Papers Relating to the Foreign Relations of the United States, For the Year 1887, Transmitted to Congress, With a Message of the President, June 26, 1888
to Mr. Phelps
Washington , November 15, 1886.
Sir: The season for taking mackerel has now closed, and I understand the marine police force of the territorial waters in British North America has been withdrawn, so that no further occasion for the administration of a strained and vexatious construction of the convention of 1818, between the United States and Great Britain, is likely for several months at least.
During this period of comparative serenity, I earnestly hope that such measures will be adopted by those charged with the administration of the respective Governments as will prevent the renewal of the proceedings witnessed during the past fishing season in the ports and harbors of Nova Scotia, and at other points in the maritime provinces of the Dominion, by which citizens of the United States engaged in [Page 425] open-sea fishing were subjected to much unjust and unfriendly treatment by the local authorities in those regions, and thereby not only suffered serious loss in their legitimate pursuit, but, by the fear of annoyance, which was conveyed to others likewise employed, the general business of open-sea fishing by citizens of the United States was importantly injured.
My instructions to you during the period of these occurrences have from time to time set forth their regrettable character, and they have also been brought promptly to the notice of the representative of Her Majesty’s Government at this capital.
These representations, candidly and fully made, have not produced those results of checking the unwarranted interference (frequently accompanied by rudeness and an unnecessary demonstration of force) with the rights of our fishermen guarantied by express treaty stipulations,’ and secured to them—as I confidently believe—by the public commercial laws and regulations of the two countries, and which are demanded by the laws of hospitality to which all friendly civilized nations owe allegiance. Again I beg that you will invite Her Majesty’s counselors gravely to consider the necessity of preventing the repetition of conduct on the part of the Canadian officials which may endanger the peace of two kindred and friendly nations.
To this end, and to insure to the inhabitants of the Dominion the efficient protection of the exclusive rights to their inshore fisheries, as provided by the convention of 1818, as well as to prevent any abuse of the privileges reserved and guarantied by that instrument forever to the citizens of the United States engaged in fishing, and responding to the suggestion made to you by the Earl of Iddesleigh, in the month of September last, that a modus vivendi should be agreed upon between the two countries to prevent encroachment by American fishermen upon the Canadian inshore fisheries, and equally to secure them from all molestation when exercising only their just and ancient rights, I now inclose the draft of a memorandum which you may propose to Lord Iddesleigh, and which, I trust, will be found to contain a satisfactory basis for the solution of existing difficulties, and assist in securing an assured, just, honorable, and, therefore, mutually satisfactory settlement of the long-vexed question of the North Atlantic fisheries.
I am encouraged in the expectation that the propositions embodied in the memorandum referred to will-be acceptable to Her Majesty’s Government, because, in the month of April, 1866, Mr. Seward, then Secretary of State, sent forward to Mr. Adams, at that time United States minister in London, the draft of a protocol which in substance coincides with the first article of the proposal now sent to you, as you will see by reference to Vol. 1 of the U. S. Diplomatic Correspondence for 1866, p. 98 et seq.
I find that, in a published instruction to Sir F. Bruce, then Her Majesty’s minister in the United States, Under date of May 11, 1866, the Earl of Clarendon, at that time Her Majesty’s secretary of state for foreign affairs, approved them, but declined to accept the final proposition of Mr. Seward’s protocol, which is not contained in the memorandum now forwarded.
Your attention is drawn to the great value of these three propositions, as containing a well defined and practical interpretation of Article 1 of the convention of 1818, the enforcement of which co-operatively by the two Governments, it may reasonably be hoped, will efficiently remove those causes of irritation of which variant constructions hitherto have been so unhappily fruitful.[Page 426]
In proposing the adoption of a width of ten miles at the month as a proper definition of the bays in which, except on certain specified coasts, the fishermen of the United States are not to take fish, I have followed the example furnished by France and Great Britain in their convention signed at Paris, oh the 2d of August, 1839. This definition was referred to and approved by Mr. Bates, the umpire of the commission under the treaty of 1853, in the ease of the United States fishing schooner Washington, and has since been notably approved and adopted in the convention signed at The Hague in 1882, and subsequently ratified, in relation to fishing in the North Sea, between Germany, Belgium, Denmark, France, Great Britain, and the Netherlands.
The present memorandum also contains provisions for the usual commercial facilities allowed everywhere for the promotion of legitimate trade, and nowhere more fully than in British ports and under the commercial, policies of that nation. Such facilities can not with any show of reason be denied to American fishing-vessels when plying their vocations in deep-sea fishing grounds in the localities open to them equally with other nationalities. The convention of 1818 inhibits the “taking, drying, or curing fish” by American fishermen in certain waters and on certain coasts, and when these objects are effected, the inhibitory features are exhausted. Everything that may presumably guard against an infraction of these provisions will be recognized and obeyed by the Government of the United States, but should not be pressed beyond its natural force.
By its very terms and necessary intendment, the same treaty recognizes the continuance permanently of the accustomed rights of American fishermen, in those places not embraced in the renunciation of the treaty, to prosecute the business as freely as did their forefathers.
No construction of the convention of 1818 that strikes at or impedes the open-sea fishing by citizens of the United States can be accepted, nor should a treaty of friendship be tortured into a means of such offense, nor should such an end be accomplished by indirection. Therefore, by causing the same port regulations and commercial rights to be applied to vessels engaged therein as are enforced relative to other trading craft, we propose to prevent a ban from being put upon the lawful and regular business of open-sea fishing.
Arrangements now exist between the Governments of Great Britain and France, and Great Britain and Germany, for the submission in the first instance of all cases of seizure to the joint examination and decision of two discreet and able commanding officers of the navy of the respective countries, whose vessels are to be sent on duty to cruise in the waters to be guarded against encroachment Copies of these agreements are herewith inclosed for reference. The additional feature of an umpire in case of a difference of opinion is borrowed from the terms of Article 1 of the treaty of June 5, 1854, between the United States and Great Britain.
This same treaty of 1854 contains in its first article provision for a joint commission for marking the fishing limits, and is therefore a precedent for the present proposition.
The season of 1885 for inshore fishing on the Canadian coasts has come to an end, and assuredly no lack of vigilance or promptitude in making seizures can be ascribed to the vessels or the marine police of the Dominion. The record of their operations discloses but a single American vessel found violating the inhibitions of the convention of 1818, by fishing within three marine miles of the coast. The numerous seizures made have been of vessels quietly at anchor in established [Page 427] ports of entry, under charges which, up to this day, have not been particularized sufficiently to allow of an intelligent defense. Not one has been condemned after trial and hearing, but many have been lined without hearing or judgment, for technical violations of alleged commercial regulations, although all commercial privileges have been simultaneously denied to them. In no instance has any resistance been offered to Canadian authority, even when exercised with useless and irritating provocation.
It is trusted that the agreement now proposed may be readily accepted by Her Majesty’s ministry.
