811.114/1142
The British Ambassador (Geddes) to the Secretary of State
Sir: I have the honour to inform you that His Majesty’s Government have watched with interest, in so far as it affects British ships, the application by the United States of its accepted policy of national prohibition. In a spirit of warm friendliness His Majesty’s Government desire to direct the attention of the United States Government to some quite general aspects and implications of the situation.
In taking this step His Majesty’s Government do not seek at this time to examine the possible bearing of the generally accepted precepts of international law upon the subject nor do they wish to refer to vessels whose good faith might conceivably be in doubt. These are particular matters which at another time may have to be discussed.
His Majesty’s Government understand that the law of the United States, as at present interpreted, requires that regulations be issued [Page 586] to forbid any foreign ship entering United States territorial waters, to send me a statement issued by the Secretary of the Treasury to purposes on board, or as provision, under regulation or contract, for the crew.
Enclosed in your note of the 2nd instant24 you were good enough to send me a statement issued by the Secretary of the Treasury to the effect that until new regulations were available, no steps would be taken to enforce the judgment of the United States District Court for the Southern District of New York, announced on the 23rd ultimo.25 That judgment confirmed the recent ruling of the Attorney General prohibiting the entry into any United States port of vessels carrying liquor. The statement added that, for the present, all ships while within United States territorial waters would be permitted to retain under seal their supplies of liquor.
It appears hardly necessary for me to disclaim any intention on the part of His Majesty’s Government to influence the interpretation of the laws of the United States by the Courts of the United States. No thought is further from their mind. His Majesty’s Government’s anxiety is directed wholly towards certain broad and, in their view, important international considerations of a wholly general nature not necessarily in any way connected with the use of alcoholic liquor as a beverage.
The merchant ships of all countries, as they proceed on their lawful occasions across and about the seas, must enter ports in many lands. By immemorial custom these ships are subject exclusively to the laws and regulations of their own state, except when they are within the territorial waters of a foreign power. It appears reasonable, indeed for many years it has been the custom, for each state to legislate for the maintenance of good order among, and fair dealing by, all ships regardless of their nationality while they are within the limits of its territorial waters. But such submission by a foreign ship to the municipal laws of the states, within whose territorial waters it finds itself from time to time, does not taint the ship’s exclusive submission to the laws or regulations of its own state when it is again on the high seas or in its home ports.
It appears therefore that for any state, even constructively, to project the operation of its strictly domestic municipal law on to foreign ships on the high seas would be unprecedented and would, if many states adopted such a course, subject all shipping, other than coastwise, to the evils which necessarily flow from a conflict of authority.
[Page 587]There is undoubted precedent for the enforcement by a state of regulations designed to establish conditions of safety and to make provision for the health of those on board foreign ships which clear from its ports. Within the same category may be mentioned regulations relating to the transport of immigrants and to the racial qualifications of the crews. These are examples of the accepted projection of national authority on to foreign ships on the high seas, but such regulations are clearly different in kind from strictly municipal laws framed to secure good order within the area of a state’s territorial jurisdiction.
No one, I think, questions the right of any state to determine that alcoholic beverages shall not be consumed within the area of its territorial waters, for in the consumption of such beverages there is human action which has in certain countries been defined as being contrary to the law and therefore contrary to good order even on board foreign ships within the area of such states’ jurisdiction.
There seems however to be a difference, again not of degree but of kind, between enforcing such accepted sumptuary regulations and declaring to be illegal the passive existence, under seal within the holds or lockers of a foreign ship, of articles legally on board that ship according to the laws of its own state. Especially is this the case if the articles in question are not of such a nature that they are liable of themselves to break from their containers and act beyond them without the intervention of human agency. I feel sure that you will agree that there is a clear difference between passive substances, which can be controlled by human agency and thus contained and prevented from acting physically upon, the citizens or property of the state during the period that the ship is in its territorial waters and subject to its municipal law, and substances which cannot with certainty be so controlled.
