File No. 573/137.
The British Ambassador to the Secretary of State.
Intervale, N. H., July 3, 1907.
Sir: In my note No. 123, of the 30th of May last, I had the honor to inform you that the government of Canada were instituting inquiries as regards the case of the United States schooner Alert, which, as stated in your letter of the 25th of May, had been refused permission to fish with a purse seine net off the Magdalen Islands.
I have now received a dispatch from the Dominion government on the subject.
This dispatch states that according to the report received from Commander Wakeham, of the Dominion cruiser Princess, Captain Malloch, of the United States schooner Alert, came on board the Princess at Magdalen Islands on the the 24th of May last and asked to be allowed to fish a trap net for herring. Commander Wakeham said he could not give this permission, and fully explained the conditions under which alone trap-net licenses were issued by the Canadian government.
Captain Malloch then asked if he could fish a purse seine. Commander Wakeham replied that the use of purse seines was prohibited by Canadian statutes, and that Captain Malloch could not be allowed to do that which Canadian fishermen were prohibited from doing.
Commander Wakeham asked Captain Malloch if he came as a merchantman on a trading voyage or as a fisherman. Captain Malloch replied that he was both, and that he had not the license usually carried by United States fishermen.
He had brought passengers, together with a fishing outfit, including a powerful gasoline launch, which goods, without having been declared at the customs, were landed from the Alert as belonging to one Edmund Keating, and were held by the collector of customs for payment of duty.
Keating is a Canadian, and has been residing at Grosse Isle, Magdalen Islands, and has fished a herring trap at Grand Entry for some years; this trap is now in the water and being fished.
Without permission from anyone, Keating, who had come with the Alert, placed in the water off Seal Island one of the trap nets brought on the Alert and began fishing, claiming that he was so fishing for, or in partnership with, one Henry Best, of Grand Entry, who has a license to fish a herring trap at Grand Entry, but who has given up trap fishing and left Grand Entry, removing to Byron Island. The net Keating attempted to fish as on Best’s behalf was not placed where Best had formerly fished, and permission was never given to Best to move or to transfer his license.
[Page 536]Commander Wakeham ordered the seizure of this net of Keating’s by the fishery overseer. Keating proposed to fish another trap net he had brought on the Alert in a station at Grosse Isle licensed to one Esdras Rankin. Commander Wakeham instructed the fishery overseer not to allow Keating to fish Rankin’s berth without permission from the Canadian government.
It would appear to have been only after Keating’s failure to fish his trap net under licenses issued to other persons that the captain of the Alert claimed to have the right as a citizen of the United States to fish for himself by means of these nets or by any other means he might choose to adopt.
The Canadian statute forbidding the use of trap nets for deep-sea fishing except under special license is of general application throughout all Canada, and it has been in force continuously since 1868.
So far as is known to the Canadian government trap nets have never been used by United States fishermen on those shores of Canada where they have the right to fish in common with British subjects, except in the instance of the United States fishing vessel Rend, which in 1905 set a trap net at Romaine without previous license, whereupon the fishery overseer for the district requested the removal of the net; but afterwards accepted a fee for the net, based on the length of the leader used, and gave a receipt for the money paid, though no formal license was ever issued.
The Canadian regulations governing the use of trap nets (inter alia) define the distances apart at which such nets shall be placed and require the leader to extend in every case from the shore. The size of the meshes in net and leader is also prescribed. As respects these nets it is obvious from the very nature of the case that they must be set at certain distances from each other, and under regulations.
The Canadian statute forbidding the use of purse seines is of general application throughout all Canada, and has been in force since 1891.
So far as is known to the Canadian government, purse seines have never been used within Canada by United States fishermen since the passing of this statute.
Both provisions of the law are considered essential for the protection and preservation of the fishing industry. All of the regulations above referred to have been consistently enforced against Canadian fishermen ever since their enactment.
The circumstance that the Alert was sailing under register and not under fishing license would not appear in this instance to have been treated as possessing any significance. In her character of trading-vessel the Alert would have no right to fish, but she has been treated as if she were a fishing vessel and as if she came to Canada under United States fishing license. In fact, she has enjoyed greater privileges than a mere fishing vessel would have been entitled to, as she has without objection landed passengers and goods at a Canadian port, while a fishing vessel (unless licensed under the modus vivendi) would have no right to enter Canadian bays or harbors except, under the treaty of 1818, for wood, water, shelter, or repairs.
I have, etc.,