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Great Britain
Arbitration of outstanding
pecuniary Claims between Great
Britain and the
United States of America
1913
Ex Libris
C. K. OGDEN
a '- -*- ^ ^fc.-
THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
ARBITRATION OF OUTSTANDING PECUNIARY
CLAIMS BETWEEN GREAT BRITAIN AND
THE UNITED STATES OF AMERICA
THE FREDERICK GERRING, JR
ANbVVER OF HIS MAJESTY'S GOVERNMENT
OTTAWA
GOVERNMENT PRINTING BUREALI
1913
ARBITRATION OF OUTSTANDING PECUNIARY
CLAIMS BETWEEN GREAT BRITAIN AND
THE UNITED STATES OF AMERICA
THE FREDERICK GERRING, JR
ANSWER OF HIS MAJESTY'S GOVERNMENT
OTTAWA
GOVERNMENT PRINTING BUREAU
19 13
4107i»— 1
ARBITRATION OF OUTSTANDING PECUNIARY CLAIMS
BETWEEN
GREAT BRITAIN AND THE UNITED STATES
OF AMERICA.
In the Matter of the United States Claim respecting the
Frederick Gerring, Jr.
ANSWER OF HIS MAJESTY'S GOVERNMENT.
1. By the first article of the treaty concluded at London 20th
October, 1818, between Great Britain and the United States it is
stipulated as follows: —
Article I.
" Whereas differences have arisen respecting the liberty claimed
" by the United States for the inhabitants thereof, to take, dr}^,
" and cure fish on certain coasts, bays, harbours and creeks of
" His Britannic Majesty's dominions in America, it is agreed
" between the high contracting parties, that the inhabitants of the
" said United States shall have forever, in common with the sub-
" jeets of His Britannic Majesty, the liberty to take fish of every
" kind on that part of the southern coast of Newfoundland which
" extends from Cape Ray to the Rameau Islands, on the western
" and northern coast of Newfoundland, from the said Cape Ray
" to the Quirpon Islands on the shores of the Magdalen Islands,
" and also on the coasts, bays, harbours and creeks from ^fount
" Joly on the southern coast of Labrador, to and through the
" Straits of Belleisle and thence northwardly indefinitely along the
" coast, without prejudice, however, to any of the exclusive rights
" of the Hudson Bay Company; And that the American fishermen
" shall also have liberty forever, to dry and cure fish in any of the
" unsettled bays, harbours and creeks of the southern part of the
" coast of Newfoundland hereabove described, and of the coast of
" Labrador; but so soon as the same, or any portion thereof, shall
" be settled, it shall not be lawful for the said fishermen to dry or
41079—2
r\»-*o^no<J
THE FREDERICK GERRING, JR.
cure fish at such portion so settled, without previous agreement
for such purpose with the inhabitants, proprietors, or possessors
of the ground. And the United States hereby renounce forever,
any liberty heretofore enjoyed or claimed by the inhabitants
thereof, to take, dry, or cure fish on or within three marine
miles of any of the coasts, bays, creeks or harbours of His Brit-
annic Majesty's dominions in America not included within the
above mentioned limits; Provided, however, that the American
fishermen shall be admitted to enter such bays or harbours for
the purpose of shelter and of repairing damages therein, of
purchasing wood, and of obtaining water, and for no other pur-
pose whatever. But they shall be under such restrictions as
may be necessary to prevent their taking, drying or curing fish
therein, or in any other m.anner w^hatever abusing the privileges
hereby reserved to them. "
2. By the Imperial Statute 59 George III, Chapter 38, which
received the Royal Assent on 14th June, 1819, it is provided as
follows : —
" 'WHEREAS a Convention between His Majesty and the
'United States of America was made and signed at London, on
'the Twentieth Day of October One thousand eight hundred and
'eighteen; and by the First Article of the said Convention, reciting
'that Differences had arisen respecting the Liberty claimed by
'the United States for the Inhabitants thereof to take, dry and
'cure Fish in certain Coasts, Bays, Harbours and Creeks of His
'Britannic Majesty's Dominions in America, it is a^reec^, that the
'Inhabitants of the said United States shall have for ever in com-
'mon wdth the Subjects of His Britannic Majesty, the Liberty
'to take Fish of every Kind on that Part of the Southern Coast of
'Newfoundland which extends from Cape Ray to the Rameau
'Islands, on the Western and Northern Coasts of Newfoundland,
'from the said Cape Ray to the Quirpon Islands, on the Shores of
'the Magdalen Islands, and also on the Coasts, Bays, Harbours
'and Creeks from Mount Joly on the Southern Coasts of Labrador,
'to and through the Straits of Belleisle, and thence northwardly
'indefinitely along the Coast, without Prejudice however to any
'of the exclusive Rights of the Hudson's Bay Company; and it was
'also by the said Article of the said Convention agreed, that the
'American Fishermen should have liberty for ever to dry and cure
'Fish in any of the unsettled Bays, Harbours and Creeks of the
'Southern Part of the Coast of Newfoundland above described,
ANSWER. 6
'and of the Coast of Labrador, but that so soon as the same, or
'any Portion thereof, should be settled, it should not be lawful
'for the said Fishermen to drj^ or cure Fish at such Portion so
'settled, without previous Agreement for such Purpose with the
"Inhabitants, Proprietors or Possessors of the Ground: And
"Whereas it is expedient that His Majesty should be enabled to
'carry into execution so much of the said Convention as is above
recited, and to make Regulations for that Purpose;' Be it
therefore enacted by the King's most Excellent Majesty, by and
with the Advice and Consent of the Lords Spiritual and Tem-
poral, and Commons, in this present Parliament assembled, and
by the Authority of the same. That from and after the passing of
this Act, it shall and may be lawful for His Majesty, by and wdth
the Advice of His Majesty's Privy Council, by any Order or
Orders in Council, to be from time to time made for that Purpose,
to make such Regulations, and to give such Directions, Orders
and Instructions to the Governor of Newfoundland, or to any
Officer or Officers on that Station, or to anj'- other Person or
Persons whomsoever, as shall or may be from time to tim.e deemed
proper and necessary for the carrying into Effect the Purposes of
the said Convention, with relation to the taking, drying and
curing of Fish by Inhabitants of the United States of America,
in common with British Subjects, within the Limits set forth in the
said Article of the said Convention, and hereinbefore recited; any
Act or Acts of Parliament, or any Law, Cuslom or Usage to the
contrary in anywise notwithstanding.
" II. And be it further enacted, That from and after the passing
of this Act it shall not be lawful for any Person or Persons, not
being a natural born Subject of His Majesty, in any Foreign
Ship, Vessel or Boat, nor for,any Person in any Ship, Vessel or
Boat, other than such as shall he navigated according to the Laws
of the United Kingdom of Great Britain and Ireland, to fish for
or to take, dry or cure any Fish of any Kind whatever, within
Three Marine Miles of any Coasts, Bays, Creeks or Harbours
whatever, in any Part of His Majesty's Dominions in America,
not included within the Limits specified and described in the First
Article of the Said Convention, and hereinbefore recited; and
that if any such Foreign Ship, Vessel or Boat, or any Persons on
board thereof, shall be found fishing, or to have been fishing, or
preparing to fish within such Distance of such ('oasts, Bays,
Creeks or Harbours, within such Parts of His Majesty's Domin-
ions in America or of the said Limits as aforesaid, all such Ships,
41079—2^
TEH FREDERICK GERRING, JR.
Vessels and Boats, together with their Cargoes, and all Guns,
Ammunition, Tackle, Apparel, Furniture and Stores, shall he
forfeited, and shall and may be seized, taken, sued for, prose-
cuted, recovered and condemned by such and the like Ways,
Means and Methods, and in the same Courts, as Ships, Vessels
or Boats may be forfeited, seized, prosecuted and condemned for
any Offence against any Laws relating to the Revenue of Customs,
or the Laws of Trade and Navigation, under any Act or Acts of
the Parliament of Great Britain, or of the United Kingdom of
Great Britain and Ireland; provided that nothing in this Act
contained shall apply, or be construed to apply to the Ships or
Subjects of any Prince, Power or State in Amity with His Ma-
jesty, who are entitled by Treaty with His Majesty to any
Privilege of taking, drying or curing Fish on the Coasts, Bays
Creeks or Harbours, or within the Limits in this Act described.
" in. Provided always, and be it enacted, That it shall and may
be lawful for any Fisherman of the said United States to enter
into any such Bays or Harbours of His Britannic Majesty's
Dominions in America as are last mentioned, for the purpose of
Shelter and repairing Damages therein, and of purchasing Wood
and of obtaining Water, and for no other Purpose whatever; sub-
ject nevertheless to such Restrictions as may be necessary to pre-
vent such Fishermen of the said United States from taking, dry-
ing or curing Fish in the said Bays or Harbours, or in any other
manner whatever abusing the said privileges by the said Treaty
and this Act reserved to them, and as shall for that purpose be im-
posed by any Order or Orders to be from time to time made by
His Majesty in Council under the Authority of this Act, and by
any Regulations which shall be issued by the Governor or Person
exercising the Office of Governor in any such Parts of His Ma-
jesty's Dominions in America, under or in pursuance of any
such Order in Council as aforesaid.
