1. The Treaty of May 22, 1924, with Great Britain, as both its
language and its history show, was intended to deal completely with
the search and seizure beyond our territorial limits of British
vessels suspected of smuggling intoxicating liquors into this
country. P.
288 U. S.
112.
2. Article II of the treaty declares that His Britannic Majesty
"will raise no objection" to the boarding of private vessels under
the British flag outside of the three-mile limit of territorial
waters in order that inquiries may be made of those on board and an
examination be made of the ship's papers, for the purpose of
ascertaining whether the vessel or those on board are endeavoring
to import, or have imported, alcoholic beverages into the United
States, in violation of the laws there in force. When this shows
reasonable
Page 288 U. S. 103
ground for suspicion, a search is permitted, and if there is
reasonable cause for belief that the vessel has committed, or is
committing or attempting to commit, an offense against the laws of
the United States prohibiting importation of alcoholic beverages,
she may be seized and taken into a port for adjudication. But it
expressly provides that the rights conferred by this Article shall
not be exercised at a greater distance from the coast of the United
States than can be traversed in one hour by the vessel suspected,
etc.
Held that the treaty not only permits boarding, etc.,
beyond the three-mile limit if the vessel is within one-hour's
sailing distance, but also forbids it beyond the three-mile limit
as to vessels not within such sailing distance. Pp.
288 U. S. 111,
288 U. S.
118.
3. The treaty is self-executing in that no legislation was
necessary to authorize executive action in pursuance of its
provisions, and it had the effect (and was so interpreted in
practice) of superseding, so far as inconsistent with it, the
authority conferred by § 581 of the Tariff Act of 1922 upon
officers of the Coast Guard to board, search and seize within four
leagues of the coast. P.
288 U. S.
118.
4. The treaty was not abrogated by reenacting § 581 in the
Tariff Act of 1930 in the identical terms of the Act of 1922. P.
288 U. S.
119.
5. A treaty will not be deemed to have been abrogated or
modified by a later statute unless such purpose on the part of
Congress has been clearly expressed, and here the contrary appears,
in that the committee reports and the debates upon the Act of 1930,
like the reenacted section itself, make no reference to the treaty.
P.
288 U. S.
120.
6. Any doubt as to the construction of § 581 in this regard is
resolved by the consistent departmental practice existing before
the reenactment. P.
288 U. S.
120.
7. Section 581 continued in force, except as modified by
treaties. P.
288 U. S.
120.
8. A British ship with unmanifested intoxicating liquors for
illegal importation was seized beyond the three-mile limit, and not
within one hour's sailing distance of the coast, and was brought
into port, where ship and cargo were libeled.
Held:
(1) That the libels should be dismissed because, by reason of
the treaty, this Government lacked the power to seize the ship and
the power to subject her to our laws. P.
288 U. S.
121.
(2) The doctrine that permits the United States to enforce
forfeitures for violation of its laws against property of which it
has gained possession through the wrongful act of an individual
applies where the act was such as it might have authorized
beforehand,
Page 288 U. S. 104
but not where the United States itself would have had no
jurisdiction to make the seizure.
Id.
9.
The Ship
Richmond, 9 Cranch 102, and
The
Merino, 9 Wheat. 391, also are distinguished. P.
288 U. S.
122.
56 F.2d 921 reversed.
Certiorari to review the reversal of a decree, 51 F.2d 292,
dismissing two libels, against a vessel and its cargo.
Page 288 U. S. 107
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
The main question for decision is whether § 581 of the Tariff
Act of 1930, c. 497, 46 Stat. 590, 747, is modified, as applied to
British vessels suspected of being engaged in smuggling liquors
into the United States, by the Treaty between this country and
Great Britain proclaimed May 22, 1924 (43 Stat. 1761). That
section, which is a reenactment in identical language of § 581 of
the Tariff Act of 1922, c. 356, 42 Stat. 858, 979, declares that
officers of the Coast Guard are authorized to stop and board any
vessel at any place within four leagues (12 miles) of the coast of
the United States "to examine the manifest and to inspect, search,
and examine" the vessel and any merchandise therein, and if it
shall appear that any violation of any law of the United States has
been committed by reason of which the vessel or merchandise is
liable to forfeiture, it shall be the duty of such officers to
seize the same.
