The Sagatind, 11 F.2d 673 (2d Cir. 1926)

*674 Emory R. Buckner, U. S. Atty., and Herman T. Stichman, Asst. U. S. Atty., both of New York City, for the United States.

Wise, Whitney & Parker and Henry A. Wise, all of New York City, for the cargo of the Sagatind.

Kobbé, Thatcher, Frederick & Hoar, of New York City (Karl T. Frederick and John Schubert, both of New York City, of counsel), for the Sagatind.

Louis Halle, of New York City, for the Diamantina and cargo.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

HOUGH, Circuit Judge (after stating the facts as above).

The material facts are very few, and we think it clear that they were well known to the governmental authorities before libels filed; a closer attention to them would have prevented a nightmare of pleading, but that pleading occurred before the appointment of the present United States attorney.

Of the allegations of fact above enumerated, some are false. Thus it is untrue that either vessel ever voluntarily came within four leagues of this coast; there is no pretense of evidence that Sagatind "made contact" with the shore by means of Thorndyke, and none that the owners of Diamantina's cargo landed in the United States any liquor whatever.

Other allegations are immaterial, viz. everything relating to the earlier voyage of Sagatind.

It is not necessary to dilate on the statutes *675 referred to in the libels; they all prohibit or punish, or both, acts done within the jurisdiction of the United States and the courts thereof, and they have recently received consideration by us in The Henry L. Marshall (C. C. A.) 292 F. 486 (certiorari denied 44 S. Ct. 38, 263 U.S. 712, 68 L. Ed. 519, 520), Romano v. United States (C. C. A.) 9 F.(2d) 522, and United States v. 2180 Cases of Champagne (C. C. A.) 9 F.(2d) 710.

These decisions hold that a vessel lying 22 miles off our coast is on the high seas; that a sale or gift of liquor there made by an alien is unaffected by the laws of this country, which have no territorial application so far from land; but that a foreign ship beyond our territorial waters may so arrange communication with the land, as to land liquor or other commodities in the United States, and introduce the same into our commerce, just as a man may deposit in or introduce goods into a house, by means of a hook on a long pole, though no part of the physical man ever enters said house.

But all these cases are based on facts arising before the effective date of the treaties regarding "Smuggling of intoxicating liquors," made with Great Britain May 22, 1924, and Norway July 2, 1924 (43 Stat. pt. 2, pp. 1761 and 1772). The only arguable point in this circuit and on this record is whether the treaties have authorized the proceedings here avowed, which are otherwise indefensible.

The governmental position or theory is perhaps best shown by those parts of each libel which allege that acts were done justifying forfeiture "within the collection district of New York" or in the United States, when the pleader knew that no res seized, whether vessel or liquor, was ever within 22 miles of our shores until dragged in by the Coast Guard.

Consequently the position is and must be that quoad Britain and Norway these treaties have extended the territorial application of all and every law of the United States, useful for preventing liquor smuggling, to a point measured by the speed of any boat that can induce a vessel of either the contracting nations to sell a drink.

This is claiming a good deal; yet government on this record must go that far, for Sagatind sold nothing, and, though Diamantina did sell to "Sea Sled," the men thereon indignantly repudiated the idea that they procured the liquor for the purpose of introduction into the commerce of the United States. But if at the time and place the laws of this country applied, and both vessels were within the collection district of New York, plenty of offenses can be found, and some of them are pleaded.

We agree with The Frances Louise (D. C.) 1 F.(2d) 1004, that these treaties exclusively determine the status of vessels of appropriate nationality lying off the shore of the United States; but nowhere in the treaties can any words be found indicating an intent on the part of the contracting parties to change or extend the limits of the territory of the United States. In fact, the contrary is plainly indicated by article 1 of each treaty.

Whatever rights government derived from the treaties must be discovered in article 2 of each document. Of this article, section 1 relates wholly to search, and section 3 to the distance from shore at which all rights may and must be exercised. There remains section 2, which declares:

"If there is reasonable cause for belief that the vessel has committed or is committing or attempting to commit an offense against the laws of the United States * * * prohibiting the importation of alcoholic beverages, the vessel may be seized and taken into a port * * * for adjudication in accordance with such laws."

Thus the question is: Were Sagatind and Diamantina within the United States, or the jurisdiction of its laws, on October 11, 1924?

We are not called on to consider the international effect of our hovering statutes, or the power of Congress to prescribe what is commonly called the 12-mile limit. Nor are we required to pass on congressional authority specifically to extend our customs, internal revenue, and prohibition laws to a distance at sea measured by the speed of a hypothetical boat, for nothing of the kind has been attempted. But we do hold that no such extension of territorial jurisdiction is created by the treaty; in that sense the treaty is not self-executing, and on this point we cannot agree with The Pictonian (D. C.) 3 F.(2d) 145, nor with United States v. Henning (D. C.) 7 F.(2d) 488; but we do agree with The Over The Top (D. C.) 5 F.(2d) 838, and The Panama (D. C.) 6 F.(2d) 326, and the court below. The probable cause clause in the final decrees was inadvertently approved when decrees signed, as is admitted.

Let the decrees severally be modified, so that the clause in question shall read as follows: "It is further ordered that there was probable cause for the seizure of the [res] by the persons who made the seizure."

As modified, decrees affirmed.