International Mercantile Marine v. Stuart

• Decision Date: 26 October 1922
• Citation: 285 F. 79
• Parties: INTERNATIONAL MERCANTILE MARINE v. STUART, Acting Collector of Customs, et al. UNITED AMERICAN LINES v. SAME.
• Court: U.S. District Court — Southern District of New York

285 F. 79

INTERNATIONAL MERCANTILE MARINE v. STUART, Acting Collector of Customs, et al.

UNITED AMERICAN LINES v. SAME.

United States District Court, S.D. New York.

October 26, 1922

Cletus Keating and John M. Woolsey, both of New York City, for plaintiff International Mercantile Marine.

Reid L Carr, of New York City, for plaintiff United American Lines.

William Hayward, U.S. Atty., and John Holley Clark, Jr., Asst U.S Atty., both of New York City, for defendants.

LEARNED HAND, District Judge.

The plaintiffs (the American Lines) have now amended their bills so as to allege that the District Attorney for the Southern district of New York has threatened to prosecute them for sales made on shipboard at sea upon ships of American registry. Therefore the question is raised which I declined to consider in my original opinion (in Cunard S.S. Co. v Mellon, 284 F. 890), and its decision has become necessary.

The question so raised is altogether different from that discussed before. No difficulty arises from the character of the act itself. The plaintiffs sell liquors on the high seas or dispense them to passengers.

The only question is of the place where this occurs; i.e., on board a ship of American registry outside the boundaries of the United States. Is that a place covered by the Eighteenth Amendment? I may in the first place lay aside any question of congressional intent. National Prohibition Act, tit. 2, Sec. 3 (41 Stat. 308), alone would have been enough, as I have already interpreted it, to cover all places where the amendment could operate. However, I am not left in this matter to section 3 alone. Section 3 of the supplemental act passed November 23, 1921 (42 Stat. 222), leaves no doubt of the intent of Congress. By this it was enacted that the original act should 'apply not only to the United States but to all territory subject to its jurisdiction'-- almost exactly the words ^[1] used in the amendment itself. Whatever doubt there might be-- and it seems to me that there was none-- of the meaning of the original act, it is certainly laid by this section of the later.

It is, however, argued that there is no provision in Prohibition Enforcement Act, tit. 2, under which sales at sea could be prosecuted. The penalties for sales of liquors are provided in section 29 of the act, and are general in their character. They do not specify where the prosecution shall take place or any of its procedure. This is quite natural, since all such matters are provided for in the statutes of the United States. By Revised Statutes, Sec. 730 (Comp. St. Sec. 1023), it is enacted that:

'The trial of all offenses committed upon the high seas * * * shall be in the district where the offender is found, or into which he is first brought.'

On its face this would cover a sale of liquor upon a ship at sea, if that were in fact a crime. I can see no reason to limit its scope to crimes such as are created by chapter 12 of the Criminal Code (Comp. St. Secs. 10463-10483), and are there described as crimes on the high seas. If Congress, having power to make an act done at sea criminal, does so, it is none the less a crime committed at sea because it is not described as such. And so there seems to me nothing in this point, once it appears that the purpose was to make all sections of the act apply as generally as the amendment allowed.

Therefore the question becomes a straight interpretation of the amendment itself. Does it cover American ships on the high seas? The plaintiffs argue that nothing is specified as to ships; that it is only by a fiction (and that, too, one which does not universally apply) that an American ship may be called a part of the territory of the United States; that in dealing with section 3 of article 4 of the Constitution the word 'territory' has been defined as 'lands'; and that the limitations upon the power of Congress have been held not to apply to territories until they have been extended by Congress. Downes v. Bidwell, 182 U.S. 244, 278, 21 Sup.Ct. 770, 45 L.Ed. 1088; Dorr v. U.S., 195 U.S. 138, 24 Sup.Ct. 808, 49 L.Ed. 128, 1 Ann.Cas. 697; Hawaii v. Mankichi, 190 U.S. 197, 23 Sup.Ct. 787, 47 L.Ed. 1016.

It is quite true that the amendment does not mention ship; nor does it mention waters or islands. But a Constitution is not a deed; its intent is not exhausted by its details, but incorporated in its objects. The question is, not what it specifies, but what it wills. It is also true that it is a fiction to call a ship a part of the territory of the flag state, although for some purposes it is so treated. ^[2] But, as Lord Blackburn said in Reg. v. Anderson, L.R. 1 Crown.Cas.Res. 161, 169, it has been called such in countless cases, and that is important when one is interpreting legal words, because, though fictions may be only the disguises of the law before logic, they are parts of its wardrobe for all that. While it may be-- and I expect it is--only a coincidence that a ship conventionally falls within the words so used in the amendment, it is therefore no answer to argue that it does so through a legal fiction

Second, the plaintiffs overpress a chance phrase in U.S. v. Gratiot, 14 Pet. 526, 537, 10 L.Ed. 573. In speaking of section 3 of article 4, Thompson, J., said that 'territory' was 'equivalent to lands'; hence the plaintiffs believe that 'territory' in other parts of the Constitution can only mean lands. Indeed, 'lands' might properly enough include waters, and, if it did not, the reasoning would deprive the United States of jurisdiction over the bays and waters of Alaska, for example. However, I do not wish to rest on any such verbal dialectic. It is, of course, fair to construe the Constitution as a whole and by cross-reference; yet the same word need not always mean the same thing. The Eighteenth Amendment certainly includes, under 'territory subject to the jurisdiction' of the United States, all the 'territory' covered by section 3 of article 4, but it may include more as well. It was, I think, equivalent to the phrase 'territorial jurisdiction,' and it is not unlikely that the currency of that phrase influenced the substitution of 'territory' for 'place' in the Thirteenth Amendment, a chance in which I cannot see any significance.

Either phrase means to include all subjects of the state's power, and the verbal difficulties touching ships arise, I suspect, from a confusion which goes deeper than at once appears. According to modern notions, the jurisdiction-- i.e., the power to do as it wills-- of a state is limited by geographical boundaries. But it has been so only recently; until at least the sixteenth century sovereignty was personal, and allegiance was the basis of what we should now call jurisdiction. The seas admit of no boundaries; they are free to all, and upon them territorial jurisdiction is anomalous. Yet a ship has by a curious persistence retained from very ancient times a fictitious personality, more perhaps in our law than elsewhere. The China, 7 Wall. 53, 19 L.Ed. 67; The Barnstable, 181 U.S. 464, 467, 468, 21 Sup.Ct. 684, 45 L.

Ed. 954; The Eugene F. Moran, 212 U.S. 466, 474, 29 Sup.Ct. 339, 53 L.Ed. 600.

To attribute, therefore, a fictitious personal allegiance to a ship was natural, and such in effect she has, even to the extent of subjecting to jurisdiction the nationals of another state. In re Ross, 140 U.S. 453, 11 Sup.Ct. 897, 35 L.Ed. 581. It was equally natural, nevertheless, for the law to insist upon its more modern territorial category, so as to hold its old wine in new bottles, and to keep that face of consistency which is so important to its prestige. This I believe may be the reason for the fiction which the plaintiffs decry, and this makes it proper to include within such phrases as these a subject of power which cannot with any propriety be classified territorially.

Nor does the plaintiff's final argument fare better. Cases like Downes v. Bidwell, supra, Dorr v. U.S., supra, and Hawaii v. Mankichi, supra, have no application. They dealt with limitations on a...