4. From 20th April to 20th October no herring or bait to be caught for exportation within one mile of any settlement between Cape Chapeau Rouge and Point Rosey. (Qy. South Coast.) 10. This Act not to affect treaty rights. Consolidated Statutes, 1872, Vict. 27, cap. 102. (Br. App., 704. 1872.) Amends, and re-enacts 25 Vict., cap. 22. 18. Act not to affect treaty rights. 37. Vict., cap. 2. Act carrying into effect Treaty of Washington. (1874.) 39 Vict., cap. 6. (Br. App., 707. 1876.) 3. No person to catch squid in seines. 4. No person to net herring, caplin, or squid between 12 P. M. Saturday and 12 P. M. Sunday. No proviso saving treaty rights. 40 Vict., cap. 13. (Br. App., 707. 1877.) 4th sec. of 39 Vict., cap. 6, to apply to jigging for squid and to use of any contrivance and to any mode of taking fish for bait. No proviso saving treaty rights. 42 Vict., cap. 2. (Br. App., 708. 1879.) 1. No person to take herring by seine, &c., on or near coast or in any bays, &c., from the 20th October to the 18th April, or at any time to use seine for herring except by shooting and forthwith hauling; but herring may be taken in usual way-not used for inbarring. No proviso saving treaty rights. 45 Vict., cap. 21. (Br. App., 709. 1882.) 1. No person to use trap for cod with meshes of less than 4 inches. No proviso saving treaty rights. 47 Vict., cap. 8. (Br. App., 709. 1884.) 1. Owner of vessel owned and registered in Newfoundland, obtaining customs clearance may take herring for bait on bank fishery, except by inbarring. 7. Cod-traps to be 80 fathoms from any other cod-trap and 50 fathoms from any cod-net. 8. Cod-nets to be 50 fathoms from any cod-trap or cod-net. 9. Provisions against occupying fishing-ground without using it. No proviso saving treaty rights. 48 Vict., cap. 5. (Br. App., 710. 1885.) 2. Mesh of cod-traps to be 4 inches. No proviso saving treaty rights. 50 Vict., cap. 1. (Br. App., 711. 1887.) 1. Restrictions on catching bait for exportation without license. Proviso saving treaty rights. 1368 51 Vict., cap. 9. (Br. App., 712. 1888.) 52 Vict., cap. 6. (Br. App., 712. 1889.) Repeals 1887 and 1888 Acts, and re-enacts and amends them. Proviso saving treaty rights. 52 Vict., cap. 7. (Br. App., 717. Forms Fisheries Commission. 1889.) 16. Power to make regulations as to methods of fishing, close time, &c. No proviso saving treaty rights. Regulations under 52 Vict., cap. 7. (Br. App., 718, 719. 1890– 1891.) Stringent restrictions as to methods of fishing. 1890 rules not to apply to French coast (Regulation 31). Consolidated Statutes, cap. 124. (Br. App., 725. 1892.) Stringent regulations. (Br. App., 727. 1892.) 28. Proviso saving treaty rights. 9. Power to regulate fisheries, forbid destruction of fish and fishing without licence. 10. Proviso saving treaty rights. 1905.) 1908.) § 7. Proviso saving treaty rights. 6 Ed. VII, cap. 1. (Br. App., 758. 1906.) Foreign Fishing Vessels Act. § 14. Proviso saving treaty rights. § 17. Repeals Act of 1905. United States-New Jersey. General Statutes, 1896. (Br. App., 785. 1826.) Statutes, cap. 72. (Br. App., 788. 1871.) § 1. No fishing in Delaware Bay except by citizens of the State. 8. June-August. Certain gill seines forbidden. $ 9. Sunday fishing forbidden. Maryland. Statutes, cap. 441. (Br. App., 793. 1896.) NOTE. As pointed out by Sir Robert Finlay, in his argument at p. 1154 [p. 198-9 supra], the Appendices to the British Case and CounterCase do not contain all the laws passed since 1818 by the British Colonies other than Newfoundland for the regulation of the fisheries. The statutes of New Brunswick and Lower Canada subsequent to 1818, which appear in the Appendices, were printed not for the purpose of showing the course of legislation in those colonies with reference to the regulation of the fisheries, but for other purposes, for example, to show jurisdiction exercised over bays, or to give the provisions of the statutes referred to in the Marcy Circular, &c. Many other statutes regulating the fisheries were passed from time to time by the Dominion of Canada and by the Colonies which afterwards constituted the Dominion. If it is desired, a list of these statutes and copies thereof will be furnished to the Tribunal and to Counsel for the United States, and all proper opportunity will be afforded for the examination of the volumes which contain these statutes. Statement of Specific Provisions of certain Legislative