711.428 Queon City/79

The Secretary of State to the Minister in Canada (MacNider)

No. 562

Sir: The Department refers to your despatch of March 24, 1932,24 regarding the seizure of the American salmon trolling vessels May, Tillie M., Sunrise, and Queen City,25 and encloses for your information copies of letters of March 4 and April 4, 1932, from the Trolling Vessel Owners’ Association.24 You invite attention to the fact that in presenting the matter to the competent Canadian authorities you did not deem it desirable to request that the vessels be returned to the owners without a penalty of some kind for the reason that such a request would have no chance of success.

The Department regrets that you did not, in your informal memorandum presented to the Prime Minister,26 give an indication of the opinion [Page 68]of the Department that the seizure of the vessels in question was not justified by the laws of Canada or the law of nations and the subsequent forfeiture by judicial decree was a denial of justice. Furthermore the deprivation of the use of the vessels for a period of nearly two years is in itself a severe loss to the owners.

As you are aware the ship May was declared forfeited under Section 10(b) of the Customs and Fisheries Protection Act27 which reads as follows:

“10. Every fishing ship, vessel or boat which is foreign, or not navigated according to the laws of Great Britain or of Canada, which,

  • “(a) …
  • “(b) has entered such waters for any purpose not permitted by treaty or convention or by any law of Great Britain or of Canada for the time being in force … shall, together with the tackle, rigging, apparel, furniture, stores and cargo thereof, be forfeited.”

The fishermen contended that they were not anchored within the territorial waters of Canada and that if they were they were justified in anchoring in such waters under the Canadian Customs Act28 and the Treaty of October 20, 1818,29 because of the stress of weather. They testified that when they entered Mclntyre Bay for shelter the weather was thick, that they took soundings and were satisfied that they were anchored safely beyond the three-mile limit. The arresting officer testified that they were anchored two and one-half miles from the shore. The fishermen also testified that the weather was of sufficient severity to justify seeking shelter in the bay. The arresting officer, who was not present at the time of the ship’s alleged entry into Canadian territorial waters, testified that there was no urgent necessity for seeking shelter. The court held that the evidence established that the ship May was within the territorial waters of Canada, that the fishermen did not show any necessity whatever for entering Canadian waters and that the Treaty of October 20, 1818, was not intended to be applicable to the Pacific Coast.

With respect to the contention that the fishermen sought shelter from the stress of weather, the Canadian Supreme Court stated after citing four reported cases that:

“A perusal of the above authorities leads to the conclusion that an entry by a foreign vessel into Canadian waters can not be justified on the ground of ‘stress of weather’ unless the weather is such as to produce in the mind of a reasonably competent and skillful master, possessing courage and firmness, a well-grounded bona fide apprehension that if [Page 69]he remains outside the territorial waters he will put in jeopardy his vessel and cargo. In every case the questions whether the master fairly and honestly on reasonable ground believed it necessary to take shelter, and whether he exercised reasonable skill, competence and courage in the circumstances, are questions of fact for the tribunal whose duty it is to find the facts. The evidence in this case does not show any necessity whatever for entering Canadian waters, much less any apprehension on the part of Knudsen that if he continued his voyage he would be risking the loss of his vessel.”

The case of the ship May as reported in the Dominion Law Reports, 1931, Volume III, not only discloses a disregard for the humane principles of international law relating to shelter, but indicates the nature and extent of the comity and courtesy which American fishing vessels can in the future expect in Canadian territorial waters.

The cases cited in the decision rendered by the Canadian Supreme Court in the case of the ship May in support of an alleged rule regarding the stress of weather required to justify the entry of a vessel seeking shelter are not apposite. Moreover they did not involve innocent fishing vessels. The facts in the cases cited were omitted.

The case of the ship Diana, 7 Wallace 354, involved a trading vessel which attempted, under the disguise of a fabricated distress, to enter a blockaded port in time of war.

The case of the ship New York, 3 Wheaton 59, involved a trading vessel which attempted under a pretended distress to import into the United States a cargo interdicted by the laws of the United States.

