CUNARD S. S. CO. v. MELLON(1923)
[262 U.S. 100, 103] Messrs. Geo. W. Wickersham, Lucius H. Beers, and F. B. Lord, all of New York City, for appellants Cunard S. S. Co., Limited, and others.
Messrs. Geo. W. Wickersham, Van Vechten Veeder, and R. H. Hupper, all of New York City, for appellant Oceanic Steam Nav. Co., Limited.
Messrs. Geo. W. Wickersham, J. M. Woolsey, and Cletus Keating, all of New York City, for appellant International Nav. Co., Limited.
Messrs. Geo. W. Wickersham and J. P. Nolan, both of New York City, and R. J. Garrity, for appellant Compagnie Generale Transatlantique.
Messrs. Geo. W. Wickersham and Van Vechten Veeder, both of New York City, for appellants Netherlands-American Steam Nav. Co. (Holland America Line) and Liverpool, Brazil & River Plate Steam Nav. Co., Limited.
Messrs. Geo. W. Wickersham, Van Vechten Veeder, and Roscoe H. Hupper, all of New York City, for appellants Royal Mail Steam Packet Co., United S. S. Co. of Copenhagen (Scandinavian-American Line) and Pacific Steam Nav. Co.
Messrs. Geo. W. Wickersham and A. S. Gilbert, both of New York City, for appellant Navigazione Generale Italiana.
[262 U.S. 100, 116] Messrs. Cletus Keating and John M. Woolsey, both of New York City, for appellant International Mercantile Marine Co.
[262 U.S. 100, 118] Mr. Reid L. Carr, of New York City, for appellant United American Lines, Inc., and others.
Mr. James M. Beck, Sol. Gen., and Mrs.
Mabel Walker Willebrandt, Asst. Atty. Gen., for appellees. [262 U.S. 100, 119]
Mr. Justice VAN DEVANTER delivered the opinion of the Court.
These are suits by steamship companies operating passenger ships between United States ports and foreign ports to enjoin threatened application to them and their ships of certain provisions of the National Prohibition Act (41 Stat. 305). The defendants are officers of the United States charged with the act's enforcement. In the first ten cases the plaintiffs are foreign corporations and their ships are of foreign registry, while in the remaining two the plaintiff's are domestic corporations, and their ships are of United States registry. All the ships have long carried and now carry, as part of their sea stores, intoxicating liquors intended to be sold or dispensed to their passengers and crews at meals and otherwise for beverage purposes. Many of the passengers and crews are accustomed to using such beverages and insist that the ships carry and supply liquors for such purposes. By the laws of all the foreign ports at which the ships touch this is permitted and by the laws of some it is required. The liquors are purchased for the ships and taken on board in the foreign ports and are sold or dispensed in the course of all voyages, whether from or to those ports.
The administrative inst uctions dealing with the subject have varied since the National Prohibition Act went into effect. December 11, 1919, the following instructions were issued (T. D. 38218):
January 27, 1920, the first paragraph of those instructions was changed (T. D. 38248) so as to read:
October 6, 1922, the Attorney General, in answer to an inquiry by the Secretary of the Treasury, gave an opinion to the effect that the National Prohibition Act, construed in connection with the Eighteenth Amendment to the Constitution, makes it unlawful (a) for any ship, whether domestic or foreign, to bring into territorial waters of the United States, or to carry while within such waters, intoxicating liquors intended for beverage purposes, whether as sea stores or cargo, and (b) for any domestic ship even when without those waters to carry such liquors for such purposes either as cargo or sea stores. The President thereupon directed the preparation, promulgation and application of new instructions conforming to that construction of the act. Being advised of this and that under the new instructions the defendants would seize all liquors carried in contravention of the act as so construed and would proceed to subject [262 U.S. 100, 121] the plaintiffs and their ships to penalties provided in the act, the plaintiffs brought these suits.
The hearings in the District Court were on the bills or amended bills, motions to dismiss and answers, and there was a decree of dismissal on the merits in each suit. 284 Fed. 890; International Mercantile Marine v. Stuart, 285 Fed. 79. Direct appeals under Judicial Code, 238 (Comp. St. 1215), bring the cases here.