and Executive Acts of Newfoundland and Canada called to the attention of the Tribunal by the United States for action pursuant to Articles 2 and 3 of the special agreement of January 27, 1909. I. Pursuant to the provisions of article 2 of the special agreement of the 27th January, 1909, the United States calls the attention of the Tribunal to certain provisions of the Acts specified in the note of the 2nd June, 1909, from the Secretary of State of the United States to the British Ambassador at Washington (United States Counter-Case Appendix, p. 5.), which provisions are claimed by the United States to be inconsistent with the true interpretation of the treaty of 1818, if applied to American fishermen on the treaty coasts, because even under the contention of Great Britain, as set out in Question 1, they are not: (a) Appropriate or necessary for the protection and preservation of such fisheries and the exercise of the rights of British subjects therein and of the liberty which by the said article 1 the inhabitants of the United States have therein in common with British subjects; (b) Desirable on grounds of public order and morals; (c) Equitable and fair as between local fishermen and the inhabitants of the United States exercising the said treaty liberty and not so framed as to give unfairly an advantage to the former over the later class, and also because under the contention of the United States as set out in such question they are not: (a) Appropriate and necessary for the protection and preservation of the common rights in such fisheries and the exercise thereof; and (b) Reasonable in themselves and fair as between local fishermen and fishermen coming from the United States, and so framed as not to give an advantage to the former over the latter class. The specific provisions herein called to the attention of the Tribunal are set out in the First and Second Schedules hereto annexed. II. Pursuant to article 2 of the special agreement of the 27th January, 1909, the United States calls upon the Tribunal to express. in its award its opinion upon the aforesaid provisions so specified and called to its attention, and to point out in what respects they are inconsistent with the principles laid down in the Award in reply to Question 1. III. If the Award of the Tribunal be in favour of the British contention as stated in Question 1, the United States will ask that the Tribunal refer to a commission of expert specialists for a report thereon, in accordance with article 3 of the special agreement aforesaid, such of the specific provisions set forth in the First and Second Schedules as require an examination of the practical effect thereof in relation to the conditions surrounding the exercise of the liberty of fishery, or require expert information about the fisheries themselves, for the determination of their appropriateness, necessity, reasonableness, and fairness as defined in Question 1. IV. The United States objects also to the provisions set out in the First and Second Schedules, if applied to American fishermen on the treaty coasts, because their appropriateness necessity, reasonableness, and fairness, within the meaning of subdivision (c) of the contention of the United States, under Question 1, have not been determined between the United States and Great Britain by common accord, and the United States has not concurred in their enforcement. Concurrence in the enforcement of regulations concerns particularly the manner of their enforcement so as to secure impartiality in administration, and to ensure their observance by Newfoundland, Canadian, and British fishermen equally with American fishermen. There are many other provisions to which, if applied to American fishermen, the same objection on the part of the United States applies, but it has not been deemed necessary to enumerate them because it is assumed that the award upon Question 1 will dispose of this ground of objection one way or the other. It is not to be inferred that the Government of the United States would refuse to subject American fishermen on the treaty coasts to such regulations, provided that it is offered an opportunity to have a voice regarding them. V. Many other provisions of the acts specified in the aforesaid note of the 2nd June, 1909, are deemed by the United States to be beyond the competency of Canada, Newfoundland or Great Britain to enforce against American fishermen