The Acting Secretary of
State to Ambassador Reid.
Department of State,
Washington
,
August 7,
1906
.
No. 250.]
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.,
[Inclosure.]
The Acting Secretary of
Commerce and Labor to the Secretary
of State.
Department of Commerce and Labor,
Office of the
Secretary,
Washington
,
July 21,
1906
.
Sir: I have the honor to transmit herewith,
for your information and for such action as seems desirable, a copy
of a letter from Mr. A. B. Alexander, [Page 694] of the Bureau of Fisheries, dated June 22, 1906,
with inclosures, relative to the alleged unjust treatment accorded
the American fishing schooner Edna Wallace
Hopper on the treaty coast of Newfoundland during the past
winter.
Respectfully,
James Rudolph
Garfield,
Acting
Secretary.
[Subinclosure 1.]
Mr. Alexander
to the Commissioner of
Fisheries.
Department of Commerce and Labor,
Bureau of
Fisheries,
Washington
,
June 22,
1906
.
Sir: A letter has reached me from Mr. A. D.
Molloch, owner of the fishing schooner Edna
Wallace Hopper, inclosing a communication from Mr. H. W. Le
Messurier, deputy minister of customs, St. Johns, Newfoundland, to
A. Evans, master of said schooner, stating that for “a violation of
the customs act, the vessel and his person are liable to the
penalties provided under this act.”
The schooner Edna Wallace Hopper was engaged
in the herring fishery at Bay of Islands, Newfoundland, during the
fall of 1905, while I was on duty in the vicinity, and while thus
employed had occasion to land a seine and five dories. This was done
with the consent of the owner of the ground, as had been the custom
of American fishermen in previous years, in accordance with what was
supposed to be their privilege under the treaty of 1818.
I am informed that at the time Captain Evans landed the seine and
dories other vessels, with the knowledge of the Newfoundland
authorities, also landed lumber, etc., from which to construct
scaffolds for freezing herring should the latter be permitted. As
soon as it was learned that the Department of State held that
American fishermen were not entitled to freeze herring on this shore
as heretofore, the captains, except the master of the Edna Wallace Hopper, were allowed to take
back on board all material landed. Mr. Molloch claims that the
master of his vessel has not received the treatment accorded to
others, and particularly has been discriminated against in being
threatened with imprisonment and confiscation of his vessel should
he in future come within Newfoundland territory.
It would seem that in this case an unjust and arbitrary decision has
been rendered, to which I respectfully call your attention in order
that it may reach the proper authorities for such action as may be
deemed necessary.
Copies of the letters of Messrs. Molloch and Le Messurier are
inclosed herewith.
Very respectfully,
A. B. Alexander,
Assistant in Charge Division of
Fisheries.
[Subinclosure 2.]
Mr. Molloch to
Mr. Alexander.
Newport, R. I.
,
June 19, 1906
.
Dear Sir: You will no doubt be surprised to
receive a letter from me, but, owing to the conditions of the case,
I thought you would be the best person to write to.
I received the inclosed letter the other day. It has been ever since
February reaching me. The letter says the vessel, Edna Wallace Hopper, is liable to seizure for landing
dories and seine in Middle Arm. When I landed the dories and seine,
we all thought we had a right to the shore, provided we could get
permission from the owners of the land. I got permission from James
Break to store those articles on his land and then put them ashore.
The vessel left for home and I came to Birchy Cove to take the train
for home. The day before leaving; you got information from
Washington saying that American fishermen had no rights to the
shore. It was too late then for me to remove the seine and dories,
as the vessel was at sea. I suppose that they would be seized and
that would be the end of it. Nearly all the American vessels had
scaffolds for freezing herring erected ashore with herring on them.
When the [Page 695] news came that
they had no rights to the shore, Inspector O’Reilly gave them
permission to remove them. He did not give me permission to remove
my gear, but seized it immediately and sold it, and then four months
later I am informed that the vessel is liable to seizure. It does
not look as though I am getting used as the other owners are. So
long as he has seized the other articles, why should not that end
it? Or, when O’Reilly notified the others and gave them the right to
remove their gear, which they had put ashore thinking, as I did,
that we had rights to the shore, why was not I notified? Mr.
O’Reilly can not say that he did not know where I was, because he
knew of my whereabouts enough to send a letter to me saying my
vessel is liable to seizure. In other words, out of the forty or
fifty vessels putting fishing gear ashore, I alone was given no
right to remove it and my vessel alone is liable to seizure.
As you know from the receipt I showed you last winter, I paid duty on
the seine, the duty having been paid the year before. Mr. O’Reilly
also knows it had the duty paid on it, although the seine had never
left the vessel and had been taken home to be brought down again
last fall. The dories of course never had the duty paid.
I have witnesses who heard James Break give me permission to store my
gear on his land.
The reason that I am writing you is this: I live in Somerville, which
is not in Mr. Gardner’s district. I do not know who is Congressman
from my district and, no matter who he is, he probably takes very
little interest in fishing affairs, especially as Mr. Gardner is
doing all that can be done for the fishing interests. Were I in his
district, I would go to him immediately.
Now, if you will take this to Secretary Root or whoever is the proper
person, I will be very grateful; and if I can return the favor at
any time, I will gladly do so.
Respectfully, yours,
[Subinclosure 3.]
Mr. Le
Messurier to Captain Evans.
Newfoundland Customs,
Assistant Collector’s
Office,
Port of St.
Johns
,
2d February,
1906
.
Sir: I have the honor to notify you that
one seine and five dories landed by you, out of the American fishing
schooner Edna Wallace Hopper, at Jennings
Cove, Middle Arm, Bay of Islands, have been seized by this
department for a violation of the customs act; and this is to duly
notify you of the same and to inform you that your schooner and
person are also liable to the penalties provided under the act.
I am, sir, your obedient servant,
(Signed)
H. W. Le
Messurier,
Deputy Minister of
Customs.