Should the Earl of Iddesleigh express a desire to possess the text of this dispatch, in view of its intimate relation to the subject-matter of the memorandum and as evidencing the sincere and cordial disposition which prompts this proposal, you will give his lordship a copy. I am sir, your obedient servant,
Proposals for settlement of all questions in dispute in relation to the fisheries on the north-eastern coasts of British North America
Whereas in the first article of the convention between the United States and Great Britain, concluded and signed in London On the 20th of October, 1818, it was agreed between the high contracting parties; that the inhabitants of the said United States shall 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 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, harbors, and creeks, from Mount 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’s Bay Company; and that the American fishermen shall also have liberty forever to dry and cure fish in any of the unsettled bays, harbors, and creeks of the southern part of the coast of Newfoundland, here above 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 cure fish at such portion so settled without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground;” and was declared that “the United States hereby renounce forever any liberty heretofore enjoyed proclaimed by the inhabitants thereof to take, dry, or cure fish on or within 3 marine miles of any of the coasts, bays, creeks, or harbors of His Britannic 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 harbors for the purpose of shelter, and of repairing damages therein, of purchasing wood, and obtaining water, and for no other purpose whatever. But they shall be under such restriction 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;” and whereas differences have arisen in regard to the extent of the above-mentioned renunciation, the Government of the United States and Her Majesty the Queen of Great Britain, being equally desirous of avoiding farther misunderstanding, agree to appoint a mixed commission for the following purposes, namely:
(1) To agree upon and establish by a series of lines the limits which shall separate the exclusive from the common right of fishing on the coasts and in the adjacent waters of the British North American colonies, in conformity with the first article of the convention of 1818, except that the bays and harbors from which American fishermen are in the future to be excluded, save for the purposes for which entrance into bays and harbors is permitted by said article, are hereby agreed to be taken to be such bays and harbors as are 10 or less than 10 miles in width, and the distance of 3 marine miles from such bays and harbors shall be measured from a straight line drawn across the bay or harbor, in the part nearest the entrance, at the first point where the width does not exceed 10 miles; the said lines to be regularly numbered, duly described, and also clearly marked on charts prepared in duplicate for the purpose.[Page 428]
(2) To agree upon and establish such regulations as may ho necessary and proper to secure to the fishermen of the United States the privilege of entering hays and harbors for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and to agree upon and establish such restrictions as may be necessary to prevent the abuse of the privilege reserved by said convention to the fishermen of the United States.
(3) To agree upon and recommend the penalties to be adjudged, and such proceedings and jurisdiction as may be necessary to secure a speedy trial and judgment with as little expense as possible, for the violators of rights and the transgressors of the limits and restrictions which may be hereby adopted:
Provided, however, that the limits, restrictions, and regulations which may be agreed upon by the said commission shall not be final, nor have any effect until so jointly confirmed and declared by the United States and Her Majesty the Queen of Great Britain, either by treaty or by laws mutually acknowledged.
Pending a definitive arrangement on the subject, Her Britannic Majesty’s Government agree to instruct the proper colonial and other British officers to abstain from seizing or molesting fishing vessels of the United States unless they are found within three marine miles of any of the coasts, bays, creeks, and harbors of Her Britannic Majesty’s dominions in America, there fishing, or to have been fishing, or preparing to fish within those limits, not included within the limits within which, under the treaty of 1818, the fishermen of the United States continue to retain a common right of fishery with Her Britannic Majesty’s subjects.
For the purpose of executing Article I of the convention of 1818, the Government of the United States and the Government of Her Britannic Majesty hereby agree to send each to the Gulf of St. Lawrence a national vessel, and also one each to cruise during the fishing season on the southern coasts of Nova Scotia. Whenever a fishing vessel of the United States shall be seized for violating the provisions of the aforesaid convention by fishing or preparing to fish within three marine miles of any of the coasts, bays, creeks, and harbors of Her Britannic Majesty’s dominions included within the limits within which fishing is by the terms of the said convention renounced, such vessel shall forthwith be reported to the officer in command of one of the said national vessels, who, in conjunction with the officer in command of another of said vessels of the different nationality, shall hear and examine into the facts of the case. Should the said commanding officers be of opinion that the charge is not sustained, the vessel shall be released. But if they should be of opinion that the vessel should be subjected to a judicial examination, she shall forthwith be sent for trial before the vice-admiralty court at Halifax. If, however, the said commanding officers should differ in opinion, they shall name some third person to act as umpire between them, and should they be unable to agree upon the name of such third person, they shall each name a person, and it shall be determined by lot which of the two persons so named shall be the umpire.
The fishing vessels of the United States shall have in the established ports of entry of Her Britannic Majesty’s dominions in America the same commercial privileges as other vessels of the United States, including the purchase of bait and other supplies; and such privileges shall be exercised subject to the same rules and regulations and payment of the same port charges as are prescribed for other vessels of the United States.
The Government of Her Britannic Majesty agree to release all United States fishing vessels now under seizure for failing to report at custom-houses when seeking shelter, repairs, or supplies, and to refund all fines exacted for such failure to report. And the high contracting parties agree to appoint a joint commission to ascertain the amount of damage caused to American fishermen during the year 1886 by seizure and detention in violation of the treaty of 1818, said commission to make awards therefor to the parties injured.
The Government of the United States and the Government of Her Britannic Majesty agree to give concurrent notification and warning of Canadian customs regulations, and the United States agrees to admonish its fishermen to, comply with them, and cooperate in securing their enforcement.
Arrangement between France and Great Britain concerning the Newfoundland fisheries, November 14, 1885.
The undersigned commissioners delegated by the Governments of France and Great Britain, to the end of seeking—apart from the treaties now in force which they are not authorized either to modify or to interpret—the means of preventing and settling differences relative to the use of the fisheries on the coasts of Newfoundland, have drawn up by common accord, under reserve of the approbation of their respective Governments, the following engagements [dispositions
The Government of Her Majesty the Queen of the United Kingdom of Great Britain and Ireland engage to conform to the hereinafter expressed provisions tor assuring to French fishermen, in the execution of existing treaties and particularly the declaration of 1783, the free exercise of their industry upon the coasts of Newfoundland without hinderance or obstacle of any kind on the part of British subjects.
The Government of the French Republic engages for its part, in exchange for the assurance granted to the French fishermen by the application of the pro visions set forth in the present arrangement, not to make any remonstrance against the creation of the establishments necessary to the development of any industry other than that of the fisheries, upon the parts of the coast of Newfoundland comprised between Gape St. John and Cape Kay, marked in red upon the map hereto annexed and which also are not mentioned in the schedule, hereto annexed, comprising the portions of territory to which the present paragraph does not apply.
It likewise engages not to disturb the resident British subjects in respect of establishments actually set up on the coast comprised between Cape St. John and Cape Kay to the northward of each cape. But new establishments shall not be set up on the parts of the coast comprised in the schedule mentioned in the foregoing paragraph.
Notwithstanding the interdiction stipulated in the closing part of the second paragraph of the foregoing article, in case a mine be found in the neighborhood of any part of the coast comprised in the schedule annexed to the present arrangement, the Government of the French Republic engages not to oppose the enjoyment by the interested parties, in order to work the said mine, of all facilities compatible with the free exercise of the French fisheries.
To this end a wharf may be established on a point of the coast designated by common accord by the commanders of the cruisers of the two countries.
The buildings necessary to the working of the mine, such as dwelling-houses, workshops, storehouses, etc., shall be erected on the part of the territory situated outside the limits fixed in the annexed schedule for the exercise of the French fishery. They shall be connected with the wharf by a single line of railway, of one or two tracks.
To the end of facilitating the operations of lading and unlading, sheds and storehouses may, nevertheless, be constructed on both sides of the railway for the temporary storage of ore and materials necessary for the mine, within a space not to exceed 15 meters on each side of the track, such space to be surrounded by a fence or inclosure of some kind.
No establishment other than the wharf, the railway, and the sheds and store-houses above mentioned, can, under the final provision of the second paragraph of the foregoing article, be set up on the part of the coast reserved for fishing, within the limits fixed in the schedule hereto annexed.
