Page images
PDF
EPUB

THE "WASHINGTON."

London, 23rd December, 1854. THE umpire reports that this vessel was seized by the revenue schooner "Julia," Captain Darby, while fishing in the Bay of Fundy, 10 miles from the shore, on the 10th of May, 1843, on the charge of violating the Treaty of 1818, carried to Yarmouth, N. S. and there decreed forfeited to the Crown by the Judge of the Vice Admiralty Court, and, with her stores, ordered to be sold. The owners of the "Washington" claim for the value of the vessel and appurtenancy outfits, and damages 2483 dollars, and for eleven years' interest 1638 dollars, amounting together to 4121 dollars. By the recent reciprocity Treaty happily concluded between The United States and Great Britain, there seems no chance for any future disputes in regard to the fisheries; it is to be regretted, therefore, that in that Treaty provision was not made for settling a few small claims of no importance in a pecuniary sense; as they have not been settled, they have been brought before this Commission.

The "Washington" fishing schooner was seized as before stated in the Bay of Fundy, ten miles from the shore, off Annapolis, Nova Scotia.

It will be seen by the Treaty of 1783, between Great Britain and The United States, that the citizens of the latter in common with the subjects of the former enjoyed the right to take and cure fish on the shores of all parts of Her Majesty's dominions in America used by British fishermen, but not to dry fish on the Island of Newfoundland, which latter privilege was confined to the shores of Nova Scotia in the following words "And American fishermen shall have liberty to dry and cure fish on any of the unsettled bays, harbours and creeks of Nova Scotia, but as soon as said shores shall become settled, it shall not be lawful to dry or cure fish at such settlement without a previous agreement

for that purpose with the inhabitants, proprietors, or possessors of the ground."

The Treaty of 1818 contains the following stipulations in relation to the fishery :

"Whereas differences have arisen respecting the liberty claimed by The United States to take, dry and cure fish on certain coasts, bays, harbours, and creeks of His Britannic Majesty's dominions in America, it is agreed that the inhabitants of The United States, shall have, in common with the subjects of His Britannic Majesty, the liberty to fish on certain portions of the southern, western, and northern coast of Newfoundland, 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, indefinitely along the coast; and that American fishermen shall have liberty to dry and cure fish in any of the unsettled bays, harbours and creeks of said described coasts until the same become settled; and The United States renounce the 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 Britannic Majesty's dominions in America, not included in 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 purpose 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 manner whatever abusing the privileges hereby reserved to them."

The question turns so far as relates to the Treaty stipulations on the meaning given to the word "Bays" in the Treaty of 1783. By that Treaty, the Americans had no right to dry and cure fish on the shores and bays of Newfoundland, but they had that right on the coasts, bays, harbours and creeks of Nova Scotia, and as they must land to cure fish on the shores, bays and creeks, they were evidently admitted to the shores of the bays, &c. By the Treaty of 1818, the

same right is granted to cure fish on the coasts, bays &c., of Newfoundland; but the Americans relinquished that right and the right to fish within three miles of the coasts, bays, &c., of Nova Scotia. Taking it for granted, that the framers of the Treaty intended that the words "Bay or Bays" should have the same meaning in all cases, and no mention being made of Headlands, there appears no doubt that the "Washington" in fishing ten miles from the shore violated no stipulations of the Treaty. It was urged on behalf of the British Government, that by coasts, bays, &c., is understood an imaginary line drawn along the coast from headland to headland, and that the jurisdiction of Her Majesty extends three marine miles outside of this line, thus closing all the bays on the coast or shore, and that great body of water called the Bay of Fundy against Americans and others, making the latter a British Bay; this doctrine of headlands is new, and has received a proper limit in the Convention between France and Great Britain of 2nd August, 1839, in which "It is equally agreed that the distance of three miles fixed as the general limit for the exclusive right of fishery upon the coasts of the two countries, shall, with respect to bays, the mouths of which do not exceed ten miles in width, be measured from a straight line drawn from headland to headland."

The Bay of Fundy is from 65 to 75 miles wide, and 130 to 140 miles long; it has several bays on its coasts, thus the word bay as applied to this great body of water has the same meaning as that applied to the Bay of Biscay, the Bay of Bengal, over which no nation can have the right to assume the sovereignty. One of the headlands of the bay of Fundy is in The United States, and ships bound to Passamaquoddy, must sail through a large space of it. The Islands of Grand Menan (British) and Little Menan (American) are situated nearly on a line from headland to headland. These islands as represented in all geographies, are situated in the Atlantic Ocean. The conclusion therefore is irresistable, that the Bay of Fundy is not a British Bay, nor a bay within the meaning of the word as used in the Treaties of 1783 and 1818.

The owners of the "Washington," or their legal represen

tatives are therefore entitled to compensation, and are hereby awarded, not the amount of their claim which is excessive, but the sum of three thousand dollars, on the 15th January, 1855.

JOSHUA BATES, Umpire.

THE "ARGUS."

London, 23rd December, 1854.

THE umpire reports, that, the schooner "Argus," 55 tons burthen, was captured on the 4th August, 1844, while fishing on St. Ann's Bank, by the revenue cruizer, "Sylph," of Lunenburg, Nova Scotia, commanded by William Carr; Phillip Dod, seizing master, carried to Sidney where she was stripped, and everything belonging to her sold at auction. At the time of the capture, the "Argus was stated on oath to have been twenty-eight miles from the nearest land, Cape Smoke; there was, therefore, in this case no violation of the Treaty of 1818: I, therefore, award to the owners of the Argus, or their legal representatives for the loss of their vessel, outfits, stores and fish, the sum of two thousand dollars on the 15th January, 1855.

JOSHUA BATES, Umpire.

THE "BARON RENFREW."

MR. HORNBY, British Commissioner:

THIS Case comes before us under the following circumstances: It appears that the "Baron Renfrew," of the burden of 1126 tons, was seized by the Collector of Customs at the port of San Francisco, in the State of California, on the 11th of August, 1852. The libel was for the forfeiture of the vessel under the 50th section of the Act of 1799. Previous to this seizure, or rather contemporaneously with it, the mate (who at the time however was acting Captain, that officer having died on the voyage) was arrested in another suit under the 45th section of the same Act, on a charge of having smuggled some ship-stores. The offence was proved, and the rice, which had been bought in China for about 54 dollars, being the stores alleged to have been smuggled, having been sold under a decree of condemnation and forfeiture for 2000 dollars, the Captain became liable in the sum of 6000 dollars; and being unable to find bail, he was committed to prison, where he remained.

It appears from the evidence and the judgment of the Court, that the arrest of the Captain and the seizure of the vessel were for the same offence; the Act however of 1799 drawing a distinction between the smuggling of "stores" and the smuggling of "goods, wares, and merchandize," and awarding a distinct and separate punishment for each offence, the same identical bags of rice were denominated "stores" in the charge against the Captain, and "goods, wares and merchandize," in the libel against the ship. Thus for the same offence it was sought to fine and punish the master, and also to forfeit the ship. The provisions of the Act of 1799 however were not cumulative; that is to say, if the articles smuggled were "stores," the ship was not liable to

« ՆախորդըՇարունակել »