Opinion
No. 236, Docket 21296.
Argued May 4, 1949.
Decided May 26, 1949.
Appeal from the United States District Court for the Southern District of New York.
Action by Chris Papaliolios against Harry M. Durning, as Collector of Customs of the Port of New York, for declaratory and injunctive relief arising out of demand of Collector for the payment of a fine for the escape of three alien members of the crew of a vessel of which plaintiff was master before vessel would be granted clearance, notwithstanding the posting of a bond for payment of such fine. From a denial of motion by plaintiff for leave to amend to state a cause of action to recover fine paid under protest and of motion of agents of vessel to intervene, and dismissing complaint as moot, plaintiff appeals.
Reversed and remanded.
On March 15, 1948, plaintiff, master of the Panamanian vessel S.S. Loida, began this action against defendant, Collector of Customs of the Port of New York. The complaint alleged the following facts: In September, 1941, when the S.S. Loida was in the Port of New York, an immigration inspector ordered detention, under 8 U.S.C.A. § 167, of three alien members of her crew. The United States Immigration Service asserted that thereafter the ship's captain had permitted these seamen to escape, and that, accordingly, the ship had incurred fines of $3,000. The New York agents of the vessel then posted a bond for $3,000 with the defendant, and, pursuant to the statute, the ship was permitted to clear. Subsequently, the Department of Justice reduced the claim for the fines to $1,500. In June 1943, the United States began suit against the surety on the bond; the surety company defended on the ground that the fines had been invalidly imposed. In March, 1948, tthe ship returned to the Port of New York. The defendant then refused to grant clearance to the ship unless the $1,500 was paid. The complaint sought a declaratory judgment construing the statute as not allowing defendant to demand such payment as a condition of clearance, and asked a preliminary injunction and further just and proper relief. The District Court entered an order denying a preliminary injunction. On appeal from that order, it was affirmed by this court on May 4, 1948, 2 Cir., 167 F.2d 737, on the ground that plaintiff, by paying the fine under protest and suing for its recovery, had an adequate remedy at law. On May 15, 1948, the New York agents paid the $1,500 under protest, and the vessel was permitted to clear. In June, 1948, plaintiff moved in the District Court for an order granting leave to file a supplemental complaint, and the agents moved for leave to intervene as parties plaintiff. The amended complaint incorporated the allegations and prayer of the original complaint, added allegations as to the subsequent events above stated, and added a prayer that plaintiff and the intervening plaintiffs be given judgment against defendant for the $1,500 alleged to have been illegally exacted.
It reads, in part, as follows: "The owner, charterer, agent, consignee, or master of any vessel arriving in the United States from any place outside thereof who fails to detain on board any alien seaman employed on such vessel until the immigration officer in charge at the port of arrival has inspected such seaman (which inspection in all cases shall include a personal physical examination by the medical examiners), or who fails to detain such seaman on board after such inspection or to deport such seaman if required by such immigration officer or the Attorney General to do so, 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 alien seaman in respect of whom such failure occurs. No vessel shall be granted clearance pending the determination of the liability to the payment of such fine, or while the fine remains unpaid, except that clearance may be granted prior to the determination of such question upon the deposit of a sum sufficient to cover such fine, or of a bond with sufficient surety to secure the payment thereof approved by the collector of customs. The Attorney General may, upon application in writing therefor, mitigate such penalty to not less than $200 for each seaman in respect of whom such failure occurs, upon such terms as the Attorney General in his discretion shall think proper. This section, as amended, shall apply to all penalties arising subsequent to June 5, 1940."
Defendant's position was that the statutory provision, "No vessel shall be granted clearance * * * while the fine remains unpaid * * *" was applicable because the fine remained unpaid despite the posting of the bond.
The District Court denied the motions of plaintiff and the agents, and, on defendant's motion, dismissed the complaint as moot.
Kirlin, Campbell, Hickox Keating, New York City (Delbert M. Tibbetts, New York City, of counsel), for plaintiff.
John F.X. McGohey, United States Attorney for the Southern District of New York, New York City (Arthur C. Power, New York City, of counsel), for defendant.
Before L. HAND, SWAN, and FRANK, Circuit Judges.
1. The gist of the action was the validity of the demand for payment of the fine to obtain clearance in 1948. Since the master, in bringing the action, had been acting for the owner and the agents, payment of the fine by the agents did not, we think, render the action moot. The District Court should have allowed the complaint to be amended so that the suit could continue as one for the recovery of the $1,500. Intervention by the agents was permissible under Rule 24(b)(2), Federal Rules of Civil Procedure, 28 U.S.C.A. The District Court had discretion to refuse it, but did not exercise that discretion, basing its determination on a mistaken conclusion that the suit was moot.
2. Absent a showing that the defendant is likely again to repeat the conduct of which plaintiff complains, that part of the action which seeks a declaratory judgment is moot. However, the District Court should allow plaintiffs, should they so request, to amend the complaint to allege facts, if any, showing such a likelihood. See Southern Pac. Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515-516, 31 S.Ct. 279, 55 L.Ed. 310; Walling v. Mutual Wholesale Food Supply Co., 8 Cir., 141 F.2d 331, 334-335, and cases there cited; Walling v. Haile Gold Mines, 4 Cir., 136 F.2d 102, 105, and cases there cited.
Reversed and remanded.