without the consent of the United States. As no instance has occurred of the enforcement thereof against the fishermen of the United States, no question has yet arisen regarding them. The United States has not been consulted regarding them, or advised of the reasons for such regulations, and is not called upon to determine whether such regulations would be reasonable, necessary, or appropriate if applied to American fishermen on the treaty coasts. The United States, therefore, considers that any question under these regulations will be a question hereafter arising and subject to the provisions of article 4 of the special agree ment. 1370 VI. The United States assumes that the numerous provisions in the statutes specified in the aforesaid note of the 2nd June, 1909, which relate to customs regulations and to the imposition of light, harbor, and other dues referred to in Questions 3 and 4 will be disposed of by the Award upon those Questions, but if not so disposed of the United States considers that it will be entitled to have the opinion of the Tribunal thereon specifically. The specific provisions to which the United States calls the attention of the Tribunal in this connection are set out in the Third Schedule hereto annexed. FIRST SCHEDULE. Specific provisions in respect of (1) the hours, days, or seasons when fish may be taken on the treaty coasts, and (2) the methods, means, and implements to be used in the taking of fish or in the car rying on of fishing operations on the treaty coasts, which specific provisions the United States claims are not appropriate, necessary, reasonable, and fair, as defined in Question 1, if applied to American fishermen on the treaty coasts: NEWFOUNDLAND. Consolidated Statutes, 1892, Chapter 124. 1. No person shall haul, catch or take herrings by or in a seine or other such contrivance, on or near any part of the coast of this colony or its dependencies, or in any of the bays, harbours, or other places therein, at any time between the twentieth day of October in any year and the eighteenth day of April in the following year, or at any time use a seine or other contrivance for the catching or taking of herring, except by way of shooting and forthwith hauling the same, under a penalty not exceeding two hundred dollars: Provided, that nothing herein contained shall prevent the taking of herrings by nets set in the usual and customary manner, and not used for inbarring or enclosing herrings in a cove, inlet or other place. This section shall not apply to the coast of Labrador. 2. The owners, masters, and other persons managing or controlling vessels conveying herrings in bulk, between the twentieth day of October in any year and the eighteenth day of April in the following year, shall be deemed to have hauled, caught or taken such herrings contrary to the provisions of the preceding section of this chapter, unless such owner, master or other person aforesaid shall make proof to the contrary. 5. Notwithstanding any of the provisions of this chapter it shall be lawful for the owner of any vessel owned and registered in this Colony, which shall be fully fitted out, supplied and ready to prosecute the Bank fishery, and shall have obtained a Customs' clearance for the said fishery, to haul, catch and take herring at any time and by any means, except by in-barring and enclosing such herring in a cove, inlet or other place, to an extent not exceeding sixty barrels for any one voyage, to be used as bait in prosecuting the said Bank fishery in the said vessel. 12. No person shall, at any time haul, catch or take squids within, or by means of any seine, bunt, or other such contrivances. 13. No person shall, between the hours of twelve o'clock on Saturday night and twelve o'clock on Sunday night take or catch in any manner whatever or by any contrivance whatsoever, any herring, caplin, squid, or any other bait fish, or set or put out any contrivance whatsoever, for the purpose of taking or catching herring, caplin, squid or other bait fish. 23. After two years from the ninth day of May, 1888, it shall be unlawful for any person to use any cod-trap, for the purpose of catching or taking any cod-fish on the coast of this colony or its dependencies. Act of March 3, 1898. (61 Vict., cap. 3.) 9. The Governor in Council may, from time to time, make regulations for the better management and regulation of the sea, coast, and 92909°-VOL 12-13-3 |