** IV. And be it further enacted, That if any Person or Persons,
upon requisition made by the Governor of Newfoundland, or the
Person exercising the Office of Governor, or by any Governar or
Person exercising the Office of Governor, in any other Parts of
His Majesty's Dominions in America as aforesaid, or by any
Officer or Officers acting under such Governor or Person exer-
cising the Office of Governor, in the Execution of any Orders or
Instructions from His Majesty in Council, shall refuse to depart
from such Bays or Harbours; or if any Person or Persons shall
refuse or neglect to conform to any Regulations or Directions
ANSWER. 5
" which shall be made or given for the Execution of any of the
" Purposes of this Act; every such Person so refusing or otherwise
" offending against this Act shall forfeit the Sum. of Two Hundred
" Pounds, to be recovered in the Superior Court of Judicature of
" the Island of Newfoundland, or in the Superior Court of Judi-
" cature of the Colony or Settlement within or near to which such
" Offence shall be committed, or by Bill, Plaint or Information
" in any of His IMajesty's Courts of Record at Westminster; One
" Moiety of such Penalty to belong to His Majesty, His Heirs and
" Successors, and the other Moiety to such Person or Persons as
" shall sue or prosecute for the same: Provided always, that any
" such Suit or Prosecution, if the same be committed in Xewfound-
" land, or in any other Colony or Settlement, shall be com,menced
" within Three Calendar Months; and, if commenced in any of His
" Majesty's Courts at Westminster, within Twelve Calendar Months
" from the time of the Commission of such Offence. "
3. Bj^ Section 91 of the Act of the Imperial Parliament con-
stituting the Dominion and Provincial Governments of Canada,
known as "The British North America Act 1867," it is provided,
among other things, that the legislative authority of the Parliament
of Canada shall extend to all matters coming within " Navigation
and Shipping " and Sea-coast and Inland Fisheries.
4. By Act of the Parliament of Canada, Revised Statutes 1886,
Chapter 94, sections 1, 2, 3 and 7, it is enacted as follows: —
"1. The Governor in Council may, from time to time, grant to
" any foreign ship, vessel or boat, or to any ship, vessel or boat not
" navigated according to the laws of the United Kingdom or of
" Canada, at such rate and for such term not exceeding one year, as
" he deems expedient, a license to fish for, take, dry or cure an}^
" fish of any kind whatsoever, in British waters, within three
" marine miles of any of the coasts, bays, creeks or harbours of
" Canada, not included within the limits specified and described
" in the first article of the convention between His late Majestj^
" King George the Third and the United States of America, made
" and signed at London, on the twentieth day of October, one
" thousand eight himdred and eighteen.
" 2. Any commissioned officer of Her Majesty's navy, serving
" on board of any vessel of Her Majesty's navy cruising and being
" in the waters of Canada for the purpose of affording protection
" to Her Majesty's subjects engaged in the fisheries, or any com-
" missioned officer of Her Majesty's navy, fishery officer or stipen-
" diary magistrate, on board of any vessel belonging to or in tlie
6 TEH FREDERICK GERRING, JR.
" service of the Government of Canada and employed in the
" service of protecting the fisheries, or any officer of the customs of
" Canada, sherifT, justice of the peace or other person duly com-
" missioned for that purpose, may go on board of any ship, vessel
" or boat within any harbour in Canada or hovering in British
" waters within three marine miles of any of the coasts, bays,
" creeks or harbours in Canada, and stay on board so long as she
" remains within such harbour or distance.
"3. Any one of the officers or persons hereinbefore mentioned
" may bring any ship, vessel or boat, being within any harbour in
" Canada, or hovering in British waters, within three marine miles
" of any of the coasts, bays, creeks or harbours in Canada, into port,
" and search her cargo, and may also examine the master upon
" oath touching the cargo and voyage; and if the master or person
" in command does not truly answer the questions put to him
" in such examination, he shall incur a penalty of four hundred
" dollars; and if such ship, vessel or boat is foreign, or not navigated
" according to the laws of the United Kingdom or of Canada,
" and (a) has been found fishing or preparing to fish, or to have
" been fishing in British waters within three marine miles of any
" of the coasts, bays, creeks or harbours of Canada, not included
" within the above mentioned limits, without a license or after
" the expiration of the term named in the last license granted to
" such ship, vessel or boat, under the first section of this Act, or (6)
" has entered such waters for any purpose not permitted by treaty
" or convention, or by any law of the United Kingdom or of Canada
" for the time being in force, such ship, vessel or boat and the
" tackle, rigging, apparel, furniture, stores and cargo thereof shall
" be forfeited.
"7. Fvery penalty or forfeiture under this Act may be re-
" covered or enforced in any Court of Vice-Admiralty within
Canada."
5. By the effect of the Colonial Courts of Admiralty Act 1890
(53-54 Vic, cap. 27, Imperial) and the Admiralty Act 1891 (54-55
Vic, cap. 29, Canadian) the jurisdiction of the courts of Vice-
Admiralty within Canada was transferred to the Exchequer Court
of Canada, which, from the date of the coming into force of the
latter Act, became a colonial court of admiralty with jurisdiction
throughout Canada.
6. On Monday afternoon, 25th May, 1896, Captain Charles
Knowlton, a Fishery Officer of the Fishery Protection Service of
Canada, in command of the Dominion Government cruiser Aher-
ANSA\nER. 7
deen, found the United States fisliing schooner Frederick Gerring Jr.
in respect of which the claim herein is made, fishing, or to have
been fishing or preparing to fish in British waters, upon the southern
coast of Nova Scotia within less than two marine miles of the coast.
The said schooner had, moreover, entered the territorial waters
in which she was found for a purpose not permitted by treaty or
convention, or by anj^ law of the United Kingdom or of Canada
then in force.
7. The said schooner at the time had a large purse seine set
and attached to the schooner in which were a great number of
live mackerel recently enclosed, and the crew or men belonging
to the schooner were endeavouring to take these mackerel from
the water into the schooner by means of dip-nets or ladles, which
they were using from the schooner's deck.
8. The said schooner was occupying or making use of British
territorial waters for fishing purposes contrary to treaty rights and
the principles of international law.
9. Captain Knowlton, accordingly, pursuant to his instructions
and in the due execution of his powers, seized the said schooner with
her cargo and equipment and took her to Halifax, where Her
Majesty caused an action to be instituted in the Exchequer Court
of Canada for the Nova Scotia Admiralty District, a court of
competent jurisdiction, for the forfeiture thereof, by writ issued
out of the said court on 29th May, 1896 (Memorial, pages 17-19),
and Edward Morris, the owner of the said schooner thereupon
appeared in the said action, claiming the property sought to be
forfeited, whereupon such further proceedings were had according
to the practice of the stvid court that on 28th August, 1896, the
said vessel with her cargo and equipment was for the causes
aforesaid condemned as forfeited to Her Majesty (Memorial,
pages 98-100).
10. The owner of the said schooner appealed from the said
judgment to the Supreme Court of Canada, the final Court of
Appeal within Canada, and according to the procedure of the said
court filed in the said court his factum of appeal stating the alleged
grounds of error in llw judgment of the Exchequer Court. The
Supreme Court, after hearing, dismissed the ai)peal and affirmed
the judgment of the Exchequer Court.
11. No appeal was asserted from the judgment of tlie Supreme
Court, which accorflingly was and is final and conchisive.
12. Assuming the jurisdiction of the I^xchecjuer Coiirt to entc^--
tain the action and pronounce the judgment herein plea(h'(l
8 THE FREDERICK GERRING, JR
the owner of the Gerring is finally barred and estopped, both
under the laws of Canada and of the United States, from
questioning the law or facts as determined or found by the said
judgment; and it is submitted that the United States, claiming on
behalf of the owner, are equally barred and estopped.
13. The fishing, or acts or operations connected with fishing, for
which the Gerring was seized and condemned took place within
Canadian territorial waters and were illegal and anti-conventional.
The appropriate penalty was duly and conclusively adjudged by a
Canadian Court of competent jurisdiction, the proceedings of
which are, in the circumstances aforesaid, not subject to review
by this honourable tribunal.
14. The judgment of the Supreme Court of Canada was subject
to appeal to Her Majesty in Council, and it is submitted that the
claimant should have exhausted his remedies existing under the
laws of Canada, and, having failed to do so, that he cannot reason-
ably invoke through his Government the jurisdiction of this
tribunal to inquire into and determine this claim.
15. It is denied that the purseseine of the T^rgffmcfc Gerring Jr.
was set or that the fish enclosed therein, and with which the vessel
was engaged at the time of the seizure, were taken, caught or enclos-
ed in the net outside the limit of British territorial waters, and it is
averred on the contrary that the seine was set and that the oper-
ation of netting the fish took place wholly within three marine
miles of the coast.
