711.519/5: Telegram
The Secretary of State to the Ambassador in France (Herrick)
413. [Paraphrase.] Embassy’s despatch no. 3585, October 6.
[Page 206]From your statements on page 4 it is apparent that the French Government has failed to understand the precise nature of the proposal made by this Government which was set forth in the Department’s circular telegram of June 12, 3 p.m.
In article II provision is made in substance that vessels whose cargoes are not destined for consumption in the United States may, while they are within the waters of the United States, be free from penalty or forfeiture in accordance with the theory applied by the National Prohibition Act regarding liquors in transit through the Panama Canal; in this way latitude is given to French vessels which are in American ports en route to Central America or South America with sealed cargoes of wines and liquors that are not under any circumstances to be unladen for either delivery or consumption in the territory of the United States. Under the proposed agreement there would be no interference with French vessels of any tonnage which are engaged in legitimate commerce and are bound for American ports. These vessels on coming not only within 12 miles but also within 3 miles of our coasts would be subject in any event to examination by American authorities, and would, it must be admitted, comply with the applicable laws of the United States. The agreement which has been proposed would bear only on those vessels which came not only within the 12 miles but which also hovered off the 3-mile limit to aid in the smuggling of prohibited articles into territory of the United States. Vessels of large tonnage approaching or entering American waters would, therefore, be subjected to no unusual interference.
The treaty has not been designed with the purpose of encouraging interference with vessels passing on customary voyages through waters that are adjacent to the territories of a contracting State, for example, those passing through the English Channel to ports east of France. As made apparent in the proposed text, it is not planned to obstruct the movements of a vessel which is passing in innocent voyage along the ocean coast whether it is within or without the 3-mile limit. We seek rather to make easier to stop any vessel which is hovering off a coast intending to introduce fraudulently articles which are prohibited within the adjacent territory. In order to leave no question about the matter, a change has been incorporated in article I which clarifies the point as noted below. To institute searches at sea of vessels which are in transit on commercial enterprises between other countries is not contemplated by us. In any discussions with the Foreign Office you will express the substance of the foregoing.
The following changes should be made in the text communicated to you in the Department’s no. 229, June 12, should your negotiation [Page 207] reach the stage of considering the text. These changes have also been submitted to Great Britain and to the Netherlands. [End paraphrase.]
Respecting Article I, the words “on board the same” three times appearing are omitted. Following the words contained in paragraph 1 “board the private vessels of the other” insert the words “which are hovering off said coasts”. 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 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 purpose 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 see that the foregoing text does not indicate any change in substance of the treaty draft already submitted to France. 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. [Page 208] 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. [End paraphrase.]