The Acting Secretary of State to Ambassador Reid.

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.,

Robert Bacon.

The Acting Secretary of Commerce and Labor to the Secretary of State.

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.


James Rudolph Garfield,
Acting Secretary.
[Subinclosure 1.]

Mr. Alexander to the Commissioner of Fisheries.

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.

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,

A. D. Molloch.
[Subinclosure 3.]

Mr. Le Messurier to Captain Evans.

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,

H. W. Le Messurier,
Deputy Minister of Customs.