L»X^ A A 5 1 7 5 5 4 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 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 PAGE. 1 10 10 11 12 U ' 25 35 36 J J "«':•. 5^ UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. JX Great Britain -| Z38 Arbitration oJ G7F87 outstanding pe-| 1913 cont^ Great between -=SritaiH=an^^he United JX 238 G7F87 1913