I have in mind as belonging to the class of substances which cannot with certainty be controlled forms of explosive shown by experience to be liable to become unstable and explode spontaneously; or, infected or odoriferous animals or articles from which, through the instrumentality of vermin or through unavoidable percolations or diffusions, infective organisms or offensive or poisonous matter might be borne to innocent persons or do damage to animals or plants. In the category of substances not liable to escape from the control of human agency and yet so undesirable in itself as to be the subject of an international prohibitive agreement I would mention opium. This, while prohibited in practically all countries, except when properly licensed, is nevertheless immune from confiscation on board foreign vessels in territorial waters, provided that the opium is duly declared and manifested either as stores or as a consignment in transit to a foreign port.
[Page 588]It may also be noted at this point that the examples, which I have quoted earlier in this note, of accepted projections of national authority on to foreign ships on the high seas deal with active, or potentially active, agents. There is however no example, other than that which forms the subject of the present representation, of the passive existence of a controllable substance being made illegal.
Further, let me point out that in the case which gives occasion for this communication the very articles, whose passive existence has now been declared to be illegal, are capable of being used for purposes which are legal within the territory of the State which declares to be illegal their passive existence on a foreign ship in its territorial waters. Suppose a British ship voyaging from Vancouver to Sydney, to touch at San Francisco to pick up cargo and to have in its hold a case of champagne consigned to Sydney from Vancouver, who can tell in advance whether the contents of the case may not be destined for use in Australia in a quasi-medicinal manner as a perfectly proper stimulant or to save life in moments of collapse induced by severe illness? Let us suppose regulations to support the present interpretation of the law of the United States to be in force when that ship reaches San Francisco, what is the position? Strictly the ship is liable to forfeiture, although the prospective fate of the case of champagne may be to be sold to a hospital in Australia. Yet if that were so, it would be put to a use legal within the territory of the United States though the passive existence of the same champagne on board the ship would be illegal within territorial waters—an anomaly of a most undesirable kind.
I have referred to liquor in this imaginary example but the considerations which His Majesty’s Government have in mind are not confined to liquor and can be stated quite generally as a question,—
Is it wise that any state should set an example and establish a precedent by declaring that some substances, not in themselves uncontrollably noxious or dangerous, cannot passively exist legally, under perfect control, in ships of foreign nationality entering its ports, in spite of the fact that the use of such substances is permitted, under certain conditions, to the citizens of the state which declares their passive existence on board ship to be illegal?
It would appear to me that there is only one answer to this general question and that in the negative. Alcoholic liquor is not so peculiar in kind and effect that the principle of its complete exclusion from foreign ships in territorial waters can be admitted for it and denied for all other articles of consumption and commerce.
Possibilities spring readily to mind. If the passive existence of a disliked article on board a foreign ship entering a port can be declared illegal, why should a highly trade-unionized country [Page 589] not prohibit foreign ships from carrying into its territorial waters goods made in open or non-union shops? Or, if it be a question of the regulation of morals, why should a ship having on board playing cards or dice or the implements of any game which may be associated with gambling be permitted to enter the ports? In the present state of the world this idea of establishing the illegality of passively existing articles of consumption or of commerce, even when under perfect control and completely insulated from all contacts with the person or property of the state, might be extended indefinitely.
I am desired by His Majesty’s Government to direct your most earnest consideration to the difficulties, far from imaginary, which this example and precedent, if established, might produce. The free movement of ships about the world would be hampered and that hampering would spare the shipping of no nation. In this matter it is manifest that the true interest of all maritime nations is identical and is opposed to the hypothesis that any, and therefore every, nation can impose its own ideas of sumptuary, economic, moral, or other questions on foreign ships that visit its ports, to the extent of rendering illegal the passive existence, within the holds or lockers of the ships, of articles of consumption or commerce which it dislikes or of which it officially disapproves.
His Majesty’s Government desire me to address to you these observations in which I have endeavoured to indicate the anomalies which must ensue if the precedent, which the present interpretation of the law of the United States sets, be established.
I have [etc.]