On the evening of November 1, 1930, the British motor screw
Mazel Tov, a vessel of speed not exceeding 10 miles an
hour, was discovered by officers of the Coast Guard within four
leagues of the coast of Massachusetts, and was boarded by them at a
point 11 1/2 miles from the nearest land. The manifest was demanded
and exhibited. Search followed which disclosed that the only cargo
on board, other than ship stores, was unmanifested intoxicating
liquor which had been cleared from St. Pierre, a French possession.
The vessel, ostensibly bound for Nassau, a British possession, had,
when boarded, been cruising off our coast with the intent that
ultimately the liquor should be taken to the United States by other
boats. But the evidence indicated that she did not intend to
approach nearer than four leagues to our coast, and, so far as
appeared,
Page 288 U. S. 108
she had not been in communication with our shores and had not
unladen any part of her cargo. The boarding officers seized the
Mazel Tov at a point more than 10 miles from our coast,
took her to the Port of Providence, and there delivered the vessel
and cargo to the customs officials.
The Collector of Customs, acting pursuant to § 584 of the Tariff
Act of 1930, assessed against Frank Cook, as master of the Mazel
Tov, a penalty of $14,286.18 for failure to include the liquor in
the manifest. By § 584, if merchandise not described in the
manifest is found on board a vessel "bound to the United States,"
the master is subject to a penalty equal to its value, and the
merchandise, belonging or consigned to him is subject to
forfeiture. By § 594 of the Act, whenever a master becomes subject
to a penalty, the vessel may be seized and proceeded against
summarily by libel to recover the penalty. The government
proceeded, in the federal court for Rhode Island, to collect the
assessed penalty by means of libels against both the cargo and the
vessel. The cases were consolidated.
Cook, claiming as master and bailee of the vessel and as
consignee and claimant of the cargo, alleged that the
Mazel
Tov was of British registry and owned by a Nova Scotia
corporation. He answered to the merits, and excepted to the
jurisdiction on the ground that the "vessel was not seized within
the territorial limits of any jurisdiction of the United States,
but, on the contrary, was captured and boarded at a point more than
four (4) leagues from the coast," and that "it was not the
intention at any time to enter any of the territorial limits of the
United States."
The District Court, having found the facts above stated,
dismissed the libels.
The Mazel Tov, 51 F.2d 292. The
government appealed to the Circuit Court of Appeals, which held
that the Treaty did not "effect a change in the customs-revenue
laws of the United States, wherein Congress had
Page 288 U. S. 109
fixed a four-league protective zone," reversed the judgments,
and remanded the cases to the District Court for further
proceedings. 56 F.2d 921, 923. This Court granted certiorari.
[
Footnote 1]
Cook contends, among other things, that, by reason of the Treaty
between the United States and Great Britain proclaimed May 22, 1924
(43 Stat. 1761), the seizure was unlawful under the laws of the
United States; that the authority conferred by § 581 of the Tariff
Act of 1922 to board, search, and seize within the four-league
limit was, as respects British vessels, [
Footnote 2] modified by the Treaty so as
Page 288 U. S. 110
to substitute for four leagues from our coast, the distance
which "can be traversed in one hour by the vessel suspected of
endeavoring to commit the offense;" that Congress, by reenacting §
581 in the Tariff Act of 1930, intended to continue in force the
modification effected by the Treaty; and, hence, that the
Mazel
Tov, being a British vessel of a speed not exceeding 10 miles
an hour, could not be lawfully boarded, searched, and seized at a
distance of 11 1/2 miles from the coast because suspected of
"endeavoring to import or have imported alcoholic beverages into
the United States in violation of the laws there in force."
The government insists that the Treaty did not have the effect
of so modifying § 581 of the Act of 1922, and that, if it did, the
reenactment of § 581 without change, by the Act of 1930, removed
the alleged modification. It contends further that the validity of
the seizure was not material, and if ever material, had been
waived.
The Treaty provides, among other things, as follows:
"Article I. The High Contracting Parties declare that it is
their firm intention to uphold the principle that 3 marine miles
extending from the coast line outwards and measured from low water
mark constitute the proper limits of territorial waters."