The provisions of the present article shall be likewise applied to the working of a mine outside of these limits, on condition that it shall have been previously ascertained, by common accord, by the commanders of the cruisers of the two countries, that the working of such mine shall not be of a nature to hinder the free exercise of the French fishery.
It is agreed that the French shall retain, to the fullest extent, upon all that part of the coast comprised between Cape St. John and Cape Ray, and as it is defined by the [Page 430] treaties, the right to take, dry, and cure fish [le droit de pêcfier, séeker, préparer le poisson] as weir as the right to cut, anywhere save in inclosed properties, the wood necessary for their drying-stages, cabins, and fishing-vessels.
The surveillance and police of the fisheries shall be exercised by vessels of the military marine of the two countries, under the conditions hereinafter laid down—the commanders of the cruisers having, under these conditions, sole authority and competence in all matters concerning the fisheries and the operations pertaining thereto.
The French and English fishing vessels or boats shall be registered according to the administrative regulations of the country to which they belong, and shall plainly carry distinctive marks permitting their identity to be ascertained from a distance.
The captains, masters, or skippers [patrons] shall Carry papers to prove the nationality of their vessels or boats.
The commanders of the cruisers of each nation shall mutually give information of infractions of the rules established by the foregoing article, which may be committed by the vessels or boats of the other nation.
The cruising vessels of the two countries shall be competent to ascertain an infractions of existing treaties, particularly of the declaration of 1783, by the terms whereof the British subjects shall not “interrupt in any manner, by their competition, the fishery of the French during the temporary exercise of it which is granted to them, upon the coasts of the island of Newfoundland.”
Upon the complaint of the French fishermen, or upon their application for the enjoyment of their fishing right, the commanders of the English cruising vessels will oppose—and if there be no English cruiser in sight the commanders of the French cruisers may oppose—all operations of fishing by British subjects which may interfere with the industry of said French fishermen; they will remove the boats or vessels which may be an obstacle to such industry.
To this end the commanders of the French cruising vessels may serve the necessary injunctions upon the parties in interest, and, in case of resistance, seize their fishing-tackle implements (engins de pêche) and set the same on shore or deliver them up to the commanders of the cruisers of Her Britannic Majesty.
In case no inconvenience shall be found to result for the French fishermen and when no complaint or demand shall have been made on their part looking to the unimpeded use of their right of fishing, the commanders of the French cruisers will not oppose the exercise of the fisheries by British subjects.
In the event of the natives hindering or molesting on land, by their acts, the drying and curing of fish and in general the diverse operations which depend upon the exercise of the French fisheries on the coast of Newfoundland, a statement of proof of the damage caused shall be drawn up by the commanders of Her Britannic Majesty’s cruising vessels, and in their absence by the commanders of the French cruisers.
In this latter case, the statement shall be admissible as evidence before the commanders of Her Britannic Majesty’s cruisers, in their capacity as magistrates in administering justice.
If an offense is committed, or an injury caused, the commanders of the cruising vessels of the delinquent’s nationality, and in their absence the commanders of the cruising vessels of the plaintiff’s nationality, shall estimate the gravity of the facts brought to their cognizance and assess the damage suffered by the party aggrieved.
They shall draw up, in the due case, and according to the forms usual in their country, statements in evidence of the facts such as they shall appear, whether from the declarations of the interested parties or from the testimony collected.[Page 431]
The statement shall he admissible as evidence before the commanders of the cruisers of the delinquent’s nationality, within the limits of their competence.
If the case seem to him sufficiently grave to justify such a step, the commander of the cruising vessel of the plaintiff’s nationality shall have the right—if there be not in sight any cruiser of the delinquent’s nationality—to take into custody (s’assurer de) either the delinquent in person or his boat, in order to deliver them up to the commanders of the cruising vessels of their nationality.
The commanders of the English and French cruising vessels shall, within the limit of their competence, administer justice summarily faire droit d’urgenee upon the complaints brought before them, whether preferred directly by the interested party or through the medium of the commanders of the cruisers of the other nation.
Resistance to the orders or injunctions of the commanders of the cruising vessels charged with the police of the fisheries, or of persons acting under their orders, shall, without reference to the nationality of the cruiser, be deemed resistance to the competent authority to the end of repressing the act charged.
When the act charged is not grave, but, nevertheless, shall have occasioned dam age, the commanders of the cruising vessels may adjust the dispute [concilier] between the interested parties, and fix the indemnity to be paid, with the consent of the parties.
The French Government renounces, for its citizens, the salmon fishery in running waters, and does not reserve the fishery for this fish, save at sea and in the mouths of rivers as far as salt-water extends; but it is forbidden to set fixed barriers which may impede internal navigation or the free passage of fish,
French fishermen shall be exempt from any tax upon the introduction into that part of the island of Newfoundland comprised between Cape St. John and Cape Ray and to the northward of those capes, of all objects, materials, provisions, etc., necessary to their industry, their subsistence, and their temporary establishment upon the coast of that Britannic possession.
They shall, likewise, be exempt in that same part of the island, from all lighthouse, port, or other navigation dues.
The French fishermen shall have the right to buy bait, herring and caplin, on land or at sea, in the harbors of Newfoundland, without tax or impediment of any kind, after the 5th day of April of each year, and until the end of the fishing season.
The employment of French subjects, at the rate of one guardian, with his family, for each harbor, is authorized in order to guard the French establishments during the cessation of the fishing season.
In the harbors of large extent where the temporary establishments of French citizens are too tar apart to permit of one guardian watching over the establishments the presence of a second guardian with his family will be authorized.
Every fishing vessel, every article of equipment or rigging of a fishing vessel, and every net, line, buoy, or implement, whatever, which may have been found or picked up, shall be as soon as possible delivered to the competent authorities of the nation of the salvor.
The articles found shall be restored to the owners or their representatives through the care of the said competent authorities and under reserve of the prior guarantee of the salvors’ rights.
The indemnity to be paid to the salvors shall be fixed in conformity with the legislation of their country.[Page 432]
The provisions of the present arrangement, with the exception of those of Articles 1, 2 and 18, shall only be applicable within the season during which the treaties grant to Frenchmen the right of taking and curing fish.
In witness whereof the undersigned commissioners have drawn up the present, arrangement, subject to the approval of their respective Governments, and hereunto set their names.
- Ch. Jagerschmidt.
- Francis Clare Ford.
- Edmund Burke Pennell.
treaties between great britain and france relative to the newfoundland fishery; renewed by article 13 of the treaty of peace of 30th may, 1841. (page 162.)
(1) Treaty of peace and friendship between Great Britain and France, the 11th April, 1713.
13. The island called Newfoundland, with the adjacent islands, shall from this time forward belong of right wholly to Britain; and to that end, the town and fortress of Placentia, and whatever other places in the said island are in the possession of the French, shall be yielded and given up within seven months from the exchange of the ratifications of this treaty, or sooner if possible, by the Most Christian King, to those who have a commission from the Queen of Great Britain for that purpose. Nor shall the most Christian King, his heirs and successors, or any of their subjects, at any time hereafter lay claim to any right to the said island or islands, or to any part of it or them. Moreover it shall not be lawful for the subjects of France to fortify any place in the said island of Newfoundland, or to erect any buildings there, besides stages made of boards and huts necessary and usual for drying of fish, or to resort to the said, island beyond-the time necessary for fishing and drying of fish.
