Papers Relating to the Foreign Relations of the United States, 1926, Volume II

811.114C.G.44/29½

Memorandum by Mr. William R. Vallance, Assistant to the Solicitor of the Department of State

[Washington,] December 2, 1925.

Memorandum of Conference Regarding (1) Presence of Coast Guard Vessels at Gun Cay Without Prior Permission of British Authorities, and (2) Seizures Under the British Liquor Treaty and Construction Thereof

• Date—December 2, 1925, 10 A.M.
• Place—Room 214, State Department.
• Present—
  • Representing the British Embassy:
    • Sir Esme Howard, the British Ambassador;
    • The Honorable H. W. Brooks, First Secretary;
    • Mr. G. H. Thompson, Second Secretary.
  • Representing the United States:
    • State Department—Mr. William R. Vallance, Assistant to the Solicitor.
    • Treasury Department—Rear Admiral F. C. Billard, In charge of the Coast Guard Service; Lieut. Commander C. B. Root, Intelligence Officer, Coast Guard.
    • Department of Justice—Mrs. Mabel Walker Wille-brandt, Assistant Attorney General; Mr. Arthur W. Henderson, Special Assistant to the Attorney General.

1. Coast Guard Activities

The conference was opened by Mr. Vallance, who stated that he understood the British Ambassador wished to bring up for discussion the question of the presence of Coast Guard vessels at Gun Cay without previously having given notice of their arrival to the Bahaman authorities. The Ambassador stated that he had received some communications from the Governor of the Bahamas on the subject and that they were considerably disturbed about the operations of the Coast Guard vessels in British territorial waters without being advised that the armed vessels were coming there in accordance with the usual practice.

Admiral Billard stated that he would like to explain exactly how the matter started. He stated that he was at Miami last April and was going over the general smuggling situation from the Bahama Islands into Florida, with a view to working out a suitable blockade to prevent such smuggling operations. He was informed that the island of Gun Cay was approximately forty-two miles from the Florida coast and that it was an uninhabited coral island without any vegetation but with a harbor in which several large supply ships were anchored and from which speed boats from the Florida coast were loaded and departed at night for the Florida coast. The Admiral stated that he issued orders to two or three of their seventy-five foot launches to proceed to Gun Cay and to observe the conditions there and ascertain, if possible, the names of the vessels which were being loaded with liquor for the Florida coast. Specific instructions were given to the effect that no Coast Guard activities of any kind were to be carried on in British territorial waters and that complete recognition was to be given to British sovereignty there. The Admiral explained that there were no British authorities on the island and consequently there was no one to whom the Coast Guard vessels could report. The Ambassador stated that the Admiral was, of course, familiar with the international practice of giving advance notification of the intended arrival of armed foreign vessels within territorial waters of another country. The Admiral replied that he was familiar with the practice but that he felt there was no particular reason for notifying the State Department of his proposal and having it relayed by the State Department, through the Embassy at London, to the British Foreign Office and thence back to the Governor of Nassau—that the presence of three 75-foot boats in the territorial waters adjoining an uninhabited island did not seem to him of sufficient concern to warrant all that fuss. The Ambassador replied that, of course, the matter might seem trivial, but still there was a well established practice that had been developed and he believed it was generally recognized to be advisable to adhere to that practice of giving advance notice, as it avoided any misunderstandings as to possible assumption of jurisdiction over islands, et cetera. The Admiral stated that he regretted it very much if the British authorities objected to the presence of these vessels and that he would see to it in case such a technical stand was taken that no further Coast Guard vessels visited the Bahama Islands. The Ambassador replied that there was no desire to prevent the visits of these vessels to the islands but simply to have acquiescence with the regular procedure.

Mr. Vallance referred to the fact that, during the Ambassador’s conference with the Secretary of State on November 16, 1925, the Secretary had suggested that it might be possible to arrange for a blanket license for designated Coast Guard vessels to enter these territorial waters with the understanding that they would have the right to obtain fuel or other assistance or supplies in case of distress and that it would not be necessary each time to give advance information to the Governor of the Bahamas. It was pointed out that it would be provided that while in British territorial waters such United States vessels would perform no Coast Guard duties or other functions which might be considered an interference with British sovereignty. The Ambassador stated that he would be glad to see whether such an arrangement would be acceptable to the Bahaman authorities, but that of course it was a departure from the regular procedure and exceptions in favor of vessels of one nationality were difficult to explain to other governments when their vessels were concerned. However, he would be glad to see what could be done.