"Article II. (1) His Britannic Majesty agrees that he will raise
no objection to the boarding of private vessels under the British
flag outside the limits of territorial
Page 288 U. S. 111
waters by the authorities of the United States, its territories,
or possessions in order that enquiries may be addressed to those on
board and an examination be made of the ship's papers for the
purpose of ascertaining whether the vessel or those on board are
endeavoring to import or have imported alcoholic beverages into the
United States, its territories, or possessions in violation of the
laws there in force. When such enquiries and examination show a
reasonable ground for suspicion, a search of the vessel may be
instituted."
"(2) If there is reasonable cause for belief that the vessel has
committed or is committing or attempting to commit an offense
against the laws of the United States, its territories, or
possessions prohibiting the importation of alcoholic beverages, the
vessel may be seized and taken into a port of the United States,
its territories, or possessions for adjudication in accordance with
such laws."
"(3) The rights conferred by this article shall not be exercised
at a greater distance from the coast of the United States its
territories or possessions than can be traversed in one hour by the
vessel suspected of endeavoring to commit the offense. In cases,
however, in which the liquor is intended to be conveyed to the
United States, its territories, or possessions by a vessel other
than the one boarded and searched, it shall be the speed of such
other vessel, and not the speed of the vessel boarded, which shall
determine the distance from the coast at which the right under this
article can be exercised."
We are of opinion that the decrees entered by the District Court
should have been affirmed.
First. It is suggested on behalf of the government that
the power to search and seize within the twelve-mile zone,
conferred upon officers of the Coast Guard by § 581 of the Tariff
Act of 1922 was unaffected by the Treaty, save that the British
government agreed not to protest where the seizure was within an
hour's sailing distance of the
Page 288 U. S. 112
coast. The argument is that the Treaty settled the validity of
the seizure only for those cases where it was made within the
limits described in the Treaty, and that, since this seizure was
made beyond one hour's sailing distance from the coast, the Treaty
did not apply. [
Footnote 3] In
construing the Treaty, its history should be consulted.
Compare
United States v. Texas, 162 U. S. 1;
Oklahoma v. Texas, 260 U. S. 606;
Nielsen v. Johnson, 279 U. S. 47,
279 U. S. 52.
Both its language and its history show that the high contracting
parties did not intend so to limit its operation. The preamble
states that they entered into the Treaty
"being desirous of avoiding any difficulties which might arise
between them in connection with the laws in force in the United
States on the subject of alcoholic beverages."
The history reveals that serious differences had arisen between
the two governments in that connection, and that, for the purpose
of resolving them, the parties determined to deal completely with
the subject of search and seizure, beyond our territorial limits,
of British vessels suspected of smuggling liquors.
Prior to the Eighteenth Amendment, the United States had never
attempted, in connection with the enforcement of our customs laws,
to board foreign vessels beyond the three-mile limit except where
consent was implied from the fact that the vessel, being hailed,
answered that she was bound for the United States, or where a
vessel had been discovered violating our laws within the three-mile
limit, and, while endeavoring to escape, was hotly pursued.
Although Hovering Acts conferring authority to board and search
vessels, foreign and domestic, "within four leagues of the coast,"
had existed since the foundation of our government,
see
Act of August 4, 1790, c. 35, § 31,
Page 288 U. S. 113
1 Stat. 145, 164, [
Footnote
4] the authority therein conferred had, prior to the Tariff Act
of 1922, been in terms limited to inbound vessels, and no statute
had purported to confer authority to seize foreign vessels beyond
our territorial waters for violation of any of our laws, except in
those few instances in which Congress acted pursuant to specific
treaties. [
Footnote 5] But,
soon after the Eighteenth Amendment took effect (January 16, 1920),
vessels of British registry were found to be engaged in smuggling
intoxicating liquors into the United States in violation of our
laws. [
Footnote 6] In the
effort to prevent such violations, British vessels were being
boarded, searched, and seized beyond the three-mile limit,
[
Footnote 7] and, by § 581 of
the Tariff Act of 1922, Congress
Page 288 U. S. 114
undertook to sanction such action through enlarging the
authority to board, search, and seize beyond the three-mile limit
so as to include foreign vessels, although not inbound. [
Footnote 8]
Both before and after the passage of the Tariff Act of 1922, it
was the consistent policy of our government to release, upon
protest, all British vessels seized beyond the three-mile limit and
not bound to the United States unless it appeared that the hovering
vessel had, by means of her own small boats and crew, assisted in
landing there contraband goods. [
Footnote 9] Our government deemed that exception
Page 288 U. S. 115
an essential to the enforcement of our laws and consistent with
the principles of international law. [
Footnote 10] But the British government declined to
acquiesce in the propriety of the exception; declared that our
practice of seizing vessels under those circumstances was not in
harmony with the law of nations; [
Footnote 11] protested against the seizure of any British
vessel outside of the three-mile limit; [
Footnote 12] and stated that insistence upon the
practice would be regarded as creating "a very serious situation."