While the construction and application of the National Prohibition Act is the ultimate matter in controversy, the act is so closely related to the Eighteenth Amendment, to enforce which it was enacted, that a right understanding of it involves an examination and interpretation of the amendment. The first section of the latter declares (40 Stat. 1050, 1941):
These words, if taken in their ordinary sense, are very plain. The articles proscribed are intoxicating liquors for beverage purposes. The acts prohibited in respect of them are manufacture, sale and transportation within a designated field, importation into the same, and exportation therefrom; and the designated field is the United Stat and all territory subject to its jurisdiction. There is no controversy here as to what constitutes intoxicating liquors for beverage purposes; but opposing contentions are made respecting what is comprehended in the terms 'transportation,' 'importation' and 'territory.'
Some of the contentions ascribe a technical meaning to the words 'transportation' and 'importation.' We think they are to be taken in their ordinary sense, for it better comports with the object to be attained. In that- [262 U.S. 100, 122] sense transportation comprehends any real carrying about or from one place to another. It is not essential that the carrying be for hire, or by one for another; nor that it be incidental to a transfer of the possession or title. If one carries in his own conveyance for his own purposes it is transportation no less than when a public arrier at the instance of a consignor carriers and delivers to a consignee for a stipulated charge. See United States v. Simpson, 252 U.S. 465 , 40 Sup. Ct. 364, 10 A. L. R. 510. Importation, in a like sense, consists in bringing an article into a country from the outside. If there be an actual bringing in it is importation regardless of the mode in which it is effected. Entry through a custom house is not of the essence of the act.
Various meanings are sought to be attributed to the term 'territory' in the phrase 'the United States and all territory subject to the jurisdiction thereof.' We are of opinion that it means the regional areas- of land and adjacent waters-over which the United States claims and exercises dominion and control as a sovereign power. The immediate context and the purport of the entire section show that the term is used in a physical and not a metaphorical sense-that it refers to areas or districts having fixity of location and recognized boundaries. See United States v. Bevans, 3 Wheat. 336, 390.
It now is settled in the United States and recognized elsewhere that the territory subject to its jurisdiction includes the land areas under its dominion and control, the ports, harbors, bays and other enclosed arms of the sea along its coast and a marginal belt of the sea extending from the coast line outward a marine league, or three geographic miles. Church v. Hubbart, 2 Cranch, 187, 234; The Ann, 1 Fed. Cas. No. 397, p. 926; United States v. Smiley, 27 Fed. Cas. No. 16317, p. 1132; Manchester v. Massachusetts, 139 U.S. 240, 257 , 258 S., 11 Sup. Ct. 559; Louisiana v. Mississippi, 202 U.S. 1, 52 , 26 S. Sup. Ct. 408; 1 Kent's Com. (12th Ed.) *29; 1 Moore, [262 U.S. 100, 123] International Law Digest, 145; 1 Hyde, International Law, 141, 142, 154; Wilson, International Law (8th Ed.) 54; Westlake, International Law ( 2d Ed.) p. 187, et seq; Wheaton, International Law (5th Eng. Ed. [ Phillipson]) p. 282; 1 Oppenheim International Law (3d Ed.) 185-189, 252. This, we hold, is the territory which the amendment designates as its field of operation; and the designation is not of a part of this territory but of 'all' of it.
The defendants contend that the amendment also covers domestic merchant ships outside the waters of the United States, whether on the high seas or in foreign waters. But it does not say so, and what it does say shows, as we have indicated, that it is confined to the physical territory of the United States. In support of their contention the defendants refer to the statement sometimes made that a merchant ship is a part of the territory of the country whose flag she flies. But this, as has been aptly observed, is a figure of speech, a metaphor. Scharrenberg v. Dollar S. S. Co., 245 U.S. 122, 127 , 38 S. Sup. Ct. 28; In re Ross, 140 U.S. 453, 464 , 11 S. Sup. Ct. 897; 1 Moore International Law Digest, 174; Westlake, International Law (2d Ed.) p. 264; Hall, International Law (7th Ed. [Higgins]) 76; Manning, Law of Nations (Amos), p. 276; Piggott Nationality, pt. II, p. 13. The jurisdiction which it is intended to describe arises out of the nationalit of the ship, as established by her domicile, registry and use of the flag, and partakes more of the characteristics of personal than of territorial sovereignty. See The Hamilton, 207 U.S. 398, 403 , 28 S. Sup. Ct. 133; American Banana Co. v. United Fruit Co., 213 U.S. 347, 355 , 29 S. Sup. Ct. 511, 16 Ann. Cas. 1047; 1 Oppenheim International Law (3d Ed.) 123-125, 128. It is chiefly applicable to ships on the high seas, where there is no territorial sovereign; and as respects ships in foreign territorial waters it has little application beyond what is affirmatively or tacitly permitted by the local sovereign. 2 Moore International [262 U.S. 100, 124] Law Digest, 204, 205; Twiss, Law of Nations (2d Ed.) 166; Woolsey, International Law (6th Ed.) 58; 1 Oppenheim International Law (3d Ed.) 128, 146, 260.