Admiral Billard stated that the situation at Gun Cay was very similar to that at Detroit, in which Coast Guard vessels crossed from Detroit to Windsor simply by notifying the Canadian Collector of Customs at Windsor upon their arrival. He stated that he believed that it would be an undue formality to have the officers in charge of the Coast Guard vessels at Detroit notify the State Department and have the State Department notify the Canadian Government at Ottawa and the Government at Ottawa notify the Collector of Customs at Windsor every time a trip was contemplated. He expressed the opinion that some simple formula should be worked out dealing with the situation at Gun Cay similar to that between Detroit and Windsor. Commander Root referred to the fact that the Canadian authorities had arranged at Victoria and Vancouver so that Coast Guard vessels entering these ports merely reported to the collectors of customs their arrival and departure. The Ambassador stated that he would see what could be done.

The Ambassador stated that one cause of particular irritation had been the fact that a vessel carrying Mr. Moore, a member of the Executive Assembly, was stopped by a Coast Guard vessel and at another time the Coast Guard vessel played its searchlight on the wheelhouse of a vessel on which a Bahaman Government representative was traveling, causing difficulty of navigation and great danger to the vessel on account of the shoals and channels that had to be navigated. Commander Root stated that he had these reports examined carefully and that they were probably correct. He further stated that the Coast Guard officers acting in this manner had been censured and instructed to be very careful in the future. Commander Root pointed out that the whole cause of the difficulty was that seven or eight large hulks had been towed down to Gun Cay from Nassau loaded with liquor and that speed boats owned by American citizens arrived alongside these hulks and loaded liquor. The Coast Guard vessels got the names of these speed boats and, finding them along the Florida coast, seized them. The Ambassador asked whether it was not possible to conduct the operations entirely from the Florida coast and seize these vessels there. Commander Root pointed out that when the vessels left Gun Cay they spread out like a fan and, during the night, entered along the Florida coast over shoals and around small islands where it was practically impossible to navigate a Coast Guard cutter and, on account of about a thousand miles of coastline to cover, it was practically impossible to make effective seizures. The Ambassador inquired whether these American vessels could not be seized on the high seas. Mr. Vallance stated that it was necessary to establish that the vessels were engaged in violating the customs laws in order that proceedings might be taken under the conspiracy statute, that the prohibition law extended only to the three-mile limit and it had been held by the Supreme Court of the United States that American vessels could transport liquors on the high, seas between, say Nassau and Halifax and other foreign ports, without violating our laws.⁸² The Ambassador stated that in the circumstances British vessels, under the liquor treaty, were being treated more severely than were American vessels. Mr. Vallance replied that it might seem that way but, as a matter of fact, the British vessels were the large supply vessels and no American vessels were engaged in the business of bringing liquor to the territorial limits and disposing of it because the masters of the vessels would be subject to prosecution under the statutes relating to conspiracy to violate the laws of the United States.

The Ambassador stated that he was going to the Bahamas for the Christmas holidays and, at his suggestion, the following four points were agreed upon as matters to receive further consideration with a view to avoiding difficulties with the Bahaman authorities.

1. Inquiries were to be made by the Ambassador with a view to ascertaining whether a blanket permit could be arranged for specified vessels of the Coast Guard to enter Gun Cay and adjacent islands for the purpose of obtaining supplies of food and fuel, et cetera, for rest [refuge] in case of storm, and for other similar purposes. It would be understood that while such vessels were in these waters they would carry on no Coast Guard activities, would refrain from interfering with vessels found there, and would cause as little inconvenience as possible to local shipping.

2. The Ambassador would make inquiries of the Bahaman authorities with a view to ascertaining whether they would be disposed to enter into a treaty or arrangement for the exchange of information similar to the treaty concluded on June 6, 1924,⁸³ between the United States and Canada covering this subject, i. e., exchange of information.

3. The Ambassador stated that he would also ascertain whether liquor smuggling ships were allowed to enter and leave Gun Cay and other Bahaman Islands without making entry and obtaining clearance papers and, if this was true, he would ascertain whether steps could be taken to stop this practice.

4. The Ambassador further stated that he would make inquiries to see what could be done under Bahaman law to prosecute masters of vessels who made false statements at the time of clearance to the effect that they were destined for St. Pierre or for ports in Honduras when, in fact, they well knew their destination was Rum Row.