[
Footnote 13]
With a view to removing the British objections, the Secretary of
State proposed, on June 26, 1922, that a treaty be entered into
"under which the authorities of each nation would be authorized
to exercise beyond the
Page 288 U. S. 116
three-mile limit of territorial waters a measure of control over
vessels belonging to the other,"
and which would include specifically
"reciprocal provisions authorizing the authorities of each
Government to exercise a right of search of vessels of the other
beyond the three-mile limit of territorial waters to the extent of
twelve miles from the shore. [
Footnote 14]"
The British government declined definitely to entertain any such
proposal. [
Footnote 15]
The decision rendered by this Court on April 30, 1923, in
Cunard Steamship Co. v. Mellon, 262 U.
S. 100, led to the resumption of negotiations. It was
there decided that the National Prohibition Act applied to all
merchant vessels, foreign or domestic, within the territorial
waters of the United States, and that the carrying of intoxicating
liquors, either as cargo or as sea stores, through the territorial
waters or into the ports and harbors of the United States is
forbidden by that Act and the Eighteenth Amendment. The
embarrassment to British vessels and trade threatened by this
decision was serious. [
Footnote
16] Recognizing the urgent need of some arrangement between
the
Page 288 U. S. 117
two governments which would permit the conduct by the British of
legitimate trade and remove this obstacle to the operation of their
vessels in the accustomed manner, the Secretary of State submitted
to Great Britain, on June 11, 1923, the draft of a treaty designed
to remove the friction between the two governments. The draft did
not refer specifically to intoxicating liquors. Article I provided,
in general terms, that the authorities of each country should,
"within the distance of twelve geographical miles from its coasts,"
be permitted to board and search private vessels of the other to
ascertain whether such vessels were engaged in an attempt to
violate its laws "prohibiting or regulating the unloading near, or
importation into its territories of any article," and, "if there is
reasonable cause for belief" that the vessel is so engaged, to
seize it. Article II likewise, in general terms, provided that
articles on private vessels of either nation listed as sea stores,
or as cargo destined to a foreign port, the importation of which is
prohibited, might be brought within the territorial waters of the
other on condition that they be sealed "upon arrival of the vessel
so destined within twelve geographical miles of the coasts" and be
kept sealed continuously thereafter while within the territorial
waters.
This proposal of the Secretary of State also failed to meet with
the approval of the British government because it was regarded as
involving an extension of the limits of the territorial waters.
[
Footnote 17] The
negotiations were, however, continued, and ultimately the British
government submitted a counterproposal which sought to achieve the
same results by different means. The British draft provided that
the high contracting parties should
Page 288 U. S. 118
declare "their firm intention to uphold the principle that three
marine miles measured from low water mark constitute the proper
limits of territorial waters;" and, avoiding all language which
could possibly indicate a contrary purpose, it made no reference to
the twelve-mile limit. Moreover, the arrangement, instead of
applying generally to merchandise subject to prohibitory or
regulatory laws, was to be limited specifically to intoxicating
liquors, and no reciprocal rights were to be conferred. Each
country was to secure the immunity required to satisfy its peculiar
need. The need of the United States was to be met by providing that
His Britannic Majesty "will raise no objection to the boarding,"
etc., outside the territorial waters at no "greater distance from
the coast of the United States than can be traversed in one hour by
the vessel suspected of" smuggling. The need of Great Britain was
to be met by our allowing
"British vessels voyaging to or from the ports or passing
through the waters of the United States to have on board alcoholic
liquors listed as sea stores or as cargo destined for a foreign
port, provided that such liquor is kept under seal while within the
jurisdiction of the United States. [
Footnote 18]"
The draft of treaty submitted by the British government was
accepted with a few purely verbal changes. Thereby, as stated in
Ford v. United States, 273 U. S. 593,
273 U. S.
609-610, this country secured
"a definite fixing of the zone of legitimate seizure of British
hovering vessels seeking to defeat the laws against importation of
liquor into this country from the sea."
