711.949/14

Memorandum by the Chief of the Treaty Division (Barnes) and Mr. Stephen Latchford, of the same Division, of a Conversation With the Counselor of the Japanese Embassy (Sawada)

The questions mentioned in a memorandum which the Japanese Ambassador discussed with Mr. Castle on March 23, 1928, and left with Mr. Castle on that date, were taken up in order.

An understanding was reached that except in respect of four questions, the Government of the United States was in accord with the views put forward in the Ambassador’s memorandum, but Mr. Sawada was informed during the course of the discussion that further consideration would be given to the question of reaching a possible understanding with respect to points numbered two and four, below.

1. Article III (a) Sea Stores.

The request of Japan that it be understood that questions in regard to sea stores should be regulated by the existing domestic laws of the United States appeared to arise from the apprehension that the existing laws might be changed in such a way as to discriminate against Japanese vessels. Mr. Sawada stated that he understood that his Government had examined the existing laws and regulations and was willing to agree to be bound by them, and that, of course, he did not know what changes might be made in them.

Mr. Barnes stated that the carriage of liquors on Japanese vessels as sea stores would be regulated by the domestic laws of the United States in force at the time that the treaty came into operation, but that if amendments should be made in those laws during the life of the treaty, the carriage of such liquors on Japanese vessels would be subject to the laws as amended. It was stated to Mr. Sawada that if the laws were amended they would apply equally to all countries [Page 126]having such treaties with the United States and that there would be no discrimination against Japanese vessels or liquors carried on them. Mr. Sawada appeared to be satisfied with this explanation.

2. Article III (b)

Mr. Sawada desired to be informed whether the provision in Article III that the carriage of liquors shall be as provided by law with respect to transit through the Panama Canal meant that the carriage of liquor as provided for in Article III would be as provided by law for transit through the Canal. It was explained to Mr. Sawada that this was not intended, that the transit of liquor through the Panama Canal is governed by the National Prohibition Act2 and that the provision regarding transit through the Panama Canal was inserted in Article III merely to illustrate the point that there would be no penalty or forfeiture, provided such liquors are kept under seal, for transit of liquor through territorial waters of the United States, just as there is no penalty or forfeiture covering the transit of liquor through the Panama Canal under the National Prohibition Act.

Mr. Sawada stated that if this was so, he thought the Japanese Government might consider the reference of the Panama Canal to be unnecessary and might desire to have it omitted. Mr. Barnes stated that he thought there would be no objection on the part of the United States to omitting merely the words “such carriage shall be as now provided by law with respect to the transit of such liquors through the Panama Canal” but pointed out that the proviso which followed those words would necessarily be retained.

3. Article III (c)

It was explained to Mr. Sawada that the United States would be unable to agree, as proposed by the Japanese Government, that the term “unladen” as used in Article III means merely the ordinary discharge of cargo and does not apply to transshipment of cargo to other vessels or to a temporary landing for the purpose of such transshipment. It was explained to Mr. Sawada that “unladen” in Article III includes transshipment of intoxicating liquors from one vessel to another or temporary landing for the purpose of such transshipment as well as discharge of liquor.

Mr. Sawada stated that the understanding asked by his Government on this point was the crucial question in the negotiations, that he understood that his Government particularly desired that Japanese vessels coming from Japan should be allowed to transship cargo at American ports to other vessels which would carry them to South America or other countries. It was explained to Mr. Sawada that the Eighteenth Amendment of the Constitution of the United States and the Volstead Act had been construed by the Supreme Court of [Page 127]the United States3 to prohibit such transshipments in the territorial waters or ports of the United States, insofar as it referred to liquor intended for beverage purposes, and that it would be impossible for this Government to agree to the understanding asked by his Government. Mr. Sawada stated that he would report the views of this Government to his Government. Mr. Barnes promised to send Mr. Sawada an informal memorandum with regard to the definition of the term “unladen”. This memorandum, a copy of which is attached, was mailed to Mr. Sawada on May 4, 1928.4

4. Article VI (a)

Mr. Sawada was informed that it would be very difficult for the Department to keep itself informed in regard to legislation or judicial decisions that might conflict with the treaty and for this reason this Government would be unwilling to assume the obligation as proposed by the Japanese Government of giving a notice of the lapse of the treaty one or two months before the lapse became effective. Mr. Sawada pointed out that the distance from Japan to the United States was great, that freighters took about three weeks to make the trip and that it might easily happen that Japanese vessels arriving at ports of the United States would find that rights which they had expected to enjoy when they left a Japanese port had been abolished while they were crossing the ocean. He stated that in some instances this would work a hardship.

Mr. Sawada’s position seemed to be reasonable and reference was made in the discussions thereon to the recent tariff proclamation which increased the import duty on rag rugs coming to the United States from Japan. Mr. Sawada remarked that the tariff proclamation was not as bad as the provision in the liquor treaty because under the proclamation they had fifteen days notice before the change in the duty became effective. It was suggested that provision be made in the treaty that in the event of the enactment of conflicting legislation, or the rendering of a conflicting judicial decision, the treaty should lapse at the end of thirty days. Mr. Barnes said that he was unable to say that the United States would agree to the inclusion of a thirty day period in the treaty, and that while he would take up this point and inform the Embassy, we feel that in any event the United States would not assume an obligation to give the Japanese Government a notice of the enactment of such legislation or the rendering of such a decision.

Finally, the question of the form in which the interpretations and assurances asked by the Japanese Embassy should be given, whether by protocol, exchange of notes or other form of memorandum, was [Page 128]discussed. Mr. Sawada seemed to think that his Government would not insist on any particular form, but that it did desire a document of some kind reciting the understandings. Mr. Barnes expressed the opinion that the United States would be very reluctant to supplement the treaty by any kind of written explanatory statement, that all the points on which an understanding had been reached were so clear from the text of the treaty as to require no further explanation, that the points on which the United States Government would not agree with the position of the Japanese Government could be solved only by the Japanese Government accepting the views of this Government, which also were clear from the language of the treaty, and that if the thirty day extension in Article VI were agreed upon it would be included in the text of the treaty.

It was agreed, however, that Mr. Sawada would prepare a draft of what his Government would desire to have in the form of a declaration, protocol or exchange of notes and that that would be considered when he presented it.

  • C. M. B[arnes]
  • S. L[atchford]
  1. Eighteenth Amendment of the Constitution, 40 Stat. 1941; Act of October 28, 1919, 41 Stat. 305.
  2. Grogan v. Walker and Sons, Ltd. and Anchor Line, Ltd. v. Aldridge, 259 U. S. 80.
  3. Not printed.