16. According to the case propounded by the United States
the only evidence that the fishing operations for which the Gerring
was condemned were begun beyond the limits of Canadian terri-
torial waters is the statement of Captain McKenzie of the
Vigilant, who also testifies that the Gerring was inside these
limits when seized by the Aberdeen. There is apparently an in-
terval of two hours or more between the time when the Vigilant
passed the Gerring and the time when the Aberdeen came alongside
of her, during which, if the position of the Gerring were as claimed
by the United States, she must have moved about two miles nearer
the coast. No sufficient reason is alleged to doubt the accuracy
of the bearings and locality of the Gerring as determined by Captain
Knowlton of the Aberdeen at the time of the seizure, and if, as
thought by some of the witnesses whose testimony is printed, the
Gerring could not in the existing conditions have drifted to that
position from the place where the Gerring claims to have
set her net, either she must during the interval have
ANSWER. 9
moved voluntarily or Captain McKenzie must have been mis-
taken in the supposition that he was upon the line when he passed
the Gerring, then preparing to fish. It will be perceived from the
chart that the coast of Nova Scotia at the point in question is
very broken and irregular and in large part composed of islands
and of more or less isolated reefs and ledges. It is to be observed
moreover that the master of the Gerring, although aware that he,
was in the immediate vicinity of the boundary line of territorial
waters, took no bearings or other steps to ascertain or verify his
position, and, as he himself truly said, "If he was put on oath he
"could not swear if she was inside or outside of the limits; that he
"had an old chart there that he could not depend on."' (Memorial
page 65).
17. By Canadian statute 54-55 Vic, cap. 95 (1891), sec. 1, it is
provided that "The use of purse seines for the catching of fish in
"any of the waters of Canada is prohibited, under penalty for each
"offence of not less than fiftj^ dollars, and not exceeding five
"hundred dollars, together with the confiscation of the vessel,
"boat and apparatus used in connection with such catching." The
action of the master and crew of the Gerring in making use of a
purse seine for the purpose of catching fish was therefore
prohibited by the laws of Canada under penalty of forfeiture.
18. Some confusion is introduced by a question raised by the
memorial of the United States as to whether the place of seizure was
within the three mile limit according to the theory of measuring
from a line drawn between two headlands. Consideration of this point
does not however enter into the present case, because the Gerring
was seized within two miles of the Gull Islands, an undoubted part
of the coast of Nova Scotia, which, as already indicated, is
verj' broken and irregular in the locality of the seizure. These
islands are of considerable size, high above sea level, fairly covered
with vegetation, and have been inhabited and used in fishing
operations.
19. It is denied that the facts pleaded and the evidence submitted
by the memorial afford any support for the claim herein either
in accordance with treaty rights or with the principles of interna-
tional law and of equity.
20. The damages claimed are inconsequential unreasor<»b'p, and
excessive.
41079—3
APPENDIX.
ANNEX 1.
Certified copy filed.
IN THE EXCHEQUER COURT OF CANADA.
NOVA SCOTIA ADMIRALTY DISTRICT No. 73.
OUR SOVEREIGN LADY THE QUEEN
AGAINST
THE SHIP FREDERICK GERRING Jr.,
Her Cargo, Tackle, Rigging, Apparel, Furniture and Stores.
Take notice that I appear for Edward Morris of Gloucester,
in the State of Massachussets, United States of America, the
owner of the above named Schooner, her cargo, tackle, rigging,
apparel, furniture and stores.
Dated the 3rd day of June, A.D. 1896.
Sgd. WILLIAM F. MacCOY,
Solicitor for Edward Morris.
My place of business is 37 Sackville Street, Halifax, N.S.
My address for service is said 37 Sackville Street.
APPENDIX. 11
ANNEX 2.
Certified copy filed.
IN THE EXCHEQUER COURT OF CANADA.
NOVA SCOTIA ADMIRALTY DISTRICT, No. 73.
OUR SOVEREIGN LADY THE QUEEN
AGAINST
THE SHIP FREDERICK GERRING Jr.,
Her Cargo. Tackle, Rigging, Apparel, Furniture and Stores.
Claim in behalf of Edward Morris of Gloucester in the United
States of America, the owner of the ship or vessel Frederick Gerring
Jr., her cargo, tackle, rigging, apparel, furniture and stores.
1. I, John A. MacKasey of the City and County of Halifax
Commission Merchant, make oath and say as follows:
2. I say the above named vessel with cargo, tackle, rigging,
furniture and stores, as I am informed and verily believe, has
recently been seized by the Captain of the Steamer Aberdeen, a
vessel belonging to the Dominion Government and employed
in the service of protecting the fisheries.
3. That I am the agent of the owner of said schooner, her cargo
tackle, rigging, apparel, furniture and stores, in this behalf and as
his agent and for and in behalf of the said Edward Morris, the
owner of the vessel and goods so seized, claim the same as and
being his property and improperly seized by the Captain of
said Aberdeen, and that I am informed and to the best of my
knowledge and belief the said vessel did not in any way violate
any law or regulation of the Dominion of Canada or of any con-
vention made by the British Government, and that of the United
States of America or any law, regulation or convention made in
relation to the fisheries in British waters.
4. That the said vessel is an American vessel schooner-rigged
and built in the year 1870 nnd belongs to Gloucester in the United
States of America.
o. That the name of the said schooner is the Frederick Gerring Jr.,
that her owner is Edward Morris of Gloucester aforesaid, and that
he resides therein, that his occupation is a Master Mariner and
41079— 3 i
12 THE FREDERICK GERRING, JR.
that he has been and is now engaged at Cxloucester aforesaid m
the prosecution of the deep sea fishing.
6. I furtlier say that the reasons stated in the endorsement of
claim in the Writ of Summons herein have been read over to
me and in answer thereto I am informed and verily believe that the
same is untrue, and further that said vessel did not.fish or catch
any fish within three marine miles of any coast, bay, creek or
harbour of Canada as I am informed and verily believe.
7. That I the said John A. MacKasey, an agent aforesaid,
claim the liberation and return of said schooner and the other
goods seized and that the Seizing Officer may be condemned in
damages and costs for said wrongful seizure. On the 5th day of
June, 1896, the said John A. MacKasey was duly sworn to the
truth of this affidavit at Halifax, County of Halifax, before me
JOHN A. MacKASEY.
L. W. DesBARRES,
Registrar.
Exchequer Court,
Nova Scotia Admiralty District.
ENDORSEMENT.
EXCHEQUER COURT.
QUEEN & GERRING— CLAIM.
Filed 5th June, 1896.
ANNEX 3.
Certified copy filed.
Know all men by these presents, that I, John A. MacKasey,
of the City and County of Halifax and Province of Nova Scotia,
Commission Merchant, am held and firmly bound unto HerMajesty
the Queen in the sum of two hundred and forty dollars for which
sum well and truly to be paid to Her Majesty the Queen, her
heirs or successors or her certain attorney, I bind myself, my heirs,
executors and administrators firmly by these presents.
APPENDIX. 13
Sealed with my seal and dated at Halifax in the Province of
Nova Scotia this 3rd day of June, A.D. 1896.
Whereas the schooner Frederick Gerring Jr., belonging to
Gloucester in the United States of America, and owned by one
Edward ]\Iorris, of that place, master mariner, has recently been
seized by the Captain of the steamer Aberdeen, employed in the
service of Canada in protecting its fisheries, together with her
cargo, tackle, apparel, furniture and stores for an alleged violation
of the fishery laws of Canada, and has by warrant been arrested
and placed in the Admiralty Court for the Province^of Nova Scotia
for adjudication and condemnation.
And Whereas it would appear that the owner of said schooner
should file a claim to the property so seized and file a bond in the
penal sum aforesaid in order to enable him to file such claim.
And Whereas the agent of the owner of said schooner on his
behalf intends to file a claim as required by law and is now desirous
of giving security in said penal sum to answer and pay costs
occasioned by said claims.
Now know ye, that if the above bounded John A. McKasey, his
heirs, executors or administrators shall and will, well and truly
as such agent, file a claim as required by law and pay all such
costs occasioned by such claim, then this obligation shall be void,
otherwise the same shall be and remain in full force and effect.
Signed, sealed and delivered! j^^^ ^ MacKasey (l.s.).
in presence of j
D. K. Grant.
Endorsement
Exchequer Court
Queen \
v.i. } Bond.
Cierring. j
Filed 5th June, 1800.
Apjirovod- —
W. v.. \. IhTcmr,.
14 THE FREDERICK GERRING, JR. ^
ANNEX 4.
Filed in the Registry of the Supreme Court.
IN THE SUPREME COURT OF CANADA.
ON APPEAL
FROM THE
LOCAL JUDGE OF THE NOVA SCOTIA ADMIRALTY
DISTRICT.
Between
The Owner of the Ship or Vessel Frederick Gerring Jr.,
her tackle, rigging, apparel, furniture and stores,
Defendants {Appellants),
and
Her Majesty the Queen,
Plaintiff (Respondent) .
APPELLANTS' FACTUM.
This is an action for the forfeiture of the above vessel and her
cargo, tackle, apparel, furniture and stores for violation of a certain
convention between his late Majesty King George the Third, King
of the United Kingdom of Great Britain and Ireland, of the one
part, and the United States of America of the other part, made on
the 20th day of October, 1818, and for violation of the Act of
Parliament of Great Britain and Ireland, made and passed in the
59th year George 3rd, being chap. 38 of the Acts of the last-named
Parliament, made and passed in the said year.
Also for violation of chap. 94 of the Revised Statutes of Canada,
made and passed by the Dominion of Canada.
Writ issued 29th May, 1896.
The above-named vessel and her cargo were arrested under
warrant and still remain in custody.
APPENDIX. 15
The action of forfeiture was tried before the Honourable James
McDonald, Local Judge of the Nova Scotia Admiralty district, on
the 29th day of June last, and subsequent days, and from his
judgment condemning the Frederick Gerring, Jr. and her cargo, etc.
as forfeited, the present appeal is brought.