Second. The Treaty, being later in date than the Act of
1922, superseded, so far as inconsistent with the terms of the Act,
the authority which had been conferred by § 581 upon officers of
the Coast Guard to board, search,
Page 288 U. S. 119
and seize beyond our territorial waters.
Whitney v.
Robertson, 124 U. S. 190,
124 U. S. 194.
For, in a strict sense, the Treaty was self-executing, in that no
legislation was necessary to authorize executive action pursuant to
its provisions. [
Footnote
19]
The purpose of the provisions for seizure in § 581, and their
practical operation, as an aid in the enforcement of the laws
prohibiting alcoholic liquors, leave no doubt that the territorial
limitations there established were modified by the Treaty. This
conclusion is supported by the course of administrative practice.
Shortly after the Treaty took effect, the Treasury Department
issued amended instructions for the Coast Guard which pointed out,
after reciting the provisions of § 581, that, "in cases of special
treaties, the provisions of those treaties shall be complied with;"
and called attention particularly to the recent treaties dealing
with the smuggling of intoxicating liquors. [
Footnote 20] The Commandant of the Coast Guard,
moreover, was informed in 1927, as the Solicitor General states,
that all seizures of British vessels captured in the rum-smuggling
trade should be within the terms of the Treaty, and that seizing
officers should be instructed to produce evidence not that the
vessel was found within the four-league limit, but that she was
apprehended within one hour's sailing distance from the coast.
Third. The Treaty was not abrogated by reenacting § 581
in the Tariff Act of 1930 in the identical terms of the
Page 288 U. S. 120
Act of 1922. A treaty will not be deemed to have been abrogated
or modified by a later statute unless such purpose on the part of
Congress has been clearly expressed.
Chew Heong v. United
States, 112 U. S. 536;
United States v. Payne, 264 U. S. 446,
264 U. S. 448.
Here, the contrary appears. The committee reports and the debates
upon the Act of 1930, like the reenacted section itself, make no
reference to the Treaty of 1924. Any doubt as to the construction
of the section should be deemed resolved by the consistent
departmental practice existing before its reenactment.
Compare United States v. G. Falk & Brother,
204 U. S. 143;
Nagle v. Loi Hoa, 275 U. S. 475,
275 U. S. 481;
Brewster v. Gage, 280 U. S. 327,
280 U. S. 337;
McCaughn v. Hershey Chocolate Co., 283 U.
S. 488,
283 U. S. 492;
United States v. Ryan, 284 U. S. 167,
284 U. S. 175.
No change in this respect was made either by the Department of the
Treasury or the Department of Justice after the Tariff Act of
1930.
Searches and seizures in the enforcement of the laws prohibiting
alcoholic liquors are governed, since the 1930 Act, as they were
before, by the provisions of the Treaty. Section 581, with its
scope narrowed by the Treaty, remained in force after its
reenactment in the Act of 1930. The section continued to apply to
the boarding, search, and seizure of all vessels of all countries
with which we had no relevant treaties. It continued also, in the
enforcement of our customs laws not related to the prohibition of
alcoholic liquors, to govern the boarding of vessels of those
countries with which we had entered into treaties like that with
Great Britain.
Fourth. As the
Mazel Tov was seized without
warrant of law, the libels were properly dismissed. The government
contends that the alleged illegality of the seizure is immaterial.
It argues that the facts proved show a violation of our law for
which the penalty of forfeiture is prescribed; that the United
States may, by filing a libel
Page 288 U. S. 121
for forfeiture, ratify what otherwise would have been an illegal
seizure; that the seized vessel having been brought into the Port
of Providence, the federal court for Rhode Island acquired
jurisdiction, and that, moreover, the claimant by answering to the
merits, waived any right to object to enforcement of the penalties.
The argument rests upon misconceptions.
It is true that, where the United States, having possession of
property, files a libel to enforce a forfeiture resulting from a
violation of its laws, the fact that the possession was acquired by
a wrongful act is immaterial.
Dodge v. United States,
272 U. S. 530,
272 U. S. 532.
Compare Ker v. Illinois, 119 U. S. 436,
119 U. S. 444.
The doctrine rests primarily upon the common law rules that any
person may, at his peril, seize property which has become forfeited
to, or forfeitable by, the government, and that proceedings by the
government to enforce a forfeiture ratify a seizure made by one
without authority, since ratification is equivalent to antecedent
delegation of authority to seize.
