Inducing and assisting aliens to come from abroad, working as
seamen on the way, for
bona fide service as seamen on an
American ship during her voyage from American ports to foreign
countries and while she lies in such ports preparatory to or in the
course of such voyage, is not an assisting or encouraging of the
importation or migration of alien "contract laborers" "into the
United States," within §§ 4 and 5 of the Act of February 20, 1907,
34 Stat. 898, a amended by the Act of March 26, 1910, 36 Stat.
263.
Page 245 U. S. 123
As these acts of Congress apply to all alien contract laborers
without regard to their origin or nationality, in a suit to enforce
their highly penal provisions, the circumstance that the aliens in
question were Chinese subjects is without significance.
An American ship engaged in foreign commerce is not a part of
the territory of the United States in the sense that seamen
employed upon her while in American ports or on voyages can be said
to be performing labor in this country within the meaning of the
statutory provisions above cited.
229 F. 970 affirmed.
The case is stated in the opinion.
MR. JUSTICE CLARKE delivered the opinion of the court.
This is a suit to recover penalties upon the claim that the
defendants "knowingly assisted and encouraged the importation and
migration" of certain alien contract laborers into the United
States for the purpose of having them perform labor therein in
violation of §§ 4 and 5 of the Act of Congress of February 20,
1907, 34 Stat. 898.
The Circuit Court of Appeals for the Ninth Circuit affirmed the
judgment of the district court sustaining a general demurrer to the
second amended complaint, and the case is here for review on
certiorari.
The complaint is in nineteen separate counts in identical form,
and each relating to the employment of a single man. The essential
allegations of each count, with a difference only in name of the
man employed, are as follows:
That, in 1913, the three defendant corporations were
Page 245 U. S. 124
operators of the British steamship
Bessie Dollar, and
also of the American steamship
Mackinaw, and that the
defendant Abernethy was the master of the former; that, when the
Bessie Dollar was in the port of Shanghai, China, the
defendants formed the design of procuring a crew of alien laborers
to be transferred to the
Mackinaw at San Francisco, and,
to that end, although the
Bessie Dollar had a full crew of
officers and men, they procured one Dung Pau to sign shipping
articles as a "purported seaman" for service on her as follows,
viz.:
"On voyages from Shanghai to San Francisco, there to join the
S.S.
Mackinaw, or other vessel, within the limits of 70
degrees north and 70 degrees south latitude, trading to and from as
may be required, and back to Shanghai, to be discharged with
consent of local authorities. Term of service not to exceed two
years. The master has the option to transfer any or all of the
within mentioned persons to any other British or Foreign ship bound
to Shanghai in the same capacity and at the same rate of
wages."
It is also alleged that Pau "worked as a seaman" on the voyage
to San Francisco, and on arrival there was discharged from the
Bessie Dollar, and that, on the same day, pursuant to the
design formed in Shanghai, he signed shipping articles before the
United States Shipping Commissioner for the Port of San Francisco
for a voyage on the
Mackinaw as follows:
"From San Francisco, Cal., to Shanghai, China, and such other
Asiatic Ports as the master may direct, via Grays Harbor, Seattle,
Wash., and such other ports on the Pacific Coast as the master may
direct; final port of discharge shall be Shanghai, China."
And, finally, it is averred that, pursuant to the second
contract, Pau worked "as a seaman" on board the
Mackinaw
in the Port of San Francisco for some days, and on the voyage from
San Francisco to Grays Harbor,
Page 245 U. S. 125
Washington, and at Grays Harbor until the time of the
commencement of this action.
The employment of the man to serve as a
bona fide
seaman on the
Mackinaw is not questioned, and the
allegations of the complaint negative any suspicion that the
employment of him in China was a subterfuge adopted for the purpose
of unlawfully securing his entry into the United States.
Basing his right upon the allegations of the complaint which we
have thus epitomized, the claim of the petitioner is, that, by
employing and bringing an alien laborer as a seaman to San
Francisco in the manner described, for the purpose of shipping him,
followed by his actually being shipped, as a seaman on board a
vessel of American registry, the defendants violated the Act of
Congress of February 20, 1907, 34 Stat. 898.
The argument in support of this claim is that the seaman
described in each count of the complaint was an alien contract
laborer; that the steamship
Mackinaw was a part of the
territory of the United States, and that therefore the contracting
to bring such alien to San Francisco and to there employ him upon
such a vessel was to knowingly assist and encourage the migration
of an alien contract laborer into the United States for the purpose
of having him perform labor therein, in violation of the fourth and
fifth sections of the act.