The defendants further contend that the amendment covers foreign merchant ships when within the territorial waters of the United States. Of course, if it were true that a ship is a part of the territory of the country whose flag she carries, the contention would fail. But, as that is a fiction, we think the contention is right.
The merchant ship of one country voluntarily entering the territorial limits of another subjects herself to the jurisdiction of the latter. The jurisdiction attaches in virtue of her presence, just as with other objects within those limits. During her stay she is entitled to the protection of the laws of that place and correlatively is bound to yield obedience to them. Of course, the local sovereign may out of considerations of public policy choose to forego the exertion of its jurisdiction or to exert the same in only a limited way, but this is a matter resting solely in its discretion. The rule, now generally recognized, is nowhere better stated than in The Exchange, 7 Cranch, 116, 136, 144 (3 L. Ed. 287), where Chief Justice Marshall, speaking for this court, said:
That view has been reaffirmed and applied by this court on several occasions. United States v. Diekelman, 92 U.S. 520, 525 , 526 S.; Wildenhus' Case, 120 U.S. 1, 11 , 7 S. Sup. Ct. 385; Nishimura Ekiu v. United States, 142 U.S. 651, 659 , 12 S. Sup. Ct. 336; Knott v. Botany Mills, 179 U.S. 69, 74 , 21 S. Sup. Ct. 30; Patterson v. Bark Eudora, 190 U.S. 169, 176 , 178 S., 23 Sup. Ct. 821; Strathearn S. S. Co. v. Dillon, 252 U.S. 348, 355 , 356 S., 40 Sup. Ct. 350. And see Buttfield v. Stranahan, 192 U.S. 470, 492 , 493 S., 24 Sup. Ct. 349; Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 324 , 29 S. Sup. Ct. 671; Brolan v. United States, 236 U.S. 216, 218 , 35 S. Sup. Ct. 285. In the Patterson Case the court added:
In principle, therefore, it is settled that the amendment could be made to cover both domestic and foreign [262 U.S. 100, 126] merchant ships when within the territorial waters of the United States. And we think it has been made to cover both when within those limits. It contains no exception of ships of either class and the terms in which it is couched indicate that none is intended. Such an exception would tend to embarrass its enforcement and to defeat the attainment of its obvious purpose, and therefore cannot reasonably be regarded as implied.
In itself the amendment does not prescribe any penalties, forfeitures, or mode of enforcement but by its second section1 leaves these to legislative action.
With this understanding of the amendment, we turn to the National Prohibition Act, c. 85, 41 Stat. 305, which was enacted to enforce it. The act is a long one and most of its provisions have no real bearing here. Its scope and pervading purpose are fairly reflected by the following excerpts from title 2:
Other provisions show that various penalties and forfeitures are prescribed for violations of the act, and that the only instance in which the possession of intoxicating liquor for beverage purposes is recognized as lawful is where the liquor was obtained before the act went into effect and is kept in the owner's dwelling for use therein by him, his family, and his bona fide guests.
