Barber

These are cross-motions for summary judgment on a declaratory judgment action under 28 U.S.C. § 2201 and an action for review under 5 U.S.C.A. § 1001 .

The issue is whether an alien serving aboard an American merchant vessel on the high seas is “physically present in the United States” on the statutory date, August 7, 1953, within the meaning of Section 6 of the Refugee Relief Act of 1953, 50 U.S.C.A.Appendix, § 1971d

The plaintiff, an alien seaman, lawfully entered the United States in 1943 as an alien seaman, and since that time has served aboard American vessels, shipping out from various American ports. On July 17, 1953, he sailed as a seaman aboard the S. S. Seamonitor, on which he had been serving since December 20, 1952, from Portland, Oregon, en route to Pusan, Korea, direct, and on August 7, 1953, was on the high seas en route to that destination. The vessel had not touched a foreign port since departing from the United States, and was two days from Pusan, Korea.

The Refugee Relief Act is a remedial statute. See In re D’Antonio’s Petition, D.C.S.D.N.Y.1956, 139 F.Supp. 719 . If this petitioner had been in an American port for any reason on August 7, 1953, he would be…