2. Liquor Ship Seizures

The Ambassador then stated that his Government had been considerably disturbed at some of the seizures that had been made by the Coast Guard and, although realizing that his request was perhaps unusual, his Government had asked him to find out whether this Government would be good enough to let him see confidentially copies of the instructions that had been given to Coast Guard commanders. This was desired particularly with a view to ascertaining what instructions had been issued with regard to the ship liquor treaty.⁸⁴

Mr. Vallance replied that of course these instructions were of a confidential nature and it would be most unusual for this Government to disclose the contents of such confidential instructions, but he would take it up with the Secretary of State and see whether the Ambassador’s request could be complied with. Mr. Vallance pointed out that as far as the ship liquor treaty was concerned, he was sure that the instructions were in accordance with the provisions of the treaty.

. . . . . . . . . . . . . .

The Ambassador stated that he was glad to receive this assurance as some of the seizure cases had caused a feeling that the instructions were not in accord with the treaty.

Admiral Billard stated that he desired to remove any doubt in the Ambassador’s mind on that subject, as he had been very meticulous to adhere to the treaty and that, in case of doubt, the Coast Guard commanders always referred the matter to Washington and he passed on it before the seizure was made, and that he could assure the Ambassador that he was very conservative in ordering seizures made. The Ambassador expressed appreciation for this assurance.

The Ambassador then suggested that if this subject had been satisfactorily discussed, he would like to bring up some seizure cases which had been causing the Embassy some embarrassment.

The Ambassador then referred to the case of the Hazel E. Herman⁸⁵ and stated that he understood that this seizure had taken place outside the limits provided for in the liquor treaty. Mr. Vallance stated that the reports had been rather slow in coming in on this case but that, according to a report just received, the vessel was cleared from Havre for Belize, Honduras, with a cargo of over 2,000 cases of liquor on board and had arrived off the mouth of the Mississippi River, where, according to the admission of the master, approximately 1,000 cases had been run ashore. The place at which the vessel was seized was apparently farther off shore than it could travel in one hour but evidence obtained from tests of a large number of speed boats used in running liquor ashore and previously seized showed that their speed was in excess of twenty miles per hour and consequently there was reasonable ground to believe that the 1,000 cases from the Hazel E. Herman had been run ashore in boats whose speed exceeded twenty miles per hour. The Ambassador stated that he was interested to get this information and wished that he had had it sooner. Mr. Vallance stated that some departments of the Government had been somewhat reluctant to have complete information furnished in these cases to the British Embassy because of the feeling that it might be forwarded on, through British Consuls, to the attorneys for the rum runners and thereby give them advance notice of what evidence the Government had prior to the actual trial of the case. The Ambassador stated that if the Department would indicate that it was desired that information of this character should be kept confidential in the note transmitting it he would give every assurance that it would be kept strictly confidential and that the consuls or other persons who brought the matter to the attention of the Embassy would be informed that the Embassy had information which caused it to hold that the case should proceed in the courts of the United States.

The Ambassador then referred to the arguments made by Assistant District Attorney Sheridan in the Circuit Court of Appeals at San Francisco in connection with the criminal cases arising out of the seizure of the Quadra⁸⁶ and stated that he believed it was very undesirable to have such representations made in our courts as they tended to bring about a disregard of the British ship liquor treaty. Mr. Vallance referred to the fact that these statements were made in a criminal case and that, under the decisions of both British and American courts, it had been determined that the judicial department would not go into the question of how the alleged criminal was brought within the jurisdiction of the court and that the only questions considered by the court were whether the person charged with committing the crime had committed acts which amounted to a crime punishable by the laws under its jurisdiction. Mr. Vallance stated that a note referring to some of the British and American authorities had been drafted and would probably go forward to the Ambassador in a few days. The Ambassador stated that he was not a lawyer and that he had difficulty in understanding how such a result could be reached and why it was deemed advisable to have the liquor treaty. Mr. Henderson pointed out that the liquor treaty dealt particularly with the forfeiture of vessels which was in the nature of an admiralty proceeding under an entirely different set of laws and principles from those governing criminal procedure. Mrs. Willebrandt also explained the situation to the Ambassador and pointed out that in forfeiture proceedings the courts had always recognized a distinction between property seized on land and property seized at sea or in navigable waters, and it was therefore necessary to establish at the outset where the property was seized as a jurisdictional question to be considered at the very beginning of the case. The Ambassador expressed surprise that the court should take this question into consideration in a civil proceeding and should not give consideration to it in a criminal case where personal rights and liberties were involved. He stated that he believed something should be done to correct this. Mrs. Willebrandt pointed out that the matter was taken care of by means of the diplomatic representations which the Embassy had been making in the various cases. The Ambassador stated that he would bear this point in mind in further cases that might come up.

