SOUTH AMERICAN S. S. CO. v. ATLANTIC TOWING CO. tug; and it was agreed by all the witnesses The master of the steamship admitted The steamship was 252 feet long and drawing 20 feet. The tug was a powerful, sea-going vessel, 100 feet long. In an effort to afford protection after the course was changed, the tug kept on the port side of the ship until the sea buoy was reached, and continued to run alongside up the river until it docked the ship at Savannah. The value of the South American is $65,824, and of her cargo $83,000. The value of the Henry W. Grady is $60,000. 22 F. (2d)-2 17 We are of opinion that the evidence warranted an award for salvage. The District judge held that there was no contract, and, as he had the witnesses on that question before him, we accept that conclusion. Appellants' contention is that the mere giving of information does not constitute a salvage service, and cites The Little Joe, Lush. 88; The Vrouw Margaretha, 4 C. Rob. 103; and The Giacoma, 3 Hagg. 344. In the first of these cited cases, although doubt is expressed whether the mere giving of information constitutes a salvage service, the decision was upon the ground that the information given was of no benefit, as the vessel was not in danger. In the second case the salvage service was not begun until after the vessel was stranded, and therefore it was immaterial that the master of the salvaged vessel was ignorant of the coast. In the last case cited salvage was claimed for only having approached a ship in danger, and it was held that the danger was removed before the salvors came on board; but it was recognized that a case of salvage would be made out by showing "that the danger was impending, and that, if not warned, the vessel would have incurred it.” [2-4] In this case we are of opinion that by 18 22 FEDERAL REPORTER, 2d SERIES L. Ed. 363. See, also, 1 Benedict (5th Ed.) § 118. It therefore could hardly be denied that the master of the tug, if he had gone on board the steamship and himself have changed her course, would have rendered a salvage service. On principle it would seem to make no difference that the course of the steamship was changed in conformity to his directions. It is immaterial who performed the physical act of steering the ship. [5,6] In arriving at the amount of the award it is proper to take into consideration, not only the value of the steamship and cargo, but also the fact that the lives of its officers and crew were in peril. 1 Benedict (5th Ed.) § 119. The danger to which the tug was exposed was not great, as it was well able to withstand the conditions of the sea and weather which it encountered; and there was little, if any, risk incurred by the salvors who remained throughout on board the tug. Under the circumstances, the award appears to us to be somewhat excessive, and in our opinion it should be reduced to $3,000. The decree is therefore amended so as to reduce the award from $5,000 to $3,000, and, as so amended, it is affirmed. The costs of this appeal will be taxed against appellants, as they denied any liability based on a claim for salvage, and insisted on settling on the basis of scheduled rates charged for tow age. Modified and affirmed. HUNT, Circuit Judge. This is an appeal order of the District Court discharging Toy by the Commissioner of Immigration from an Young Quen, appellee, in a habeas corpus proceeding. In his petition the appellee set up that the action of the Board of Special Inquiry and of the Secretary of Labor in denying readmission was in excess of authority; that petitioner applied for an overtime certificate within ample time to have permitted him to have returned to the United States before the expiration of the second year period, and that the counsel at Hong Kong was misinstructed by the State Department, which advised that the consul might determine the facts and dispose of the application for an overtime cer NAGLE, Commissioner of Immigration, v. TOY tificate; that by reason of an infringement of YOUNG QUEN. Circuit Court of Appeals, Ninth Circuit. October 24, 1927. No. 5106. Aliens 28-Contradictory statements in returning Chinese laborer's affidavit for overtime certificate and at hearing held to justify denial of readmission (Chinese Exclusion Act 1888, § 7 [8 USCA § 277]). Where affidavit on which overtime certificate was granted by consul in China to Chinese person seeking readmission to the United States on laborer's return certificate issued under Chinese Exclusion Act 1888, § 7 (8 USCA § 277), after the one year's absence permitted by statute expired, but within less than two years after he had departed, stated that he was a merchant and that failure to return within the year was due to illness of his mother, which caused delay in his marriage, but in his testimony before immigration authorities he stated that delay in returning was caused by mother's illness and denied that he had stated that he was a merchant, held, that denial of his application for readmission was justified. his statutory right by the consul at Hong Kong, an overtime certificate was not issued; that afterward the consul was instructed with respect to his duty to investigate the facts and report them in a certificate; that the consul issued a certificate for the use of petitioner, and that petitioner arrived in the United States while the overtime certificate was in effect, and before the statutory limit of two years had expired; that he was prevented from returning