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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, without 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 Harbours of His Britannic Majesty's Dominions in America not included within the abovementioned limits; Provided however, that the American Fishermen shall be admitted to enter such Bays or Harbours 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.” 1
With reference specifically to Newfoundland fisheries it may be pointed out that by the terms of the above-quoted Article it is provided 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." The coast embraced within these limits is frequently referred to as the “Treaty Coast of Newfoundland." The Article further provides that “the American fishermen shall also have liberty forever, to dry and cure Fish in any of the unsettled Bays, Harbours, and Creeks of the Southern part of the Coast of Newfoundland hereabove described.” The Article contains a renunciation by the United States of any liberties, theretofore enjoyed or claimed by its inhabitants, to take, dry or cure fish on, or within three miles of any of the coasts, bays, creeks or harbors of His Britannic Majesty's Dominions in America not included within the limits specified in the Article. This renunciation is, however, subject to the proviso that American fishermen "shall be admitted to enter such Bays or Harbours for the purpose of Shelter and of repairing Damages therein, of purchasing Wood, and of obtaining Water, and for no other purpose whatever.”
Claims in Group One.
In the so-called Group One cases, claims are made for refund of light dues, customs duties, and other charges levied upon fishing vessels by officers of the Government of Newfoundland. Most of the vessels against which these charges were imposed were engaged in the herring fishery in Bay of Islands or Bonne Bay on the West
1 Exhlbit 1, pp. 24-25.
Coast of Newfoundland. A few of the vessels were fishing for cod or halibut on the Banks of Newfoundland, and had occasion to enter the territorial waters of Newfoundland to obtain water or shelter, to repair damage, or to get bait. The claimants, as described in the schedule of claims appended to the Agreement of August 18, 1910, are as follows:
Cunningham & Thompson Thomas M. Nickolson
M. J. Palson
M. J. Dillon
Russel D. Terry
Lemuel E. Spinney
Wm. H. Thomas
Frank H. Hall
M. Walen & Son
Atlantic Maritime Co.
Waldo I. Wonson
Since the conclusion of the Agreement of August 18, 1910, the claimants in nine of the claims have died. In five of these nine cases the claims are now presented on behalf of representatives of the original claimants. In the other four cases, namely those of Magnus J. Palson M. J. Dillon, Russell D. Terry and Edward Trevoy, in which so-called “statements” have heretofore been filed with the Tribunal, it has been found impossible, owing to the lapse of time and the death of the claimants, to obtain adequate evidence to substantiate them. They will, therefore, not be further pressed by the United States.
The Method of Conducting the Herring Fishery. Most of the charges of which a refund is claimed were imposed upon vessels engaged in the herring fishery. It is considered desirable briefly to discuss the methods used by American fishermen engaged in this industry on the Newfoundland Treaty Coast. With reference to this subject attention is invited to a number of affidavits of masters of fishing schooners, describing the manner in which the claimants carried on the herring fishery at the time of the imposition of these charges. These affidavits, which are printed on pages 70 to 117, 144 to 147, and 309 to 312 of the Memorial, show that the claimants employed substantially the same methods. Particular attention is invited to an affidavit ? executed on April 25, 1924, by Cap
* Exhibit 4, p. 79.
tain Carl C. Young of Gloucester, Massachusetts, one of the three fisheries experts for the Agency of the United States in the North Atlantic Coast Fisheries Arbitration at The Hague in 1910, and to an affidavits made on April 16, 1924, by Captain George H. Peeples, another Gloucester skipper with a long experience in fishing for herring in Newfoundland waters.
Beginning about 1897 American fish producers at Gloucester sent fishing schooners to Bay of Islands and to Bonne Bay during the herring season of each year to engage in the herring fishery. The season usually opened in October and continued until the latter part of January or early February, when ice from the Gulf of St. Lawrence compelled fishing vessels to leave the West coast of Newfoundland to avoid becoming icebound for the remainder of the winter.
During the early part of the season the catch of herring was salted on the deck of the vessel and taken to the United States. Later, as heavy frosts occurred the herring were placed on scaffolds, usually erected on the deck of the vessel, and frozen. Each fishing vessel aimed to make two trips during the herring season, one to obtain salt herring and the other to obtain frozen herring. Such trips were largely dependent, however, upon weather conditions. As stated by Captain Young,"sometimes a schooner made a salt trip and a frozen trip, sometimes it made two salt trips, sometimes a salt trip and a part salt and part frozen trip, and sometimes & vessel made but one trip which might be either a whole salt, a whole frozen, or a part salt and part frozen trip.” 5
The principal herring fishery was in the Bay of Islands. Fishing was also carried on to a small extent in Bonne Bay, a much smaller bay situated about thirty miles northeast of the Bay of Islands. Both bays are on the Treaty Coast.
Accompanying the affidavit of Captain Young will be found two sketches marked “Map A” and “Map B,” respectively. “Map A" shows the situation of Bay of Islands and Bonne Bay on the Newfoundland west coast. “Map B” shows the Bay of Islands with its arms.
