The Acting Secretary of State to Ambassador Reid.
Washington, August 7, 1906.
Sir: The inclosed correspondence, in regard to the seizure of a seine and some dories belonging to the American fishing schooner Edna Wallace Hopper, is self-explanatory.
A number of the vessels of the American fishing fleet off the coast of Newfoundland, in the winter of 1905, erected scaffolds for freezing herring, and landed fishing gear on the treaty coast near Bay of Islands, with the consent of the landowners (and, as alleged in some cases, with the knowledge of the local authorities), believing, in good faith, that they had a right to do so under the convention regulating fishing rights.
Mr. Alexander, the American agent for the fisheries, applied to the Department of Commerce and Labor for instructions as to whether or not the American fishermen were within their treaty rights in taking this action.
On December 13, 1905, this department advised the Department of Commerce and Labor of the attitude of the Government upon this point, using the following language:
From all these papers I gather that the question regarding the right to freeze herring on shore and to erect scaffolds for that purpose is now raised with regard to that part of the treaty coast upon which the Bay of Islands is located; that is to say, with regard to the western coast of Newfoundland between Cape Ray and the Quirpon Islands.
In my opinion our fishermen have no right to land upon that part of the treaty coast for the purpose of freezing fish, and no right to erect thereon scaffolds for that purpose.
The American fishermen are now exercising rights under the first article of the treaty of 1818. That article gives them the right to take fish on the western coast of Newfoundland; and upon the southern coast of Newfoundland, between Cape Ray and the Rameau Islands, it gives them the right both to take fish and to dry and cure fish in any of the unsettled bays, harbors, and creeks. I think that freezing herring is properly to be considered a method of curing, and that our fishermen are entitled to land upon the southern coast of Newfoundland between Cape Ray and the Rameau Islands for the purpose of curing fish in that manner and to erect scaffolds there for that purpose. I do not think they are entitled to do this at the Bay of Islands or upon any part of the western coast between Cape Ray and Quirpon Islands.
It will thus be seen that it is not claimed by this Government that the American fishermen had the right, under treaty stipulations, to erect scaffolds and land fishing gear at the Bay of Islands.
The decision of this Government was communicated to Mr. Alexander and by him to the fishermen. When this decision became known to the Newfoundland authorities, they seem to have taken a [Page 693] liberal view of the situation, and, believing in the good faith of the fishermen, to have permitted them to remove their fishing tackle.
Doubtless, if the Edna Wallace Hopper had been upon the ground as the other American vessels were, permission would have been extended to her master, as to the others, to remove the property which had been landed in good faith. Inasmuch, however, as the Edna Wallace Hopper had already sailed for her home port there was no one to represent the interests of her owners, and the seine and dories which had been landed were seized, as it were, by default.
It is not believed, however, that the wholly accidental and innocent fact of the absence of the schooner should prevent the Newfoundland officials from treating the case of Mr. Molloch’s vessel in the same spirit of liberality and courtesy which dictated their conduct with reference to the other American vessels. The original good faith and lawful intent of the master and owner of the vessel should not be prejudiced by matter subsequent, especially when the latter is at once fortuitous and innocent.
It is true that the other American captains being on the spot were able to remove their own scaffolding, while Mr. Molloch was not able to care for his seine and dories, and for any expense, etc., to which the Newfoundland officials may have been put on this account Mr. Molloch is undoubtedly responsible. In fact, since he has delayed his protest for some time, it may well be that the Newfoundland authorities may feel that it is too late, even as a matter of grace, to direct that the property seized be returned. But it is believed that if the matter is taken up in a friendly spirit they will be willing, after examining the whole case, at least to relieve the schooner and her master from any further liability on account of any technical violation of law resulting from mistake under circumstances of unquestioned good faith.
You are, therefore, requested to lay the matter before the foreign office in a friendly spirit, suggesting that the case is believed to be one which, on examination, should appeal to the justice and courtesy of the Newfoundland officials. Anything which can be done toward relieving Mr. Molloch as suggested will be considered as another evidence of the disposition of the Newfoundland authorities, by the exercise of an accommodating liberality in the enforcement of local laws, to solve the vexatious questions often arising out of the presence of the American fishing fleet upon the treaty shore.
In the absence of full information as to the particular provisions of the customs act of Newfoundland under which the property of Mr. Molloch was seized and under which the master of the Edna Wallace Hopper as well as the schooner herself are said by the deputy minister of customs of Newfoundland to have become liable for penalties, it is assumed that the Newfoundland officials have acted within their strict legal rights in the premises.
I am, etc.,