Gelston v.
Hoyt, 3 Wheat. 246,
16 U. S. 310;
Taylor v. United
States, 3 How. 197,
44 U. S.
205-206. The doctrine is not applicable here. The
objection to the seizure is not that it was wrongful merely because
made by one upon whom the government had not conferred authority to
seize at the place where the seizure was made. The objection is
that the government itself lacked power to seize, since, by the
Treaty, it had imposed a territorial limitation upon its own
authority. The Treaty fixes the conditions under which a "vessel
may be seized and taken into a port of the United States, its
territories or possessions for adjudication in accordance with" the
applicable laws. Thereby, Great Britain agreed that adjudication
may follow a rightful seizure. Our government, lacking power to
seize, lacked power, because of the Treaty, to subject the vessel
to our laws. To hold that adjudication may follow a wrongful
seizure would go far to nullify the purpose
Page 288 U. S. 122
and effect of the Treaty.
Compare United States v.
Rauscher, 119 U. S. 407.
The case differs from
The Ship
Richmond, 9 Cranch 102, and
The
Merino, 9 Wheat. 391, where forfeitures of vessels
wrongfully seized by our Navy were upheld. [
Footnote 21] There, the vessels seized were of
American registry, and the seizures did not violate any treaty, but
were merely violations of the law of nations because made within
the territory of another sovereign. In those cases, it was held
that the illegality of the seizures did not affect the venue of the
action or the process of the court. Here, the objection is more
fundamental. It is to the jurisdiction of the United States. The
objection is not met by distinguishing between the custody of the
Coast Guard and the subsequent custody of the Marshal. Nor is it
lost by the entry of an answer to the merits. The ordinary
incidents of possession of the vessel and the cargo yield to the
international agreement.
The decree of the Circuit Court of Appeals is
Reversed.
MR. JUSTICE SUTHERLAND and MR. JUSTICE BUTLER are of opinion
that, in respect of British vessels engaged in smuggling
intoxicating liquor into the United States, the Treaty of 1924 was
not intended to cut down the rights claimed by the United States
under the hovering statutes in force since the organization of our
government, but that it was the purpose of both countries to extend
and enlarge such rights to enable the United States more
effectively to enforce its liquor laws, and that therefore the
decree of the Circuit Court of Appeals should be affirmed.
MR. JUSTICE VAN DEVANTER took no part in the consideration or
decision of this case.
[
Footnote 1]
The view that the Treaty modified the limits within which
British vessels might be seized for violation of the laws
prohibiting alcoholic liquors is supported by the following cases:
The Frances Louise, 1 F.2d
1004;
The Marjorie E. Bachman, 4 F.2d 405;
The Sagatind, 11 F.2d 673, 675;
The Over the
Top, 5 F.2d 838,
844;
Ford v. United States, 10 F.2d 339, 347,
aff'd, 273 U. S. 273 U.S.
593;
Hennings v. United States, 13 F.2d 74, 75;
United
States v. Ferris, 19 F.2d
925, 926;
United States v. Schouweiler, 19 F.2d
387.
Compare United States v. Cargo of Intoxicating Liquors
ex British Schooner Patara, 40 F.2d 74. In other cases, the
view has been expressed that the treaties did not restrict at all
events the right of seizure.
The Vinces, 20 F.2d
164, 174,
aff'd sub nom. Gillam v. United States, 27
F.2d 296 (
compare id., 27 F.2d page 301);
The
Panama, 6 F.2d 326,
327;
The Resolution, 30 F.2d
534, 537, 538;
The Pescawha, 45 F.2d 221, 222.
Compare also the following cases in which seizure was made
within twelve miles, but in which it does not appear whether it was
made within an hour's sailing distance or whether the question of
the effect of the treaties was raised.
The Mistinguette,
27 F.2d 738;
United States v. 63 Kegs of Malt, 27 F.2d
741;
The Newton Bay, 30 F.2d 444,
aff'd, 36 F.2d
729;
The Amaranth, 35 F.2d 872;
The Marion
Phillis, 36 F.2d 688;
The Deauville, 49 F.2d 372;
The Throndyke, 53 F.2d 239;
The Miss C.B., 59
F.2d 744.
[
Footnote 2]
Similar treaties have been entered into with fifteen other
countries; Norway, July 2, 1924 (43 Stat. 1772); Denmark, July 25,
1924 (43 Stat. 1809); Germany, August 11, 1924 (43 Stat. 1815);
Sweden, August 18, 1924 (43 Stat. 1830); Italy, October 22, 1924
(43 Stat. 1844); Panama, January 19, 1925 (43 Stat. 1875);
Netherlands, April 8, 1925 (44 Stat. 2013); Cuba, June 19, 1926 (44
Stat. 2395); Spain, November 17, 1926 (44 Stat. 2465); France,
March 12, 1927 (45 Stat. 2403); Belgium, January 11, 1928 (45 Stat.
2456); Greece, February 18, 1929 (45 Stat. 2736); Japan, January
16, 1930 (46 Stat. 2446); Poland, August 8, 1930 (46 Stat. 2773);
Chile, November 26, 1930 (46 Stat. 2852). The only substantial
difference in these treaties is in Article One, dealing with the
general principle of a three-mile limit; in the treaties with Great
Britain, the Netherlands, Germany, Cuba, Panama, and Japan, the
principle is declared to be accepted, while in the others, rights
and claims in that regard are declared to be reserved.
[
Footnote 3]
The argument was advanced by the Solicitor General as
representing the view not of the Department of Justice, but of
other lawyers for the government.
[
Footnote 4]
Re-enacted by Act of March 2, 1799, c. 22, § 54, 1 Stat. 627,
668,
and see R.S. § 3067.
The model for the American statutes was the British Hovering Act
of 1736, 9 Geo. II, c. 35, § 23, which provided for the forfeiture
of vessels under 100 tons into which foreign goods were taken
within four leagues of the coast.
Compare the earlier
British Hovering Acts of 1709 and 1718; 8 Anne, c. 7, § 17; 5 Geo.
I, c. 11. In 1876, all existing hovering acts were repealed by the
Customs Consolidation Act, 39 & 40 Vict., c. 36, which provides
in § 159 for the forfeiture of vessels belonging in whole or in
part to British subjects or having half the persons on board
British subjects, where the vessel is found, or discovered to have
been, within three leagues of the coast, and for the forfeiture of
other vessels found, or discovered to have been, within one league
of the coast. For the development of the British law,
see
William E. Masterson, Jurisdiction in Marginal Seas, pp. 1-173.
[
Footnote 5]
For those acts,
see Maul v. United States, 274 U.
S. 501,
274 U. S. 517,
note 18.
[
Footnote 6]
The note of the Secretary of June 26, 1922, to the British
Ambassador, recites
"that many of the ships engaged in the illegal smuggling of
liquor into the United States are registered under the British
flag, and that large quantities of liquor are carried by such
vessels"
from British possessions. Dept. of State Press Release, February
16, 1927.
[
Footnote 7]
The Henry L. Marshall, (286 F. 260, 262), was seized
August 12, 1921;
The Grace and Ruby (283 F. 475) on
February 23, 1922;
The Marion L. Mosher on July 27, 1923
(
United States v. United States Fidelity & Surety Co.,
decided August 13, 1923, in the District Court for the Eastern
District of New York (no opinion filed));
The Louise F.
(293 F. 933) on November 5, 1923;
The Island Home (13 F.2d
382) on November 24, 1923;
The Muriel E. Winters (6 F.2d
466) on January 6, 1924. For notices of other seizures of this
kind, not resulting in adjudication,
see Philip C. Jessup,
The Law of Territorial Waters and Maritime Jurisdiction, pp.
254-256.
In reply to a question in the House of Commons on June 6, 1923,
concerning the number of British vessels seized, the Undersecretary
of State for Foreign Affairs replied:
"Broadly speaking, some 20 or 25 cases are known to His
Majesty's Government where vessels, mostly of Canadian registry,
have been seized. The seizures have occurred at varying distances
from the shore, some within and some without the three-mile limit.
The crews have nearly always been detained for varying periods. His
Majesty's Embassy at Washington have acted repeatedly, and in the
strongest possible manner, to secure the release of vessels seized
outside the three-mile limit, or inside it when a genuine case of
distress seemed to be made out."