The alleged offence for which said ship or vessel and her cargo
have been condemned is that being an American fishing vessel
her master and crew on board of her fished for and took fish within
the three marine miles of the coast of Nova Scotia, and the learned
judge below found her guilty of that offence.
The substance of the convention of 1818, already referred to, is
as follows : —
"A certain convention between His late Majesty George the
"Third, King of the United Kingdom of Great Britain and Ireland,
"and the United States of America was made and signed at London
"on the 20th day of October, 1818, and by the first article thereof
"after reciting that differences had arisen respecting the liberty
"claimed by the said United States for the inhabitants thereof
"to take, dry and cure fish on certain coasts, bays, harbours and
"creeks of His Britannic Majesty's Dominions in America, it was
"agreed between the High contracting parties that the inhabitants
"of the said United States should have forever in common with
"the subjects of His Britannic Majesty the liberty to take fish
"of every kind on that part of the southern coast of New-
"foundland which extends from Cape Ray to the Rameau Islands,
"on the western and northern coast of Newfoundland from the
"said Cape Ray to the Quirpon Islands, on the shores of the
"Magdalen Islands, and also on the coasts, bays, harbours, and
"creeks from Mount Joly, on the southern coast of Labrador, to and
"through the straits of Belle Isle and thence northwardly inde-
" finitely along the coast, without prejudice, however, to any of the
"exclusive rights of the Hudson's Bay Company; and that the
"American Fishermen should also have lilicrty forever to dry and
"cure fish in any of the unsettled bays, harbours and creeks of the
"southern part of the coast of Newfoundland above described
"and llic coast of Labrador, but that so soon as the same or any
"portion thereof should be settled, it should not l)e lawful for the
"said fishermen to dry and cure fish at such ixjrtion so settled,
"without previous agreement for such j^urpose with the inhabitants,
"proprietors and possessors of the ground. And the said United
"States therel)y renounced forever any lilx'rty thcrcloforc enjoyed
"or claimed by the inhal)itants thereof to take, (li\y or ruic fish on
16 THE FREDERICK GERRING, JR.
"or witliin three marine miles of any of the coasts, bays, creeks or
"harbours of His said Majesty's Dominions in America not inclucl-
"ed within the above mentioned limits ;provided, however, that the
"American Fishermen should be admitted to enter such bays or
"harbours for the purpose of shelter and of repairing damages
"therein or purchasing wood and of obtaining water, and for no
"other purpose whatever. But that they should be under such
"restrictions as might be necessary to prevent their taking, drying
"or curing fish therein, or in any other manner whatever abusing
"the privileges thereby reserved to them."
The Imperial Statute 59, George III, c. 38. (1819) was passed to
authorize the enforcement of this treaty. Sections 2 and 3 of
that Act are as follows:
"2. And be it further enacted. That from and after the passing
"of this Act it shall not be lawful for any person or persons, not
"being a natural born subject of His Majesty, in any foreign ship,
''vessel or boat, nor for Siny person in any ship, vessel or boat, other
"than such as shall be navigated according to the laws of the
"United Kingdom of Great Britain and Ireland, to fish for, or to
"take, dry or cure any fish of any kind whatever, within three
"marine miles of any coasts, bays, creeks or harbours whatever,
"in any part of His Majesty's Dominions in America, not included
"within the limits specified and described in the First Article of the
"said Convention, and hereinbefore recited; and that if any such
"foreign ship, vessel or boat, or any persons on board thereof, shall
"be found fishing, or to have been fishing, or preparing to fish
"within such distance of such coasts, bays, creeks or harbours,
"within such parts of His Majesty's Dominions in America out
"of the said limits as aforesaid, all such ships, vessels and boats,
"together with their cargoes, and all guns, ammunition, tackle,
"apparel, furniture and stores, shall be forfeited, and shall and may
"be seized, taken, sued for, prosecuted, recovered and condemned
"by such and the like ways, means and methods, and in the
"same courts, as ships, vessels or boats may be forfeited, seized,
"prosecuted and condemned for any offence against any laws re-
"lating to the revenue of customs, or the laws of trade and navi-
"gation, under any Act or Acts of the ParUament of Great Britain,
"or of the United Kingdom of Great Britain and Ireland; Pro-
"vided, that nothing in this Act contained shall apply, or be
"construed to apply to the ships or subjects of any Prince, Power,
"or State in amity with His Majesty, who are entitled by treaty
6 Majesty to any privilege of taking, drying, or curing
APPENDIX. 17
"fish on the coasts, bays, creeks or harbours, or within the
"limits in this Act described."
" 3. Provided alwaj'S, and be it enacted, That it shall and maj^ be
" lawful for any fisherman of the said United States to enter into
" any such bays or harbors of His Britannic Majesty's Dominions
" in America, as are last mentioned, for the purpose of shelter and
" repairing damages therein, and of purchasing wood, and of ob-
" taining water, and for no other purpose whatever; subject,
" nevertheless, to such restrictions as may be necessary to prevent
"such fishermen of the said United States from taking, drying or
" curing fish in the said bays or harbors, or in any other manner
" whatever abusing the said privileges by the said treaty and this
" Act reserved to them., and as shall for that purpose be imposed
" by any order or orders to be from time to time made by His
" Majesty in Council, under the authority of this Act, and by any
" regulations which shall be issued by the governor, or person
" exercising the office of governor, in any such parts of His Majesty's
" Dominions in America, under or in pursuance of any such Order-
" in-council as aforesaid."
The Canadian legislation on the same subject is contained in
chapter 94 of the Revised Statutes of Canada, entitled; "An Act
respecting fishing by foreign vessels." Sections 2 and 3 of that
Act are as follows:
" 2. Any commissioned officer of Her Majesty's navy, serving
" on board of any vessel of Her Majesty's navy, cruising and
" being in the waters of Canada for the purpose of affording pro-
" tection to Her Majesty's subjects engaged in the fisheries, or
" any commissioned officer of Her Majesty's navy, fishery officer
" or stipendiary magistrate, on board of any vessel belonging to or
" in the service of the Government of Canada, and employed
" in the service of protecting the fisheries, or any officer of the
" customs of Canada, sheriff, justice of the peace, or other person
" duly commissioned for that purpose, may go on board of any
" ship, vessel or boat within any harbor in Canada, or hovering in
" British waters within three inarine miles of any of the coasts,
" bays, creeks, or harbors in Canada, and stay on board so long as
" she remains within such harbor or distance. "
"3. Any one of the officers or persons hereinbefore mentioned
"may bring any ship, vessel or boat, being within any harbor in
" Canada, or hovering in British waters, withinthree nuirine miles of
" any of the coasts, bays, creeks or harbors in Canada, into port, and
" search her cargo, and may also examine the master upon oath,
41079—4
i8 THE FREDERICK GERRING, JR. ^
"touching the cargo and voyage; and if the master or person in
' ' command does not truly answer the questions put to him in such
"examination, he shall incur a penalty of four hundred dollars;
" and if such ship, vessel or boat is foreign, or not navigated
" according to the laws of the United Kingdom or of Canada,
" and (a) has been found fishing, or preparing to fish, or to have
" been fishing in British waters within three m.arine miles of any
" of the coasts, bays, creeks or harbors of Canada, not included
" within the above mentioned limits, without a license, or after
" the expiration of the term nam.ed in the last license granted to
" such ship, vessel or boat, under the first section of this Act,
" or (6) has entered such waters for any purpose not permitted by
" treaty or convention, or by any law of the United Kingdom or
" of Canada for the time being in force, such ship, vessel or boat,
" and the tackle, rigging, apparel, furniture, stores and cargo
" thereof shall be forfeited. "
The learned judge below found that the Frederick G erring, Jr.,
had been fishing within the territorial waters of Canada, near
Liscomb Light off the south shore of Nova Scotia, viz., that having
set her sein^e, caught the fish, and secured them by pursing up the
seine and subsequently making it fast to the schr. Gerring and all
done over half a mile outside of said waters, but while bailing th«
fish out of the seine she drifted inside of the limit through the action
of the current, and then continued bailing inside of the limit, he
held was fishing and condemned the vessel accordingly.
The evidence of the master and crew of the Gerring was not
taken in court before the learned Judge, but was taken before the
Registrar.
The plaintiff admitted that at the time the Gerring set her seine,
caught the fish, pursed the seine up and fastened it to the vessel,
she was a good half mile outside of the limit.
Captain Hector McKenzie of the Dominion fishery cutter
Vigilant, in his testimony says that he saw the Gerring between
four and half past in the afternoon near Liscomb.
He says when he first noticed her, the seine was set and pursed
up and the fish were then caught and that his vessel (the Vigilant),
was then inside of two hundred yards from the seine, that he
took the bearings and found that the schooner, which at the time
was fastened to her seine (which was then pursed up), was a good
half mile outside of the three mile limit; that he took the bearings
at the time and that Liscomb Light bore N.E. by N. ^ N., and
Little White Island— the middle part— N.W.
