In a victory for carriers, a federal appeals court ruled Tuesday that the U.S. Immigration and Naturalization Service may not make steamship lines responsible for detention of stowaways who seek political asylum in the United States.
The unanimous decision by a three-judge panel of the Third U.S. Circuit Court of Appeals in the case of Dia Navigation Co. found that the INS policy of charging carriers with stowaway detention amounted to a legislative rule that should have been set according to federal rule-making procedures.The decision, while decided on narrow grounds, is the highest court ruling to date favoring carriers on the stowaway issue. Attorneys who argued the case also said that it would have broad implications for the industry, which is believed to be spending millions of dollars a year on detentions.
"If I was a carrier who had stowaways in prison or in a hotel, I would immediately advise the INS that I am no longer responsible for their detention," said Stephen H. Vengrow, a partner at the New York law firm
Cichanowicz, Callan & Keane, adding that he would either stop paying the costs or "send the bills to INS."
The court ruling technically affects only cases within its jurisdiction, which includes Pennsylvania, New Jersey, Delaware and the Virgin Islands, but the decision would have "persuasive authority" throughout the country, Mr. Vengrow said.
The case of Cyprus-based Dia began in February 1993 when four Romanian stowaways were found aboard the cruise ship European Senator when it docked at Newark, N.J. INS ordered Dia, the vessel owner, to detain the stowaways at its expense, pending decisions on their claims for political asylum, causing the carrier to incur $127,580 in costs.
The court denied monetary damages, saying that the stowaways had all either been granted asylum or sent back to Romania. But the ruling could affect a similar stowaway suit brought by Evergreen Marine Corp. before a New Jersey court which involves an estimated $500,000 in detention costs, said Mr. Vengrow.
Richard Kenney, an INS spokesman in Washington, declined to comment on the case pending the issuance of a declaratory judgment to be issued by a lower court at the direction of the appeals panel.
Joseph F. DeMay, also a partner in the New York law firm, said that the most likely route for INS will be to initiate a rule-making procedure, which would be open to public comment. At that point, carriers and human-rights groups would be free to raise a wide range of issues. They could also challenge any final rule in court, Mr. DeMay said.
An alternate course would be for INS to take a further appeal to the Supreme Court, but Mr. DeMay said that he sees that as a high-risk route for the agency.
Other carriers with stowaways now in detention are examining the Dia decision closely. Legal experts believe that the ruling could affect the fate of 31 stowaways being held at the Snyder County Prison in Selinsgrove, Pa., and a nearby juvenile facility at the expense of Sea-Land Service Inc.
"Clearly, Sea-Land has an interest in this finding. It certainly looks like favorable news," said Bill Summers, a Sea-Land spokesman in Liberty Corner, N.J.
Seven Romanian stowaways from the group were scheduled to be deported last week after denial of their asylum claims until a federal judge intervened following a suit filed by the American Civil Liberties Union, charging that the stowaways had been denied due process rights.
ACLU attorneys were studying the Dia decision on Wednesday to see whether the ruling would afford an opportunity for release of the stowaways on bond. Both the Pennsylvania facility and the federal district court in the ACLU suit are within the jurisdiction of the Third Circuit Court of Appeals.
Robert A. Perkins, a Chicago attorney representing the ACLU, said that the group with the help of the Romanian Orthodox Church has arranged for seven
families to act as sponsors for the stowaways. But INS officials in Newark have refused to allow their release on bond, Mr. Perkins said.
ACLU attorneys may seek to argue that the refusal, along with other conditions set by INS, means that the agency has in effect already taken custody of the stowaways from Sea-Land. Carrier officials have reportedly said that they would consider a release on bond.