The case of the ship Eleanor, (Edwards Admiralty Reports 135) decided in November 1809 by Sir William Scott, involved a merchant vessel which attempted to violate the British navigation laws under a simulated distress.

The case of Phelps James and Company v. Hill, (1891) 1 Q. B. 605, related to a merchant vessel which was obliged to return to Queenstown for repairs and later, while proceeding to Bristol where the repairs could be made, collided with another vessel. The question presented was whether the master exercised reasonable discretion in proceeding to Bristol. From this statement of the facts in each of the cases cited it appears that they are not pertinent to the question involved.

The cases involving the ships Queen City, Tillie M. and Sunrise are also reported in the Dominion Law Reports, 1931, Volume III, on page 147. The Court held that the entry of the vessels was not justified by the alleged stress of weather for the conditions of atmosphere and sea at the time of the entry did not satisfy the test enunciated in the case of the ship May. The Court stated:

“All these witnesses for the defense claim that it was too rough to remain outside of the three-mile limit in safety …

“Whether there was ‘stress of weather’ within the meaning of S.183 [Page 70]on the afternoon and evening of June 17 was a question of fact depending upon the credibility of the witnesses. The trial judge is known as an able and careful judge, with more than thirty years experience in cases similar to those before us, and he accepted the evidence submitted on behalf of the Crown in preference to that submitted on behalf of the several vessels … The trial judge found that there was no stress of weather or other sufficient cause to justify the entry of these vessels into Canadian territorial water and, in our opinion, the evidence amply supports the finding which should be affirmed.” ( pp. 152 153).

The decision was reached notwithstanding the fact that the arresting officer was sixty or seventy miles away. (Case on Appeal Vol. 1, p. 32).

It is pertinent to observe in this relation that the three boats in question and two others were seized in Canadian waters at two o’clock in the morning while the crews were asleep and that two of the vessels were released because one had lost part of its sail and its anchor in the stress of weather from which shelter was sought and the other was released because it had a supply of fuel oil deemed insufficient to ride out the storm if it had desired to do so. It is also pertinent to observe that some Canadian fishing vessels had also sought shelter within sight of the American vessels.

Elaborate signal systems and safety devices are maintained at the seaports of all civilized countries for the purpose of saving life and property at sea from stress of weather. They would not prevent the loss of lives and the destruction of property of fishermen, if courts when considering cases of fishermen in small fishing craft who have entered territorial waters in distress, subject them to the risk of forfeiture of their vessels under the same rigid rules of domestic law that are applicable to merchant vessels attempting under the disguise of distress, to import interdicted cargoes. Such a novel doctrine has not received universal approbation. The fact that the Canadian Supreme Court did not cite a case, involving the forfeiture of an innocent fishing vessel, in support of the rigid rule it applied to the vessels in question indicates that none was available for citation. A diligent search by the law officers of the Department has failed to bring any to light.

In the case of the shipping vessel Paquete Habana, 175 U. S. 677, Mr. Justice Gray, who delivered the opinion of the Court, stated:

“This review of the precedents and authorities on the subject appears to us abundantly to demonstrate that at the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law, founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of belligerent States, that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed, and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war.” ( Page 708).

[Page 71]

In House Report No. 4087 of the 49th Congress, Second Session, to accompany S. 3173, the following statement appears:

“No nation has asserted, independently of a treaty, an exclusive dominion over the sea surrounding its coast applicable to the passing ships of other nations. Why should a vessel which, under stress of weather or necessities of navigation, casts anchor for a few hours in a bay be subjected to a larger or fuller foreign jurisdiction than a passing vessel, provided inshore fisheries are not thereby poached upon, or the revenue evaded, or safe navigation endangered, or crime attempted or committed? Why need a powerful state take any cognizance of such innocent and casual presence of a little body of foreign seamen? The treaties which have been made applicable thereto refer to neutrality in war and the exclusive right of fishing, thereby proving the general rule.”

