711.419/39a: Telegram

The Secretary of State to the Ambassador in Great Britain (Harvey)

295. [Paraphrase.] The Department has received a despatch from the Legation at The Hague which indicates a favorable attitude on the part of the Netherland Minister for Foreign Affairs towards an arrangement with this Government to permit the right of search within 12 miles off shore, and I am telegraphing today to the Legation to submit to the Government of the Netherlands the text of an agreement duplicating in substance the agreement proposed to Great Britain and communicated to you June 12, 1923, through Paris. [End paraphrase.]

There are, however, minor changes in Article I. The words “on board the same” three times appearing are omitted. The words “willful” and “willfully” contained in second paragraph are omitted with a view to simplifying the evidential requirements preliminary to search.

The first sentence of Article II is modified to read as follows:

“In case any article or articles the importation of which into the territories of either High Contracting Party is or are for any purpose prohibited by its laws, but which is or are listed as sea stores, or as cargo destined for a port foreign to either High Contracting Party, on board a private vessel of either High Contracting Party destined for a port of the other High Contracting Party is or are brought within the territorial waters of such other High Contracting Party, no penalty or forfeiture imposed by its laws shall be applicable thereto or shall attach in respect thereof, and such transit within the territorial waters of the United States shall be as now provided by law with respect to the transportation of intoxicating liquor through the Panama Canal, on condition, however, that upon [Page 198] arrival of the vessel so destined within 12 geographical miles of the coasts of such High Contracting Party whose territorial waters are about to be entered, such article or articles may be placed under seal by the appropriate officer of that Party and shall be kept sealed continuously thereafter until the vessel enters and during the entire stay of the vessel within those waters, and no part of such article or articles shall, during that period, be removed from under seal for any purposes whatsoever and that no part of such article or articles shall at any time or place be unladen for delivery or consumption within the territory of the Party whose waters are entered as aforesaid.”

[Paraphrase.] There is no further change in Article II. You will observe that the foregoing text does not indicate any change in substance of the draft which has already been submitted to Great Britain. We are seeking, however, to indicate more extensively and with greater precision that articles which are not designed for consumption in the United States may, while they are in the waters thereof, be free from any penalty or forfeiture according to the theory that is applied by the National Prohibition Act regarding liquors in transit through the Panama Canal; the Supreme Court laid stress on this fact in the case of the Cunard Steamship Company vs. Mellon. We are also seeking to make it clear that no part of any articles concerned shall be unladen under any circumstances for delivery or consumption within the territory of the United States. In this way the entrance of articles not for consumption in the United States is further safeguarded without disregard to any Constitutional requirement, and the restriction against unloading for consumption in the United States is both broadened and accentuated. It will be obvious to you that there is no thought of making possible the admission into American territory of any article for use therein in violation of the Eighteenth Amendment.

If you have reached the stage in your negotiations of considering the text, these changes should be made in any text which you propose to the Foreign Office.

The Department will keep you informed of developments at The Hague. [End paraphrase.]