The Ambassador then stated that it was his understanding that the United States was as much interested in maintaining the principle of the three-mile limit as was the British Government. He found that some of the court decisions in liquor cases apparently overlooked this fact. The Ambassador then quoted extracts from Moore’s International Law Digest, setting forth the position taken by the United States when Mr. Seward was Secretary of State in connection with seizures by the Spanish Government of American vessels hovering off the coasts of Cuba. The extracts to which the Ambassador referred were from a note dated August 10, 1863, addressed by Secretary of State Seward to Mr. Garcia y Tassara, Minister of Spain at Washington. The note reads in part as follows:

“It cannot be admitted, nor indeed is Mr. Tassara understood to claim, that the mere assertion of a sovereign, by an act of legislation, however solemn, can have the effect to establish and fix its external maritime jurisdiction. His right to a jurisdiction of three miles is derived not from his own decree but from the law of nations, and exists even though he may never have proclaimed or asserted it by any decree or declaration whatsoever. He cannot, by a mere decree, extend the limit and fix it at six miles, because, if he could, he could in the same manner, and upon motives of interest, ambition, or even upon caprice, fix it at ten, or twenty, or fifty miles, without the consent or acquiescence of other powers which have a common right with himself in the freedom of all the oceans. Such a pretension could never be successfully or rightfully maintained. …

“In view of the considerations and facts which have been thus presented, the undersigned is obliged to state that the Government of the United States is not prepared to admit that the jurisdiction of Spain in the waters which surround the island of Cuba lawfully and rightfully extends beyond the customary limit of three miles.” (Moore’s International Law Digest, Vol. 1, pp. 706–713)

The Ambassador expressed the opinion that in view of these statements the United States Government could not very well justify seizures outside the three-mile limit except under and pursuant to a treaty, but that the judicial authorities of the United States did not seem to give proper recognition to these authoritative statements on the subject. Mr. Vallance stated that it was his understanding that, the United States was in favor of the three-mile limit rule, but that in smuggling cases there had been a disposition among some international law authorities to hold that a government would not support its nationals in carrying on operations which had for their object the violation of the laws of a friendly power. Mr. Vallance stated that he believed that British international law writers had expressed this opinion. In making this statement he had in mind the following paragraph from Twiss’ Law of Nations:

“If the revenue laws or quarantine regulations of a State should be such as to vex and harass unnecessarily foreign commerce, foreign nations will resist their exercise. If on the other hand, they are reasonable and necessary, they will be deferred to ob reciprocam utilitatem. In ordinary cases, indeed, when a merchant-ship has been seized on the open seas, by the cruiser of a foreign power, when such ship was approaching the coasts of that power with an intention to carry on illicit trade, the nation, whose mercantile flag has been violated by the seizure, waives in practice its right to redress, those in charge of the offending ship being considered to have acted with mala fides and consequently to have forfeited all just claim to the protection of their nation.” Twiss, Law of Nations, Vol. 1, Sec. 181, p. 263.

The Ambassador then stated that he understood the United States had provisions of law which provide for seizures twelve miles from the shore. Mr. Vallance stated that these had precedents in British statutes which had been passed about 1736 and, at one time, provided for seizures one hundred leagues from shore. Mr. Vallance handed the Ambassador a copy of a memorandum containing British statutes relating to this matter and cases which had been decided in British courts under them. (811.114 Great Britain/63a⁸⁷). The memorandum had been prepared at the direction of the Secretary and the Secretary had authorized Mr. Vallance to hand it to the Ambassador at the conference. The Ambassador stated that he would examine these statutes and cases with interest, as he had not had them brought to his attention before.

