THE NORTH ATLANTIC COAST

FISHERIES CASE

between

GREAT BRITAIN and THE UNITED STATES

Decided September 7, 1910

Syllabus

The treaty of peace of 1783 between Great Britain and the United States continued to inhabitants of the United States the privileges theretofore enjoyed in common with British subjects in the fisheries off Newfoundland, Labrador, and other parts of the North Atlantic Coast.

Great Britain regarded this treaty as abrogated by the war of 1812, whereas the United States considered it as only suspended by and during the war. However, on October 20, 1818, a new treaty was signed with a view of defining the rights of inhabitants of the United States to take fish in certain parts of British north Atlantic coast waters, and to enter bays and harbors for the purpose of repairs, etc. Article 1 reads as follows:

Whereas differences have arisen respecting the liberty claimed by the United States for the inhabitants thereof, to take, dry, and cure fish on certain coasts, bays, harbors, and creeks of His Britannic Majesty's dominions in America, it is agreed between the high contracting Parties, that the inhabitants of the said United States shall have forever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Ray to the Rameau Islands, on the western and northern coast of Newfoundland, from the said Cape Ray to the Quirpon Islands on the shores of the Magdalen Islands, and also on the coasts, bays, harbors, and creeks from Mount Joly on the southern coast of Labrador, to and through the Straits of Belleisle and thence northwardly indefinitely along the coast, without prejudice, however, to any of the exclusive rights of the Hudson Bay Company: And that the American fishermen shall also have liberty forever, to dry and cure fish in any of the unsettled bays, harbors, and creeks of the southern part of the coast of Newfoundland hereabove described, and of the coast of Labrador; but so soon as the same, or any portion thereof, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such portion so settled, with

out previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground. And the United States hereby renounce forever, any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry, or cure fish on, or within three marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty's dominions in America not included within the above-mentioned limits: Provided, however, that the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent their taking, drying or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them.

Differences arose as to the scope and meaning of this article and of the rights and liberties referred to in the article or claimed on behalf of the inhabitants of the United States. Beginning with the seizure of American fishing vessels in 1821-2, the controversy over fishing rights. continued in more or less menacing form until 1905 when, on account of the severe restrictive legislation by Newfoundland, affairs reached a critical stage. Negotiations were begun looking to a settlement, and in 1906 a modus vivendi1 covering the fishing season of 1906-7 was agreed upon by the two Governments for the purpose of allaying friction until some definite adjustment could be reached. The modus was renewed for the fishing seasons of 1907-8,2 1908-98 and 1909-10,* and on January 27, 1909, a compromis was signed submitting the controversy to the Permanent Court of Arbitration at The Hague. A tribunal was created composed of the following members of the panel of the court: Heinrich Lammasch, of Austria-Hungary; A. F. de Savornin Lohman, of Holland; George Gray, of the United States; Luis M. Drago, of Argentine; and Sir Charles Fitzpatrick, of Great Britain. The sessions of the tribunal began June 1, 1910, and ended August 12, 1910; the decision was rendered September 7, 1910. There were seven questions submitted to the tribunal.

First. Great Britain contended for the right, directly or indirectly through Canada or Newfoundland, to make regulations applicable to American fishermen in treaty waters without the consent of the United States, "in respect of (1) the hours, days, or seasons when fish may be taken on the treaty coasts; (2) the method, means and implements to be used in the taking of fish or in the carrying on of fishing operations on such coasts; (3) any other matters of a similar character;" provided such regulations were "reasonable, as being, for instance, appropriate or necessary for the protection and preservation of such fisheries; desirable on grounds of public order and morals;

1Post, p. 208. 2Post, p. 212. 3Post, p. 214. Post, p. 220. Post, p. 147.

equitable and fair as between local fishermen and the inhabitants of the United States."

The United States, on the other hand, denied the right of Great Britain to make such regulations "unless their appropriateness, necessity, reasonableness, and fairness be determined by the United States and Great Britain by common accord and the United States concurs in their enforcement.”

The tribunal in its decision on this question affirmed the right of Great Britain "to make regulations without the consent of the United States" but held that "such regulations must be made bona fide and must not be in violation of the said treaty;" and that "regulations which are (1) appropriate or necessary for the preservation of such fisheries, or (2) desirable or necessary on grounds of public order and morals without unnecessarily interfering with the fishery itself, and in both cases equitable and fair as between local and American fishermen, and not so framed as to give an advantage to the former over the latter class, are not inconsistent with the obligation to execute the treaty in good faith, and are therefore not in violation of the treaty."

The award thus far is in favor of Great Britain, but the tribunal held further that, if the reasonableness of the regulation is contested by the United States, Great Britain is not to be the judge of what is or what is not reasonable, but that it must be decided not by either of the parties but by an impartial authority. To this end the tribunal recommended certain rules and methods of procedure in case any regulation was contested, the important feature being that any such contested regulation, before becoming effective, should be referred to a permanent mixed fishery commission, whose membership, procedure and authority the tribunal also defined. In proposing this recommendation, accepted by the parties in controversy, the tribunal relied upon Article 4 of the special agreement, which was considered both by the tribunal and by Great Britain and the United States, as in the nature of a permanent treaty of unlimited duration for the settlement of any disputes that might arise between the two countries under the convention of 1818. This article is as follows:

The tribunal shall recommend for the consideration of the high contracting Parties rules and a method of procedure under which all questions which may arise in the future regarding the exercise of the liberties above referred to may be determined in accordance with the principles laid down in the award. If the high contracting Parties shall not adopt the rules and method of procedure so recommended, or if they shall not, subsequently to the delivery of the award, agree upon such rules and method, then any differences which may arise in the future between the high contracting Parties relating to the interpretation of the treaty of 1818 or to the effect and application of the award of the tribunal shall be referred informally to the Permanent Court at The Hague for decision by the summary procedure provided in Chapter IV of the Hague Convention of the 18th October, 1907.1

1Post, p. 151.

Second. This was as to the right of the inhabitants of the United States, while exercising the liberties referred to, to employ as members of the fishing crews of their vessels persons not inhabitants of the United States.

The United States contended (1) that the liberty assured to their inhabitants by the treaty plainly includes the right to use all the means customary or appropriate for fishing upon the sea, not only ships and nets and boats, but crews to handle the ships, the nets and the boats; (2) that no right to control or limit the means which these inhabitants shall use in fishing can be admitted unless it is provided in the terms of the treaty and no right to question the nationality or inhabitancy of the crews employed is contained in the terms of the treaty.

Great Britain, on the other hand, contended (1) that the treaty confers the liberty to inhabitants of the United States exclusively; (2) that the Governments of Great Britain, Canada or Newfoundland may, without infraction of the treaty, prohibit persons from engaging as fishermen in American vessels.

The tribunal held in favor of the United States but expressed the view that non-inhabitants employed as members of crews of American fishing vessels derive no rights from the treaty, but only from their employer.

Third. The United States contended that its inhabitants were not, without its consent, to be subjected "to the requirements of entry or report at custom-houses or the payment of light or harbor dues, or to any other similar requirement or condition or exaction."

The United States stated in its case that American fishing vessels exercising their treaty rights might properly be called upon to make known their presence and exhibit their credentials by a report at customs, but on the other hand, the United States denied that such vessels could be subjected to the customs regulations imposed upon other vessels, or required to pay light, harbor or other dues not imposed upon local fishing vessels.

The tribunal held that the duty to report is not unreasonable, if the report may be made conveniently either in person or by telegraph; otherwise the vessel need not report. It was also held that "the exercise of the fishing liberty by the inhabitants of the United States should not be subjected to the purely commercial formalities of report, entry and clearance at a custom-house, nor to light, harbor or other dues not imposed upon Newfoundland fishermen."

Fourth. This question was as to the right to require payment of light and harbor dues by fishermen of the United States, or to report at custom-houses, and similar requirements when resorting to certain bays and harbors for shelter, wood, water, etc.

The treaty provided that American fishermen might enter bays or harbors on the non-treaty coast "for the purpose of shelter and of repairing damages therein, of purchasing wood and of obtaining water, and for no other purpose whatever."

Great Britain contended that vessels, seeking these non-treaty ports

were to be treated as ordinary vessels, subject to local ordinances and regulations, whereas the United States maintained that the ports were to be treated as ports of refuge and that subjection of fishing vessels to the prerequisite of entering and reporting at custom-houses, or of paying light, harbor or other dues would unjustly impair and limit the privileges which the clause meant to concede.

The tribunal held that the treaty provision was an exercise, in large measure, of the "duties of hospitality and humanity which all civilized nations impose upon themselves," and was not dependent upon the payment of dues or other similar requirements, although the privilege should not be abused.

Fifth. By the convention of 1818 the United States renounced the right "to take, dry, or cure fish on, or within three marine miles of any of the coasts, bays, creeks or harbors of His Britannic Majesty's dominions in America" not included within the limits specified by the treaty. The fifth question asked "from where must be measured the 'three marine miles of any of the coasts, bays, creeks, or harbors' referred to in the said article ?"

Great Britain contended that the United States had renounced the right to fish within all bays and within three miles thereof, that is, that the word "bays" in the treaty was used in both a geographical and territorial sense, thereby excluding American fishermen from all bodies of water on the non-treaty coast known as bays on the charts of the period. On the contrary the United States maintained that the word "bays" was used in the territorial sense, and therefore limited to small bays, and that it had renounced merely the right to fish within such bays as formed part of His Majesty's dominions, that is to say, territorial bays; that only such bays whose entrance was less than double the marine league were renounced, and that in such cases the three marine miles were to be measured from a line drawn across the bays where they were six miles or less in width.

The tribunal decided in favor of the British contention that the word "bays" must be interpreted as applying to geographical bays, and held that "in case of bays, the three marine miles are to be measured froin a straight line drawn across the body of water at the place where it ceases to have the configuration and characteristics of a bay," but that "at all other places the three marine miles are to be measured following the sinuosities of the coast." That is, a body of water, geographically called a bay, may cease to have "the configuration and characteristic of a bay" and at this point the line is to be drawn.

The tribunal, however, in view of the difficulty in the practical application of the rule laid down, recommended a procedure to determine the limits of particular bays, which were specified, and provided also that as to bays not specified "the limits of exclusion should be three miles seaward from a straight line across the bay at the part nearest the entrance at the first point where the width does not exceed ten miles."

The decision was not unanimous, Dr. Drago submitting a dissenting