APPENDIX. 19
It was about one or one and one half hours after this that the
Dominion cruiser Aberdeen seized her because it was alleged she
was then inside of the three mile limit. The plaintiff admits that
if she was inside of the three mile limit the only thing she did was
to continue bailing the fish from, the seine into the schooner. They
also admit that from the time the seine was set until pursed up
was only about ten minutes, and Capt. IVIcKenzie says the reason
he did not seize her was because she was outside the limit. The
plaintiff's witnesses all admit that there was some \nnd from the
eastward that afternoon, sufficient to enable the Gerring to run down
to her seine and to enable the Vigilant to sail away to the westward,
and also that the current was running westerly, oi> more correctly
speaking southward and westward. It is also important to recollect
that at the time the Vigilant left her and at the time she was seized,
the Gerring was heading off shore. Captain Knowlton of the
Aberdeen says that when he seized the Gerring it was between
five and six o'clock p.m., so that according to his story she was an
hour drifting over one mile. It was also admitted by the plaintiff,
and indeed could not be denied, that if Capt. McKenzie was correct
i-n his cross bearings at the time the Gerring was fastened to her
seine and pursed up, then being outside of the limit, it was impos-
sible that she could be in the position as stated Ijy Capt. Knowlton
at the time she was seized. A look at the chart will fully substan-
tiate this position. It was impossible for the Gerring if she drifted
at all, to drift in the direction of and be in the place where Capt.
Knowlton says he found her. He says he took bearings at the place
where he seized her, and that the north west point of Big White
Island bore W.N.W., and Liscomb Light bore N.E. | N., less
than one mile and three quarters from dull Ledge, so that she must
have drifted about one and three-(iuarter miles in one hour to the
N. by W. 5 W., against a wind from the eastward and the current
running to the S.W. — a thing impossible. It may be said this was
a question for the court below. It is submitted that it is equally
a question for the Court of Appeal, inasmuch as there is a con-
tradiction between the two important witnesses for the Crown,
and the defendant should not suffer for the mistake in Capt.
Knowlton's bearings, for it is beyond doubt that if Capt. Mc-
Kenzie's bearings are correct, then Capt. Knowlton's bearings
juust be wrong, and this was admitted. The defendant admits
on the question of fact, the rule was in the Privy Council that the
finding of the Court below in Admiralty matters is almost conclu-
sive, and it will not reverse the finding unless it is convinced that it
20 THE FREDERICK GERRING, JR.
is wrong, but it is submitted that that rule only apphes where there
is contradictory testimony between the phiintiff's and defendant's
witnesses, and then only where all the witnesses have been exam-
ined before the judge. But the rule itself has been qualified.
In the collision case of the John Ormston vs. Hallandia, reported
in the 'Shipping Gazette/ July, 1895, in the Court of Appeal,
the Master of the Rolls giving judgment said, "even though there
be nothing but contradiction in the evidence given in the Admiralty
Court, it is quite true we are bound to listen to the evidence which
is brought before us and to apply our minds to it. It has been laid
down over and over again that where there is a difference of evidence
as to facts in the Admiralty Court, the accuracy of one side or the
other must depend in a great measure upon the demeanour of the
witnesses. It has been laid down too, that in such cases those
who appeal against the decision of the Admiralty Court as to the
facts found by the Court can hardly succeed where there is a conflict
of evidence, which conflict is to be determined by the demeanour
of the witnesses, unless they can point out some undisputed fact
or some fact as to which there is such a preponderance of evidence
that the Court will treat it as an undisputed fact."
Here the undisputed and admitted fact is, that the Gerring
was outside the line by over half a mile at the time she commenced
to bail her fish out of the seine, that she was heading southerly
off shore with her head sails down, her foresail and mainsail set,
with both her booms well off to starboard, the wind to the eastward
and making headway. She would have to make sufficient headway
in order to keep ahead of her seine so as to bail the fish.
The other undisputed fact, according to the testimony of de-
fendant's witnesses, is, it was impossible for the Gerring to drift
towards or be found in the position where Captain Knowlton
said he found and seized her. This evidence is not contradicted,
but is supported by Knowlton, when he describes how the vessel
was lying when he saw her and at the time of the seizure. Her
head when Captain McKenzie left her, and the position of her sails
were the same as when Knowlton seized her — with the wind from
the east and fore and mainsails set, with the booms well over on
the starboard side and she heading off shore, and the current
running W. by S., how was it possible for her to maintain her
head to the southward and drift N. by W. ^ N., across and against
wind and tide, and in a perfectly straight direction. It is sub-
mitted that the testimony of Captain Knowlton as to the position
of the Gerring when seized is unreliable. It is quite true that
APPENDIX. 21
Captain McKenzie says the Gerring was inside the limits when
seized, but it must be remembered that when he took his own
bearings he was nearh' two miles away and could not take them
accurately, and a slight inacccuracy would make a great difference
as to the Gerring's position. And while he says he himself drifted
in, it must be remembered he was sailing close to the line heading
west along the shore. Besides, his vessel being light would drift
much easier, while the Gerring could not drift in shore because the
weight of her seine in the water would prevent her, while the
current would carry the seine and vessel with it. Capt. Knowlton
was asked (p. 26, 1-24) how was the Gerring heading? Ans. I
judge she was heachng about S.S.W. I would judge so.— Q.
Would she be heading off shore? A. Yes. — Q. In what direction,
in your judgment, was the tide at that particular place? A. I
think the tide would probably be westerly. — Q. That is off shore?
A. It would be along the line of the shore. — Q. That is carrying
her westerly? A. Yes.
Is this not conclusive that if she drifted at all she drifted westerly
and if so, then Capt, Knowlton could not have found her where
he says he did. If McKenzie is right in placing her at the time
she pursed her seine up, then Knowlton is clearly wrong, and if
Knowlton is right, then McKenzie is wrong. Which one of these
two important crown witnesses is correct.?
Captain Knowlton says there was a light draft of wind at the
time from the east or east-south-east. And as regards the tide ho
says (p. 23, 1.40 and p. 24, 1.13) "It would be apt to send the
Gerring to the westward slightly and set her along the coast."
This is a clear admission from, him that she did not drift from where
McKenzi<' left her to the place he found her. She would be
drifting along the shore instead of drifting N. by W. 5 N., to the
place where he says he found her. This would carry her to the
southwarrl and westward and away from the three mile line.
Question put to Knowlton: "The question I asked was whether,
in your judgment from the trend of the current, you would say that
the seine had been set further away from Gull Ledge than it was
at the time the fish were being taken out of it?" Answer: "Well,
I think it would slightly." (p. 24, 1 .7). From this it is clear that
between the time McKenzie left her and Knowlton found her she
had only drifted .slightly, but in order to show she was inside the
lines they must show she drifted nearly two miles in an hour
Ifow (•(Mild she do this if she only drifted slightly, especially in a
N. by W. \ N. direction, .ind against the wind and tide with her
22 THE FREDERICK G ERRING, JR. ^
head sails down and her foresail and mainsail set, with the l)Ooms
off to starboard (thus showing the wind was from the east) and her
head off shore, or in other words, she was heading to the southward.
It is true Knowlton says he took the bearings at the time of the
seizure and marked them on the chart. Is it not a strange and
rather a suspicious thing that when the chart is produced at the
trial the bearings were laid down on it not by Captain Knowlton
but by Captain Spain, the day after the seizure, who was not present
at the time and was away in another part of the province, and this
is sworn to by Captain Knowlton. It may be said it was done
under his direction, but surely, when an important seizure is made
and liy that act a person is to lose valuable property and be in-
volved in ruin, the man who is to determine the spot where the.
offence is committed should himself (if he is capable) lay down
that place on the chart, especially as he says "at the time I took
the cross bearings I laid them down on the chart." Where is that
chart? It was not produced.
But did Captain Knowlton take the bearings? He is asked
(p. 27, 1.27): "Who took the bearings?" "My chief officer took
them about the same time." Q. "Then did you take the chart?"
A. "Yes, I laid it down on the chart." — ^Q. "On your own chart,
on board your own ship before the seizure?" A. "Yes."— Q.
"And this is what you put down at that particular time?" A.
"These are the bearings." — Q. "When did you put these marks
in red ink on this chart? " A. " I did not do that."— Q. "Who did
it?" A. "Commodore Spain did it."
Captain Morin, first officer of the Aberdeen, in his direct exam-
ination says, (p. 32, 1.21): "Q. Had you anything to do in regard
to taking the bearings?. — ^A. The Captain (Knowlton) called m.e
on the bridge, and asked me to ascertain by the com.pass the
bearings of Liscomb Light. Q. Did you take the bearings of
Licsomb light? — A. I did. Q. How was it bearing? — A. It was
bearing N.E. f N. Q. What did he say then? — A. He said take
the bearings of Big White Island, and I did so. It was bearing
W.N.W., i.e. the N. W. part of the island. Q. What did you
do after you took the bearings? — A. The captain said she (the
Gerring) was inside the limit." It will be thus seen that from this
testimony and what follows, that Captain Knowlton never took
the bearings at all, that it was done by one of his officers, and that
he was on the bridge at the time they were taken, and this is also
testified to by his third officer, and yet upon the testimony of this
man the Gerring is to be forfeited and the owner ruined.
APPENDIX. 23
The learned judge below lays great stress on Captain Spain's
testimony as corroborating Captain Knowlton as to the position
of the Gerring, but it is submitted it is no corroboration on that
point, because he was not there at the time, and his measurements
of distances were made afterwards from the cross bearings given
by Knowlton, and if these cross bearings were wrong all the measure-
ments made by Spain would be incorrect. Captain Spain took
no cross bearings except adopting the cross bearings of Knowlton
in order to place his ship in the position of those cross bearings in
order to make the measurements to the shore from. them. Every-
thing depends on the correctness of the cross bearings, and about
that he admitted he knew nothing.