As originally enacted the act did not in terms define its territorial field, but a supplemental provision3 afterwards enacted declares that it 'shall apply not only to the United ates but to all territory subject to its jurisdiction,' which means that its field coincides with that of the Eighteenth Amendment. There is in the act no provision making it applicable to domestic merchant ships when outside the waters of the United States, nor any provision making it inapplicable to merchant ships, either domestic or foreign, when within those waters, save in the Panama Canal. There is a special provision dealing [262 U.S. 100, 128] with the Canal Zone4 which excepts 'liquor in transit through the Panama Canal or on the Panama Railroad.' The exception does not discriminate between domestic and foreign ships, but applies to all liquor in transit through the canal, whether on domestic or foreign ships. Apart from this exception, the provision relating to the Canal Zone is broad and drastic like the others.
Much has been said at the bar and in the briefs about the Canal Zone exception, and various deductions are sought to be drawn from it respecting the applicability of the act elsewhere. Of course the exception shows that Congress, for reasons appealing to its judgment, has refrained from attaching any penalty or forfeiture to the transportation of liquor while 'in transit through the Panama Canal or on the Panama Railroad.' Beyond this it has no bearing here, save as it serves to show that where in other provisions no exception is made in respect of merchant ships, either domestic or foreign, within the waters of the United States, none is intended.
Examining the act as a whole, we think it shows very plainly, first, that it is intended to be operative throughout the territorial limits of the United States, with the single exception stated in the Canal Zone provision; secondly, that it is not intended to apply to domestic vessels when outside the territorial waters of the United States; [262 U.S. 100, 129] and, thirdly, that it is intended to apply to all merchant vessels, whether foreign or domestic, when within those waters, save as the Panama Canal Zone exception provides otherwise.
In so saying we do not mean to imply that Congress is without power to regulate the conduct of domestic merchant ships when on the high seas, or to exert such control over them when in foreign waters as may be affirmatively or tacitly permitted by the territorial sovereign; for it long has been settled that Congress does have such power over them. Lord v. Steamship Co., 102 U.S. 541 ; The Abby Dodge, 223 U.S. 166, 176 , 32 S. Sup. Ct. 310. But we do mean that the National Prohibition Act discloses that it is intended only to enforce the Eighteenth Amendment and limits its field of operation, like that of the amendment, to the territorial limits of the United States.
The plaintiffs invite attention to data showing the antiquity of the practice of carrying intoxicating liquors for beverage purposes as part of a ship's sea stores, the wide extent of the practice and its recognition in a congressional enactment, and argue therefrom that neither the amendment nor the act can have been intended to disturb that practice. But in this they fail to recognize that the avowed and obvious purpose of both the amendment and the act was to put an end to prior practices respecting such liquors, even th ugh the practices had the sanction of antiquity, generality and statutory recognition. Like data could be produced and like arguments advanced by many whose business, recognized as lawful theretofore, was shut down or curtailed by the change in national policy. In principle the plaintiffs' situation is not different from that of the innkeeper whose accustomed privilege of selling liquor to his guests is taken away, or that of the dining-car proprietor who is prevented from serving liquor to those who use the cars which he operates to and fro across our northern and southern boundaries. [262 U.S. 100, 130] It should be added that after the adoption of the amendment and the enactment of the National Prohibition Act Congress distinctly withdrew the prior statutory recognition of liquors as legitimate sea stores. The recognition was embodied in section 2775 of the Revised Statutes (Comp. St . 5471) which was among the provisions dealing with customs administration, and when, by the Act of September 21, 1922, those provisions were revised, that section was expressly repealed along with other provisions recognizing liquors as legitimate cargo. Ch. 356, Title 4 and 642, 42 Stat. 858, 948, 989. Of course, as was observed by the District Court, the prior recognition, although representing the national policy at the time, was not in the nature of a promise for the future.
It therefore is of no importance that the liquors in the plaintiffs' ships are carried only as sea stores. Being sea stores does not make them liquors any the less; nor does it change the incidents of their use as beverages. But it is of importance that they are carried through the territorial waters of the United States and brought into its ports and harbors. This is prohibited transportation and importation in the sense of the amendment and the act. The recent cases of Grogan v. Walker & Sons and Anchor Line v. Aldridge, 259 U.S. 80 , 42 Sup. Ct. 423, 22 A. L. R. 1116, are practically conclusive on the point. The question in one was whether carrying liquor intended as a beverage through the United States from Canada to Mexico was prohibited transportation under the amendment and the act, the liquor being carried in bond by rail, and that in the other was whether the transshipment of such liquor from one British ship to another in the harbor of New York was similarly prohibited, the liquor being in transit from Scotland to Bermuda. The cases were considered together and an affirmative answer was given in each, the court saying in the opinion, 259 U.S. 89 , 42 Sup. Ct. 424, 22 A. L. R. 1116.
