711.428/763: Telegram
The Under Secretary of State (Phillips) to the Consul General at Ottawa (Foster)
Please convey following personal message from me to Mr. Alexander Johnston, Canadian Deputy Minister of Marine and Fisheries:
“The Department has difficulty in construing certain sections of the act for the protection of the Northern Pacific halibut fisheries passed by the Canadian Parliament in June, 1923, Section 3(a) defines offenses by persons without reference to nationality in territorial waters of Canada. Section 3(b) defines offenses by nationals and inhabitants of Canada with reference to prohibited waters. Section 4 defines offenses by persons without reference to nationality in respect to ports and places in Canada and with respect to prohibited waters. The Department understands that Canadian territorial waters are included in Section 3(b) and Section 4 as well as in Section 3(a). Section 5 would seem to make every vessel, regardless [Page 481] of nationality, liable to seizure and forfeiture if used by persons in the commission of acts made offenses by Sections 3 and 4. Section 9 provides that every vessel which is foreign or not navigated according to the laws of the United Kingdom or of Canada may be seized and shall be forfeited if they commit certain acts in the territorial waters of Canada. Questions therefore arise: (1) whether the provisions of Section 9 operate to qualify any of the provisions of Sections 3, 4 and 5; (2) if the provisions of Section 9 do so operate, to what extent; (3) if they do not so operate, what is the purpose of them. The principal question is whether the effect of Section 9 is to exclude from forfeiture vessels flying the British flag so that they can engage without fear of forfeiture in halibut fishing irrespective of the restrictions of the Convention and of the other sections of the Act. If British vessels can so engage, the next question is whether, despite the immunity of British vessels from forfeiture, Section 4 operates to render the owners or masters of vessels or other persons within the scope of the act engaged in halibut fishing contrary to the terms of the Convention guilty of the offenses described in the act and subject to its penalties although they are owners or masters of British vessels or other persons acting on British vessels. Any information which you could give me in explanation of these questions would be appreciated. It would be helpful for me to know that the views which you may be able to send me are in harmony with the interpretation of your Department of Justice.”