But it shall be allowed to the subjects of France to catch fish and to dry them on land, in that part only, and in no other besides that, of the said island of Newfoundland, which stretches from the place called Cape Bonavista to the northern point of the said island, and from thence running down by the western side, reaches as far as the place called Point Riche. But the island called Cape Breton as also all others, both in the mouth of the river of St. Lawrence and in the Guelph of the same name, shall hereafter belong of right to the French; and the most Christian King shall have all manner of liberty to fortify any place or places there.
(2) Definitive treaty of peace between Great Britain and France. Signed at Paris, 10th February, 1763.
- The subjects of France shall have the liberty of fishing and drying, on a part of the coasts of the island of Newfoundland, such as it is specified in Article 13 of the treaty of Utrecht; which article is renewed and confirmed by the present treaty (except what relates to the island of Cape Breton as well as the other islands and coasts in the mouth and in the Gulph of St. Lawrence). And his Britannic Majesty consents to leave to the subjects of the Most Christian King the liberty of fishing in the Gulph St. Lawrence on condition that the subjects of France do not exercise the said fishery, but at the distance of 3 leagues from all the coasts belonging to Great Britain, as well those of the Continent as those of the islands situated in the said Gulph St, Lawrence. And as to what relates to the fishery on the coasts of the island [Page 433] of Cape Breton out of the said Gulph, the subjects of the most Christian King shall not be permitted to exercise the said fishery but at the distance of 15 leagues from the coasts of the island of Cape Breton; and the fishery on the coasts of Nova Scotia or Acadia, and everywhere else out of the said Gulph, shall remain on the foot of former treaties.*
- The King of Great Britain cedes the islands of St. Pierre and Miquelon, in full right, to his Most Christian Majesty, to serve as a shelter to the French fishermen; and His said Most Christian Majesty engages not to fortify the said buildings upon them but merely for the convenience of the fishery, and to keep upon them a guard of fifty men only for the police.
(3) Definitive treaty of peace between Great Britain and France, Signed at Versailles 3d September, 1783.
- His Majesty the King of Great Britain is maintained in his right to the island of Newfoundland and to the adjacent islands, as the whole were assured to him by the 13th article of the treaty of Utrecht, excepting the island of St. Pierre and Miquelon, which were ceded in full right by the present treaty to His Most Christian Majesty.
- His Majesty the Most Christian King, in order to prevent the quarrels which have hitherto arisen between the two nations of England and France, consents to renounce the right of fishing, which belongs to him in virtue of the aforesaid article of the treaty of Utrecht, from Cape Bonavista to Cape St. John, situated on the eastern coast of Newfoundland, in 50° north latitude; and His Majesty the King of Great Britain consents on his part that the fishery assigned to the subjects of His Most Christian Majesty, beginning at the said Cape St. John, passing to the north and descending by the western coast of the island of Newfoundland, shall extend to the place called Cape Raye, situated in 47° 50′ latitude. The French fishermen shall enjoy the fishery which is assigned to them by the present article as they had the right to enjoy that which was assigned to them by the treaty of Utrecht.
- With regard to the fishery in the Gulph of St. Lawrence, the French shall continue to exercise it conformably to the Vth article of the treaty of Versailles.
(Annex I.) British declaration. Signed at Versailles 3d September, 1783.
The King having entirely agreed with His Most Christian Majesty upon the articles of the definitive treaty, will seek every means which shall not only insure the [Page 434] execution thereof with his accustomed good faith and punctuality, but will besides give on his part all possible efficacy to the principles which shall prevent even the least foundation of dispute for the future.
To this end, and in order that the fisherman of the two nations may not give cause for daily quarrels, His Britannic Majesty will take the most positive measures for preventing his subjects from interrupting in any manner, by their competition, the fishery of the French during the temporary exercise of it which is granted to them upon the coasts of the island of Newfoundland; and he will, for this purpose, cause the fixed settlements which shall be found there to be removed. His Britannic Majesty will give orders that the French fishermen be not incommoded in cutting the wood necessary for the repair of their scaffolds, huts, and fishing vessels.
The thirteenth article of the treaty of Utrecht, and the method of carrying on the fishery, which has at all times been acknowledged, shall be the plan upon which the fishery shall be carried on there; it shall not be deviated from by either party; the French fishermen building only their scaffolds, confining themselves to the repair of their fishing vessels, and not wintering there; the subjects of His Britannic Majesty, on their part, not molesting, in any manner, the French fishermen during their fishing, nor injuring their scaffolds during their absence.
The King of Great Britain, in ceding the islands of St. Pierre and Miquelon to France, regards them as ceded for the purpose of serving as a real shelter to the French fishermen, and in full confidence that these possessions will not become an object of jealousy between the two nations; and that the fishery between the said islands and that of Newfoundland shall be limited to the middle of the channel.
(Annex 2.) French counter-declaration. Signed at Versailles 3d September, 1783.
The principles which have guided the King, in the whole course of the negotiations which preceded the re-establishment of peace, must have convinced the King of Great Britain that His Majesty has had no other design than to render it solid and lasting, by preventing as much as possible, in the four quarters of the world, every subject 01 discussion and quarrel. The King of Great Britain undoubtedly places too much confidence in the uprightness of His Majesty’s intentions not to rely upon his constant attention to prevent the islands of St. Pierre and Miquelon from becoming an object of jealousy between the two nations.
As to the fishery on the coasts of Newfoundland, which has been the object of the new arrangements settled by the two sovereigns upon this matter, it is sufficiently ascertained by the fifth article of the treaty of peace signed this day and by the declaration likewise delivered to-day by His Britannic Majesty’s ambassador extraordinary and plenipotentiary; and His Majesty declares that he is fully satisfied on this head.
In regard to the fishery between the island of Newfoundland and those of St. Pierre and Miquelon, it is not to be carried on by either party but to the middle of the channel. His Majesty will give the most positive orders that the French fishermen shall not go beyond this line. His Majesty is firmly persuaded that the King of Great Britain will give like orders to the English fishermen.
Mr. Seward to Mr. Adams .
Washington , April 10, 1866.
Sir: I send you a copy of a very suggestive letter from Mr. Richard D. Cutts, who, perhaps, you are aware, was employed as surveyor for marking, on the part of the United States, the fishery limits under the reciprocity treaty. Mr. Cutts’s long familiarity with that subject practically and theoretically entitles his suggestions to respect.
It is desirable to avoid any collision or misunderstanding with Great Britain on the subject growing out of the termination of the reciprocity treaty. With this view Unclose a draught of a protocol, which you may propose to Lord Clarendon for a temporary regulation of the matter, If he should agree to it, it may be signed. When [Page 435] signed it is desirable that the instructions referred to in the concluding paragraph should at once be dispatched by the British Government.
As the fishing season is at hand, the collisions which might be apprehended may occur when that season advances.
I am, sir, your obedient servant,
Mr. Cutis to Mr. Seward.
Sir: For a full understanding of the differences which now exist in regard to the rights which belong to American fishermen in the seas bordering the British North American colonies it is necessary to refer to the treaties and negotiations which preceded the convention of 1818, so far as they relate to the fisheries.
definitive treaty of peace, 1783.
Article 3. “It is agreed that the people of the United States shall continue to enjoy, unmolested, the right to take fish of any kind on the Grand Bank, and on all the other banks of Newfoundland; also in the Gulf of St. Lawrence, and at all other places in the sea where the inhabitants of both countries used at any time heretofore to fish; and, also, that they shall have liberty to take fish of every kind on such part of the coast of Newfoundland as British fishermen shall use, but not to dry or cure the same on that island; and also on the coasts, bays, and creeks of all other of His Britannic Majesty’s dominions in America.”
