Cunard Company v. Mellon/Dissent Sutherland
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 Sup. Ct. 109, 37 L. Ed. 1071; Wildenhus's Case, 120 U.S. 1, 12, 7 Sup. Ct. 385, 30 L. Ed. 565; and, as said by Chief Justice Marshall, in Murray v. Schooner Charming Betsy, 2 Cranch, 64, 118 (2 L. Ed. 208):

'* * * An act of Congress ought never to be construed to      violate the law of nations, if any other possible      construction remains. * * *'

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 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. 

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