In Senate Report No. 1683, 49th Congress, Second Session, to accompany S. 3173, the following statement appears:

“On the 12th of May, 1870, the Dominion act of 33 Vict., ch. 15, was passed, repealing the third section of the last-mentioned act on the subject of bringing vessels into port, &c, and provided in lieu thereof that any of the officers or persons before mentioned might bring any vessel, being within any harbor in Canada, or hovering in British waters within 3 miles of the coast, into port, search her cargo, examine her master on oath, &c, without any previous notice to depart, which had been required by the former act. So that an American vessel, fishing at sea, being driven by stress of weather, want of wood or water, or need of repairing damages, which should run into a Canadian harbor, under the right reserved to it by the treaty of 1818, the moment her anchor was dropped or she was within the shelter of a headland was, at the discretion of the Canadian official, to be immediately seized and carried into port, which might be, and often would be, many miles from the place where she would have her safe shelter or could obtain her wood and water or repair her damages.

“The committee thinks it is not too much to say that such a provision is, in view of the treaty and of the common principles of comity among nations, grossly in violation of rights secured by the treaty and of that friendly conduct of good neighborhood that should exist between civilized nations holding relations such as ought to exist between the United States and Her Majesty’s dominions.”

S. 3173, as amended, was approved March 3, 1887 (24 Stat. 475). The Act, which is still in force, reads as follows:

“Whenever the President of the United States shall be satisfied that American fishing vessels or American fishermen, visiting or being in the waters or at any ports or places of the British dominions of North America, are or then lately have been denied or abridged in the enjoyment of any rights secured to them by treaty or law, or are or then lately have been unjustly vexed or harassed in the enjoyment of such rights, or subjected to unreasonable restrictions, regulations, or requirements in respect of such rights; or otherwise unjustly vexed or harassed [Page 72]in said waters, ports or places; or whenever the President of the United States shall be satisfied that any such fishing vessels or fishermen, having a permit under the laws of the United States to touch and trade at any port or ports, place or places, in the British dominions of North America, are or then lately have been denied the privilege of entering such port or ports, place or places in the same manner and under the same regulations as may exist therein applicable to trading vessels of the most favored nation, or shall be unjustly vexed or harassed, in respect thereof, or otherwise be unjustly vexed or harassed therein, or shall be prevented from purchasing such supplies as may there be lawfully sold to trading vessels of the most favored nation; or whenever the President of the United States shall be satisfied that any other vessels of the United States, their masters or crews, so arriving at or being in such British waters or ports or places of the British dominions of North America, are or then lately have been denied any of the privileges therein accorded to the vessels, their masters or crews, of the most favored nation, or unjustly vexed or harassed in respect of the same, or unjustly vexed or harassed therein by the authorities thereof, then, and in either or all of such cases, it shall be lawful, and it shall be the duty of the President of the United States, in his discretion, by proclamation to that effect, to deny vessels, their masters and crews, of the British dominions of North America, any entrance into the waters, ports, or places of or within the United States (with such exceptions in regard to vessels in distress, stress of weather, or needing supplies as to the President shall seem proper), whether such vessels shall have come directly from said dominions on such destined voyage or by way of some port or place in such destined voyage elsewhere; and also to deny entry into any port or place of the United States of fresh fish or salt fish or any other product of said dominions, or other goods coming from said dominions to the United States. The President may, in his discretion, apply such proclamation to any part or to all of the foregoing named subjects, and may revoke, qualify, limit, and renew such proclamation from time to time as he may deem necessary to the full and just execution of the purposes of this section. Every violation of any such proclamation, or any part thereof, is declared illegal, and all vessels and goods so coming or being within the waters, ports, or places of the United States contrary to such proclamation shall be forfeited to the United States; and such forfeiture shall be enforced and proceeded upon in the same manner and with the same effect as in the case of vessels or goods whose importation or coming to or being in the waters or ports of the United States contrary to law may be enforced and proceeded upon. Every person who shall violate any of the provisions of this section, or such proclamation of the President made in pursuance hereof, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding $1,000, or by imprisonment for a term not exceeding two years, or by both said punishments, in the discretion of the court. (Mar. 3, 1887, c. 339, 24 Stat. 475.)” (Title 46, § 143, U. S. C).