In the treaty of Ghent, terminating the last war with Great Britain, no allusion, was made to the subject of the fisheries.
In July, 1815, complaint was made that American fishing vessels, engaged in the cod-fishery off the coast of Nova Scotia, had been ordered away by a British sloop-of-war, and this act, while it was declared to be totally unauthorized by His Majesty’s Government, led to a correspondence between our minister at London (John Quincy Adams) and Lord Bathurst, in which the United States adhered to the right and liberty of fishing as secured by the treaty of 1783, on the ground that those rights and liberties were not grants from the King, but the permanent results of a partition of rights at the time of the separation of the two countries, and contended, therefore, that they could not be impaired by a state of war. On the other side it was asserted that while the right described in the treaty may not have been impaired, the “liberties” were a concession dependent on the treaty, and as the treaty was abrogated by the war, so also were the “liberties.”
convention of 1818.
At the third conference held between the American and British plenipotentiaries—[Messrs. Gallatin and Rush on the part of the United States, and Messrs. Robinson and Goldburn on the part of Great Britain—the former presented a proposition in regard to the fisheries in almost the identical language of the first article of the convention afterwards adopted, with the understanding that the liberty of fishing therein described should be considered as a permanent right, and not to be abrogated by the mere fact of a war between the two parties.
At the fifth conference a counter project was submitted by the British plenipotenp tiaries not materially differing from the above, except that the renunciatory clause was omitted, and the following paragraph added.
“And in order the more effectually to guard against smuggling, it shall not be lawful for vessels of the United States engaged in the said fishery to have on board any goods, wares, or merchandise whatever, except such as may be necessary for the prosecution of the fishery, a support of the fisherman while engaged therein or in the prosecution of their voyages to and from the said fishing grounds. And any vessel of the United States which shall contravene this regulation maybe seized, condemned, and confiscated, together with her cargo.”
In regard to this paragraph, and to another referring to fishing at the mouths of rivers, Messrs. Gallatin and Rush presented the following remarks:
“Whatever extent of fishing ground may be secured to American fishermen, the American plenipotentiaries are not prepared to accept it on a tenure, or on conditions different from those on which the whole has been heretofore held. Their instructions did not anticipate that any new terms or restrictions should be annexed, as none were suggested in the proposals made by Mr. Bagot to the American Government. The clauses forbidding the spreading of nets, and making vessels liable to confiscation, in [Page 436] case any articles not wanted for carrying on the fishery should be found on hoard, are of that description, and would expose the fishermen to endless vexations.”
At the seventh conference, held on the 13th October, 1818, the British plenipotentiaries submitted a second counter project, conforming with the views and free from the obligations presented by Messrs. Gallatin and Rush, and this project, being agreed to, constituted the first article of the convention, as follows:
“Whereas differences have arisen respecting the liberty claimed by the United States for the inhabitants thereof to take, dry and cure fish on certain coasts, bays, harbors, and creeks of his Britannic Majesty’s dominions in America, it is agreed between the high contracting parties that the inhabitants of said United States shall 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 Newfoundland which extends from Cape Ray to the Ramea Islands, on the western and northern coast of Newfoundland from the said Cape Ray to the Ramea 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, harbors, and creeks, from Mount Goly, on the southern coast of Labrador, and through the Straits of Belle Isle, and thence northwardly, indefinitely, along the coast, without prejudice, however, to any of the exclusive rights of the Hudson’s Bay Company; and that the American fishermen shall also have liberty forever to dry and cure fish in any of the unsettled bays, harbors, and creeks of the southern part of the coast of Newfoundland, here above 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 cure fish at any 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, or within 3 marine miles of any of the coasts, bays, creeks, or harbors of His Britannic 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 harbors 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 manner whatever abusing the privileges hereby reserved to them.”
The differences which have heretofore arisen between the United States and Great Britain, touching the exercise of the rights and liberties secured to American fishermen, may be classed under two principal heads:
1. As to the construction of the renunciatory clause of the convention. Under this clause Great Britain has contended that no American fisherman has the right to fish within 3 marine miles of the entrance to any “bay,” which “from its geographical position may be properly considered as included within the British possessions,” and that the entrance to such bay must be designated by a line drawn from headland to headland. In support of this construction it has been urged that “if the convention was intended to stipulate simply that American fishermen should not take fish within 3 miles of the coast, there was no occasion for using the word bay at all, but the proviso at the end of the article ‘hows that the word’ ‘bay’ was used designedly, for it is expressly stated in that proviso that, under certain circumstances, the American fishermen can enter bays, by which is evidently meant that they may, under these circumstances, pass the sea line which forms the entrance to the bay.”
According to this construction, so undefined and indefinite, the bays of Fundy and Chaleur, or any extent of the sea lying between distant headlands, may be reserved under the name of bay, for the exclusive use of British fishermen.
The United States are firmly opposed to such a construction, believing it to be totally unauthorized by the language or intention of the convention, or by the right acquired by usage. In the opinion of this Government, repeatedly announced at different periods, the American fishermen have a clear right to the use of the fishing grounds lying off the provincial coasts, whether in the main ocean or in the inland seas, provided they do not approach within 3 marine miles of such coasts or of the entrance to any bay, creek, or harbor not more than 6 miles in width; and to such bays only does the renunciatory clause in the first article apply. They object to the British construction on the ground that, if such arms of the sea as the bays of Fundy and Chaleur, or such curves in the coast as the bay of Miramichi, or such part of the sea included between headlands as the wide indentation on the coast of Cape Breton, lying between Cape North and Cape Percy, were the “bays” renounced, there would be an inconsistency, if not a clear contradiction, in the very next sentence of the article, which authorizes American fishermen “to enter such bays for the purpose of shelter and of repairing damages.” It can hardly be contended that “shelter” can be obtained in the bay of Fundy, an arm of the sea 40 miles wide and 100 in length, or that either shelter, wood, or water can be obtained, or damages repaired, in the [Page 437] curve of the coast between the headlands of St. Escumenac and Blackland Point, designated on the chart as the bay of Miramichi. It is objected to, also, for the reason that it would permit the drawing of lines anywhere in the gulf or on the coast from headland to headland, any one of which could be made to embrace, at one sweep, many bays, creeks, and harbors, besides a portion of the high seas, and from which the American fishermen could be kept an indefinite distance, and be thereby driven from the fishing grounds.
Moreover, it is believed that while the British construction is not necessary to secure to the people of the provinces the inshore fisheries, or to protect their rights of property, or their territorial jurisdiction, allot which are amply secured by the 3 marine miles restriction, it would materially restrict the full enjoyment of the right which we possessed before the Revolution, which was acknowledged in the definitive treaty of peace, which was not affected by the treaty of Ghent, and which, according to the decision of Great Britain, expressed in the correspondence which preceded the convention; was not abrogated by the war of 1812. That right is “to take fish” of any kind “in the gulf of St. Lawrence, and at all other places in the sea where the inhabitants of both countries used at any time heretofore to fish.” No construction liable to such indefinite extension or application can be correct or be allowed.
In 1845 Her Majesty’s Government receded from the above position, so far as the bay of Fundy is concerned, and from that date our right of fishery in that bay has not been a matter of dispute. It is now open to American fishermen, to be used in the same manner as the more open sea; provided, however, that they do not take fish within 3 marine miles of the coasts or of the entrance to any bay, creek, or harbor of Nova Scotia or New Brunswick, between which two provinces that arm of the sea extends.
2. As to the restrictions imposed by the colonies to prevent the privileges of shelter, etc., from being abused by American fishermen.
The fishermen of the United States are frequently compelled by rough weather, or by injuries to their vessels received in a gale, or in consequence of collision or other accident, to seek the nearest port for shelter and repairs. And it is also necessary at stated intervals, while they are engaged during the summer and fall in following their avocation, that they should take on board a resupply of wood and water; and for either of these purposes they have the right, so long as the convention continues in force, to resort to the bays and harbors of the different provinces.
Some of the colonial laws, especially those of Nova Scotia, enacted to prevent the abuse of these privileges, are of such a stringent character as to almost annul the right, or make it at least hazardous for American fishermen to attempt to enjoy it. Seizures are made on the slightest suspicion, or on false pretenses or charges; heavy bonds are required before suit can be instituted to recover; the owner of the vessel must bring the charges, and if unsuccessful, he is mulcted in treble costs, besides the loss of vessel and cargo.
In this connection it must be borne in mind that a proposition was made to introduce into the convention a stipulation that “it shall not be lawful for the vessels of the United States, engaged in the said fishery, to have on board any goods, wares, or merchandise whatever, except such as may be necessary for the prosecution of the fishery or support of the fishermen,” etc., and that this proposed stipulation having been objected to by Messrs. Gallatin and Rush, on the ground that it “would expose our fishermen to endless vexations,” it was withdrawn by the British plenipotentiaries.
Such was the condition of the controversy between the United States and Great Britain as to the limits of our right of fishery on the provincial coasts, and such the severe restrictions, amounting almost to prohibition, on the privilege of entering bays and harbors for shelter, wood, or water, previous to 1854, the date of the late reciprocity treaty with Great Britain. That treaty having expired on the 17th of March last, the American fishermen must fall back on their rights, as thus explained and as heretofore enjoyed.
I have the honor to be, very respectfully, your obedient servant,
Whereas in the first article of the convention between the United States and Great Britain, concluded and signed in London on the 20th of October, 1818, it was declared that “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 3 marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty’s dominions in America not included within certain limits heretofore mentioned;” and whereas differences have arisen in regard to the extent of the above-mentioned renunciation, [Page 438] the Government of the United States and Her Majesty the Queen of Great Britain, being equally desirous of avoiding further misunderstanding, have agreed to appoint, and do hereby authorize the appointment of a mixed commission for the following purposes, namely:
- To agree upon and define by a series of lines the limits which shall separate the exclusive from the common right of fishing on the coasts and in the seas adjacent of the British North American colonies, in conformity with the first article of the convention of 1818; the said lines to be regularly numbered, duly described, and also clearly marked on charts prepared in duplicate for the purpose.
- To agree upon and establish such regulations as may be necessary and proper to secure to the fishermen of the United States the privilege of entering bays and harbors for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and to agree upon and establish such restrictions as may be necessary to prevent the abuse of the privilege reserved by said convention to the fishermen of the United States.
- To agree upon and recommend the penalties to be adjudged, and such proceedings and jurisdiction as may be necessary to secure a speedy trial and judgment with as little expense as possible, for the violators of rights and the transgressors of the limits and restrictions which may be hereby adopted.
Provided, however, That the limits, restrictions, and regulations which may be agreed upon by the said commission shall not be final nor have any effect, until so jointly confirmed and declared by the United States and Her Majesty the Queen of Great Britain, either by treaty or by laws, mutually acknowledged and accepted by the President of the United States, by and with the consent of the Senate, and by Her Majesty the Queen of Great Britain.
Pending a definitive arrangement on the subject, the United States Government engages to give all proper orders to officers in its employment, and Her Britannic Majesty’s Government engages to instruct the proper colonial or other British officers to abstain from hostile acts against British and United States fishermen respectively.
Convention between Her Britannic Majesty, the German Emperor, King of Prussia, the King of the Belgians, the King of Denmark, the President of the French Republic, and the King of the Netherlands, for regulating the police of the North Sea fisheries.
(Signed at the Hague, May 6, 1882.)
Her Majesty the Queen of the United Kingdom of Great Britain and Ireland; His Majesty the German Emperor, King of Prussia; His Majesty the King of the Belgians; His Majesty the King of Denmark; the President of the French Republic; and His Majesty the King of the Netherlands, having recognized the necessity of regulating the police of the fisheries in the North Sea, outside territorial waters, have resolved to conclude for this purpose a convention, and have named their plenipotentiaries as follows:
Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, the honorable William Stuart, companion of the Most Honorable Order of the Bath, etc., her envoy extraordinary and minister plenipotentiary at The Hague; Charles Malcolm Kennedy, esq., companion of the Most Honorable Order of the Bath, etc., head of the commercial department of the foreign office; and Charles Cecil Trevor, esquire, barrister at law, assistant secretary to the Board of Trade, etc.;
His Majesty the German Emperor, King of Prussia, Veit Richard von Schmidthals, knight of the Order of the Red Eagle of the third class, and of the Order of St. John, etc., councilor of legation, his chargé d’affaires at The Hague; and Peter Christian Rinch Donner, knight of the Order of the Red Eagle of the fourth class with the sword, and of the crown of the fourth class, etc., his councilor of state, captain in the navy, on the reserve;
His Majesty the King of the Belgians, the Baron d’Anethan, commander of the Order of Leopold., etc., his envoy extraordinary and minister plenipotentiary at The Hagtie; and M. Léopold Orban, commander of the Order of Leopold, etc., his envoy extraordinary and minister plenipotentiary, director-general of the political department in the ministry of foreign affairs;
His Majesty the King of Denmark, Carl Adolph Bruun, knight of the Order of the Danebrog, etc., captain in the navy;
The President of the French Republic, the Count Lefebvre de Beliaine, commander of the national order of the Legion of Honor, etc., envoy extraordinary and minister [Page 439] plenipotentiary of the French Republic at The Hague; and M. Gustave fimile Mancel, officer of the national order of the Legion of Honor, etc., commissary of marine;
His Majesty the King of the Netherlands, the Jonkheer Willem Frederik Rochussen, commander of the Order of the Lion of the Netherlands, etc., his minister of foreign affairs, and Eduard Nicolaas Rahusen, knight of the Order of the Lion of the Netherlands, etc., president of the committee for sea fisheries:
Who, after having communicated the one to the other their, full powers, found in good and due form, have agreed upon the following articles:
The provisions of the present convention, the object of which is to regulate the police of the fisheries in the North Sea, outside territorial waters, shall apply to the subjects of the high contracting parties.
The fishermen of each country shall enjoy the exclusive right of fishery within the distance of 3 miles from low-water mark along the whole extent of the coasts of their respective countries, as well as of the dependent islands and banks.
As regards bays, the distance of 3 miles shall be measured from a straight line drawn across the bay in the part nearest the entrance, at the first point where the width does not exceed 10 miles.
The present article shall not in any way prejudice the freedom of navigation and anchorage in territorial waters accorded to fishing boats, provided they conform to the special police regulations enacted by the powers to whom the shore belongs.
The miles mentioned in the preceding article are geographical miles, whereof 60 make a degree of latitude.
For the purpose of applying the provisions of the present convention, the limits of the North Sea shall be fixed as follows:
- On the north by the parallel of the 61st degree of latitude.
- On the east and south:
- By the coasts of Norway, between the parallel of the 61st degree of latitude and Lindesnaes light-house (Norway);
- By a straight line drawn from Lindesnaes light-house (Norway) to Hanstholm light-house (Denmark);
- By the coasts of Denmark, Germany, the Netherlands, Belgium, and France, as far as Griz Nez light-house.
- On the west:
- By a straight line drawn from Griz Nez light-house (France) to the easternmost light-house at South Foreland (England);
- By the eastern coasts of England and Scotland;
- By a straight line joining Duncansby Head (Scotland) and the southern point of South Ronaldshay (Orkney Islands);
- By the eastern coasts of the Orkney Islands;
- By a straight line joining North Ronaldshay light-house (Orkney Islands) and Sum burgh Head light-house (Shetland Islands);
- By the eastern coasts of the Shetland Islands;
- By the meridian of North Unst light-house (Shetland Islands) as far as the parallel of the 61st degree of latitude.
The fishing boats of the high contracting parties shall be registered in accordance with the administrative regulations of each country. For each port there shall be a consecutive series of numbers, preceded by one or more initial letters, which shall be specified by the superior competent authority.
Each Government shall draw up a list showing these initial letters.
This list, together with all modifications which may subsequently be made in it, shall ho notified to the other contracting powers.
Fishing boats shall bear the initial letter or letters of the port to which they belong, f and the registry number in the series of numbers for that port.[Page 440]
The name of each fishing boat, and that of the port to which she belongs, shall be painted in white oil color on a black ground on the stern of the boat, in letters which shall be at least 8 centimeters in height and 12 millimeters in breadth.
The letter or letters and numbers shall be placed on each bow of the boat, 8 or 10 centimeters below the gunwale, and so as to be clearly visible. They shall be painted in white oil color on a black ground.
The distance above mentioned shall not, however, be obligatory for boats of small burden, which may not have sufficient space below the gunwale.
For boats of 15 tons burden and upwards the dimensions of the letters and numbers shall be 45 centimeters in height and 6 centimeters in breadth.
For boats of less than 15 tons burden the dimensions shall be 25 centimeters in height and 4 centimeters in breadth.
The same letter or letters and numbers shall also be painted on each side of the mainsail of the boat, immediately above the close reef, in black color on white or tanned sails, and in white oil color on black sails.
The letter or letters and numbers on the sails shall be one-third larger in every way than those placed on the bows of the boat.
Fishing boats may not have, either on their outside or on their sails, any names, letters, or numbers other than those prescribed by Articles VI VII, and VIII of the present convention.
The names, letters, and numbers placed on the boats and on their sails shall not be effaced, altered, made illegible, covered, or concealed in any manner whatsoever.
All the small boats, buoys, principal floats, trawls, grapnels, anchors, and generally all fishing implements, shall be marked with the letter or letters and numbers of the boats to which they belong.
These letters and numbers shall be large enough to be easily distinguished. The owner of the nets or other fishing implements may further distinguish them by any private marks they think proper.
The master of each boat must have with him an official document, issued by the proper authority in his own country, for the purpose of enabling him to establish the nationality of the boat.
This document must always give the letter or letters and number of the boat, as well as her description and the name or names of the owner or the name of the firm or association to which she belongs.
The nationality of a boat must not be concealed in any manner whatsoever.
No fishing boat shall anchor, between sunset and sunrise, on grounds where drift-net fishing is actually going on.
This prohibition shall not, however, apply to anchorings which may take place in consequence of accidents or any other compulsory circumstances.
Boats arrived on the fishing grounds shall not either place themselves or shoot their nets in such a way as to injure each other, or as to interfere with fishermen who have already commenced their operations.[Page 441]
Whenever, with a view of drift-net fishing, decked boats and undecked boats commence shooting their nets at the same time, the undecked boats shall shoot their nets to windward of the decked boats.
The decked boats, on their part, shall shoot their nets to leeward of the undecked boats.
As a rule, if decked boats shoot their nets to windward of undecked boats which have begun fishing, or if undecked boats shoot their nets to leeward of decked boats which have begun fishing, the responsibility as regards any damages to nets which may result shall rest with the boats which last began fishing, unless they can prove that they were under stress of compulsory circumstances’, or that the damage was not caused by their fault.
No net or any other fishing engine shall be set or anchored on grounds where drift-net fishing is actually going on.
No fisherman shall make fast or hold on his boat to the nets, buoys, floats, or any other part of the fishing tackle of another fisherman.
Whentrawl fishermen are in sight of drift-net or of long-line fishermen, they shall take all necessary steps in order to avoid doing injury to the latter. Where damage is caused, the responsibility shall lie on the trawlers, unless they can prove that they were under stress of compulsory circumstances, or that the loss sustained did not result from their fault.
When nets, belonging to different fishermen get foul of each other, they shall not be cut without the consent of both parties.
All responsibility shall Cease, if the impossibility of disengaging the nets by any other means is proved.
When a boat fishing with long lines entangles her lines in those of another boat the person who hauls up the lines shall not cut them, except under stress of compulsory circumstances, in which case any line which may be cut shall be immediately joined together again.
Except in cases of salvage, and the cases to which the two preceding articles relate, no fisherman shall, under any pretext whatever, cut, hook, or lift up nets, lines, or other gear not belonging to him.
The use of any instrument or engine which serves only to cut or destroy nets is forbidden.
The presence of any such engine on board a boat is also forbidden. The high contracting parties engage to take the necessary measures for preventing the embarkation of such engines on board fishing boats.
Fishing boats shall conform to the general rules respecting lights which have been, or may be, adopted by mutual arrangement between the high contracting parties with the view of preventing Collisions at sea.
All fishing boats, all their small boats, all rigging gear or other appurtenances of fishing boats, all nets, lines, buoys, floats, or other fishing implements whatsoever [Page 442] found or picked up at sea, whether marked or unmarked, shall, as soon as possible, be delivered to the competent authority of the first port to which the salving boat returns or puts in such authority shall inform the consul or consular agent of the country to which the boat of the salvor belongs, and of the nation of the owners of the articles found. They [the same authority] shall restore the articles to the owners thereof or to their representatives, as soon as such articles are claimed and the interests of the salvors have been properly guarantied.
The administrative or judicial authorities, according as the laws of the different countries may provide, shall fix the amount which the owners shall pay to the salvors.
It is, however, agreed that this provision shall not in any-way prejudice such conventions respecting this matter as are already in force, and that the high contracting parties reserve the right of regulating, by special arrangements between themselves, the amount of salvage at a fixed rate per net salved.
Fishing implements of any kind found unmarked shall be treated as wreck.
The superintendence of the fisheries shall be exercised by vessels belonging to the national navies of the high contracting parties. In the case of Belgium, such vessels may be vessels belonging to the State, commanded by captains who hold commissions.
The execution of the regulations respecting the document establishing nationality, the marking and numbering of boats, etc., and of fishing implements, as well as the presence on board of instruments which are forbidden (Articles VI, VII, VIII, IX, X, XI, XII, XIII, and XXIII, section 2), is placed under the exclusive superintendence of cruisers of the nation of each fishing boat.
Nevertheless the commanders of cruisers shall acquaint each other with any infractions of the above-mentioned regulations committed by the fishermen of another nation.
The cruisers of all the high contracting parties shall be competent to authenticate all infractions of the regulations prescribed by the present convention, other than those referred to in Article XXVII, and all offenses relating to fishing operations, whichever may be the nation to which the fishermen guilty of such infractions may belong.
When the commanders of cruisers have reason to believe that an infraction of the provisions of the present convention has been committed, they may require the master of the boat inculpated to exhibit the official document establishing her nationality. The fact of such document having been exhibited shall then be indorsed upon it immediately.