As to the construction of the Statutes and treaty:
No question arises as to the Gerrimfs having been found in any
bay or harbour. The only question arising was whether she was
fishing inside of three marine miles from the shore. Was she
fishing? That question the learned judge below decided in the
affirmative. The words of the treaty are "to take dry, or cure fish
on or within three marine miles of the coast, etc."
The Imperial Statute 59, George III, Ch. 38, (1819), says "it
shall not be lawful for any one but a natural born subject to fish
for or take, dry, or cure any fish of any kind whatever, within three
marine miles of the coast, etc.," and " that if any such foreign
ship, or vessel, or boat or any person on board thereof shall be
found fishing or having been fishing or preparing to fish within
such distance of such coast, etc." it shall be forfeited.
The Dominion Act, Ch. 94 R.S., Canada, reads, "has been
found fishing, or preparing to fish, or have been fishing in British
waters, within three marine miles of any of the coasts, etc." The
Treaty and Acts are all the same. It must be rem.em.bered that any
vessel found in any bay or harbor, and within the three mile limit,
is not liable t() seizure unless she is found fishing or taking fish,
preparing to fish or has been fishing in British waters.
If she is found within the three mile lin\its not violating, or has
not violated the treaty as above set forth she cannot be seized.
The only thing that could be done by an officer would be to go
on board of her and remain on board so long as she remained within
such harbor, or distance and this is the only power gi\(>n undci-
section two of the Dominion Act.
The only offences are fishing, taking (i.'^li, i)rci)aring to fish, or
having been fishing within the limils. It is evident these arc
separate and distinct offences, and it is submitted the mere bailing of
-"eS
24 THE FREDERICK GERRING, JR.
fish after they have been caught, and lifting them on to the deck
of the vessel is not fishing, and is no offence.
According to Webster's dictionary, "fishing," is described as
' 'an attempt to catch fish, to be employed in taking fish by any
means." In other words it is the means used to catch the fish.
Now the means used were the setting of the seine or net to catch
the fish and when the fish are caught in meshes of it, then the seine
is pursed up, that is both ends are drawn together thus forming the
shape of a purse which encloses and secures the fish then taken
in the seine. The vessel then runs down to the seine and both ends
of it are made fast to a tackle, one on the foremast and one on the
mainmast, and the seine is then hoisted well up and sufficiently
high out of the water to enable the fisherm.en to bail the fish into
the vessel. Surely the instant they are inclosed in the seine and
it is pursed up they are "taken." They are then under the control
and in the possession of the fishermen. If not then, it surely cannot
be denied that after the seine is fastened to the vessel and hoisted
in the way indicated, they are then reduced into the possession
and control of the fishermen. Webster says "taking" is the act
of gaining possession. When once the seine is pursed up and sub-
sequently hoisted to bail, no fish can escape. They are as much
the property of, and in the possession of the fishermen as if they were
in the hold of the vessel. Suppose while the seine is made fast
to the vessel a person cuts it, whereby the seine sinks to the bottom,
would not an act of trespass lie against the wrongdoer for the loss
of the fish? It is submitted it would. It is submitted therefore
that "fishing" in this instance was the setting of the seine, the
"taking" was the capturing the fish in it, and that they were
reduced to the possession of the fishermen when enclosed in the
seine when pursed, and became his property, and as all this was
done outside the limit, the bailing of the fish, or taking them out
of the net into the vessel afterwards was no offence. Even
supposing the Gerring had drifted across the line.
Dated, Halifax, September 8th, 1891.
WILLIAM F. MacCOY,
Solicitor for Appellants.
APPENDIX. , 25
ANNEX 5.
Filed in the Registry of the Supreme
Court.
RESPONDENTS FACTUM.
IN THE SUPREME COURT OF CANADA.
189G.
ON APPEAL FROM
THE NOVA SCOTIA ADMIRALTY DISTRICT OF THE
EXCHEQUER COURT.
Between
THE SHIP "FREDERICK GERRIXG, Jr.,"
HER CARGO, &c.,
(Appellants)
AND
OUR SOVEREIGN LADY, THE QUEEN,
Plaintiff, (Respondent.)
This is an action instituted by the Attorney General of Canada,
on behalf, and in the name of Her Majesty the Queen; against the
American fishing schooner Frederick Gerring, Jr., her cargo, tackle,
rigging, apparel, furniture and stores, for forfeiture of the same
for fishing within the territorial waters of Canada or being therein
for a purpose not permitted by Treaty or Convention; contrary
to the provisions of (a), The first article of Treaty between his late
Majesty King George the Third and the United States of America
entered into on the 20th day of October, 1818: (b) Sections 2 and
3 of Chapter 36 of 59, George III, Chapter 38, (1819, Imperial)
Passed for enforcing the first Article of said Treaty; (c), Section
3 of Chapter 94, of the Revised Statutes of Canada, entitled
"An Act respecting Fishing by Foreign Vessels."
The action was instituted on the 29th day of May, 189(), by
writ of summons issued out of the registry of the Nova Scotia
26 THE FREDERICK GERRING, JR.
Admiralty District of the Exchequer Court of Canada at Halifax,
Nova Scotia; and the Frederick Gerring, Jr., and her cargo, tackle,
rigging, apparel, furniture and stores were arrested under warrant
issued in the action.
The cause was tried before the Honorable James McDonald,
Local Judge of said Admiralty District on the 5th day of August,
1896, and a decree was made by said Local Judge on the 28th day
of August, 1896, forfeiting the ship and her cargo, tackle, rig-
ging, apparel, furniture and stores. From this decree the present
appeal is brought bj^ the owner of the Frederick Gerring, Jr., her
cargo, etc., to the Supreme Court of Canada.
The facts will be found stated in the judgment of the learned
Local Judge printed in the case on appeal herein at pages 55 to 57.
It is not questioned that the Frederick Gerring, Jr., was an American
fishing vessel, holding no Canadian license, and that she was engaged
in bailing fish from her seine alongside her on the 25th day of May,
1896.
In the Court below there were only two questions raised by the
present appellants; first, that the place where the Frederick Gerring,
Jr., was found taking fish out of her seine is not within three marine
miles of the coast of Canada; and second, that the act of taking
fish out of a seine within territorial waters is not fishing within
such waters.
It is alleged on behalf of the Crown that the place where the
Frederick Gerring, Jr., was found bailing fish out of her seine was
within three miles of Gull Ledge, an Island on the Eastern shore
of Nova Scotia, near Liscomb in Guysborough County. It was
not questioned in the Court below that Gull Ledge is part of the
coast of Canada and, from the character of the island no such ques-
tion can arise. See The Anna 5, Charles Robertson, page 373,
as to the principles governing the construction of the term "coast.'
This case is accepted as authoritative by all the American writers'
on International law. It is also not questioned that the place
where the Gerring was found bailing fish out of her seine was
without the limits in which the inhabitants of the United States
are permitted to take fish by the Treaty of 1818.
I.
The question which the appellants raise under the fi ^\ ground
of defence urged before the Court below, and above referred to,
is a pure question of fact, viz., whether the place where the Frederick
APPENDIX. 27
Gerring, Jr., was found bailing fish out of her seine was within
three miles of Gull Ledge. This question of fact has been dis-
tinctly found in favour of the Crown by the Court below, and it
is submitted that such finding is conclusive on this point under the
well established principles governing the dealings of Courts of
last resort with findings of fact. The Frederick Gerring, Jr.,
was found bailing fish out of her seine by the Dominion Fishery
Cruiser Aberdeen, and the evidence of the officers of the Aberdeen
is distinct and unequivocal as to the bearings of the locality where
the Gerring then was. And it has been clearly proved, and is not
questioned, that if the Gerring was in the position testified to by
the officers of the Aberdeen she was within three miles of Gull
Ledge.
This evidence together with that of Captain McKenzie of the
Dominion Fishery Cruiser Vigilant, which was also in the vicinity,
clearly esta])lished that the locality in question was within three
marine miles of Gull Ledge.
On behalf of the appellants the only evidence produced as to
this question of fact was that of the Master and crew of the
Frederick Gerring, Jr. and certain opinion evidence given by
nautical experts called on behalf of the appellants.
The Master and crew of the Frederick Gerring, Jr. were unable
to give any evidence of the bearings of their vessel at the time; and
could only guess at her distance from the shore, and it is uncon-
tradicted that the Master of the Frederick Gerring, Jr. stated before
the trial that he could not swear whether his vessel was inside or
outside the limit. See page 35, 1. 20. The expert evidence
produced on behalf of the appellants will be found on examination
to be wholly unreliable as a basis for establishing the position of the
Frederick Gerring, Jr. at the time when she was found taking
fish out of her seine by the Captain of the Aberdeen. And it is
submitted that the learned judge below could not have done
otherwise than accept the positive evidence as to the place where
t-he ship was; rather than the opinions of the few experts, whom
the appellants were al>le to find willing to say; that in their
judgment it was improbable or impossible, in view of the position
of the vessel a short time before, that she could have l)een at llic
place where it is proved she was about six o'clock p.m. on the 25th
day of May, 1896.
28 THE FREDERICK GERRING, JR.
II.