The Canadian Government has for more than a century in all of its laws and regulations relating to fisheries generally recognized the natural right of American fishing vessels to seek shelter in Canadian territorial [Page 73]waters. This privilege, while stipulated in the Treaty of 1818, is not dependent upon that Treaty. It was inserted in the Treaty at a time when Canadian ports, because of the British navigation laws, then in force, were not open to American vessels. The treaty stipulation merely confirmed the natural right of entry in such cases accorded by the law of nations. This fact was recognized in the decision rendered in the North Atlantic Fisheries Arbitrations before the Permanent Court of Arbitration at The Hague on September 7, 1910, which reads in part as follows:

Question IV

The Tribunal is of opinion that the provision in the first article of the treaty of October 20, 1818, admitting American fishermen to enter certain bays or harbours for shelter, repairs, wood and water, and for no other purpose whatever, is an exercise in large measure of those duties of hospitality and humanity which all civilised nations impose upon themselves and expect the performance of from others. The enumerated purposes for which entry is permitted all relate to the exigencies in which those who pursue their perilous calling on the sea may be involved. The proviso which appears in the first article of the said treaty immediately after the so-called renunciation clause, was doubtless due to a recognition by Great Britain of what was expected from the humanity and civilisation of the then leading commercial nation of the world. To impose restrictions making the exercise of such privileges conditional upon the payment of light, harbour or other dues, or entering and reporting at custom-houses, or any similar conditions would be inconsistent with the grounds upon which such privileges rest and therefore is not permissible.

And it is decided and awarded that such restrictions are not permissible.

It seems reasonable, however, in order that these privileges accorded by Great Britain on these grounds of hospitality and humanity should not be abused, that the American fishermen entering such bays for any of the four purposes aforesaid and remaining more than forty-eight hours therein, should be required, if thought necessary by Great Britain or the Colonial Government, to report, either in person or by telegraph, at a custom-house or to a customs official, if reasonably convenient opportunity therefor is afforded.

And it is so decided and awarded.

Were there no treaty in force between the United States and Great Britain and were the American vessels without any other right to visit the coasts of Canada than is possessed by the fishing vessels of any other country, the action of the Canadian authorities in seizing and forfeiting the vessels in question, which according to evidence before the court were bona fide fishing vessels innocently seeking refuge in the sheltered territorial waters of Canada from stress of weather which actually existed in some uncertain degree of severity at the time of the [Page 74]entry of the vessels, would be an invasion of their rights under the law of nations.

In view of the somewhat similar action of the Canadian authorities on the North Atlantic coast in the last century and of the unwarranted seizures and forfeitures that have recently taken place on the Pacific coast of Canada, the Department feels it to be its duty to protect and defend the just rights of American fishermen by such measures as may be within its power. While the Department has no present intention of invoking the retaliatory provisions of the Act of Congress quoted above, it nevertheless shall be constrained when satisfied that unjust, unfair, or unfriendly conduct is practiced by the Canadian authorities in respect of American fishermen and their property within the territorial waters of Canada, to bring the matter to the attention of the President for consideration and appropriate action.

This instruction is to be regarded as confidential and has been prepared for your information and guidance in any further informal representations you may deem it appropriate to make in the attending circumstances.

Very truly yours,

For the Secretary of State:
W. R. Castle, Jr.
  1. Not printed.
  2. These ships were seized by a Canadian patrol boat in Canadian waters near Prince Rupert, B. C, on June 18, 1930.
  3. Not printed.
  4. Richard Bedford Bennett.
  5. Revised Statutes of Canada, 1927, vol. ii, ch. 43.
  6. Ibid., ch. 42, sec. 183.
  7. Convention respecting fisheries, boundary, and the restoration of slaves, Malloy, Treaties, 1776–1909, vol. i, p. 631.