164 Parliamentary Debates (Commons), 5th Series, col. 2212.
[
Footnote 8]
See Congressional Record, Vol. 62, Part 11, 67th Cong.,
2d Sess., p. 11,593. An amendment to § 581, as reported, was
proposed and withdrawn; the amendment would have made the section
applicable specifically to searches and seizures for violation of
the laws prohibiting alcoholic liquors. As enacted, however, the
section did not fall short of the powers which the amendment would
have granted in more particular terms.
See Philip C.
Jessup, The Law of Territorial Waters and Maritime Jurisdiction, p.
214.
[
Footnote 9]
See Report of the Attorney General, 1923, pp. 89, 90.
The practice was adopted of requiring a bond, on release,
conditioned on the delivery of the cargo to the ports named in the
clearance papers.
Ibid. The class of vessels not released
was extended, in the case of the
Henry L. Marshall, to
include a vessel beyond the three-mile limit where, although the
small boats were not the vessel's own, there was unity of control
over the vessel and boats.
The Henry L. Marshall, 286 F.
260,
aff'd, 292 F. 486.
[
Footnote 10]
A statement of the American position is contained in a
communication from the Secretary of State to the American Charge
d'Affaires and interim in London, dated August 25, 1923. MS.
Records, Dept. of State.
And see the communication of the
Secretary of State to the British Ambassador, January 18, 1923, in
which the American position is declared to be supported by the view
of the British government concerning the seizure by the Russian
authorities in 1888 of the British schooner
Araunah (82
British and Foreign State Papers, p. 1058). Dept. of State Press
Release, February 16, 1927.
See also the address of the
Secretary of State before the Council of Foreign Relations, on
January 23, 1924, printed in 18 American Journal of International
Law, p. 229.
[
Footnote 11]
The British government stated that, by the Customs Consolidation
Act of 1876 "British municipal legislation is made to conform with
international law." Note of July 14, 1923, MS. Records, Dept. of
State. For the Act,
see note 4 supra.
[
Footnote 12]
The British Ambassador to the Secretary of State, December 30,
1922, Dept. of State Press Release, February 16, 1927.
[
Footnote 13]
The British Charge d'Affaires and interim to the Secretary of
State, July 10, 1923, Dept. of State Press Release, February 16,
1927.
[
Footnote 14]
Letter to the British Ambassador, June 26, 1922, Dept. of State
Press Release, February 16, 1927.
[
Footnote 15]
The British Ambassador to the Secretary of State, October 13,
1922, Dept. of State Press Release, February 16, 1927.
[
Footnote 16]
On May 25, 1923, the British Ambassador addressed a note to the
Secretary of State protesting against the application of the
principle announced in this decision. A reply to this note was sent
to the British Ambassador on June 6, 1923. MS. Records, Dept. of
State. The British position was stated at length by Lord Curzon in
the House of Lords on June 28, 1923. 54 Parl.Deb. (Lords), 5th
series, cols. 721-729.
Protests were likewise sent by the Italian government, on May
29, 1923; by the Belgian government, on May 28, 1923; by the
Netherlands government, on June 1, 1923; by the Norwegian
government, on June 7, 1923; by the Portugese government, on July
25, 1923; by the Swedish government, on May 31, 1923, and by the
Danish government, on June 1, 1923. Dept. of State Press Release,
February 16, 1927.
[
Footnote 17]
The British Charge d'Affaires ad interim to the Acting Secretary
of State, September 17, 1923, Dept. of State Press Release,
February 16, 1927.
[
Footnote 18]
Draft Treaty, left with the Secretary of State by the British
Charge d'Affaires, December 3, 1923.
[
Footnote 19]
Ford v. United States, 273 U.
S. 593. Such was the view of the Secretary of State,
expressed in a letter of March 3, 1924, to the Chairman of the
House Committee on Foreign Affairs.
See Hearings Before
the Committee on Foreign Affairs, House of Representatives, on
H.Res. 174, 68th Cong., 1st Sess., p. 7.
Compare, as to
the meaning of "self-executing," Edwin D. Dickinson, Are the Liquor
Treaties Self-Executing? 20 American Journal of International Law,
p. 444.
[
Footnote 20]
Amendments to Instructions, Customs, Navigation, and Motor-Boat
Laws and Duties of Boarding Officers, 1923, No. 3, issued December
11, 1924.
[
Footnote 21]
See also The Homestead, 7 F.2d 413, 415.
Compare
United States v. Bowman, 260 U. S. 94.