The other question raised on behalf of the appellants is as
before mentioned whether the acts proved by the witnesses on.
behalf of the Crown constitute fishing. The words of the treaty
of 1818 are: ''And the said United States hereby renounce for-
ever any liberty heretofore enjoyed or claimed by the inhabitants
thereof, to take, dry or cure fish on or within three marine miles
of any of the coasts, bays, creeks or harbors of His said Majesty's
Dominions in America not included within the above mentioned
limits."
By section 2 of 59 George III Chapter 38, (Imperial) it is enacted:
"that it shall not be lawful for any person in any ship, vessel
"or boat, other than such as shall be navigated according to the
"laws of the United Kingdom of Great Britain and Ireland, to
"fish for, or to take, dry or cure any fish of any kind whatever,
"within three marine miles of any coasts, bays, creeks or harbours
"whatever, in any part of His Majesty's Dominions in America,
"not included within the limits specified and described in the First
"Article of said Convention and hereinbefore recited; (i.e., the
"Treaty of 1818), and that if any such foreign ship, vessel or boat,
"or any persons on board thereof, shall be found fishing, or to have
"been fishing, or preparing to fish within such distance of such
"coasts, bays, creeks or harbours, within such parts of His
"Majesty's Dominions in America, out of the said limits aforesaid,
"all such ships, vessels and boats, together with their cargoes,
"and all guns, ammunition, tackle, apparel, furniture and stores
"shall be forfeited."
And by section 3 of Chapter 94 of the Revised Statutes of Canada,
it is enacted that if any foreign vessel is within any harbour in
Canada, or hovering in British waters, within three marine miles
of any of the coasts, bays, creeks or harbours in Canada and
" (a) has been found fishing or preparing to fish, or to have been
"fishing in British waters within three marine miles of any of the
"coasts, bays, creeks, or harbours of Canada, not included within
"the above mentioned limits, without a license, or after the ex-
"piration of the term named in the last license granted to such
"ship, vessel or boat, under the first section of this Act, or (b) has
"entered such waters for any purpose not permitted by treaty or
"convention, or by any law of the United Kingdom or of Canada
"for the time being in force, such ship, vessel, or boat, and the
"tackle, rigging, apparel, furniture, stores and cargo thereof shall
"be forfeited."
APPENDIX. 29
The question now to be determined is the construction to be put
upon the word "fishing" used in the treaty and in the statutes
referred to.
Fishing, is a continuous act and is going on from the time when
a man begins to lure fish until he finally secures them in his basket
or boat.
Dealing with distinct acts constituting together one crime it is
laid down in Bishop on Criminal Law (7th Edition) Section 650
that:
"Where several acts constitute together one crime, if each is
"separately performed by a different individual in the absence of
"the rest, all are principals as to the whole. For example, where
"forgery is a statutory felony, if persons make distinct parts of a
"forged instrument, each is a principal as to the whole, even though
"he does not know by whom the other parts are executed, and
"one finishes it alone while the rest are absent. Were the law
"not so, no one could be punished; for a person whose own hand
"does the criminal act, either wholly or in part, is not an access-
"ory."
Rex vs. Bingley, Russell & Ryan 446, was an indictment for
forging bank notes, in which the ciuestion was: whether two of the
prisoners who forged parts of the notes, which were incomplete
when they left their hands, and who were not present when they
were completed, were principals or accessories. Mr. Justice
Richardson at the trial, after referring to some authorities to the
effect that persons concerned in the uttering of forged paper but
not present at the uttering are not principals, says: —
"These, however, are all cases of uttering where the offence
"consists of one single fact which is carried into execution by the
"principal alone, and where the accessory takes no other part than
"that of previously instigating the principal to execute. Quaere
"whether the same doctrine is applicable to the offence of forging,
"which is a complicated offence, consisting of several parts, and
"executed, (as in this case) by several different agents, each exe-
" outing his own part, and all parts being equally essential to the
"completion of the offence? Unless in such cases all are principals,
"the law seems to reach only the party who performs the last oper-
"ation, and thereby makes the forged instrument complete (viz.
"in this case the party who added tiie signatm-e, and in the case
"of a forged deed the party who adds the seal), who may be one
"of the least active and the least guilty of the parties concerned."
The question was reserved by Mr. .histice Richardson and heard
30 THE FREDERICK GERRING, JR.
before all the Judges. "They held that the conviction was right
"as to all the prisoners; the judges were of opinion that as each
"of the prisoners acted in completing some part of the forgery,
"and in pursuance of the common plan, each was a principal in
"the forgery; and that, although the prisoner Batkin was not
"present when the note was completed Vjy the signature, he was
"equally guilty with the others."
This principle has been applied by the English courts to the
very act of fishing now under consideration. In Ruther vs. Harris,
1 Ex. D. 97, it was held that when a person had set a net for the
purpose of catching salmon on Sunday, such net was properly
forfeited under a statute which provided that: "No person shall
"fish for, catch or kill by any means other than a rod and line
"any salmon between 12 o'clock at noon on Saturday and 6 o'clock
"on Monday morning; and any person acting in contravention of
"this section shall forfeit all fish taken by him and any net or
"movable instrument used by him in taking the same."
In Short vs. Bastard, 46 J. P. 580, it was held under a statute
prohibiting fishing for salmon, except with a net having meshes
of a certain size, that as the net used was calculated t o catch
salmon it was immaterial whether salmon were caught or intended
to be caught or not.
In the opinion of the law officers of the Crown in relation to
the Treaty of 1818, given August 30th, 1841, the opinion was ex-
pressed that casting bait to lure fish in the track of any American
vessel navigating the Gut of Canso would constitute a fishing
within the negative terms of the Treaty.
These authorities will serve to show how remote from the com-
pletion of a continuous act, an act forming part of it may be in
order to come within the terms of a prohibition against the com-
mission of the continuous act.
It seems, however, to Counsel for the respondent that it is un-
necessary to resort to such authorities when the act proved is the
end and completion of the continuous act, because, as is stated by
Mr. Justice Richardson in Rex vs. Bingley, if a different construction
of the prohibition of a continuous act were adopted, it would apply
only to the last operation, which in the present case the act proved
was.
And it is submitted, on behalf of the respondent, that no clearer
act of fishing can be imagined than the act of hauling fish on board
a vessel from a line or bailing them on board from a net.
APPENDIX. • 31
The contention on behalf of the appellants in the Court below
on this point went further than saying that taking fish out of a
net was only a part of the act of fishing, and it was urged that the
fishing was complete before the fish were taken out of the net.
It was contended that the act of fishing is complete when in line
fishing the fish is hooked, or in net fishing, is surrounded by a net.
According to this contention, a fish would be caught as soon as
it is hooked, which would, I think, be found to be contrary to
experience.
It is submitted that fish caught in a net on the high seas and still
in the water are not in the possession in any sense of the fisherman ;
but assuming that they are to be so regarded, and that property
in them is thereby vested in the fisherman his title is qualified, a
special interest liable to be divested before they are killed by the
escape of the fish.
See Blackstone's Commentaries, loth Edition, page 403.
Kent's Commentaries Text Book Series, page 348.
It is submitted that the acquiring of this special and very pre-
carious right is not, in the ordinary use of language, the completion
of the act of fishing, but that something more remains to be done
before the fishing is completed and the fish finally taken.
It is laid down by Vattel that "in the interpretation of treaties,
" compacts and promises, we ought not to deviate from the common
" use of the language, unless we have very strong reasons for it."
But considering the words used in connection with the context
and subject matter will very strongly support the construction
contended for on behalf of the respondent, it may be noted that
laws passed for the protection of the public such as revenue laws
are not to be regarded as penal laws in the sense of requiring them
to be constructed with strictness in favour of the defendant. "They
"are regarded rather in their remedial character as intended to
"prevent fraud, supreme public wrong and promote the jMiblic
" good and are to be so construed as to most effectually accomplish
"those objects."
Maxwell on Statutes, 2nd Edition, page 351.
See Chiquot Champagne 3 Wallace 145.
Endlich on Statutes, Section 340.
Looking first at the first article of the Treaty of 1818, which
is recited in 59, (leorg(; III, Chapter 38 (Imperial), and will lie
found in extenso in Stockton's Admiralty Reports, page 204;
it recites that differences have arisen in reference to the liberty
claimed by Americans to take, dry and cure fish in liic territorial
32 THE FREDERICK GERRING, JR
waters of British North America, and gives fishing rights to Ameri-
cans within certain limits and the United States renounce forever
the liberty to take, dry or cure fish in such waters outside said limits.
The Treaty contains a proviso that American fishermen shall
be admitted to enter such territorial waters for shelter, repair,
purchasing wood and obtaining water and for no other purpose
whatever, under restrictions necessary to prevent them from taking,
drying or curing of fish or in any other manner whatever abusing
such privilege.
The Statute of 59 George III, by section 2, declares that it shall
be unlawful in any foreign vessel "to fish for or to take, dry or
cure fish" in the territorial waters of British North America,
outside the limits mentioned in the Treaty. And further enacts
that if such vessel "shall be found fishing, or to have been fishing,
or preparing to fish," within such waters such vessel shall be for-
feited.