within the period of one year because of the serious illness of his mother and his own subsequent marriage, and the refusal of the consulate at Hong Kong to issue a laborer's overtime certificate. The statute involved, section 7, Act Sept. 13, 1888 (25 Stat. 476 [8 USCA § 277]), provides that a Chinese person leaving the United States and returning shall apply to the Chinese inspector in his district at least one month prior to his departure, giving certain facts which shall furnish proof entitling the n of dol ung ion 'an the rec J. lan 20, E al n y S t NAGLE v. TOY YOUNG QUEN him to return. The inspector shall decide, General demurrer to the petition was over- The first question presented by the assignments of error is whether the court should have sustained the demurrer to the petition. If the answer is that petitioner failed to show ground for relief, then the court should have proceeded no further than to make the necessary order dismissing the petition. We must therefore turn to an examination of the facts as disclosed by the records which were made a part of the petition. Toy Young Quen was admitted to the United States as the son of a merchant on August 7, 1921. On October 23, 1924, he desired to go to China and obtained a return laborer's certificate. He sailed on November 19 1, 1924. On April 27, 1926, he applied to the silk The board found that the applicant had controverted the statements made in the affidavit referred to as evidence of his right to receive the overtime certificate applied for; that, as he had produced no evidence that he was a lawfully domiciled merchant within the United States, he had failed to comply with the conditions under which an overtime certificate was granted, wherefore the overtime certificate issued was null and void, and applicant's right to re-enter on the laborer's return certificate automatically ceased on 20 22 FEDERAL REPORTER, 2d SERIES November 1, 1925, which was one year after the date of applicant's departure from the United States. The board rejected applicant's contention that he had a right to return on the claim that he had been informed by an inspector of the immigration service that he could have his certificate extended for a period of one year. Admission was denied. A board of review examined the case and in a well-considered opinion the chairman pointed out that in applicant's affidavit filed with the consul at Hong Kong the reason given for failure to return within one year after departure was that applicant's mother was ill and that his marriage was delayed on that account, whereas in his testimony before the Board of Special Inquiry at San Francisco he said he assumed that he could get an extension, and that his mother was sick, and that he had to stay at home and care for her. Comment was also made upon the fact that, although applicant in his affidavit before the consul claimed that he had been a merchant, he made no such claim before the immigration authorities before his departure or at the time of his return. The board concluded that, while it would look favorably upon a case where delay in returning was caused by the severe illness of a mother or other close relative where the delay was due solely to that cause, nevertheless, it could not consider a delay in returning due to inability to marry sooner as being a cause beyond the control of the applicant. As the facts reported did not satisfy the board, it recommended dismissal of the appeal. We were told during the argument that some years ago the practice was for the consul abroad to determine whether a Chinese person was entitled to an extension of a year beyond the return certificate period, and that where the consul was of the opinion that the Chinese person did not show cause for issuing an extension certificate as required by section 7 of the act heretofore referred to, he would refuse to grant the extension; but that now the practice is for the consul to make a report in the form of a certificate, setting forth that he has made an investigation with respect to facts upon which extension is sought, and that at the port of arrival the immigration authorities determine whether there was sufficient cause for delay in returning. This change of practice seems to have occurred while Toy Young Quen was in China. But that matter is irrelevant to this case, wherein the alien was denied admission by the executive officials solely upon the ground that the reasons he gave for his failure to return within a year were not considered sufficient to have entitled him to an extension under section 7 of the act. Yee Gee's Case (D. C.) 17 F.(2d) 653, is quite different in points involved. It is evident that petitioner sought relief from the court, not upon any ground advanced or relied upon when he was examined by the immigration officials, but upon a new ground, which, if founded on truth, could and should have been brought to the attention of the executive authorities before judicial relief was sought. As the reasons given by petitioner for delay in returning were found by the immigration officials to be insufficient in fact, and as their conclusion is in harmony with the statute cited, the demurrer was well taken and should have been sustained. The judgment is reversed, with directions to deny the writ of habeas corpus. NAGLE, Commissioner of Immigration, WON BING JUNG. Circuit Court of Appeals, Ninth Circuit. October 24, 1927. Aliens No. 5107. 