Captain Young describes the Bay of Islands in the following language:
“ The Bay of Islands is a large indentation of the Gulf of St. Lawrence which terminates in several arms—North Arm, Middle Arm (terminating in two smaller arms, Penguin Arm and Goose Arm) and Humber Arm, into which flows the Humber River. * * *
“The shores of the Bay of Islands rise precipitously from the sea, often at an angle of forty-five degrees. During these years they were practically uninhabited. The shores of North Arm were entirely uninhabited. Those of Middle Arm, Penguin Arm and Goose Arm were almost uninhabited. The only settlements were at Birchy Cove, up the Humber Arm, and on Woods Island, which was situated near the mouth of the Humber Arm. There were also a few houses at Lark Harbor in the southwestern part of the Bay."?
• Exhibit 5, p. 78.
With reference to the particular localities in which fishing was carried on, Captain Young states:
“Most of the fishing was done on North Arm, Middle Arm, Penguin Arm and Goose Arm. Some fishing was done in the Humber Arm. This fishing, however, was ordinarily limited to the early part of the season as the water in the Humber Arm, being fresh, usually froze over early and rendered further fishing in that Arm impossible.”8
It was the practice of fish producers at Gloucester to dispatch fishing schooners engaged in the herring fishery from Gloucester with so-called "skeleton" crews, that is, just enough men to sail the ship to Newfoundland and bring it back. Upon the arrival of a schooner in Newfoundland waters, the crew was enlarged by an additional number of men, principally Newfoundlanders, to assist in obtaining a cargo of herring. Ordinarily 8 or 10 men were taken from Gloucester, and from 25 to 35 additional men were engaged in the Bay of Islands. The employment of these additional men continued until the fare of fish had been obtained; their services were then dispensed with, and the ship returned to Gloucester with its original crew.'
On these trips the vessel took no outward cargo from Gloucester. It carried simply the barrels, salt, lumber, fishing gear, fishermen's outfit, and provisions necessary for the use of the vessel and the crew on a herring trip.10
Concerning the employment of additional men in Newfoundland to complete the crews of vessels engaged in the herring fishery, Captain Young in his affidavit says:
“Most of the people in the region of the Bay of Islands lived up the Humber River, and these men were ordinarily obtained there. They rowed out to the vessel in their boats, each boat containing from two to four men. The men tied their boats to the vessel, came aboard, and were engaged to work for it. It was the understanding that these men would be fed and housed by the vessel, that they would fish for the vessel in their small boats, and that they would be compensated for their services on a piece work basis, at so much per barrel for fish caught. They were required to supply their own fishing gear (nets, anchors, buoy lines, etc.) and outfit (oiled clothes, rubber boots, oiled hats, etc.). "They were treated in all respects as members of the crew shipped in Gloucester.
“Frequently these men lacked the necessary articles of gear and outfit. Good gear was difficult to obtain in Newfoundland, and in
* Exhibit 4, p. 71.
• Ibid., pp. 71-72, 74.
10 Ibid., p. 72
order for the vessel to make use of the services of the Newfoundlanders it was necessary to take to Newfoundland a supply of gear and fishermen's outfit. As soon as the men came aboard the vessel and were engaged, they were supplied with such articles as they needed to complete their fishing equipment. These articles were supplied to the men at cost and were charged against their account. Upon the termination of their employment, the men were paid the difference between the amount earned by them and the cost of the gear and outfit furnished to them.
“The vessel then proceeded, with the small boats of the Newfoundlanders in tow, to the Arms of the Bay to fish. The vessels anchored near the shores of the Arms of the Bay, and the men then fished in their boats in the vicinity of the schooner. The fishing was done with gill nets.
“During the process of fishing, much gear was lost or destroyed and it was necessary to replenish the gear thus lost and destroyed in order that the fishing might continue. Storms often washed away nets and anchors; the Arms of the Bay frequently froze over and in that event gear and tackle would often be washed out with the ice. The fishing could not, as a practical matter, be carried on unless the vessel was at all times ready to supply gear, outfit and equipment to the crew. It was also necessary to keep a supply of tobacco on hand. This was supplied to the men, charged against their accounts, and deducted from their pay.
“The herring thus caught in the gill nets was delivered to the vessel where it was measured. The Newfoundland authorities required that the tubs used to measure the fish bear the stamp of the Newfoundland Government. The fish was then salted or frozen, depending upon weather conditions, and placed in the hold of the vessel and in barrels on deck. The men engaged in Newfoundland assisted in the salting and freezing process.
“The ship returned to Gloucester with the crew originally taken from there. Newfoundlanders were paid off in the Bay of Islands and went ashore in their boats. The vessel carried back to Gloucester the cargo of fish which it had obtained in the manner herein set forth, and the barrels, salt, gear, outfit, supplies, etc., which had been taken to Newfoundland and which had not been consumed, lost, destroyed or expended there.”' 11
Captain Peeples in his affidavit similarly describes the employment of these Newfoundlanders as follows:
"Newfoundlanders thus engaged to complete the crew rowed out to the schooner in their small boats, tied these boats to the vessel, and came aboard. Two or three men usually came in a single boat. A schooner ordinarily took from twenty-five to thirty-five men i. e. ten or twelve boats. These men brought with them such fishing gear and outfit as they had. This was usually very little. In order to utilize their services, it was necessary to supply them with such articles of gear and outfit as they needed. Gear and outfit were scarce in that region. It was not until 1905 that the few merchants in the one or two small settlements on the Bay made any pretense
11 Exhibit 4, pp. 72–74.