The commanders of cruisers shall not pursue further their visit or search on board a fishing boat which is not of their own nationality, unless it should be necessary for the purpose of obtaining proof of an offense or of a contravention of regulations respecting the police of the fisheries.
The commanders of the cruisers of the signatory powers shall exercise their judgment as to the gravity of facts brought to their knowledge, and of which they are empowered to take cognizance, and shall verify the damage, from whatever cause arising, which may be sustained by fishing boats of the nationalities of the high contracting parties.
They shall draw up, if there is occasion for it, a formal statement of the verification of the facts as elicited both from the declarations of the parties interested and from the testimony of those present.
The commander of the cruiser may, if the case appears to him sufficiently serious to justify the step, take the offending boat into a port of the nation to which the fisherman belongs. He may even take on board the cruiser a part of the crew of the fishing boat in order to hand them over to the authorities of her nation.
The formal statement referred to in the preceding article shall be drawn up in language of the commander of the cruiser, and according to the forms in use in his country.[Page 443]
The accused and the witnesses shall he entitled to add, or to have added, to such statement, in their own language, any observations or evidence which they may think suitable. Such declarations must be duly signed.
Resistance to the directions of commanders of cruisers charged with the police of the fisheries, or of those who act under their orders, shall, without taking into account the nationality of the cruiser, be considered as resistance to the authority of the nation of the fishing boat.
When the act alleged is not of a serious character, but has nevertheless caused damage to any fisherman, the commanders of cruisers shall be at liberty, should the parties concerned agree to it, to arbitrate at sea between them, and to fix the compensation to be paid.
Where one of the parties is not in a position to settle the matter at once, the commanders shall cause the parties concerned to sign in duplicate a formal document specifying the compensation to be paid.
One copy of this document shall remain in board the cruiser, and the other shall be handed to the master of the boat to which the compensation is due, in order that he may, if necessary, be able to make use of it before the courts of the country to which the debtor belongs.
Where, on the contrary, the parties do not consent to arbitration, the commanders shall act in accordance with the provisions of Article XXX.
The prosecutions for offenses against, or contraventions of, the present convention shall be instituted by, or in the name of, the state.
The high contracting parties engage to propose to their respective legislatures the necessary measures for insuring the execution of the present convention, and particularly for the punishment, by either fine or imprisonment, or by both, of persons who may contravene the provisions of Articles VI to XXIII inclusive.
In all cases of assault committed, or of willful damage or loss inflicted, by fishermen of one of the contracting countries upon fishermen of another nationality, the courts of the country to which the boats of the offenders belong shall be empowered to try them.
The same rule shall apply with regard to offenses against, and contraventions of, i the present convention.
The proceedings and trial in cases of infraction of the provisions of the present convention shall take place as summarily as the laws and regulations in force will permit.
The present convention shall be ratified. The ratifications shall be exchanged at the Hague as soon as possible.
The present convention shall be brought into force from and after a day to be agreed upon by the high contracting parties.
The convention shall continue in operation for five years from the above day; and, unless one of the high contracting parties shall, twelve months before the expiration of the said period of five years, give notice of intention to terminate its operation, shall continue in force one year longer, and so on from year to year. If, however, one of the signatory powers should give notice to terminate the convention, the same shall be maintained between the other contracting parties, unless they give a similar notice.[Page 444]
The Government of His Majesty the King of Sweden and Norway may adhere to the present convention, for Sweden and for Norway, either jointly or separately.
This adhesion shall he notified to the Netherlands Government, and by it to the other signatory powers.
In witness whereof the plenipotentiaries have signed the present convention, and have affixed thereto their seals.
In conformity with the agreement arrived at between their respective Governments, the undersigned envoys extraordinary and ministers plenipotentiary of Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, Empress of India, His Majesty the German Emperof, King of Prussia, His Majesty the King of the Belgians, and the French Republic, met together this day at the office of the minister for foreign affairs at the Hague, in order to proceed with the undersigned minister for foreign affairs of His Majesty the King of the Netherlands, to the examination and deposit of the instruments of ratification of the convention signed at the Hague the 6th May, 1882, having for its object the regulation of the police of the fisheries in the North Sea, outside territorial waters.
The instruments of ratification having been produced, and the minister for foreign affairs of His Majesty the King of the Netherlands having produced the instrument of ratification of His Majesty the King of Denmark, Which the minister for foreign affairs at Copenhagen had forwarded to him in a note dated the 11th June, 1883, as well as the instrument of ratification signed by His Majesty the King of the Netherlands, and the said instruments having been examined and found in good and due form, the documents were delivered to the minister for foreign affairs of His Majesty the King of the Netherlands, in order that they might remain deposited in the archives of the department for foreign affairs at the Hague, such deposit being in place of an exchange of the said instruments.
The undersigned, envoys extraordinary and ministers plenipotentiary, duly authorized by their respective Governments, and the undersigned, minister for foreign affairs of His Majesty the King of the Netherlands, equally authorized by His Majesty the King of the Netherlands, and by the Government of His Majesty the King of Denmark, have, moreover, mutually agreed that the convention shall be put into operation two months after the date of the present protocol.
In witness whereof the respective plenipotentiaries have signed the same, and have affixed thereto the seal of their arms.
The undersigned, envoys extraordinary and ministers plenipotentiary of His Majesty the German Emperor, King of Prussia, His Majesty the King of the Belgians, the French Republic, and Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, Empress of India, and the undersigned, minister for foreign affairs of [Page 445] His Majesty the King of the Netherlands, who is also authorized to represent the Government of the King of Denmark on this occasion, having met together at the office of the minister for foreign affairs at the Hague on the 15th March, 1884, for the purpose of depositing the instruments of ratification of the convention signed at the Hague the 6th May, 1882, having for its object the regulation of the police of the fisheries in the North Sea outside territorial waters, and in order to sign the protocol relative to said deposition, the envoy of France stated that, while adhering to the time agreed upon for putting the convention into operation, the Government of the Republic maintained the reserve contained in article 24 of the law of the 15th January, 1884, thus worded:
“The carrying into effect of the present law shall be provisionally suspended up to the time on which the other signatory powers of the convention of the 6th May, 1882, shall have promulgated the penalties stipulated in Article XXXV of the convention.”
The other undersigned have stated to him that they take note of this declaration,
(For the Government of Denmark.)
Extract from the treaty of peace between Great Britain and France. Signed at Whitehall, 16th November, 1686:
V. The subjects, inhabitants, merchants, commanders of ships, masters and mariners of the kingdoms, provinces, and dominions of each King, respectively, shall abstain and forbear to trade and fish in all the places possessed or which shall be possessed by one or the other party in America, viz, the King of Great Britain’s subjects shall not drive their commerce and trade, nor fish in the havens, bays, creeks, roads, shoals, or places which the Most Christian King holds or shall hereafter hold in America; and in like manner the Most Christian King’s subjects shall not drive their commerce and trade, nor fish in the havens, bays, creeks, roads, shoals, or places which the King of Great Britain possesses or shall hereafter possess in America. And if any ship or vessel shall be found trading or fishing contrary to the tenor of this treaty, the said ship or vessel, with its lading proof being made thereof, shall be confiscated; nevertheless, the party who shall find himself aggrieved by such sentence or confiscation shall have liberty to apply himself to the privy council of that king by whose governors or judges the sentence has been given against him; but it is always to be understood that the liberty of navigation ought in no manner to be disturbed where nothing is committed against the genuine sense of this treaty.↩