28-Contradictory statements by returning Chinese laborer, seeking to excuse failure to return within year fixed in return certificate, held to justify exclusion (Chinese Exclusion Act 1888, § 7 [8 USCA § 277]). Contradictory statements made in application for overtime certificate and on hearing before immigration authorities by returning Chinese laborer, who had been granted laborer's return certificate under Chinese Exclusion Act 1888, § 7 (8 USCA § 277) as to reasons for delaying his return to United States beyond the year's absence permitted by the return certificate, held to authorize finding that he was not unavoidably delayed beyond such period, and denial of readmission will not be disturbed by court in habeas corpus proceeding. ntitled of the ) 653, relief 1 ad nined new 1 and ›n of elief peti 1 by it in ony well ons NAGLE v. WON BING JUNG 22 F.(2d) 20 21 Before HUNT, RUDKIN, and DIE- ment there. But in another part of his ex- HUNT, Circuit Judge. The Commissioner of Immigration has appealed from an order of the District Court discharging Won Bing Jung in habeas corpus proceedings. The petitioner set forth that he arrived at San Francisco on October 20, 1926, applied for readmission as a returning Chinese laborer holding a laboror's return certificate; that while in China he remained over a period of one year within which he should have returned to the United States, and procured an overtime certificate extending the time of his return for a period of a second year from the date of his departure; and that he returned within the second year period of one year, but that he was denied the right of readmission and was ordered to return to China. It is alleged that the action of the authorities was in excess of the power com. mitted to them. Petitioner sets forth the substance of section 7, Act Sept. 13, 1888 (25 Stat. 476 [8 USCA § 277]), and avers that disrupted traveling conditions in China made it practically impossible for him to reach Hong Kong without the greatest risk to life and limb, but that these grounds were not considered as a disability beyond the control of petitioner. The immigration records were made a part of the petition. General demurrer was filed and overruled. The Commissioner of Immigration filed a return; hearing was had, and testimony was introduced. Thereafter petitioner was discharged. In many respects the case is like that of Toy Young Quen, 22 F. (2d) 18 and was heard by the Dis trict Court at the same time. Petitioner was first admitted to the United States as the minor son of a merchant. He departed for China on February 7, 1925, holding a laborer's return certificate issued October 30, 1924. This petitioner, however, upon his return to San Francisco October 20, 1926, stated to a Board of Special Inquiry that he did not return within the year prescribed by law because he was unable to make any connections with Hong Kong, due to unsettled conditions in China, and was forced to delay his return; that that was the sole reason for the delay; that he was given an overtime certificate by the American consul at Hong Kong, for the reason he had just offered; that he never was sick a day in China, and never had received medical treat amination before the board he said that he had not told the truth when he said he had been delayed in returning purely by reason of unsettled conditions, yet that thereafter he had testified truly when he said that he told the consul that he had been delayed by unsettled conditions. The board then told petitioner that there was in the file a statement by the American consul at Hong Kong to the effect that petitioner applied for an overtime certificate, stating that he was prevented from returning before February 7, 1926, because of hernia, and that the doctor had examined him and reported no sign of hernia; that his statement to the consul had been considered untrue, and therefore his request for overtime certificate was denied; that there was nothing in his statement to the consul to the effect that he was prevented from returning by unsettled conditions. Applicant was then asked, "What have you to say to that?" He replied, "The consular office made a mistake." According to the record, when petitioner appeared before the American consul at Hong Kong on September 13, 1926, he said he had been unable to return by reason of disability beyond his control, illness-hernia, as described by his own and other affidavits attached. There was no mention in any of the several affidavits of any difficulty in traveling because of unsettled conditions in China. At the direction of the consul at Hong Kong, petitioner submitted to an examination by a physician of the United States Public Health Service, who reported that his examination was negative, and that in his opinion the petitioner was able to travel. After considering all the evidence, the Board of Special Inquiry was not satisfied that applicant was unavoidably detained beyond the period prescribed by law, and denied him entry. A Board of Review also reached the conclusion that applicant's claim that he was unavoidably prevented from returning within the time limit of his laborer's return certificate was false. The Secretary of Labor approved the finding. In the light of the contradictory statements made by petitioner the court will not disturb the well-supported finding of the executive authorities. For error in overruling the demurrer, the judgment is reversed, with directions to deny the writ of habeas corpus. |