The Danish Minister ( Brun ) to the Secretary of State

No. 151

Sir: By a circular note of May 3d 1923 you were good enough to inform me of a notice issued by the Secretary of the Treasury as follows:

[Here follows the text of the notice, which is printed on page 133.]

This information was, I understand, also communicated to the Danish Government through the American Minister at Copenhagen, Dr. John Dyneley Prince.

After careful consideration of the whole matter the Danish Minister of Foreign Affairs has directed me to state to you, that to prohibit Danish vessels from carrying alcoholic liquors (not intended for importation into the United States) inside American territorial waters would in their opinion be contrary to the international usage and practice, as heretofore acknowledged and followed, which not only have recognized any mere passage through territorial waters as inoffensive but also consecrated the non-exercise of jurisdiction within territorial waters over foreign merchant ships which call there, as long as these vessels do not disturb the peace and order inside the foreign territory.

[Page 141]

In this connection you are no doubt acquainted with the opinions of numerous authorities on international law and practice confirming the opinion of the Danish Government as set forth above, and I need only recall that in his Digest of International Law II p. 292 the American professor and former Assistant Secretary of State, Honorable John Bassett Moore, in conformity with Attorney General Cushing’s opinion given in 1856 (8 Op. Attys. Gen. 73), says: “The local port authority has jurisdiction of acts committed on board of a foreign merchant ship while in port, provided those acts affect the peace of the port, but not otherwise, and this jurisdiction does not extend to acts internal to the ship, or occurring on the high seas”.

I also venture to mention the well known and leading case in this question called the Wildenhus Case in which Chief Justice Waite said:

“From experience, however, it was found long ago that it would be beneficial to commerce if the local government would abstain from interfering with the internal discipline of the ship, and the general regulation of the rights and duties of the officers and crew towards the vessel or among themselves. And so by comity it came to be generally understood among civilized nations that all matters of discipline and all things done on board which affected only the vessel or those belonging to her, and did not involve the peace or dignity of the country, or the tranquility of the port, should be left by the local government to be dealt with by the authorities of the nation to which the vessel belonged as the laws of that nation or the interests of its commerce should require.”

The Danish Government attaches great importance to the maintenance of this principle which has heretofore been conceded by international comity and which it deems essential for the free and unhindered intercourse between nations. It ventures to point out the disturbance and oppression of international trade and commerce which would unavoidably take place, if other maritime nations were to abandon the principle of non-interference with foreign merchant ships on the point under discussion here or in other directions.

The Danish Government also trusts that it will be found possible to carry out the American National Prohibition to the fullest extent intended without preventing a Danish vessel from complying with Danish laws, especially as soon as the vessel leaves American territorial waters, and it hopes that before the contemplated new regulations are decided upon, the United States Government will be pleased to consider the adoption of provisions to that effect.

In placing this subject before you I beg to express the hope that you will be able to see your way to recommend the request of the Danish Government to the favorable consideration and decision of the proper Department of the United States Government.

[Page 142]

I may add that under certain circumstances alcoholic liquors form part of the ration of the crews of Danish merchant vessels pursuant to our Merchant Marine Act of April 1, 1892 §45 and the Regulations of December 10, 1892.

A carbon copy of my present letter is herewith enclosed for your convenience.

I have [etc.]

C. Brun