The word "fishing," it is submitted, is intended to include all
the acts which are declared unlawful by the preceding portion of
the section. After making this declaration of unlawful acts and
enactment of forfeiture, the Statute proceeds:
"3. Provided always, and be it enacted, that it shall and may
"be lawful for any fishermen of the said United States to enter
"into any such bays, or harbours of His Britannic Majesty's
"Dominions in America, as are last mentioned, for the purpose
"of shelter and repairing damages therein, and of purchasing
"wood and of obtaining water, and for no other purpose what-
" ever ; subject nevertheless to such restrictions as may be necessary
"to prevent such fishermen of the said United States from taking,
"drying or curing fish in the said bays or harbours, or in any other
"manner whatever abusing the said privileges by the said Treaty,
"and this Act reserved to them, as shall for that purpose be imposed"
by Order-in-Council, &c.
The Statute it will be seen is intended to prevent not only the
taking by American fishermen of fish which are within territorial
waters but also to prevent their using such waters for purposes
other than those expressly permitted. To effectuate this intention
a construction should be put upon the word "fishing" which will
prevent as far as possible the use of territorial waters for unauthor-
ized purposes. That "fishing" is used as including all prohibited
acts is further indicated by the fact that the liberty accorded
American fishermen is introduced as a proviso.
APPENDIX. 33
The easy means of evasion of the Statute, which would be caused
by the appellants construction of the word "fishing" must also
be considered.
"It is the duty of the judge to make such construction as shall
"suppress all evasions for the continuance of the mischief. To
"carry out effectually the object of a statute, it must be so con-
"strued as to defeat all attempts to do or avoid in an indirect
"or circuitous manner, that which it has prohibited or enjoined."
Maxwell on Statutes, 2nd Edition, page 133.
If it is incumbent upon the Crown to prove when an American
fisherman is taking fish out of a net within territorial waters near
the high seas that the fish came into the net in territorial waters,
or to disprove statements of the fishermen that the fish came into
the net on the high seas, the punishment of violations of the law
in such cases would be impracticable.
III.
Assuming that the act of the fishermen on the Frederick Gerring Jr.
in taking fish out of their seine was not fishing, the vessel was never-
theless properly forfeited for l)eing, in violation of the Treaty and
statutory prohibitions, in territorial waters for a purpose not per-
mitted by Treaty or Convention. The Imperial Statute; and the
Canadian Statutes 31 Victoria, Chapter 61, (1868), and 33 Victoria,
Chapter 15, (1870), which hke the Imperial Statute expressly
authorize forfeiture, only for fishing or preparing to fish, have
been held to authorize such forfeiture. Upon this construction
of the Imperial Statute in 1839, the Java, Independence, Magnolia
and Hart were seized and confiscated, the principal charge being
that they were within British American waters without legal
cause. In 1840 the Papineau and Mary were seized and sold for
purchasing bait. In 1849 the Charles was seized and condemned
in the Vice Admiralty Court in New Brunswick for having resorted
to a harbour of that Province after warning and without authority.
The J. H. Nicker son was forfeited by the Vice Admiralty Court
at Halifax, for having on the 30th of June, 1870, entered the
territorial waters of Canada for a purpose not permitted by
TrNaty or Convention, namely, to purchase bait.
The ./. //. Nickerson Young's Admiralty Decisions, page 56.
The David J. Adams was also forfeited by the Vice Admiralty
Court at Halifax for having on the 6th day of May, 1886, entered
the waters of Canada for the purpose of purchasing bait.
34 THE FREDERICK GERRING, JR.
To remove doubts as to the right as to forfeit American fishing
vessels for violation of the Treaty and Imperial Statute, other-
wise than by fishing or preparing to fish, the Statute of Canada
49 Victoria, Chapter 114 (1886), was passed, which is now embodied
in Section 3 of Chapter 94, Revised Statutes of Canada. This
Statute was reserved by the Governor General, for the signification
of the Queen's pleasure thereon and was assented to by Her
Majesty by Order-in-Council on the 26th day of November, 1886,
and proclamation thereof was made on the 24th day of Decem-
ber 1886.*
By that Statute any foreign vessel which has entered the terri-
torial waters of Canada for a purpose not permitted by Treaty
or Convention is declared liable to forfeiture. American fishing
vessels are by the Treaty of 1818 expressly prohibited from enter-
ing the territorial waters of Canada without the limits mentioned
in the Treaty except for wood, water, shelter or repairs, and it
cannot be pretended, on the evidence that the Frederick Gerring,Jr.
entered the waters of Canada for any of these purposes. If she
was not fishing, she entered the waters of Canada for the purpose
of taking fish out of her seine therein, a purpose not permitted by
Treaty or Convention.
Halifax, N.S., September 16th, 1896.
W. B. A. BITCHIE,
Solicitor of the Attorney General of Canada.
APPENDIX. 35
ANNEX 6.
Certified copy filed.
Lansdowne,
CANADA.
Victoria, by the Grace of God, of the United Kingdom of Great
Britain and Ireland QUEEN, Defender of the Faith,
&c., &c., &c. ,
(L. S.)
To Captain Charles T. Knowlton, of Parrsboro', in the Province of
Nova Scotia, in Our Dominion of Canada, Master Mariner,
Greeting:
Know yon, that reposing trust and confidence in your loyalty,
integrity and ability, We have constituted and appointed, and
We do hereby constitute and appoint you the said Charles T.
Knowlton to be a Fishery Officer in the Fisheries Protection Service,
and to the command of any vessel in such service to which you
may be, by Our Minister of Marine and Fisheries assigned for
duty.
To have, hold, exercise and enjoy the said office of a Fishery
Officer in the Fisheries Protection Service, and the command of
any vessel in such service to which you may be, by Our Minister
of Marine and Fisheries, assigned for duty unto you the said
Charles T. Knowlton, with full authority to exercise the powers
of a justice of the Peace for all the purposes of "The Fisheries
Act" and the regulations made or continued thereunder or in
respect thereto, and with all and every the powers, rights, authority,
privileges, profits, emoluments and advantages unto the said
office of right and by Law appertaining during pleasure.
In testimony whereof We have caused these our Letters to l)e
made Patent and the Great Seal of Canada to be hereunto affixed :
Witness, Our Right Trusty and Entirely beloved Cousin The
Most Honourable Sir Henry Charles Keith Petty Fitzmaurice,
Marquis of Lansdowne, in tlie County of Somerset, Earl of
Wycombe of Chipping Wycombe, in the county of Bucks, Viscount
Calne and Calnstone, in the County of Wilts, and Lord Wycombe,
Baron of Chipping Wycomlx', in the County of Bucks in the
36 THE FREDERICK GERRING, JR.
Peerage of Great Britain, Earl of Kerry and Earl of Shelburne,
Viscount Clanmaurice and Fitzmaurice, Baron of Kerry, Lixnaw
and Dunkerron, in the Peerage of Ireland; Knight Grand Cross
of Our Most Distinguished Order of Saint Micahel and Saint
George; Governor General of Canada and Vice-Admiral of the
same.
Geo. W. Burbidge,
Deputy of the Minister of Justice, Canada.
At Our Government House, in Our City of Ottawa, this Twenty-
Fifth day of April in the year of Our Lord, One Thousand Eight
Hundred and Eighty-Seven, and in the Fiftieth year of Our Reign.
By command,
G. Powell,
Under Secretary of State.
ANNEX 7.
Certified copy filed.
Stanley of Preston.
CANADA.
Victoria, by the Grace of God, of the United Kingdom of Great
Britain and Ireland, Queen, Defender of the Faith, &c., &c., &c.
(L. S.)
To Hector McKenzie of Pictou, in the County of Pictou, in the
Province of Nova Scotia, in Our Dominion of Canada, Esquire.
Greeting:
Know you that reposing trust and confidence in your loyalty,
integrity and ability, We have constituted and appointed, and We
do hereby constitute and appoint you the said Hector McKenzie
to be a Fishery Officer in the Fishery Protection Service, and to
the Command of any vessel in such service to which you may by
Our Minister of Marine and Fisheries be assigned for duty.
APPENDIX, 37
To have, hold, exercise and enjoj^ the said office of a Fishery
Officer in the Fishery Protection Service and the command of any
vessel in such service to which you may be assigned as aforesaid,
unto you the said Hector McKenzie, with full authority to exercise
the powers of a Justice of the Peace for all the purposes of "The
Fisheries Act" and the regulations made or continued thereunder
and in respect thereto, and with all and every the powers, rights,
authority, privileges, profits, emoluments and advantages unto
the said office of right and by law appertaining during Pleasure.
In Testimony whereof, we have caused these Our Letters to be
made Patent, and the Great Seal of Canada to be hereunto affixed,
WITNESS, Our Right Trusty and Well Belovecf the Right
Honourable Sir Frederick Arthur Stanley Baron Stanley of Preston,
in the County of Lancashire, in the peerage of the United King-
dom, Knight; Grand Cross of Our Most Honourable Order of
the Bath; Governor General of Canada,
RoBT. Sedgewick,
Deputy of the Minister of Justice, Canada.
At Our Government House, in Our City of Ottawa, this six-
teenth day of September, in the year of Our Lord one thousand
eight hundred and ninety, and in the Fifty-fourth year of Our
Reign.
By Command,
L. A. Catellier,
Under-Secretary of State.
INDEX.
Answer of His Majesty's Government
Appendix containing copies of papers in suit
Annex 1 — Appearance
" 2 — Statement of Claim
" 3 — Bond of John A. MacKasey
" 4 — Appellants Factum in Supreme Court —
" 5— Respondent's Factum in Supreme Court.
" 6 — Commission to Chas. T. Knowlton
" 7 — Commission to Hector McKenzie
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