of which matters the Committees had adopted definite policies.]

The crucial question presented for consideration is whether the libellant is entitled to what is termed demurrage for detention of the Bayard during the time she was undergoing repairs, and, if so, in what amount.

Libellant claims that the amount of its demurrage should be measured by its charter value in the market, for the time of detention, and that, having had a bona fide offer of $400,000 for charter on the ship, round trip to the Philippines and return, the offer establishes the value and fixes the basis upon which recovery should be predicated.

Under some circumstances, the market value affords an appropriate basis for determining the damages to be paid for detention; but, in any case, if there is not demand for the employment of the ship, and, of course, no hire to be obtained, no compensation for detention for repairs will be allowed, as no loss will have been sustained. Williamson vs. Barrett, 13 How. 101, 111.