Mrs. Willebrandt explained that the provision in the Tariff Act of 1922⁸⁸ dealt with violations of the customs laws and was not, therefore, limited to cases of smuggling of liquor but applied to all cases of smuggled goods, whether they involved the importation of prohibited articles, such as narcotics, liquors, et cetera, or covered the importation of articles that were subject to the payment of duty. The statute was, therefore, much broader in its scope than the prohibition laws. She stated that the treaty had given rise to some difficulty owing to the different constructions placed upon it by different courts, depending to some extent on whether they were in so-called “wet” districts or “dry” sections of the country, that as soon as the cases got into the Supreme Court of the United States a uniform construction of the treaty would be worked out and the executive departments enforcing the treaty would know exactly where they stood. She further remarked that some of the provisions of the treaty were rather vague and that it was difficult for the enforcing officers to determine to what extent they were authorized to go under them. The Ambassador stated that the Embassy had also been endeavoring to obtain a construction by this Government of various provisions of the liquor treaty but so far has not obtained results. Mr. Vallance stated that, so far as he was aware, the only case in which the Embassy had specifically asked what construction this Government placed upon the liquor treaty was in the case of the Hazel E. Herman and in that case the opinion expressed by the Ambassador had been that the seizure was not justified by the liquor treaty because the court did not have definite evidence regarding the speed of a small boat that had carried liquor from the Hazel E. Herman to shore. Mr. Vallance stated that, of course, he could not state what the views of the Department were regarding the construction of this section of the liquor treaty, that this was a matter for the Secretary of State to pass upon, but that his personal opinion was that the treaty should be construed broadly to accomplish the purposes for which it was entered into. He outlined the situation at the time the treaty was drawn up, namely, that the British Government objected to the refusal of this Government to allow British ships with liquor on board either as stores or as cargoes to enter our ports on the ground that the Volstead Act prohibited the transportation of liquors within the three-mile limit. This action was taken as a result of the decision of the Supreme Court of the United States in the case of Cunard v. Mellon, 262 U. S. 100. The British Government felt that it should be allowed to transport cargoes of liquor under seal through our territorial waters when such cargoes were destined for ports foreign to the United States. The British Government also felt that British vessels should be allowed to carry liquor as sea stores through territorial waters of the United States under seal, in order that they might be used and served on the return voyage after leaving the United States. On the other hand there was considerable feeling throughout the United States that the large number of British vessels hovering off the coasts of the United States, constituting rum row and engaged in smuggling liquor into the United States, was a national disgrace and that some drastic steps should be taken to put a stop to their operations. It was felt that the British Government ought not to support these persons who were engaged in violating our laws and make it necessary for the United States to expend large sums of money in increasing its Coast Guard and maintaining a patrol or blockade against these smugglers.

In order to meet both of these complaints the liquor treaty was negotiated, whereby British vessels brought liquors, both sea stores and cargoes, into American ports under seal and the enforcement authorities of the United States were allowed to seize smuggling vessels outside the three-mile limit. The authorities of the United States, in construing the provisions of the treaty which were in favor of British vessels, adopted a very liberal attitude and did not attempt to check up on British vessels arriving at the three-mile limit to ascertain whether their cargoes and sea stores were under seal and did not impose any technical requirements which would interfere with the free movement in and transit of American territorial waters by bona fide British vessels engaged in legitimate trade. The American authorities, on the other hand, felt that they were also entitled to a liberal construction of the provisions of the liquor treaty which authorized them to seize British smuggling vessels that were engaged in illegitimate trade. However, from the notes received from the British Embassy in some of these cases, it appeared that the British Government was disposed to apply a very technical construction to these sections of the treaty and that the case of the Hazel E. Herman, mentioned by the Ambassador, was a good example of this, that, as a matter of fact, the question came down to the character of evidence which should establish the speed of the vessel used in bringing liquor ashore, that apparently the British Embassy felt that the speed of some specific vessel should be proved at the trial, constituting direct evidence, whereas the authorities of the United States felt that, by means of circumstantial evidence showing the average speed of vessels engaged in this traffic, it could be established satisfactorily that the cargo had been brought ashore in vessels having the speed required by the liquor treaty. Mr. Vallance pointed out that in the case of the Hazel E. Herman it had been reported that six small vessels seized had an average speed of about twenty-two miles per hour, whereas the Hazel E. Herman was seized sixteen miles from shore, that the master had admitted that approximately 1,000 cases of liquor had been smuggled ashore while he was off the coast near New Orleans, and that the authorities of the United States therefore felt it was reasonable to assume that these 1,000 cases had been brought ashore in small boats that had a speed of more than sixteen miles per hour.

The conference closed with the understanding that the Department would hear further from the British Ambassador on the subjects above mentioned.

W. R. V[allance]

82. Cunard S. S. Co. v. Mellon, 262 U. S. 100.
83. Foreign Relations, 1924, vol. i, p. 189.
84. Foreign Relations, 1924, vol. i, p. 158.
85. See 19 Fed. (2d) 397; 24 Fed. (2d) 27.
86. See Ford v. U. S., 273 U. S. 593.
87. Not printed.
88. 42 Stat. 858, 948.