The validity of this claim, and of the argument in support of
it, calls for the construction of three short provisions of two
statutes.
Section 2 of the Act of 1907, as amended in 1910 (36 Stat. 263),
furnishes this definition of "contract laborers," which must be
read into §§ 4 and 5 of the Act of 1907:
"Persons . . . who have been induced or solicited to migrate to
this country by offers or promises of employment or in consequence
of agreements, oral, written,
Page 245 U. S. 126
or printed, express or implied, to perform labor in this country
of any kind, skilled or unskilled."
Section 4 makes it a misdemeanor for any corporation to "in any
way assist or encourage the importation or migration of any
contract laborer or contract laborers into the United States."
Section 5 imposes severe penalties for every violation of the
act "by knowingly assisting, encouraging, or soliciting the
migration or importation of any contract laborer into the United
States."
Thus, a contract laborer is one who under the conditions
described in the first of these statutes comes "to perform labor in
this country," and the penalties denounced by the §§ of the other
act are against persons who knowingly assist or induce the
importation or migration of such laborer "into the United
States."
The purpose of this alien labor legislation was declared by this
Court almost thirty years ago, in
Holy Trinity Church v. United
States, 143 U. S. 457, to
be, to arrest the bringing of an ignorant, servile class of foreign
laborers into the United States, under contract to work at a low
rate of wages, and thus reduce other laborers engaged in like
occupations to the level of the assisted immigrant.
Having these terms of the statutes and this history in mind, can
it with reason be said that the men shipped on the
Mackinaw as "seamen" were "laborers," and that, when
employed upon that vessel in foreign commerce, they were performing
labor "in this country" within the meaning of the acts?
In familiar speech, a "seaman" may be called a "sailor" or a
"mariner," but he is never called a "laborer," although he
doubtless performs labor when assisting in the care and management
of his ship, and a "seaman" is defined, in the United States
statutes applicable to "Merchant Seamen," as being any person
(masters and apprentices
Page 245 U. S. 127
excepted) who shall be employed to serve in any capacity on
board a vessel. Rev.Stats. § 4612. In the shipping articles which
the United States law requires shall be signed by members of the
crews of ships of American registry engaged in foreign commerce,
the men are designated as "seamen" or "mariners." Thus, neither in
popular nor in technical legal language would the men employed on
the
Mackinaw be called or classed as, "laborers," and such
seamen are not brought "into this country" to enter into
competition with the labor of its inhabitants, but they come to our
shores only to sail away again in foreign commerce on the ship
which brings them, or on another, as soon as employment can be
obtained.
Equally unallowable is the contention that a ship of American
registry engaged in foreign commerce is a part of the territory of
the United States in such a sense that men employed on it can be
said to be laboring "in the United States" or "performing labor in
this country." It is, of course, true that, for the purposes of
jurisdiction, a ship, even on the high seas, is often said to be a
part of the territory of the nation whose flag it flies. But, in
the physical sense, this expression is obviously figurative
(International Law Digest, Moore, vol. I, § 174), and to expand the
doctrine to the extent of treating seamen employed on such a ship
as working in the country of its registry is quite impossible.
Thus, the seamen employed on the
Mackinaw were not within
either the spirit or the letter of the law on which the petitioner
bases his action, and in any point of view, his contention is
fanciful and unsound, and must be denied.
In the result thus reached, we are adopting the construction
given to another section of this act of Congress of 1907 in
Taylor v. United States, 207 U. S. 120, and
we are approving the construction placed upon the sections we are
here considering of the act, and upon earlier acts
Page 245 U. S. 128
relating to the immigration of alien laborers, in the
longstanding decisions of many lower courts and of the Department
of Justice, in all of which it is held that seamen employed in
foreign commerce cannot be considered alien contract laborers
within the terms of the various statutes.
United States v.
Sandrey, 48 F. 550;
United States v. Burke, 99 F.
895;
Moffitt v. United States, 128 F. 375;
United
States v. Jamieson, 185 F. 165; Immigration -- deserting
Seamen, 23 Opinions of the Attorney General 521; Chinese Seamen --
Transfer of Crew -- Alien Laborers, 24 Opinions of the Attorney
General 553. This construction of the act has also long been
applied by the Department of Labor in its practical administration
of the law.
See Immigration Rules 1911, No. 10,
subdivision 1, (a), (c), and (d); subdivision 3.
The fact that the aliens in this case were Chinese subjects is
without significance. The suit is to enforce the highly penal
provisions of acts of Congress which apply to all alien contract
laborers without regard to their origin or nationality.
It results that the judgment of the court of appeals must be
Affirmed.