Our conclusion is that in the first ten cases, those involving foreign ships, the decrees of dismissal were right and should be affirmed, and in the remaining two, those involving domestic ships, the decrees of dismissal were erroneous, and should be reversed, with directions to enter decrees refusing any relief as respects the operations of the ships within the territorial waters of the United States and awarding the relief sought as respects operations outside those waters.
Decrees in Nos. 659, 660, 661, 662, 666, 667, 668, 669, 670 and 678, affirmed.
Decrees in Nos. 693 and 694, reversed. [262 U.S. 100, 132] Mr. Justice McREYNOLDS dissents.
Mr. Justice SUTHERLAND dissenting.
I agree with the judgment of the court in so far as it affects domestic ships, but I am unable to accept the view that the Eighteenth Amendment applies to foreign ships coming into our ports under the circumstances here disclosed.
It would serve no useful purpose to give my reasons at any length for this conclusion. I therefore state them very generally and briefly.
The general rule of international law is that a foreign ship is so far identified with the country to which it belongs that its internal affairs, whose effect is confined to the ship, ordinarily are not subjected to interference at the hands of another state in whose ports it is temporarily present, 2 Moore, Int. Law. Dig., p. 292; United States v. Rodgers, 150 U.S. 249, 260 , 14 S. Sup. Ct. 109; Wildenhus's Case, 120 U.S. 1, 12 , 7 S. Sup. Ct. 385; and, as said by Chief Justice Marshall, in Murray v. Schooner Charming Betsy, 2 Cranch, 64, 118 (2 L. Ed. 208):
That the government has full power under the Volstead Act to prevent the landing or transshipment from foreign vessels of intoxicating liquors or their use in our ports is not doubted, and, therefore, it may provide for such assurances and safeguards as it may deem necessary to those ends. Nor do I doubt the power of Congress to do all that the court now holds has been done by that act, but such power exists not under the Eighteenth Amendment, to whose provisions the act is confined, but by virtue of other provisions of the Constitution, which Congress here has not attempted to exercise. With great deference to the contrary conclusion of the court, due regard for the principles of international comity, which exists between [262 U.S. 100, 133] friendly nations, in my opinion, forbids the construction of the Eighteenth Amendment and of the act which the present decision advances. Moreover, the Eighteenth Amendment, it must not be forgotten, confers concurrent power of enforcement upon the several states, and it follows that if the general government possesses the power here claimed for it under that amendment, the several states within their respective boundaries, possess the same power. It does not seem possible to me that Congress, in submitting the amendment or the several states in adopting it, could have intended to vest in the various seaboard states a power so intimately connected with our foreign relations and whose exercise might result in international confusion and embarrassment.
In adopting the Eighteenth Amendment and in enacting the Volstead Act the question of their application to foreign vessels in the circumstances now presented does not appear to have been in mind. If, upon consideration, Congress shall conclude that when such vessels, in good faith carrying liquor among their sea stores, come temporarily into our ports their officers should, ipso facto, become liable to drastic punishment and the ships themselves subject to forfeiture, it will be a simple matter for that body to say so in plain terms. But interference with the purely internal affairs of a foreign ship is of so delicate a nature, so full of possibilities of international misunderstandings and so likely to invite retali tion that an affirmative conclusion in respect thereof should rest upon nothing less than the clearly expressed intention of Congress to that effect, and this I am unable to find in the legislation here under review.
[ Footnote 1 ] The second section says: 'The congress and the several states shall have concurrent power to enforce this article by appropriate legislation.' For its construction, see United States v. Lanza December 11, 1922).
[ Footnote 2 ] The act contains a provision ( 1 of title 2) showing that it uses the word 'persons' as including 'associations, copartnerships and corporations' when the context does not indicate otherwise.
[ Footnote 3 ] Section 3, Act November 23, 1921, c. 134, 42 Stat. 222.
[ Footnote 4 ] The pertinent portion of section 20 of Title 3, relating to the Canal Zone, is as follows: