THE LIBRARY

OF

THE UNIVERSITY

OF CALIFORNIA
LOS ANGELES

AMERICAN AND BUITISH
CLAIMS AKBITKATION.

Frederick Gerring. jr

MEMORIAL

OF THE UNITED STATES

IN SUPPORT OF THE CLAIM.

AMERICAN AND BRITISH CLALMS ARBITRATION.

The Frederick Gerring, Jr.

<^s:

Memorial of the United States in Support of the Claim.

The Frederick Gerring, Jr., was an American fishing vessel
duly registered in accordance with the laws of the United States at
the port of Gloucester, in the State of Massachusetts, and owned
and officered by American citizens.^ Being licensed and equipped
for a fishing voyage in the North Atlantic Ocean, she set sail from
Gloucester on May 13, 1896.*

At about three o'clock in the afternoon of the 25th of May,
1896, the Gerring arrived in the neighborhood of White Island, off
the coast of Nova Scotia, where Daniel Doren, her master, observed
a number of other American fishing vessels fishing for mackerel
at a distance of more than three marine miles from the coast of
Nova Scotia, and also a sailing cruiser of the Dominion of Canada,
the Vigilant, commanded by Captain Hector MacKenzie, patrolling
those waters. While upon the high seas and near the Vigilant the
master of the Frederick Gerring, Jr., saw a school of mackerel about
one hundred and fifty yards to the southward of the cruiser, and
heard the commander of the Vigilant assure the master of one of
the other American fishing vessels, the Margaret Haskins, that the
Vigilant was jogging on the line, that the school of mackerel was
"all right," and "to go ahead," meaning that the fish were beyond
Canadian jurisdictional waters.^ To satisfy himself further upon
this point Captain Doren hailed the boat of the Haskins, which
already had its seine out, and inquired of the master how far
outside of the three-mile limit of Canadian territorial waters he
then was. In response to this inquiry, the master replied that the
commander of the Vigilant had just informed him that tlic Vigilant

'Appendix, pp. 11-12.
^Appendix, pp. 13-14.
^Appendix, pp. 14, 20, 21.

302^531

2 77/t' Frederick Gcrriny, Jr.

was on the line and that the school of mackerel was outside. Rely-
ing upon this assurance of the Canadian officer, Captain Doren pro-
ceeded to set his seine, which was of the type called a "purse seine,"
and surrounded the school of mackerel at a distance of at least a
half mile seaward from the Vigilant and fully three and one-half
marine miles from the ledge of rocks known as Gull Ledge, which
rocks lie more than three miles from the mainland of Nova Scotia.
The Captain of the Vigilant testified positively that at the time the
fish were impounded they were "a good half mile" outside the three-
mile limit/

Having surrounded the school of mackerel with his purse seine,
the master of the Frederick Gerrifig, Jr., proceeded to secure the fish
enclosed by drawing up the purse string of the seine. The seine
was then lashed fast to the vessel and hoisted up so that the fish,
which had liecn taken, could be "bailed," or removed with dip nets
from the pursed-up seine to the deck of the vessel in the manner
usually practised by fishermen.""'

All these fishing operations took place in the presence of the
commander of the Vigilant, who remained in the neighborhood of
the Frederick G erring, Jr., without interfering with her operations,
for about an hour after the crew of that vessel had commenced to
bail the fish from the seine.*

While the crew of the Frederick Gerring. Jr., were still engaged
in removing the captured fish to the deck of their vessel, the Vigilant
sailed away to the westward.^ She passed and saluted the Do-
minion Cruiser Aberdeen, commanded by Charles Knowlton, a
vessel likewise engaged in the Fishery Protection Service of
Canada. At about 6 o'clock in the afternoon the Aberdeen ap-
proached the Gerring, and Captain Knowlton came on board
the vessel and seized her for fishing within Canadian jurisdictional
waters,* notwithstanding the protest of Captain Doren that he knew
he could not be within three miles from the nearest Briti.sh land,
and notwithstanding his statement that the commander of the
Vigilant had assured the American fishermen that they were outside

♦Appendix, pp. 21, 71.
sAppcndix, pp. 46, 92, 112, 116, 117.
®.A.ppendix, pp. 22, 66, 67.
^Appendix, p. 67.
^Appendix, pp. 22, 26.

Memorial of the United States. 3

the jurisdictional waters and had permitted the Gerring and other
American fishing vessels without molestation or objection to catch
and bail their fish in the same place where the seizure was made."

It should be further observed as evidence of the conviction of
Captain Doren that he was upon the high seas, that he requested
the commander of the Aberdeen to measure the actual distance of
the Frederick Gerring, Jr., from the nearest British or Canadian
land, but this the commander refused to do,^° and proceeded to seize
the vessel despite the fact that she was more than three marine
miles from any of the coasts, bays, creeks, or harbors of Canada
and was not at the time fishing or preparing to fish within the terri-
torial waters of Canada.

Having arrested and seized the Frederick Gerring, Jr., the
commander of the Aberdeen put a prize crew on board the vessel
and proceeded to tow her to the harbor of Liscombe, in Nova
Scotia and thence to Halifax/^' While towing the vessel from the
place of seizure to Liscombe, the commander of the Aberdeen
caused the Gerring to swnng into the trough of the sea, with the
result that forty barrels of the mackerel taken by her and bailed
onto her deck were washed overboard and lost/"

Action for forfeiture was brought by the Government of Can-
ada against the Frederick Gerring, Jr., her cargo, tackle, rigging,
apparel, furniture and stores, in the Exchequer Court of Canada,
Nova Scotia Admiralty District, on May 29, 1896. The case was
tried in the said court and on August 28, 1896, the vessel, her
cargo, tackle, rigging, apparel, furniture and stores, together with
the fish, seine, fishing gear, supplies and other property on board of
her at the time of her seizure, were condemned as forfeited to the
Crown, and the owner of tlic vessel was ordered to pay the costs of
the action/^'

On September 1, 1896, an appeal from this judgment was
taken by the owner to the Supreme Court of Canada, and the judg-
ment was affirmed in Alay, 1897, by a divided court; three of the
Justices concurring in the decision, and two, one of whom was the
Chief Justice, dissenting.""

^Appendix, pp. 14, 15, 22.
i^Appendix, pp. 15, 27.
^'1 Appendix, p. 23.
i^Appendix, pp. 15. 23, 24.
^'-^.^ppendix, pp. 100.
i-'Appendix, pp. 111-143.

4 The Frederick Gerring, Jr.

Meanwhile, immediately following the condemnation of the
vessel by the Exchequer Court, a copy of the judgment with a
statement of the facts in the case was brought to the attention of the
Government of the United States, and an earnest appeal was made
tliat steps be taken to protect the interests of the owner of the
vessel, who was about to be deprived of his property by a court
without jurisdiction, the vessel having been taken on the high seas,
and under a judgment admittedly founded upon a technicality, even
conceding the vessel to have been seized in Canadian waters.

The Government of the United States upon investigation felt
convinced that the seizure of the Gerring was unwarranted, but
considering it expedient to rely upon an intimation contained in the
judgment of the Exchequer Court that the case was one which prop-
erly called for the exercise of executive clemency, it presented the
case to Her Majesty's Government with that end in view, confi-
dently believing that the justice and equity of that Government
would not permit the penalty of forfeiture to be imposed in a case
where, if there had been any infraction of the Canadian statute at
all. it was of a purely accidental and technical nature.

The presentation of the case was made to the Government of
Great Britain on November 6, 1896,** and on February 20, 1897,
that Government replied that nothing could be done until the case
liad been heard on appeal in the Supreme Court of Canada.^"

The decision of the Supreme Court was rendered in May, 1897,
with the result as set forth above. In view of the strong stand
taken by two of the justices, one of whom was the learned Chief
Justice, against the condemnation of the vessel, the Government of
the United States again brought the matter to the attention of Her
Majesty's Government in the belief that speedy and efficacious re-
lief would be granted,*'

In July, 1897, the Government of Great Britain notified the
Government of the United States that in view of all the circum-
stances of the case the Canadian Government had decided that the
vessel should be restored to her owner, on payment of a nominal
fine, together with the costs incurred in her prosecution.*''

^^Appcnclix, pp. 104-106.
J^Appendix, p. 107.
"Appendix, pp. 148-150.
"Appendix, pp. 151, 152. 154, 155.

Memorial of the United States. 5

Believing at the time that the measure of clemency offered by
Her Majesty's Government would afford a fair measure of relief
and reduce the loss of the owner of the vessel to a sum which might
be disregarded, the Government of the United States expressed to
the Government of Great Britain the gratification with which it had
learned of the decision of the Canadian Government, although it
had not changed its opinion that the seizure was illegal and that
the judgment of condemnation was tantamount to a denial of
justice.^®

When the offer of the Canadian Government was communi-
cated to the owner of the Gerring, he replied that the vessel and her
equipment had become damaged to such an extent while in the
possession of the Canadian authorities that they were not worth the
amount of the costs which the terms of the offer required him to
pay. The charges against the vessel amounted to $1,217.25. Against
this there was a credit of $606.55 on account of the sale of the
mackerel on board the vessel when she was brought into port after
the seizure. These mackerel had not been properly cared for and
they sold for less than half their original value. The owner's loss
on this item alone was over $800. In addition, his legal expenses
had been over $1,400. Furthermore, the vessel had deteriorated
until she was practically useless ; and the seine, which when seized
was worth $1,000, had been ruined, so that at the time it was sold
it brought only $40,^* and a similar depreciation in value had taken
place in all of the equipment and stores on board the vessel. ^° It
can well be conceived that having suffered such heavy losses already,
the owner was not inclined to pay over six hundred dollars more
to the Canadian Government for the privilege of recovering the
remnants of his property which had been wrongfully seized and
allowed to become ruined through the negligence of the Canadian
authorities.

The Government of the United States, in view of the owner's
refusal of the offer of the Canadian Government, and in order to
determine whether or not such refusal was justifiable, suggested to
the Government of Great Britain that a survey be made of the vessel
and equipment by a representative of the Canadian Government and

i'8 Appendix, pp. 153, 159, 160.
loAppendix, pp. 155, 157, 210.
20Appendix, p. 155.

6 The Frederick Gerring, Jr.

a consular officer of the United States as to the condition of the
condemned property, but this suggestion being objected to by the
Canadian Government, was dechned by the Government of Great
Britain."^

Failing in its efforts to induce the Government of Great Britain
to make suitable reparation to the owner of the Frederick Gerring,
Jr., for the loss suffered by him, the Government of the United
States closed the diplomatic correspondence by informing the Brit-
ish Government that the United States would expect that in any
arrangement that might be made for the arbitration of outstand-
ing claims between the two Governments, the claim of the Frederick
Gerring, Jr., would be included, so that the case could be heard
upon its merits. The claim was accordingly included in the
schedule of claims attached to the Special Agreement of August 18,
1910, and is now presented to the Arbitral Tribunal for de-
termination.

The Government of the United States contends that the seiz-
ure of the Frederick Gerring, Jr., was an unjustifiable and wrong-
ful act on the part of the Canadian authorities, and that the subse-
quent condemnation and forfeiture of the vessel constitute a
manifest denial of justice for which the Government of His
Britannic Majesty are liable to the Government of the United
States, because —

First. The Frederick Gerring, Jr., when seized by officials of
the Canadian Government, was upon the high seas.

Second. The Frederick Gerring, Jr., when so seized, had not
been taking, drying or curing fish on, or within three marine miles
of any of the coasts, bays, creeks or harbors of Her Britannic
Majesty's dominions in America.

Third. The Frederick Gerring, Jr., when so seized, was not
within any bay or harbor of Her Britannic Majesty's dominions in
America.

Fourth. The Frederick Gerring, Jr., when so seized, was not
found fishing or preparing to fish or to have been fishing in British
waters within three marine miles of any of the coasts, bays, creeks
or harbors of Canada.

Fifth. The Frederick Gerring, Jr., when so seized, had not
entered British waters for any purpose not permitted by treaty or

2iAppendix, p. 167, 169.

Memorial of the United States. 7

convention or by any law of the United Kingdom or of Canada for
the time being in force.

The Government of the United States therefore claims from
the Government of His Britannic Majesty on account of the wrong-
ful seizure, condemnation and confiscation of the American fishing
vessel, the Frederick Gerring, Jr., her equipment, tackle, apparel,
furniture, implements, effects, stores and cargo the sum of
$1 2,642.61 ,'■ together with interest thereon from May 25, 1896.

Robert Lansing,
Agent of the United States.

22Appendix, pp. 198, 199.

Frederick Gerring, Jr.

APPENDICES

Contents.

Page

Exhibit 1. — Certificate of Enrollment and License 11

Exhibit 2. — Certificate of Naturalization of Edward Morris 12

Exhibit 3.— Afindavit of Daniel Doren, May 30, 1896 13

Exhibit 4. — Afifidavit of Members of Crew of Frederick

Gerring, Jr., May 30, 1896 16

Exhibit 5. — Transcript of proceedings in the Admiralty

Court 17

Exhibit 6. — The Secretary of State to the American Ambas-
sador at London, October 14. 1896 104

Exhibit 7. — The American Ambassador to the Secretary of

State, February 26, 1897 106

The American Ambassador to Lord Salisbury,

November 6, 1896 106

Lord Salisbury to the American Ambassador,
February 20, 1897 107

Exhibit 8. — Edward Morris to the Secretary of State, March

29, 1897 108

Extract from the Jialifax Echo 110

Exhibit 9. — Decision of the Supreme Court of Canada Ill

Chief Justice 112

Gwynne, J., dissenting opinion 112

Sedgewick, J., majority opinion 114

King, J., majority opinion 127

Girouard, J., majority opinion 132

Exhibit 10. — Edward Morris to the Secretary of State,

June 12, 1897 143

Exhibit 11. — Edward Morris to Hon. John D. Long, July 12,

1897 145

Exhibit 12. — The Secretary of State to Lord Pauncefote,

June 22, 1897 147

Hon. Richard Olney to the Secretary of State,
June 14, 1897 149

Exhibit 13. — The British Charge d' Affaires to the Secretary

of State, June 23, 1897 151

Appendix to Memorial of the United States. 9

Page

Exhibit 14. — The British Charge d' Affaires ad interim to the

Secretary of State, July 15, 1897 151

Exhibit 15. — The Acting Secretary of State to Edward

Morris, July 19, 1897 152

Exhibit 16. — The Acting Secretary of State to the British

Charge d' Affaires, July 19, 1897 153

Exhibit 17. — The American Ambassador to the Secretary of

State, August 18, 1897 153

Lord Salisbury to the American Ambassador,
August 12, 1897 154

Exhibit 18. — ^Edward Morris to the Secretary of State, Sept.

7, 1897 155

Exhibit 19. — The Secretary of State to the British Ambassa-
dor, March 1, 1898 158

Exhibit 20. — The British Ambassador to the Secretary of

State, April 18, 1898 161

Extract from Report of Privy Council, 31st
March, 1898 161

Exhibit 21. — ^The British Ambassador to the Secretary of

State, July 1, 1898 165

Extract from Report of Privy Council, 17th
June, 1898 166

Exhibit 22. — The Acting Secretary of State to the British

Ambassador, September 2, 1898 167

Exhibit 23. — Edward Morris to the Secretary of State, March

2, 1899 168

Exhibit 24. — The British Anil)as.sador to the Secretary of

State, March 20, 1899 169

Extract from Report of Privy Council, March

13, 1899 170

Exhibit 25. — The American Ambassador to the Secretary of

State. May 9, 1901 172

The American Ambassador to Lord Lansdowne,

Dec. 6, 1900 172

Memorandum by Senator Hoar 180

Memorandum by Hon. \V. H. Moody 182

Lord Lansdowne to the American Ambassador,
March 4, 1901 187

10 Frederick Gcrrincj, Jr.

Kxhibit 2C). — The American Ambassador to the Secretary of

State. August 1 5, 1901 188

Lord Lansdowne to the American Ambassador,
August 12, 1901 188

Exhibit 27 . — Edward Morris to the Secretary of State, Octo-
ber 7, 1901 195

Exhibit 28.— Affidavit of Edward Morris, December 16, 1912. 196

Exhibit 29. — Affidavit of Clarence A. Elwell, November 8,

1912 200

Exhibit 30. — Affidavit of John W. McFarland, December 16,

1912 201

Exhibit 31.— Affidavit of Fred L. Davis, December 16. 1912.. 202

Exhibit 32.— Preamble and Article I of Treaty of 1818 203

Exhibit 33.— British Act of June 14, 1819 (59 Geo. Ill,

Cap. 38) 205

Exhibit 34. — Sections 3 and 20 of Canadian Revised Statute

of 1886, C. 94 208

Exhibit 35. — The Consul General at Halifax to the Secretary

of State, Jan. 24, 1913 209

Record of Sale of the Frederick Gcrring, Jr. . . . 209

Appendix to the Memorial . 11

EXHIBIT 1.

Consolidated Certificate of Enrollment and License of the
Frederick Gerring Jr.

Certificate No. 41. Permanent. Official Number.

Numerals. Letters.
9905

The United States of America.

Certificate of Enrollment.

(Section 4319, Rev. Stats., and Act
of April 24, 1906.)

In Conformity to Title L, "Regulation of Vessels in Domestic
Commerce," of the Revised Statutes of the United States.

Edward Morris of Gloucester, Mass., having taken and sub-
scribed the oath required by law, and having sworn that he is a
citizen of the United States, and the sole owner of the vessel called
the Frederick Gerring, Jr., of Gloucester, whereof John A. Camp-
bell, a citizen of the United States, is master, and that the said ves-
sel was built in the year 1870, at Essex, Mass., of wood, as appears
by Register No. 47, issued at the office Nov. 29, 1892, now sur-
rendered. Trade changed, and said register having certified that
the said vessel is a Sch. ; that she has 1 deck, 2 masts. Billet head,
square stern; that her length is 73 6/10 feet, her breadth 21 1/10

feet, her depth 7 7/10 feet, her height feet; that she measures

as follows :

Tons. lOOths.

Capacity under tonnage deck 64 03

Capacity between decks above tonnage deck

Capacity of inclosures on the upper deck, viz 6 8o

Gross Tonnage 70 88

Deductions under Section 4153, Revised Statutes, as

amended by Act of March 2, 1895 :
Crew space, Master's cabin.

Steering gear. Anchor gear, Boatswain's stores,

Chart House, Donkey engine and boiler,

Storage of sails. Propelling power.

Total Deductions 5% 3 54

Net Tonnage 67 34

12 Tlic Frederick Gcrring, Jr.

that the following-described spaces, and no others, have been

omitted, viz and said Vessel has

been duly Enrolled at the Port of Gloucester.

GIVEN under my hand and seal at the Port of Gloucester in
the District of Gloucester this 9th day of February in the year
1893.

J. Warren Wonson,
Spc. Dy. Collector of Customs.

Naval Officer. (Seal.)

A true Copy Attested —
Dy. Collector.

(Seal reading)
District of Gloucester,
Collector of Customs,
Port of Gloucester, Mass.

Custom House, Gloucester, Mass., Nov. 5, 1912.
A true copy, attest :

A. H. Mackenzie.

EXHIBIT 2.

Certificate of Naturalization of Edward Morris.

United States of America.

Seal of the United States.

Massachusetts District, SS.

To all people to whom these presents shall come : Greeting.

Know Ye, That at a District Court of the United States,
holden at Boston, within and for the Massachusetts District, on
the 20th day of July, in the year of our Lord one thousand eight
hundred and sixty-six.

Appendix to the Memorial. 13

Edward Morris

of Gloucester in said district, a fisherman born in Guysboro, Nova
Scotia, having duly made the affidavit and taken and subscribed
the oath required by law, was

Admitted to Become a Citizen of the United States,
according to the Acts of Congress in such case made and pro-
vided, all of which appears of record in said Court.

In Testimony Whereof, I have here-
unto set my hand and affixed the seal of
Seal of the District said Court at Boston aforesaid, this 6th
Court day of November A. D. 1912 and in the

Massachusetts one hundred and thirty-seventh year of the

Independence of the United States of
America.

Herbert W. Lewis,
Deputy Clerk of the District Court
of the United States, for the Dis-
trict of Massachusetts.

EXHIBIT 3.

Affidavit of Daniel Doren, Master of the Frederick Gerring, Jr.

Canada

Province of Nova Scotia.
To zvit, —

I, Daniel Doren of Gloucester in the United States of America
master mariner, but at present of the City of Halifax make oath
and say as follows: —

I say that I was recently master of the fishing schooner Fred-
erick Gerring, Jr., on a fishing voyage from Gloucester aforesaid
for the Cape shore off the coast of Nova Scotia mackerel fishing.

That said schooner left Gloucester on the thirteenth day of
May instant, and arrived off White Island to the westward of
Liscombe in Nova Scotia on Monday, the 25 day of May, instant.

14 The Frederick Gerriny, Jr.

That on our arrival off White Island we found a number
of American fishermen mackerel fishing outside of the three-mile
limit, and the Dominion Fishery Cutter Vigilant coursing along
the said limit watcliing that no foreign vessel should fish inside
of said limit.

That we saw a school of mackerel between our vessel and the
Vigilant distant about one hundred and fifty yards to the south-
ward of the Vigilant.

That at that time Charles Hardy, captain of the American
schooner Margaret Haskins, was in his boat between his vessel
and tlie Vigilant and in my hearing and that of my crew inquired
of the commander of the Vigilant if the school of fish then
running and to the southward of the Haskins were all right, mean-
ing whether the said fish were outside of the three-mile limit ;
that the said commander informed him in my hearing and that
of my crew that "they were all right," meaning that we could
proceed to catch them. The Gerring then lay outside and to
the southward of the Haskins about seventy-five yards, and
about two hundred yards outside of the three-mile limit.

We then in order to be sure that we heard aright started in
our own boat towards the captain of the Haskins and hailed
him and asked him how far he was off the limit and he said that
the captain of the Vigilant was then on the three-mile line and
had informed him that tlie fish to the southward of his vessel
were outside of that limit ; we then proceeded to set our seine out-
side of said limit about two hundred yards but not less than one
hundred and fifty yards outside of said line and caught the school
of fish. That while so at work the said schooner Vigilant sailed
up and down on the said line limit and saw the Gerring and
the Haskins at work and never interfered or forbid either of
them from fishing or in any way informed me we were inside of
said limits. That the Haskins, having caught her school of mack-
erel, sailed away in the presence of the Vigilant and was not inter-
fered with.

That the crew of the Gerring bailing about eighty barrels of
the fish into the schooner, when the Vigilant hoisted her light-
sails and stood away to the westv/ard, and the Dominion fishery
cutter steamer Aberdeen hove in sight. We continued getting
in our fish and he steamed up alongside of us and her captain

Appendix to the Memorial. 15

and some of the crew came on board when I met him, when he
said to me, "I think you are fishing inside of the Hmit." I told him
that it was impossible, that the Vigilant was sailing up and
down on the line limit and told him of the instructions the captain
of the Jlgilant had given the master of the Haskins in my
presence, and that we were to the southward of the Haskins
and that while we had been fishing the Vigilant never inter-
fered with us, although he saw. He then asked me for my com-
pass. I took it out of the binnacle and put it on the house. He then
asked me for my chart, he looked at it and then threw it down and
said it was no good. I claimed I was then about three miles and
a half off the land. He said we were not. I then asked him to
allow part of his crew and part of mine to tow his log or mine, or
both, to the land he claimed we were nearest to, in order to test
our exact distance. He refused to do it. I told him I would put
a crew of my own into a boat and do it, but he would not allow
me to do so. He then seized the Gerring and asked me for the
ship's papers, which I then handed him. He then instructed my
crew to keep on at work and take care of the fish.

1 then asked him if he would steam to the Vigilant, who
was lying about one-quarter of a mile to the westward of us, and
ascertain from her captain whether he had not told the captain
of tlic IJaskius he was outside of the limit, but he refused to do
so. I then repeatedly requested him to permit me to tow my log
to Liscombe Light, but he refused. I said I would throw the log
over, and he refused to ijermit me, and gave his officers instruc-
tions not to permit it.

When he took us in tow he slewed us quickly into the trough'
of the seas and by that means about forty barrels of fish went
overboard.

Signed

Daniel Doren.

Sworn to at Halifax in the County of Halifax and Province
of Nova Scotia, this 30th day of May, A. D. 1896.
Before me

Darius H. Ingraham,

Consul General.

16 The Frederick Gerring, Jr.

Consulate General of the United States, Halifax, N. S., May 30,
1896.
A true copy of the original filed at this office.

Darius H. Ingraham, Consul General.

EXHIBIT 4.

Affidavit of Members of Crezu of Frederick Gerring, Jr.

We the undersigned whose names are hereunto subscribed, do
severally make oath and say that the affidavit of Captain Daniel
Doren, Master of the schooner Frederick Gerring, Jr., now read
over to us on this thirtieth day of May, A. D. 1896, is just and true,
and that we are the crew of said schooner and have personal knowl-
edge of the facts therein stated.

^to"

Signed

James Gracie.
Harvey L. Bailey.
Henry Burmeister.
Joseph Carpenter.
John Goff.
John R. Gammett.
Leander Gaudet,
^Alfred Deane.

Sworn to at Halifax in the County of Halifax and Province
of Nova Scotia, the 30th day of May, A. D. 1896.

Before me

Darius H. Ingraham,
Consul General.

Consulate General of the United States, Halifax, N. S., May 30,
1896.
A true copy of the original filed at this office.

Darius H. Ingraham,

Consul General.
Seal.

Appendix to the Memorial. 17

EXHIBIT 5.

Transcript of Proceedings in the Admiralty Court for Nova

Scotia.

In the Supreme Court of Canada, 1896.

On Appeal.
from the

Nova Scotia Admiralty District of the Exchequer Court.

''The Ship Frederick Gerring, Jr., her cargo, etc.,

Defendants, {Appellants),
Between <^ and

Our Sovereign Lady the Queen,

Plaintiff, {Respondent).

No. 73.

In the Exchequer Court of Canada.

Nova Scotia Admiralty District.

Our Sovereign Lady the Queen,

Plaintiffs
and
The Ship Frederick Gerring, Jr., her cargo, tackle, rigging,
apparel, furniture and stores,

Defendant.

Action for Forfeiture.

Victoria, by the Grace of God, of the United Kingdom of
Great Britain and Ireland, Queen, Defender of the Faith, Empress
of India:

To the owners and all others interested in the ship Frederick
Gerring, Jr., her cargo, tackle, rigging, apparel, furniture and
stores.

18 TJic Frederick G erring, Jr.

We Command you that within one week after the service of
this writ, exclusive of the day of such service, you do cause an
appearance to be entered for you in our Exchequer Court of Canada,.
in the above action, and take notice that in default of your so doing,
the said action may proceed and judgment may be given in your
absence.

Given in Halifax, at our said Court, under the seal thereof,
this 29lh day of May, 1896.

(Sgd) L. W. Des Barres.

This writ may be served within twelve months from the date
hereof, exclusive of the day of such date, but not afterwards.

The defendants may appear hereto by entering appearance
either personally or by solicitor, at the District Registry of the said
Court situate at Halifax.

The Honorable Arthur R. Dickey, Her Majesty's Attorney-
General for the Dominion of Canada, on behalf of Her Majesty
the Queen, claims to have the ship Frederick Gerring, Jr., being
a foreign ship or vessel not navigated according to the laws of the
United Kingdom of Great Britain and Ireland, or of Canada, reg-
istered in and owned by foreigners residing in the United States
of America, and her cargo, tackle, rigging, apparel, furniture and
stores condemned as forfeited to Her Majesty for violation of a cer-
tain convention between His late Majegty George the Third, King
of the United Kingdom of Great Britain and Ireland, of the one
part, and the United States of America of the other part, made and
signed at London, in Great Britain, on the 20th day of October,
in the year of our Lord, 1818; and also for the violation of the Act
of Parliament of Great Britain and Ireland, made and passed in the
fifty-ninth year of the reign of His late Majesty George the Third,
King of the United Kingdom of Great Britain and Ireland, being
Chapter 38 of the Acts of the said Parliament, made and passed
in the said year, and being entitled : "An Act to enable His Majesty
to make regulations with respect to the 'taking and curing of fish
on certain parts of the coasts of Newfoundland, Labrador, and His
Majesty's other possessions in North America, according to a con-
vention made between His Majesty and the United States of
America.' "

Appendix to flic Memorial. 19

The said Honorable Arthur R. Dickey, Her Majesty's Attor-
ney-General for the Dominion of Canada, on behalf of Her Majesty
the Queen, also claims to have said ship Frederick Gerring, Jr.,
being- a foreign ship as aforesaid, and her cargo, tackle, rigging,
apparel, furniture and stores condemned as forfeited to Her
Majesty the Queen for violation of "The Revised Statutes of
Canada, Chapter 94," made and passed by the Parliament of the
Dominion of Canada, and entitled : "An Act respecting Fishing
by Foreign Vessels, and the Acts in Amendment thereof."

This writ was issued by W. B. A. Ritchie, of 121 Hollis Street,
in the city of Halifax, in the Province of Nova Scotia, Solicitor for
the Attorney-General of Canada.

All documents required to be served upon Her Majesty the
Queen, who is the plaintiff in this action, may be left at the office
of Borden, Ritchie, Parker & Chisholm, 121 Hollis Street, in the
city of rialifax aforesaid, the same being the address of Her
Majesty for all purposes of this action.

(Sgd) W. B. A. Ritchie.
Solicitor of the Attorney-General of Canada,
on behalf of Her Majesty the Queen.

In the Exchequer Court of Canada.

Nova Scotia Admiralty District.
No. 73.

The Queen, Plaintiff,

— against —

The Ship Frederick Gerring, Jr., Defendant.

Examination of witnesses called on behalf of the defendant
before L. S. Des Barres, Deputy Registrar of the Court, Satur-
day, the 30th day of May, A. D. 1896.

Present :

Mr. W. B. A. Ritchie, Q. C, for Plaintiff.
Mr. W. F. MacCoy. Q. C, for Defendant.

DANIEL DOREN, called and sworn.
Examined h\ Mr. MacCov:

20 The Frederick Gerring, Jr.

Q. You are the master of tlie schooner Frederick Gerring,
Jr.? A. Yes.

O. She has been recently seized for an alleged violation of the
Fisheries Act? A. Yes.

Q. Where was she seized? A. She was seized between White
Island and Liscombe.

Q. The owner belongs to Gloucester, Massachusetts ? A. Yes.

O. When did you leave there? A. We left there on the 13th
day of May.-

Q. That is the present month? A. Yes.

Q. For what place did you leave? A. For the Cape Shore,
off shore, Nova Scotia.

Q. You came fishing? A. Yes.

O. What time did you arrive off White Island? A. We got
there about 3 o'clock in the afternoon of Monday, May 25th.

O. When you arrived off White Island, did you see any
American vessels there? A. Yes, there were a dozen of 15 sail..

O. Did you see the Dominion cruiser Vigilant there? A.
Yes, she was inshore, standing up to the vv^estward.

O. What sails had she on? A. She had on 4 In.ver sails and
the main top sail.

Q. W'as there any vessel laying to between the Vigilant and
your vessel? A. Yes, there were four vessels l^ctwecn us and the
Vigilant.

O. Do you remember seeing the schooner Margaret Haskins
there? A. Yes, she was there.

O. Who w^as her master? A. It was Capt. Charles Hardy.

Q. When you arrived, after you came to, did you see him any-
where? A. Yes, we saw^ mackerel rise between us and the Vigi-
lant and Capt. Hardy went in his boat to speak the Vigilant.

O. Did he hail the captain of the Vigilant? A. Yes.

(Mr. Ritchie: — Did you hear what was said? A. Yes, quite
plainly. He asked him how these mackerel were, pointing towards
the schools; the schools were to the south of Hardy. The cap-
tain of the Vigilant made the remark that he was jogging on the
line, and that the fish w^ere all right.

Q. He said that the Vigilant was jogging on the line, and
that the mackerel were all right? A. Yes.

Q. You heard that remark? A. Yes.

Appendix to the Memorial. 21

Q. Where were your crew at the time? A. They were all on
deck ; I was aloft at the mast head.

Q. At that time where did the Gerring lie? A. I think she
was about 7h or 100 yards to the south of Hardy.

O. How far did you judge yourself to be from the line that
the l^igihuit was on? A. I thought we were nothing less than
150 yards, if not more; I did not think we were anything over
that.

Q. You thought you were 150 yards to the south of the Vigi-
lant? A. Yes.

Q. At that time the school of fish was running? A. Yes,
they were all up playing in the water.

O. Now, did you get out your seine? A. No, w^e wanted to
find out first that we did not make any mistake in regard to the
instructions given by the captain of the Vigilant to Capt. Hardy,
and we rowed up to Capt. Hardy's boat ; we got in our boat and
rowed up to Capt. Hardy's boat to ask him. He had his seine out
then (Mr. Ritchie objects to evidence of conversation between wit-
ness and Capt. Hardy). We asked Capt. Hardy wdiat the captain
of the cutter said, and he told us that he said he was jogging on
the line. We had heard him say that, but we wanted to make sure.
Capt. Hardy said to go ahead and set, that the captain of the Vigi- i
lant said he was jogging on the line, and we did set and soon
caught the fish.

Q. When you went in the boat, did all of your men go with
you? A. Yes, all went except the cook, who was left in charge of
the vessel.

Q. After getting the statement from Captain Hardy, you set
the seine and caught the fish? A. Yes.

Q. While you were at work did the Vigilant sail up and
down past you ? A. Yes, she passed us three times.

Q. How close was she to you while you were fishing? A. I
judge that she would be 150 yards inshore of us to the northward,
if not more.

Q. Did the Vigilant interfere with you or with the Ras-
kins? A. No, she never bothered us in the least; she was there an
hour if not longer.

Q. The captain of the Vigilant never hailed you or said
that you were inside the limits? A. No, not in any shape or man-
ner after tellini us that he wa« on the line.

22 The Frederick Gerrini/, jr.

Q. What ditl the captain of the Haskins do? A. He bailed
his fish in and went off looking for more.

Q. The Vigilant was stih there? u\. Yes, she was still there
inshore of us.

Q. And were you outside of the Haskinsf A. We were
right close to her, a little on the outside, about 20 yards.

Q. When she was sailing away did the Vigilant interfere
with her? A. No, not in the least.

Q. After you got your fish in the seine, what did you do ? A.
We shot the vessel alongside and hoisted them out.

Q. While you were bailing the fish into the schooner what
occurred? A. The Vigilant lay there until we had about 80
barrels on board. She stood to the west while we were setting and
then to the east ; then she came back and lay there, that is, jogging
about until we had the 80 barrels on board. When we had half the
fish on board, the Vigilant stood to the westward.

Q. What occurred then? A. The first thing then the Aber-
deen steamed up. I think the Vigilant had been gone about 40
minutes then.

Q. Was there very little wind at the time ? A. No, there was
just a little air.

Q. Did the Aberdeen come up alongside of you? A. Yes,
the Vigilant and the Aberdeen passed one another and dipped
their flags to each other. The Aberdeen steamed up alongside
under our quarter, and the captain came on board and said that we
were inside the limit.

O. Who was the captain of the Aberdeen? A. His name
was Capt. Knowlton.

Q. What did you say? A. I said it was impossible, as the
cutter had just left us, and gave us the statement that he was on
the line.

Q. Did you say that while you were taking the fish the Vigi-
lant stood past you? A. Yes, I told him the whole circumstances.

Q. What did he say to that ? A. He said that we were inside
the limit, and asked me for my compass, and I took it out of the
binnacle and put it on the deck.

O. What did he do with it ? A. He asked for the chart, and
I brought it on deck, and he said it was no good and threw it on
the house.

Appendix to the Memorial. 23

Q. What chart was it? A. It was the George Eldridge chart
(chart to be produced).

Q. Did you make any attempt to find out from the chart where
you were? A. No sir, I did not think it necessary; I still claimed
to be over three miles from the shore.

Q. What did he say to you after that? A. He said I was not,
and I asked him to convince me by taking our boat or one of his
boats, and towing the log to the Gull Ledge on the chart.

O. Did you say your log? A. No, I said our log or his log
or both ; the ledge was the nearest ledge to us.

O. What is the ledge? A. It is just a wash rock; that is what
we call it.

Q. What did he say to that? A. He said he did not think
he would bother about it. I asked whether he would let my crew
tow the log with one of his officers, and he further objected. He
read the law to me and said that we were under seizure and I
handed him the papers.

Q. Did he ask you for your papers? A. Yes.

Q. What further conversation had you with him? A. The
crew knocked off work and came aft, and he said, "Keep right on
men, and take care of your fish." I asked him to speak to the cap-
tain of the Vigilant and ask him if what I said was not true, and
he said he would not.

Q. Where was the Vigilant at that time? A. She was
about a quarter of a mile on our lee bow to the westward.

Q. He refused you? A. Yes. He said that there was plenty
of time to do it, but he would not do it. When he got the line to
our vessel and was leaving, I asked him if I could tow the log to
Liscombe Light, and he said no. I said that I still claimed to be
over 3 miles from the land. When he was in the boat I said to him
that I was going to throw the log, and he said to his officer on board,
"Mr. Bennet, don't allow it."

Q. That was said to the officer in charge? A. Yes.

Q. You were seized and brought eventually to Halifax? A.
We were taken into Liscombe Harbor that night. As we were
going into Liscombe, I did not think it would be any harm to tow
the log.

Q. When the line was put aboard your vessel, in starting
ahead did anything occur? A. He slewed us around in the trough

24 The Frederick Gerring, Jr.

of the sea and 30 or 40 barrels of mackerel went over. His officer
tlien ran forward and told him to ease up, that he was washing
the fish off the deck.

Q. How far do you judge you were to the southward of the
Gull Ledge, the wash rock you spoke of, at the time you were
seized, would you be 3 miles ? A. Yes, anyone would think by the
way the vessels were fishing that we were three miles and a half.

Q. At the time of the seizure how was your vessel heading?
A. She was heading S. E. or E«

Q. Was there much wind at the time? A. No, there was not
a great deal ; it was very light.

Q. Do you remember anything else that you want to say?
A. No, that is all.

Cross-examined by Mr. Ritchie:

Q. What day of the month was it that you arrived off of
White Island? A. It was the 25th of May.

Q. Did you come to anchor there? A. No sir.

Q. How long did you remain there? A. Well, I should think
from the time we went out in our boat until we were taken would
be about two hours.

Q, What time in the afternoon did Captain Knowlton come
on board your vessel? A. I think it was between 5 and 6 o'clock,
but I don't know the exact time.

Q. Now, you say that you yourself heard someone on the
l^igilant say that she was jogging along the line? A. Yes, sir,

Q. Could you tell me who it was that said that? A. No, I
could not.

Q. How long was it after you arrived there that you heard
that. A. It was just as we got near enough to hear it; just as we
arrived.

Q. Was it after that or before that you lay to? A. They
call it laying to when you are hoisting out the fish after you catch
them.

Q. But after you arrived there you lay to? A. We were sail-
ing right along going east and the cutter was jogging to the west.
W^e only hauled our jibs after we took the fish; we were fishing
under full sail.

Q. Which way were you going? A. We were working to the
eastward.

Appendix to the Memorial. 25

Q. Which was nearest to the shore, the place where Capt.
Hardy pulled his fish or the place where you did? A. I think Capt.
Hardy was a little to the north of us; a very little.

Q. You said that when he pulled his fish you were a little
outside of him? A. Yes.

Q. How long was it after he pulled his fish, that you pulled
yours? A. It was about the same time.

Q. Who got through first? A. He did, but he did not have
so many fish.

Q. How long did he get through before you did? A. I
should say it was 45 minutes or an hour.

O. In that time you would make in a little towards the shore?
A. That I could not say.

Q. I want to have your judgment about it? A. I don't see
how we could make a S. W. drift; we were heading S. E. by E.
and I think we were drifting S. W.

Q. You say that according to your judgment, you were the
same distance from the shore when you began to bail the fish, that
you were when you finished? A. No, when the cutter took us I
think we were a little south of where we commenced work ; I think
we were a little further from the shore than when we began.

Q. But nothing material ? A. No, there was not much wind.

Q. You saw where Capt. Hardy caught his fish? A. Yes,
quite plainly.

Q. Was it inside of where you caught yours? A. Yes, I think
the vessels were 20 yards apart. We were lying on a line and I
was just about the same distance from the shore that he was.

Q. About what time did you put your net out? A. It was
pretty close around 4 o'clock.

Q. You had heard an hour before that, that you were pretty
near the line ? A. No sir, I heard the captain of the cutter say that
he was on the line.

Q. But you were near it? A. I was outside of him.

Q. You consider that you were outside the line? A. Yes,
about 150 yards.

Q. Which end of the net would be 150 yards from the line?
A. The boat would be that far from the line.

Q. Would not the net be on the shore side of the boat ? A. No,
it would be on the ocean side of it.

26 The Frederick G erring, Jr.

Q. And the place you bailed the fish from the net to the boat
would be nearer the shore than where you set your net? A. No,
not the way the wind was ; we had to have the net between us and
the vessel to make the bag to bail the fish out ; which would fetch
the vessel outside the net.

Q. You took the fish directly from the net into the vessel?
A. Yes.

Q. Now, I understand you to say that the net was set inside
the vessel? A. No sir, I don't remember saying that.

Q. Is this correct, — that there was nothing to keep either the
small boat or the schooner from drifting inshore? A. Well, I
should say that they would have to go contrary to the laws of
God to do that.

O. There was nothing to prevent them from doing that unless
the wind and tide would do so? A. No, that is the only thing.

Q. These were the first fish you had taken this season? A.
No, we took 20 salt barrels off Halifax on Sunday.

Q. You have fished this shore before have you? A. Yes, I
have fished it for 5 or 6 years.

Q. Did the Vigilant speak the Aberdeen? A. I did not
notice them doing so, but I heard some of the crew who were
watching our vessel say that they saluted.

Q. You said that the Aberdeen dipped her flag to the Vigi-
lant? A. I did not see it done, but I was told so.

Q. Have you ever been at that particular place before, fishing
off Gull Ledge? A. Yes, I have been there every season; it is a
good place for mackerel.

Q. Have you ever been on that place called Gull Rock Ledge ?
A. No, I have never.

Q. How near have you been to it? A. I have been within,
from half to a quarter of a mile to it ; we came very close to
it the other day towing up here.

O. What do you mean by a "wash rock"? A. I mean that
when there is any sea on it breaks over the rock; it is just the
same as the Country Harbor ledges, and all those.

Q. Do you know how wide it is? A. No, I could not tell.

Q. Or how long it is? A. No, I cannot form any idea, but
it is not very long to look at.

Q. You know that it stands 30 feet out of the water? A. I
know that by the chart.

Appendix to the Memorial. 27

O. Are you prepared to say that you have seen the waves
breaking right over that place you call Gull Ledge? A. Yes, I
am prepared to swear that they were breaking over it when the
steamer was towing us up here.

Q. You swear that on the 25th of May you saw the waves
breaking over Gull Ledge? A. No, but on the 26th I did; I saw
it when the steamer was towing us to Halifax from Liscombe.

Q. Have you seen the same thing at other times? A. Yes,
quite often. I mean that the sea goes clean over the top of it, and
would wash any object off it.

Q. How far was it from Gull Ledge where you caught these
fish? A. I should think it was three miles and a half.

Q. What do you base that on? A. I base it on the circum:-
stances of the naked eye, and judgment according to the looks
of the headlands to me.

Q. I understood you to say that you measured with your log
the distance from the place you were seized to Liscombe? A. No,
I asked to be allowed to tow the log, but he refused me permission.

Q. But you said afterwards, unless I am mistaken, that when
you were taken in tow, you thought it would be no harm to put
the log over, when you were going to Liscombe, and I understood
that you did so? A. No, I said that I told the captain of the
Aberdeen that I was going to do so, but he refused me
permission.

Q. You told Mr. MacCoy that when you were seized, you
thought you were 3 miles from the wash rock? A. No, I could
{not) say exactly; but I thought we {zvere) three miles and a half,
or o^•er 3 miles from any rock.

O. The Gull Ledge was the nearest to you? A. Yes.

Q. It was the nearest of anything like land? A. Yes.

Q. Is this correct, — that when you were there you thought you
were about 3 miles from the wash rock? A. No, I thought we
were 3 J/' miles from it, and so I told Capt. Knowlton.

Q. And you have still the {same) same idea about the dis-
tance, you don't think you made a mistake? A. No, I don't think
that I was wrong. I could have been easily convinced by towing the
log, but they did not seem to wish it.

Q. How was it you said the tide was running? A. I do
not keep any run of the tides here. Captain Knowlton said it
was running S. W.

28 The Frederick Gerring, Jr.

Q. Then in regard to the way the tide was running, you got
your information from him? A. Yes.

Q. You did not keep the run of it yourself? A. No.

Q. How was the w'ind? A. I think as near as I can judge
that it was E. N. E.

Q. Are there two ledges at Gull Ledge? A. There might be,
one inside of the other.

Q. You don't know whether there is a second ledge inside of
the first? A. No, I can't say what is inside of it. This one lies
about E. and W. coming from sea.

Q. Now that wind, the way you were lying, where would it
take you? A. It would take us W. S. W.

Q. It would take you up towards Liscombe ? A. No, it would
take us off shore, a little up this way, clear of the land.

Q. Do you say that the drift would take you out of sight of
land? A. Yes.

Q. Would it take you clear of White Island? A. Yes, away
off of it.

Q. You remember the time you sent a boat on board the
Haskins? A. We did not go aboard of her.

Q. You sent a boat to the Haskins did you not? A. It was
to the Haskins' boat.

Q. Then you did not send a boat to the Haskins, but you
sent it to the Haskins' boat? A. Yes, that was it.

Q. Was the boat belonging to the Haskins inside or out-
side of the Haskins^ She was outside to the southward of the
Haskins.

Q. When you spoke of your taking out your fish in the same
place that Capt. Hardy did, you meant that when you were bailing
your fish, your schooner was in the same place as his? A. Yes,
they were just a little apart, so as not to interfere.

Q. Did the Haskins remain in the same position ; I mean
did she remain the same distance from the shore? A. Yes.

Q. She was under sail going up? A. Yes, just the same as
our vessel.

Q. You were sailing up and down, were you, or were you
keeping right along from the time you got there until 5 o'clock?
A. We were sailing right along until we set for the mackerel.
Then the cook kept the vessel jogging around the boat until we
got the fish.

Appendix to the Memorial. 29

Q. Did your schooner keep the same distance from the shore
all the time? A. No, when the cook is left in charge, he works
around until he is wanted.

Q. Then your schooner was not the same distance from the
shore all the time? A. No, she was sailing up and down between
us and the Vigilant.

Q. How near did she go to the Vigilant? A. She was
within 100 yards of her at one time. I did not keep the run of the
vessel very much until I wanted her; then I went aboard and shot
to the boat.

Q. What is the tonnage of your schooner? A. She is 66
tons.

(It is admitted that the schooner is American register.)

Q. How old is she? A. She was built in 1870 I think.

Q. Who is her owner? K. The owner is Capt. Edward Morris
of Gloucester.

Q. He is an American citizen? A. Yes.

O. Are you also an American citizen? A. Yes.

O. Were the crew also American citizens? A. That I cannot
tell you ; I know that some of them are.

Q. About what is the value of this schooner; I mean with
the gear and everything attached, except the fish? A. I don't know
T am sure, but I would not put it over $3,000.

O. The gear is worth a good deal is it not? A. Yes, our
gear and boat seine would be worth as much as the vessel.

Q. What is the vessel worth without seine or gear? A. I
could not say. There are vessels of her age sold for $1500 to
$1600. At auction I don't know that she would bring over $1800.

O. How many barrels of mackerel have you on board? A.
There are 132 or 134 barrels sea packed. We would have to re-
pack them when we got them home.

Q. What are they worth? A. I could not tell you.

O. The market is uncertain ? A. Yes.

Q. What are they worth now ? A. I could not tell until I
got them home. I have sold them for $5. to $10. a barrel, accord-
ing to the season.

Q. You say you have no notion of what the fish are worth
now? A. No, I would not risk more than $6. a barrel for them,
but you might get $15,

30 The Frederick Gerr'uiij, Jr.

Q. What license has your vessel got ? A. She has a mackerel
license.

Q. Who is the license issued by? A. It is issued by the
American Customs Department.

O. It is a license authorizing you to engage in mackerel fish-
ing? A. Yes.

Q. That is the only license you have? A. Yes.

Q. You have no modus vivendi license? A. No.

Q. W'hen you were fishing there, what depth of water were
you in? A. We had about 28^fathom.

Q. When did you measure that? A. I measured it after the
captain of the cutter came on board. I had not done so before.

0. Could you get an idea of the bearing of Gull Ledge from
your boat when you were taking out the fish ? A. No, I could
not.

Q. Now, if I understand your evidence, at the time you were
taking the fish out your boat was nearer to the shore than either
the net or the schooner? A. Yes.

O. How far would your boat be from the line that the Vigi-
lant was on when she was there? A. It looked about the same
to me; I should think that we were about 150 yards from it.

Q. There would be a difference between the boat and the
schooner? A. There would not be over 12 feet difference; I think
we were from 150 to 200 yards from the line that the Vigilant
was on.

O. How long had you seen the Aberdeen before the cap-
tain came on board? A. W^e saw her when the Vigilant was
there. We saw her as the Vigilant left, about ^ of an hour
before she boarded us.

O. Did you know at the time what vessel she was? A. I
had a pretty good idea of it. I had seen her the previous day and
I surmised that it was her.

O. Where did you see her the previous day? A. I saw her
off Halifax; in fact we saw them every day.

Re-examined by Mr. MacCoy:

O. At the time you went on the Haskins' boat, I understand
that she was outside of and to the south of the Haskins f A.
Yes.

w

Appendix to the Mcuwrial. 31

O. That was the time you went to get the information about
hat the captain of the Vigilant said? A. Yes.

(The other witnesses called on behalf of defendant were here
called in and the foregoing evidence was read over to them.)

JAMES GRACIE, called and sworn.

Examined by Mr. MacCoy:

Q. You were one of the crew of the Gcrring? A. Yes.

Q. You heard the statement just read over? A. Yes.

O. Have you a personal knowledge of the facts and statements
made by the previous witness ? A. Yes.

Q. What do you say as to the statement of the captain? A.
I say that it is correct.

Q. You were present on all the occasions to which he re-
ferred? A. Yes.

Q. Did you hear the conversation that took place between him
and Capt. Hardy? A. Yes.

O. Did you hear the statement made by the captain of the
Vigilant to Capt. Hardy, and referred to by your captain? A.
Yes.

Cross-examined by Mr. Ritchie:

O. Are you an American citizen? A. No, I am a Nova
Scotian.

O. Do you say that you have ever seen the breakers breaking
over Gull Ledge? A. Yes.

Q. What is the nearest you have been to that place? A.
The nearest I have been to it was when we came out of Liscombe in
tow of the Aberdeen.

O. Did you go in your boat to the boat belonging to the
Haskins? A. Yes.

O. How far was the Ilaskins' boat outside of the Haskins?
A. It was about 75 yards outside of her.

Q. How far did you have to row to get to that boat ? A. Wc
had to row about 75 yards.

Q. At that time the Gerring was about IjO yarrls from the
Haskins? A. Yes.

Q. What was tlic nearest that they came together? A. About
20 yards.

32 The Frederick Gerring, Jr.

• Q. That is when both were baiHng fish? A. Yes.

Q. Had the Haskins gone further out or had the Gerring
gone further in? A. I think they were on a hne, about the same.
We came nearer in when we picked up our boat.

Q. W'here did they speak the Vigilant from was it from
the Haskins or from the boat belonging to the Haskinsf A.
It was from the Haskins' boat that we heard them speak the
Vigilant.

Q. Was she fishing then? A. Yes.

O. Was she in the same place when she spoke the Vigilant
that she was when you rowed up? A. Yes.

O. Do you know the Captain of the Haskinsf A. Yes.

Q. Was he the man who sang out? A. I could not tell.

Q. Tell us what it was that was sung out? A. The boat hailed
the Vigilant and asked if he was on the line, and the Vigilant
sung out, that they w^ere jogging on the line. They asked from the
boat if the fish were far enough off, and the Vigilant said that
he was jogging on the line.

Q. How far was the Haskins' boat from the Vigilant at
that time? A. She could not be more than 25 or 30 yards.

Q. And how far was the Haskins boat from the schooner at
that time? A. She was not over 30 yards anyway.

Q. Did the Haskins go further out to sea before she sailed
away with her fish ? A. No.

Q. How much further in did she go ? A. She did not go any
further in, she stood in about the same place.

Rc-cxamined by Mr. MacCoy:

Q. Where do you belong? A. I belong to Cape Breton.

O. When you were towed past the ledge by the Aberdeen
did you see the sea breaking over it? A. Yes.

Q. Was it breaking right over the 30 feet? A. Yes.

HARRY L. BAILEY, called and sworn.

Examined by Mr. MacCoy:

O. You heard the evidence given by the captain read over?
A. Yes.

0. Are you personally acquainted with the facts that he has
sworn to? A. Yes.

Appendix to the Memorial. 33

Q. Are the facts as sworn to by him, correct and true? A.
Yes.

Q. Are all the statements made by him correct? A. Yes.

Q. You have a personal knowledge of everything that oc-
curred? A. Yes.

Q. You are one of the crew of the Gerring? A. Yes.

Q. Did you hear Captain Hardy hail the Vigilant f A. Yes,
I did.

Q. And did you hear the answer that came from the Vigi-
lant f What did Capt. Hardy say? A. He asked the captain of
the Vigilant about how the fish were in regard to the line, the
school of fish that he was after. They were outside of the cutter,
between the Haskins and the Vigilant.

Q. What was said from the Vigilant in reply? A. He said
the fish were all right, that he was jogging on the line.

Q. Where was the Gerring at that time? A. We were out-
side of the Haskins, to the southward of her.

Q. You heard the statement made by your captain, about
going to Capt. Hardy's boat to ascertain whether you had heard
correctly? A. Yes.

Q. Is that statement correct? A. Yes.

Q. And are all the other statements made by your captain
correct? A. Yes.

Cross-examined by Mr. Ritchie:

Q. Are you an American citizen ? A. No.

Q. Where are you from? A. I was born at La Havre.

HENRY BURHESTER, called and sworn.

Examined by Mr. MacCoy:

Q. You heard the statements made by your captain read over
to you ? A. Yes.

Q. Have you a personal knowledge of all that he states? A.
Yes.

Q. What do you say as to the statements made by him, arc
they correct? A. Yes.

Q. In every particular? A. Yes.

34 The Frederick Gerring, Jr.

Q. Where do you belong? A, I belong to the United States.
Q. You are an American citizen? A. Yes.

JOHN GOUGH, called and sworn.

Examined by Mr. MacCoy:

Q. You also heard the statement made by the captain read
over? A. Yes,

Q. Have you a personal knowledge of the facts and circum-
stances detailed by the captain ? A. Yes.

Q. Are they true? A. Yes.

Q. Where are you from, are you an American citizen? A.
My folks are; I was born at St. Johns, Newfoundland.

LEANDER GAUDET, called and sworn.

Examined by Mr. MacCoy:

Q. Where are you from? A. I am a native of Weymouth,
Nova Scotia.

Q. You were one of the crew of the Gerring? A. Yes.

Q. You heard the statement of the captain read over? A.
Yes.

Q. You have a personal knowledge of the facts and circum-
stances referred to by him? A. Yes.

Q. Are they true? A. Yes.

Cross-examined by Mr. Ritchie:

Q. Did you go in the boat to the Haskins, too? A. Yes.

Q. Had you heard the conversation between the captain of the
Haskins and the Vigilant f A. Yes.

Q. Then what was your idea in asking the captain what was
said ? A. I can't understand what you say.

Q. Did the Gerring' s boat go to the Haskins' boat? A.
Yes.

Q. What did you go for? A. We went to see what the cutter
said.

Q. Did you know what the cutter said before you went? A.
No.

Appendix to the Memorial. 35

Q. You did not know until you found out from the men on the
Haskins' boat? A. No.

Q. How long after the Gerring got to the fishing ground
was it before you began to fish? A. I don't know exactly.

Q. Was the Haskins boat near you when you were fishing?
A. Yes.

Q. Which was nearest to the shore, your boat or the Haskins'
boat ? A. The Haskins' boat.

Q. How far were you (from you) from the Haskins' boat?
A. She was about 75 yards from us.

Q. The schooner was making up and down past you while
you were setting the net? A. Yes.

Q. Was she inside the net or outside? A. She was outside.

Q. Did the net drift in any from the time you first set it until
you took the fish out? A. No, I don't think.

Q. Did it drift out any? A. I guess it would drift; it did not
drift in.

Q. When you were in the boat which way would it drift? A.
It would drift off, to the outside.

Q. You did not notice that at the time? A. No.

O. Why, then, do you say that? A. I guess she must have.

Q. Did you notice at the time the net drifted in? A. I don't
know.

Q. How did you draw the net? A. We drew it around the
fish.

Q. The boat was at one end? A. Yes.

Q. Where was the other end of the net? A. We had both
ends in the boat.

Q. When you drew the net, did you draw it nearer to the shore
than it was when you set it ? A. No.

Q. Did you draw it away from the shore? A. I don't under-
stand.

Q. Would the net be nearer to the shore before you drew it
or afterwards; would there be any difference? A. No.

Q. Had the Vigilant gone away before you began to find
fish? A. No.

Q. She was there when you began? A. Yes.

Q. Did you keep the net in the same place all the time, or was
it drawn nearer to the shore? A. It was kept in the same place.

36 The Frederick Gerring, Jr.

Q. Was the net there before the Vigilant went away? A.
Yes.

O. Were you taking fish out of it when the Vigilant, went
away? A. Yes.

Q. How close were you to the Vigilant when you were taking
out the fish? A. 150 yards, I think.

Q. You mean you were 150 yards outside of her? A. Yes.

Q. That is when you commenced to take out the fish ? A. Yes.

(The witness here states that he is a Frenchman, and can-
not speak English well, and cannot understand the questions, and is
directed to stand aside.)

JOHN GAMMETT, called and sworn.

Examined by Mr. MacCoy:

Q. Where do you belong? A. I belong to Gloucester, Mass.

Q. You heard the statement that your captain made? A. Yes.

Q. It has been read over to you ? A. Yes.

Q. You understand it? A. Yes.

Q. Are all the facts stated by the captain true, to your knowl-
edge? A. Yes.

JOSEPH CARPENTER, called and sworn.

Examined by Mr. MacCoy:

Q. Where do you belong? A. I belong to Gloucester, Mass.

Q. You are an American citizen ? A. I was born there.

Q. You have heard the statement made by the captain? A.
Yes.

Q. It has been read over to you? A. Yes.

Q. Have you a personal knowledge of the facts and circum-
stances stated by him? A. Yes.

Q. Are they true? A. Yes.

ALFRED DEAN, called and sworn.

Examined by Mr. MacCoy:

Q. Are you an American citizen ? A. Yes.

Q. Where do you belong? A. I belong to Connecticut.

Appendix to the Memorial. 37

Q. You are one of the crew of the Gerringf A. Yes.
Q. You were the cook on board of her ? A. Yes.
Q. You heard the statement of the captain? A. Yes.
Q. Are you personally acquamted with all the facts and cir-
cumstances referred to by him ? A. Yes.
Q. Are they true ? A. Yes.

Cross-examined by Mr. Ritchie:

Q. Did you go in the boat that went to the Haskins' boat?
A. No.

Q. Then you did not hear the conversation that took place
between the captain of the Haskins and the captain of the Gerringf
A. Yes, I did.

Q. It was so close that you could hear all that was said? A.
Yes, it was close enough to hear an ordinary conversation.

Q. Who else remained on the vessel besides you when the boat
went off? A. No one.

Q. Did the boat come back to your vessel before she com-
menced fishing? A No, she went and set for the fish.

Q. Did anyone come on board before you caught the fish? A.
No.

Q. Did you hear the captain of the Haskins hail the Vigilant f
A. Yes.

Q. Which way was the Vigilant going then? A. I think /
that she was standing to the eastward at the time on the star-
board tack. I will not be sure of that.

Q. When she finally went away which way did she go? A.
She stood off to the westward.

Q. Which direction did the Aberdeen come from? A. She
came from the westward, the south and westward.

Q, So that the vessels would pass? A. Yes, they went close
by one another. I suppose they could have spoken if they had
wished to.

Q. Did the Vigilant pass the Haskins more than once after
she was hailed? A. I cannot say.

Q. After the Captain and the men went off in the seine boat
what did you do with the vessel ? A. I sailed her up and down. I
jogged along close to the boat.

Q. How far did you go from the G erring, about half a
mile? A. No, I would be perhaps 50 or 100 yards away.

38 The Frederick Gerring, Jr.

Q. Did you keep outside the seine boat? A. Yes, we always
calculate to keep to the windward ; sometimes we go close enough
to the boat to jump in, if necessary.

Q. Which way was the Haskins seine set from you? A. It
was between us and the shore. It was to the northward of where
we set.

Q. You mean nearer inshore? A. Yes.

Q. They were not directly inshore from you ? A. No.

Q. You set to the southward and eastward? A. Yes.

Q. How much to the eastward were you, do you think, of the
Haskins' net ? A. I said we were to the south ; the south and east.

Q. How much to the east of the Haskins' seine was your
seine? A. It was south.

Q. But it was further east? A. Yes.

O. How much ? A. I could not tell ; I would say from 40 to
100 yards.

O. You noticed the Gull Ledge at the time? A. I cannot say
that I paid much attention to it.

Q. You noticed it? A. I noticed a ledge, but I don't know the
name of it. I never was so close to that shore before fishing.

Q. The Gerring's seine boat rowed off to the Haskins' seine
boat? A. Yes.

Q. Then in what direction did your boat go? A. She rowed
to the southw'ard for a school of fish that was there.

O. Both seines were catching from the same school of fish?
A. No.

O. Were there 2 schools of fish there? A. Yes, there were a
dozen of them probably.

Q. They were close together? A. They were 100 yards to
a half mile from one another.

0. What would you call it where you see a lot of schools go-
ing together? A. I would say that they were "bunching up."

Q. You saw the seine put out of the boat ? A. I did.

O. How are the ends of the seine made fast; what keeps them
from sinking? A. We have cork buoys on them.

Q. On each end, or straight along?

O. The bag of the seine makes out from that further inshore?
A. No. It forms a circle in the water with both ends in the boat.

Q. This was a purse seine that you were using? A. Yes.

Appendix to the Memorial. 39

Q. How, when you come to haul your seine up, to get the fish
out, so as to put them on the schooner, it is closer inshore than
when the seine is first set? A. No.

Q. How far do you say the seine of the Gerring was set
from the shore? A. I judge that it was set very nearly four miles
off.

Q. What shore are you referring to? A. I am referring to
any that was visible to the naked eye.

Q. You don't count Gull Ledge? A. Yes, I do. I say any
land visible.

Q. Tell me, what was the nearest land? A. I could not tell
you. I don't know the name of it.

Q. Can you indicate it on this chart? A. No.

Q. What was the nature of the land you saw? A. Some of it
was low, and some of it was high.

Q. When you refer to what was four miles away, do you re-
fer to this ledge ? A. I mean land ; any land that I saw.

Q. Was it a straight coast line or a ledge of rock? A. I saw
an island off there.

Q. What was the nature of the land that you spoke of as
being four miles off? A. It is impossible for me to say without
being on it.

Q. Give me the best description you can ; you can tell whether
it was an island or the main land ? A. I said I saw a rock.

Q. Is that what you spoke of as being four miles off? A.
Yes, I judge that it was three and a half to four miles. I don't say
what it was for I have not been on it.

Q. How much closer in than that did you take the schooner?
A. I took her no closer ; I had instructions from the captain to keep
to windward of the boat.

Q. Did the seine change its position after it was first set ? A.
No, not to my knowledge.

Q. There was quite a swell on, was there not? A. Yes.

Q. That swell would naturally drift the schooner inshore if
you did not keep her off? A. No, I don't see why it should. The
wind would have a tendency to drive her off.

Q. What would be the effect of the swell on the seine? A, I
don't think that it would have any effect.

40 The Frederick Gerring, Jr.

Q. If there is a heavy swell it would wash it in? A. No, I
don't think so. I have been fishing a good many years.

Q. About how long after the Vigilant said that she was on
the line was it that the net was set? A. Probably it would be 10 to
20 minutes. It may have been half an hour. I did not keep any
time.

Q. Are you sure that the Vigilant came back after the seine
was set? A. Yes.

Q. Was she in sight when you were taking the fish out? A.
Yes, we had at least half out when she was close alongside. She
was within hailing distance.

Q. She passed you, did she? A. Yes, she passed inshore to
leeward of us.

Monday, June 1st.
Before Mr. Des Barres, Deputy Registrar.

Present : ;

Mr. Ritchie, O. C, for PlaintifT.
Mr. MacCoy, Q. C, for Defendant.

LEANDER GAUD'ET, recalled.

Cross-examination by Mr. Ritchie, continued.

Q. How many boats were engaged in setting and drawing the
seine? A. One boat.

Q. Did you go in a boat from the Gerring to the Haskinsf
A. Yes.

Q. Was the Haskins' seine set then ? A. No.

Q. Which seine was set first, the Haskins' or the Gerring's?
A. The Haskins set their seine first.

Q. Was the Haskins' seine drawn before the Gerring's seine
was set? A. No, the Haskins' seine was not drawn before the
Gerring's seine was set; they commenced to set their seine before
the Gerring.

Q. In what state of progress was the Gerring's seine at the
time the Haskins went away. A. They were bailing out their
fish.

Appendix to the Memorial. 41

Q. Where was the Haskins when the captain of the Aberdeen
went on board the Gerringf A. It had gone.

Q. How long? A. Nearly an hour,

Q. How far was the Haskins' seine set from the Gerring's
seine? A. I believe about seventy-five yards.

Q. In what direction was the Haskins' seine set, east or west
of the Haskins? A. Inshore, the Haskins' seine was set inshore
from the Gerring's.

Q. How far was the Gerring's seine set from the shore? A.
Between three or four miles, I believe, I am not sure.

Q. What was the nearest land ? A. I do not know ; I do not
know the coast.

Q. Where was the Vigilant when the Haskins men began
to take fish out of the net? A. It was going up and down the line.

Q. Are you prepared to say that the Vigilant passed after
they began to bail their fish out? A. It passed going to the west.

Q. Did it pass more than once while they were bailing? A.
Yes, it passed once or twice, then going to the west, after they com-
menced bailing the fish.

Q. How close did it pass? A. Between 150 and 200 yards.

Q. How close did it pass to the Gerring's boat? A. 150 to
200 yards.

Q. How do you know that the Vigilant was keeping on the
line? A. Because the captain of the Vigilant said to Captain
Hardy that they were keeping on the line.

Q. Did you hear this said by the captain of the Vigilant?
A. Yes, I heard it myself.

Q. Where were you when the captain of the Vigilant said
he was on the line? A. I was on deck.

Q. How close was the Gerring to the Vigilant, at that time?
A. Between 150 and 200 yards.

Q. Was the seine set inside of where the Gerring then was?
A. Just about the same spot that the Gerring was then.

Q. Did the Gerring's boat have any assistance from the
schooner in drawing the seine? A. The people in the boat took in
the net themselves.

Q. Did the people in the boat take in both lines themselves?
A. Yes.

42 The Frederick Gerring, Jr.

Q. Were the fish all bailed out of the net when Captain
Knovvlton came on board? A. No, they had not finished when
Captain Knovvlton came on board.

Q. Was the net on the shore side of the vessel or on the off
shore side? A. The net was on the outside of the schooner, on
the south side.

Q. Was there any conversation between the captain or crew
of the Gerring and the captain or crew of the Vigilant? A.
No.

Q. How near was the place where they were bailing the fish
out to the shore? A. A little less than four miles I should say;
between three and four miles.

Q. Was the place where you were bailing the fish outside of
the place where the Gerring was when the Vigilant said that
she was on the line? A. I cannot say for sure, I think it was a
little outside.

Q. How long after the captain of the Vigilant said she was
about on the line was it that the Gerring' s seine was set? A. I
cannot say exactly.

Q, Would it be an hour or ten minutes? A. About ten or
twenty minutes.

Q. Are you prepared to say that it was not an hour? A. I
cannot say for sure, I do not think it was an hour, but would not
say positively.

Q. How far was the Haskins' seine set from the shore? A.
Between three and four miles, I think.

Q. How long before the captain of the Aberdeen came on
board did the Aberdeen come in sight? A. I was working, I did
not look, I cannot say.

Q. Did the Aberdeen stand by for a long while before the
captain came on board? A. No, not long.

Q. How long? A. Right off, he came on board.

Q. Where was the Vigilant when the captain of the Aberdeen
came on board ? A. He had run off to the west.

Q. How far away was he then? A. A mile or two I would
think.

Q. How long was it from the time the seine was put out till
the time the Aberdeen came in sight? A. I do not know, I was
working at the fish.

Appendix to the Memorial. 43

Q. Give some notion of how long? A. It might be three-
quarters of an hour.

Q. How long were you taking the fish out after the Aberdeen
came alongside? A. I cannot say exactly, I should think half
an hour or so; it might be an hour after the Aberdeen came
alongside.

Q. How far away was the Haskins at the time the Aberdeen
came alongside? A. I cannot say.

Q. Was she further away than the Vigilant f A. She had
stood out to sea, I cannot say the distance.

Q. You cannot tell me which was the furthest away when
the Aberdeen came alongside, the Haskins or the Vigilant f A.
I cannot say.

Q. The Vigilant may have been just as far away as the
Haskins? A. Perhaps so and perhaps not, I do not know.

Re-examined by Mr. MacCoy:

Q. Did you hear your captain propose to the captain of the
Aberdeen to tow the log on shore to measure the distance? A.
Yes.

Q. Did the captain of the Aberdeen assent or refuse? A.
He refused.

Q. Were you present when the captain of the G erring pro-
posed to the captain of the Aberdeen to take the Aberdeen's
or the Gerring's boat and the logs of either or both vessels, and
tow them ashore to ascertain the distance? A. Yes, I was present.

Q. Did the captain of the Aberdeen assent or refuse? A.
He refused.

Q. Were you present when the captain of the Aberdeen
asked the captain of the Gerring for his compass? A. Yes, I
was present.

Q. Where was the compass? A. It was below.

Q. In the binnacle ? A. Down in the binnacle.

Q. Were you present when the captain of the Aberdeen
asked the captain of the Gerring for his chart? A. Yes.

Q. Were you present when the captain of the Aberdeen threw
it down and told the captain of the Gerring it was no good? A.
Yes, I was. The captain of the Aberdeen threw it down saying
that it was no good.

44 The Frederick Gerring, Jr.

(Objected by Mr. Ritchie that this is not re-examination.)

Mr. MacCoy:-

Q. Were you on deck when the captain of the Aberdeen
was in your boat and the captain of the Gerring said he would
tow his own log- in order to ascertain the distance? A. Yes.

Q. What answer did the captain of the Aberdeen make?
A. He said it was not worth the trouble, it was no use to take the
trouble.

Q. Did you hear the captain of the Gerring say that when
the Gerring got under way he would put the log overboard? A.
Yes.

Q. What did the captain of the Aberdeen say to that; did
he give any instructions to anybody? A. He said he would not
allow it.

Q. Have you any idea what hour it was that the Gerring
was seized? A. I cannot say exactly, I think it was between five
and six o'clock in the evening.

Q. Were you there when the captain of the Gerring asked
the captain of the Aberdeen to go up to the Vigilant and
ascertain from her whether the instructions he had given that they
were outside the three-mile limit were correct? A. Yes.

Q. What was the captain of the Aberdeen's answer? A.
He would not bother about it, it was not worth the trouble.

Re-cross-examined by Mr. Ritchie:

Q. Did you see a patent log on board the Gerring? A. I
do not know w^hat a patent log is ; I saw a log.

Q. What do you mean by a log? A. A little thing that moves
round to tell the distance.

In the Exchequer Court of Canada.
Nova Scotia Admiralty District.

No. 73.

The Queen, Plaintiff,

Against

The Ship Frederick Gerring, Jr.. Defendant.

Appendix to the Memorial. 45

Before the Hon. James Macdonald, Judge of the Court, at
HaHfax, June 29th, 1896.

Appearances :

W. B. A. Ritchie, Q. C, for Plaintiff.
W. F. MacCoy, Q. C, for Defendant.

CAPT. CHARLES KNOWLTON, called and sworn:

Examined by Mr. Ritchie:

Q. You have been engaged in the fishery protection service
of Canada? A. I have.

Q. For how many years have you been so engaged? A. This
is my tenth season.

Q. You are in command of the steamer Aberdeen engaged
in the fishery protection service? A. I am.

O. You have been in command of her how long? A. For
over a year and a half.

O. Since you have been employed in the fishery protection
service, you have been acting as a justice of the peace and fishery
officer in connection with that service? A. I have.

Q. How many years' experience have you had as a master
mariner, Capt. Knowlton? A. I have had 21 or 22 years' experi-
ence.

O. You seized the vessel in question in this case, the Fred-
crick Gerring, Jr.? A. I did.

O. On what date? A. On the 25th day of May past.

O. Where was the place that you seized her? A. It was in
the vicinity of — well, it was close to the island called Gull Ledge, in
the vicinity of Liscombe, I suppose you would call it, or Mary
Joseph, off the coast of Guysboro' county.

Q. Now, on that date, the 25th May, prior to this seizure,
w^hereabouts had you been cruising? A. I had been cruising from
the vicinity of Sambro to the place of seizure.

Q. You left Sambro in the morning? A. No, I left Meagher's
beach in the morning.

Q. That is near Halifax? A. Yes.

Q. You went how far east? A. We went as far east, I think,
as Pope's Harbor.

Q. Is that in the vicinity of Liscombe? A. No.

46 The Frederick Gerring, Jr.

Q. Where is that? A. It is in Halifax County.

Q. Then you went back towards Sambro? A. Yes,

Q. And on the afternoon of the 25th you went to the place of
seizure? A. Yes. I went in a direct course, pretty near.

Q. Tell us what time it was that day that you first saw the
Frederick Gerring, Jr.? A. It would be between 5 and 6 o'clock,
I should say.

Q. That you first saw her? A. Yes, it was near 6 o'clock, I
think.

Q. Tell us, when you first saw her, what her position was?
A. She was lying with her head sails down, and her foresail and
main sail set with the boom off to starboard. She was lying with
her head off shore. The fore and main boom were over the star-
board side. The sheets were off. She was lying as vessels usually
lie to bail in fish out of the seine.

Q. When you first saw her, could you see what she was do-
ing? A. I could not see, but I could judge from past experience.

O. What did you do? A. I proceeded towards her, and took
bearings as I went along.

O. When you got to where you could see what she was
doing, what did you see? A. I saw that she was bailing mackerel
from her seine.

O. Mackerel was being bailed from the seine on to the
schooner's deck ? A. Yes, with a dip net.

Q. Did you take bearings of the place where you saw the crew
of this vessel bailing fish from the seine on board the vessel? A.
Yes.

Q. Did you take the bearings at the time she was engaged in
the operation? A. I did.

O. What time in the afternoon would that be? A. I think
that would be about 6 o'clock. It would be near that time, but I
would not say just exactly.

Q. Will you give us those bearings ? A. The northwest point
of White Island, that is Big White Island, bore W. N. W., and
Liscombe Light bore N. E. half N.

O: How far was this place where she Avas bailing the fish out
of the seine into the schooner from the coast of Nova Scotia?
That is, from the nearest coast? A. It was less than a mile and
three quarters.

Appendix to the Memorial. 47

Q. What was the nearest portion of the coast? A. It was
Gull Ledge, according to the chart. (Chart marked J. Mc. D.)

Q. This chart, marked J. Mc. D., was the chart that you had
on the Aberdeen f A. Yes.

Q. It is the Admiralty chart of the shore of Nova Scotia, in
the vicinity of which this seizure was made? (Objected to.) A.
Yes.

Q. What kind of a chart is it? A. It is the Admiralty chart
of the shore of Nova Scotia.

Q. How long have you had this chart on the Aberdeen f A.
It was put aboard the Aberdeen about a year ago.

Q. Have you sailed by this chart around the coast anywhere
in the vicinity of Gull Ledge? A. Not on that chart, but on a
chart of exactly the same survey. I have sailed all through the
islands at Marie Joseph, and down between the two White Islands.

O. You have sailed all through the islands off of Gull Ledge
with a similar chart? A. I have.

O. And what did you find in regard to the correctness of that
chart? A. I found it perfectly correct. We never found any
shoals that are not marked there.

O. Can you indicate on this chart the place where you saw
the crew of the Frederick Gcrring, Jr., taking the fish out of the
seine, and putting them on the schooner? A. It was just where
this is marked.

Q. What is marked at the place you refer to ; what words are
marked on the chart at the place you say this took place ? A. The
words Frederick Gerring.

Q. They are marked at the place where you saw those fish
being taken? A. Yes.

Q. And what are the lines drawn from that point marked
Frederick Gerring; what do they indicate? A. They indicate
the cross-bearings that I have spoken of.

Q, After you had taken the bearings what did you do? A. I
boarded the schooner Frederick Gerring, Jr.

Q. What took place after you boarded her? A. I told the
master that he was fishing within the three-mile limit.

Q. You then seized her, did you? A. I then seized her.

Q. Did the captain give you his papers? A. He did.

48 The Frederick Gerring, Jr.

Q. Look at those papers and say what they are? A. These
are the papers that he gave me. (Marked J. Mc. D. a.)

Q. Give me as near as you can the hour that you made the
seizure. A. I think it was about half-past six. It was between
half-past six and seven in the evening.

Q. At the time of the seizure was the cruiser Vigilant in
sight? A. She was.

Q. How far away was she? A. I judge that she was a mile
or a mile and a half away.

Q. What was she doing? A. She was standing off shore. I
am not positive that she had steering way on, though I think she
had. There was a very light draft of wind at the time.

Q. At the time of the seizure can you tell us how the tide
was? A. It was rising. I think it was somewhere about half tide.

Q. You say that there was very little wind? A. Yes very
little.

Q. What was the direction of the wind? A. I think it was
E. to E. S. E.

Q. How had it been in the afternoon? A. I think it was
more southerly during the day, but I am not positive.

Q. How long had it been E. S. E. ? A. For an hour before
that, if there was any wind I don't know that you can tell where it
was. Under steam you get a draft ahead even when the wind is
very light, so I can hardly say how it was.

Q. Have you had much experience on the coast of Nova
Scotia in that vicinity? A. I have had experience for the last ten
years.

O. I want you to tell me your judgment as to the trend of
the current at that time ; that is to say, a vessel lying off that coast,
where this vessel was, assuming that she had been lying there for
some hours, which way would the tide or current or wind or what-
ever it was take her? A. It would be apt to send her to the west-
avard slightly.

Q. Would that take her nearer to the shore or further away
from it? A. It would take her nearer the shore; if she set east
of that it would drift her towards the ledge.

Q. You say, assuming this vessel had set east of the ledge, or
where you found her, the current would drift her towards the
ledge ? A. Yes. That is, unless she was on a parallel line outside
of it.

Appendix to the Memorial. 49

Q. What would your judgment be from your knowledge of
the currents on that coast as to whether that vessel, the Frederick
Gerring, Jr., had set her net in the same place where you saw her
taking the fish out of it, or had she set it further away from Gull
Ledge? A, I could hardly say concerning that.

O. I am asking your judgment? A. She would be apt to set
to the westward if there was no wind.

Q. The question I asked was whether in your judgment, from
the trend of the current, you would say that the seine had been set
further away from Gull Ledge than it was at the time the fish were
being taken out of it ? A. Well, I think it would slightly.

Q. How do you account for that drift which you say a
vessel would have there? A. There is an Arctic current that sets
along the coast in the first part of the season. It is considered to
follow the coast up during an east wind.

Q. The course of the current would set the vessel in? A. It
would set her along the coast.

Q. How was the wind after this? A. It was an easterly
wind,

{The Court: How was the wind at the time of the seizure?
A. It was E. to E. S. E.)

Q. The next day there was a strong easterly wind? A. Yes,
quite a strong east wind.

Q. At the time of the seizure of this schooner were there any
other fishing vessels near by ? A. I don't know that there were any
very near.

Q. What would be the nearest? A. The nearest would be a
mile away, or perhaps more.

Q. At the time of the seizure did you see the Gerring's
compass? A. I did.

Q. How did that compass agree with yours? A. Very well.'
It gave the same bearings.

Q. As the one by which you took the bearings? A. Yes.

Q. Will you give us the conversation that you had with the
captain of the Gerring with regard to the chart? A. When I
took the bearings I said to him, "if you will give me your chart I
will show you where it is." He said that he had an old one and
that it was not any good. He brought it up and I said "Captain,
you are right, it is not any good," and I laid it down.

50 The Frederick Gerring, Jr.

Q. Tell us what conversation you had in regard to the ques-
tion of towing his log? A. He asked me whether I would have any
objections to my officer running in with the steamer to Liscombe
Light to see what distance it was. I said that I would not do that
because Liscombe Light had nothing to do with the case. He would
have to navigate pretty carefully to get in there in a direct course
over the ledges. That was all that was said about the log.

Q. Was anything said about towing the log, or measuring
the distance to Gull Ledge? A. I don't think there was. I don't
remember anything of that kind being said.

Q. Did the captain of the Gerring ask you to tow any log
to Gull Ledge? A. No.

O. Did the captain of the Gerring ask you to allow him to
tow his log to Liscombe Light? A. Not to my recollection; I
don't remember any such thing whatever,

O. Did you give orders that the captain of the Gerring was
not to be allowed to tow his log behind him going to Liscombe
Light? A. No, I did not.

Q. Did the captain of the Gerring ask you to speak to the
captain of the Vigilant in regard to his position? A. I don't
remember of it. I don't think he did.

Q. Will you tell us what conversation you had with the cap-
tain of the Gerring in regard to his position? A. We did not
have very much. I said "you are too close to this ledge," and he
said if it was a matter of ledges there were lots of them fishing
inside of Sambro on Sunday. I was in a position to know different-
ly from that.

Q. When you were speaking of the ledge you referred to Gull
Ledge? A. Yes.

Q. Did the captain of the Gerring claim or say that he was
more than three miles from Gull Ledge? A. He did not.

Q. Did you at any time on that day, or at any other time tell
the captain of the Gerring that at the time of the seizure the
tide was running S. W. ? A. No, I did not.

Q. Did you take soundings at the place where the Gerring
was taking her fish on board? A. Yes.

Q. What depth of water was there there? A. There were
28 fathom.

Appendix to the Memorial. 51

Q. After you arrested the Gerring what did you do? A.
I put the second officer with 4 or 5 men on board. I waited until
she took her fish on the deck, and then took her in tow.

Q. Where to? A. To Liscombe.

Q. What did you do the following day? A. I took her to
Halifax after she got her fish dressed and below.

O. What took place after she was brought to Halifax? A.
We brought her to the wharf and I reported to Commodore Spain.

O. She was arrested in this action? A. Yes.

O. When you were coming from Liscombe to Halifax on the
26th May with the Gerring in tow, how close did you pass to
Gull Ledge? A. I think we came within a mile and a half of it.

O. On that day when you came past Gull Ledge was the sea
breaking over it? A. It may have been breaking over the low
parts of it.

Q. Was it breaking over the high parts of it? A. It was not.

O. Perhaps you will give us an idea of the length, breadth
and height of it? A. I never was ashore on the island but I judge
that it is a quarter of a mile long, in the vicinity of an eighth of a
mile wide, and thirty feet high.

Q. Did you observe when you were passing there on the 26th
May whether there was any vegetation there? A. I could see
something green on it that looked like vegetation.

Cross-examined by Mr. MacCoy:

Q. How many seizures have you made? A. I have made two
seizures besides this one, for violations of the fisheries act.

Q. Were they subsequently released, and given up? A. I
understand that they were released on payment of fines.

Q. Were they not released because you made a mistake?
A. No, they were not released because I made a mistake.

Q. What time was it that you got to where the Gerring
was; did you haul up before you got to the Gerring f A. What
do you mean by "hauling up" ?

Q. Did you stop the engines ? A. I stopped the engines when
I got there.

Q. Then you had not taken bearings before? A. I had.

Q. You can take bearings, can you, when under full steam?
A. Yes.

52 The Frederick Gcrring, Jr.

Q. How were you, yourself, heading when you took the first
bearings? Were you taking your own bearings, or the bearings
of the G erring? A. I was taking my own bearings before I came
to the Gerring.

Q. How far were you from the Gerring? A. I don't know
that I can tell you exactly ; perhaps a mile to the S. W. of her.

Q. It is more difficult to judge distances on the water than
it is on land, is it not? A. It is quite difficult. Some can and
some cannot.

Q. It depends upon the man ? A. And upon the eye.

Q. You were about a mile from the Gerring when you took
your own bearings ? A. I think so.

Q. You were not particular about that? A. I noticed suffi-
ciently to judge that she was inside.

Q. Did you take particular notice of the distance that you
were from the Gerring when you first took your own bearings?
A. No.

Q. Would you tell mc what course you were steering? A.
We were steering down about N. E.

Q. I don't want to know "about" the course you were steer-
ing; will you say that you were steering the course you men-
tioned? A. I think I was steering about N. E. I was east
going down towards her, and then I changed my course when
I got about a mile from her. Then I steered N. E., until I got
to her.

O. How was the Gerring heading? A. I judge that she
was heading about S. S. W. I would judge so.

Q. Would she be heading off shore? A. Yes.

Q. In what direction, in your judgment, was the tide at that
particular place? A. I think the tide would probably be westerly.

Q. That is off shore? A. It would be along the line of the
shore.

Q. That is, carrying her westerly? A. Yes.

O. Was there any tide there that had any tendency to carry
her inshore? A. There is only one tide that I am aware of.

Q. Would that carry her closer to the shore? A. It would
depend upon her position.

Q. Where you found her, would the then tide have any
tendency to carry her closer to the shore? A. I am not aware
that it would.

Appendix to the Memorial. 53

Q. Will you say that it would not? A. No, because I don't
know exactly.

Q. Where you found the Gerring when you came along-
side, I understand you to say that you were not sufficiently ac-
quainted with the tide to say whether it would carry her inshore
or offshore? A. It will carry her to the westward; you can look
at the chart and see whether it would carry her to the shore or
not.

O. I am asking you? A. If you will let me look at the chart
I will tell you.

Q. You cannot tell except by looking at the chart? A. No.

Q. What is the nearest headland according to this chart? A.
Liscombe Point would be the nearest headland.

Q. Would you tell me how far from where you found her
taking fish it was to Liscombe Point? A. I think it was about 6
miles, speaking from memory.

Q. You have spoken of Gull Ledge? A. Yes.

Q. This ledge, how far from the main land is it ? A.I would
have to measure. (After examining chart.) It is more than three
miles from any main land.

Q. I want you to tell me whether this place marked "Gull
Ledge" on this chart is not a portion of a sunken ledge? A. No,
it is not.

Q. Do you say that at high tide no portion of it is covered?
A. No part of it is covered, except in the usual way, by the ebb
and flow of the tide.

Q. Does any portion of it disappear at the highest tides? A.
I don't think the biggest portion of it is covered. I suppose the
lower parts of it are covered.

Q. How did you take the bearings? A. I took the bearings
by the ship's compass.

O. You took the bearings of Liscombe Point and judged
your distance from it ? A. No, I did not ; I took another bearing
of White Island.

Q. Is that to the westward? A. It is W. N. W.

Q. Was it Little White Island? A. We call it Big White
Island.

Q. You took your bearings from there and also from Lis-
combe Point? A. No, from there and from Liscombe Lighthouse.

54 The Frederick Gerring, Jr.

Q. How did you ascertain the exact position? A. By the
bearings.

Q. I suppose the slightest variation would make a considerable
difference? A. It would make some difference.

Q. Will you say that you got the exact course of your ship?
A. Yes.

Q. While you were under way? A. We were lying quiet
then.

Q. Will you say that the distance or bearings were exactly
as you gave them? A. Yes.

Q. Who took the bearings? A. My chief officer took them
about the same time.

Q. Then did you take the chart? A. Yes, I laid it on the
chart.

Q. On your own chart, on board your own ship, before the
seizure? A. Yes.

Q. And this is what you put down at that particular time?
A. These are the bearings.

Q. When did you put these marks in red ink on this chart?
A. I did not do that.

Q. Who did it? A. Commodore Spain did it.

Q. If you notice there, there are two pencil marks partly
rubbed out (marked J. M. D., b., and J. M. D., c), what are they?
A. They are probably bearings that I took as I came down.

Q. Did you put these marks there? A. I did.

Q. What was this one? A. This was another as I was run-
ning down.

Q. When was the cross bearing J. M. D., c, made? A. I
cannot say exactly; it was made that day.

Q. Was it when you were testing your bearings? A. Prob-
ably it was. I was taking the bearings as I was running down.

Q. Were you under way when you took the bearings marked
J. M. D., c. ? A. I suppose I was.

Q. Then the lines J. M. D., b., and J. M. D., c, were both
taken while you were under way ? A. Yes.

Q. You were then taking bearings to ascertain whether the
Gerring was inside the three-mile limit or not? A. Yes.

Q. Would that cross section b, be more favorable to the
Gerring, or against her ; would it show that she was further to the

Appendix to the Memorial. 55

east? A. Yes, it would show that she was to the east of the line
when I took that bearing. It would show that we were that much
to the west of the Gerring. It would not have anything to do
with the Gerring.

Q. The Gerring would be to the east of you? A. Yes.

Q. If that line was correct it would show that she was fur-
ther to the east than the place you now put her? A. Yes.

Q. If the line b was correct it would show that the Gerring
was further to the east? A. It would not change the position of
the Gerring at all.

Q. Now when you came to the cross section on the chart, you
measured from there to Gull Ledge ? A. Yes.

Q. What was the distance by your measurement ? A. I think
it was a little over a mile and a half.

Q. Would you say that it was not two miles ? A. Yes, it was
not two miles.

Q. Have you no memoranda made at the time? (Mr. Ritchie
proposes to hand memoranda to witness.)

Q. At the time you made this seizure you had taken the
cross sections on your own ship before you made the seizure? A.
Yes.

Q. Did you make this report then or afterwards? (Refer-
ring to paper produced by Mr. Ritchie.) A. I made it afterwards.

Q. When? A. I think it was the next day.

(The Court: That is not a memorandum made at the time.)

Q. What was the distance from where the Gerring was
to Gull Ledge? A. It was a mile and five-eighths of a mile as
near as I can make it. The distance from Gull Ledge to the
nearest point of Barron Island I think is less than a mile and a
half.

Q. There is one part of Gull Ledge that is about 30 feet
high? A. Yes.

{The Court: What is the course from Gull Ledge to Barron
Island? A. It is nearly north.)

Q. From where the Gerring was to Barron Island, what
would the distance be? A. (After making measurements on
chart.) Tt is exactly on the three miles.

Q. Gnll Ledge is just a ledge in the sea? A. I would rather
call it an island.

56 The Frederick Gerring, Jr.

Q. The sea does wash over it, does it not ? A. It sprays over
it in storms, no doubt.

Q. Will you say that the sea never washes over it? A, I could
not say whether it does or not; I was never there when there was
a heavy sea.

Q. It is a usual practice, is it not, for vessels engaged in the
fishery protection service to sail up and down the line? A. I
don't think that we are commissioned for that purpose.

Q. Is it not a usual practice to sail up and down the line,
and to show people where they are? A. I don't think it is the
general practice.

Q. Have you never done it? A. I have in times past. They
have asked my position and I have told them, but I think I ex-
ceeded my duty in doing so.

O. The Vigilant had been there that afternoon? A. Yes.

Q. When did you first see her that afternoon? A. I first
noticed her shortly after I noticed this vessel.

Q. How far was she from the Gerring at the time? A.
She was a mile or more away.

Q. Was she inside or outside? A. She was outside to the
S. W.

Q. The Gerring could not have moved much inshore from
the time you saw her? A. I would not think so.

Q. She would move hardly any? A. Not if there was any
wind.

Q. Was there wind enough to keep her in position? A.
There was hardly any.

Q. Did you not think it strange that the Vigilant did not
seize her? A. It come into my mind that he was trying to get
to her. I supposed he was going to tack.

O. Which way was he heading? A. He was heading to the
south.

O. He passed her, did he not? A. I don't know.

Q. Must he not have done so ? A.I don't know.

Q. Where did you meet him? A. I met him to the S. W. of
the Gerring.

Q. He was standing towards you? A. He was going to the
southward and westward.

Appendix to the Memorial. 57

Q. You thought it strange that he did not seize her? A. I
thought that he had little wind, and that the schooner had just set,
and that he would come around and go down.

Q, After the nets are set for the school the ends are brought
together and they bail out the fish? A. Yes.

Q. The nets are not anchored, or the ship? A. No.

Q. Do you know of your own knowledge whether the net was
set to the south or east of the G erring f A. I don't know where
it had been set.

Q. Was the net to the south of the vessel or inshore? A.
She was lying with her head to the south and the net was on
the port side. That would be to the east of her.

Q. When you told him that he was fishing within the three-
mile limit, at the time did you see any other vessel there getting
under way? A. No. I saw a vessel to the westward of us.

Q. Was she under way? A. Yes.

Q. She was going to the westward ? A. She was offshore.

Q. You said that his chart was no good, — why? A. It was
old and very much defaced, and on a small scale. He pronounced
it no good himself.

Q. Have you had experience with American charts? A.
Yes.

Q. Have you found them correct? A. Yes, they have some
good charts, but the material is not so good as the British.

Q. There was a dispute between the captain of the Gerring
and yourself as to whether he was fishing within the three-mile
limit; he claimed that he was not? A. No, I don't think so.

Q. Did he not claim that the Vigilant was going up and
down the line? A. He did.

Q. Did he not say that the captain of the Haskins asked
the captain of the Vigilant if they were outside? A. He told me
that he spoke the Vigilant himself.

Q. Did he not say that he heard the captain of the Vigilant
tell the captain of the Haskins that he was outside? A. I don't
think so.

Q. Did he tell you that the captain of the Vigilant told him
that he was all right ? A. Yes.

Q. Did he say that he was outside the Vigilant when he set?
A. No, he said that he set the net after speaking the Vigilant.

58 The Frederick G erring, Jr.

Q. Did he not ask you to run up to the Vigilant and ascer-
tain whether that was correct or not? A. No, he did not.

Q. What did he say? A. I don't just remember; he said the
Vigilant told him that he was all right.

Q. Was there any dispute between you as to his location?
A. No, the question he said was that he was not within three
miles of the mainland.

Q. You claimed Gull Rock as the land you were going by, and
he claimed something else? A. Yes.

Q. Did he not ask you to run to the Vigilant to ascertain
the instructions received from the Vigilant? A. I don't remem-
ber.

Q. Will you say that he did not? A. Well, I don't think he
did. Many things may have passed that have escaped my mem-
ory, but to the best of my recollection he did not.

Q. You say that the wind was southerly during the day? A.
I think it was.

Q. At five o'clock in the afternoon where were you? A.
We were running along the coast.

Q. Off of what point would you be? A. I think that at
half-past four we would be ofif of Beaver Island. I am not just
sure.

Q. Would you say that the wind would be in the same direc-
tion off of Beaver Island at half-past four o'clock that it would
be where the Gerring was? A. No, I could not say, but I judge
that it would not be much different.

Q. Do the currents change off where the Gerring was with
different seasons? A. In the spring it runs to the westward.

Q. How would it be on the 25th May? A. It would be
weaker.

Q. It is the Arctic current you say, that causes the current
to the west? A. The Arctic current and the flood tide.

Q. It was not flood tide then? A. It was about half tide.

Q. When did you take the soundings? A. Just after I seized
the Gerring.

Q. How long after? A. It would not be ten minutes.

Q. It would have been easy for you to ascertain the exact
distance from Gull Rock by taking the log out? A. You cannot
always depend upon the log.

Appendix to the Memorial. 59

Q. Can you tell with certainty by the cross bearings ? A. You
can if the compasses are correct.

Q. Are your compasses correct? A. Yes.

Q. How do you know ? A. I have worked time azimuths.

Q. When you took the schooner in tow to Liscombe, did you
keep close to the light? A. We went on an angle.

Q. Then you would have no difficulty, if you put out your
log, in measuring the distance to Liscombe? A. No.

Q. You did not do that? A. No.

Q. That might or might not correspond with your cross
section? A. It could not affect the cross section much.

Q. Would not the measurement by the log be more accurate
than the cross section? A. No.

Q. What is the nearest headland to the westward? A. I
suppose it would be Taylor's Head. That is to the westward of
Sheep Harbor.

(The Court: How far is that from Liscombe Light? A. I
should say it is about 20 miles.)

Q. Would it not be more than that? A. It might be. (After
making measurements on chart). It is 25 miles from where the
Gerring was.

Q. It would be 30 miles from headland to headland in a
straight line? A. It is 27 miles from headland to headland in a
straight line from Liscombe Point to Taylor's Head.

Q. Are you sure that you did not tell them that the tide
was running to the S. W. ? A. I am, so far as my memory tells
me.

Q. When did you look at your compass last before going to
the Gerring? A. I suppose it would be five to seven minutes.

Q. After that you took your crew and went on board. Did
you look at the compass when you went on board? A. Yes.

Q. Did you notice your compass before? A. I did, 5 or 7
minutes before.

Q. Had you come to anchor? A. No.

Q. Did you take a memorandum of the courses on board?
A. I spoke from memory.

60 The Frederick Gerring, Jr.

Re-examined by Mr. Ritchie:

Q. You told Mr. MacCoy that Gnll Ledge is one and a half
miles from Barron Island ; will you give me some notion of the
size of the island? A. It is a mile long and a mile wide, or some-
thing more.

O. Between Gull Ledge and Barren Island there is a ledge,
and some rocks? A. Yes. there is a ledge, and also some sunken
rock.

O. What is the depth of the water between Gull Ledge and
Barren Island? A. It varies from four to fourteen fathoms.

O. How far is Barren Island from the main coast of Nova
Scotia? A. I don't know that I have measured it; it is more than
a mile. (After measuring on chart.) It is less than a mile and a
quarter to the nearest land, marked "English Church."

O. Between Barren Island and the Church point, what is
the condition of the water? A. There are 3 to 6 fathoms of
water. It is broken water ; there are some shoals between.

Q. The bearings that Mr. MacCoy asked you about, which
have been rubbed out on this chart, are merely the bearings you
took while you were approaching the Gerring, before you got to
her? A. Yes.

Q. And they do not indicate anything but the position of
your vessel at the time you took them? A. No.

CAPT. ARTHUR MORIN, called and sworn.

Examined by Mr. Ritchie:

O. You are the 1st Officer on board of the Dominion cruiser
Aberdeen? A. Yes.

Q. Do you hold a captain's certificate? A. Yes.

Q. How long have you been a master mariner? A. Since
1865.

Q. How long have you been engaged in the fisheries protec-
tion service? A. For 5 or 6 summers.

Q. Were you on board the Aberdeen at the time the Gerring
was seized? A. Yes.

Q. Do you remember the date? A. It was the 25th May
last.

Appendix to the Mcinorial. 61

Q. What was the hour that the captain of the Aberdeen
went on board of the Gerring? A. It was between 6 and 7
o'clock in the evening.

Q. How near did the Aberdeen come to the Gerring before
the captain went on board? A. Well, about a cable length, I
suppose, or a cable length and a half.

Q. When the Aberdeen came within a cable length of the
Gerring, what was being done on the Gerring? A. They were
bailing fish from a net into the schooner.

O. And the Aberdeen lay to within a cable length? A. Yes.

Q. After you lay to, what did the captain of the Aberdeen
do? A. He took the bearings.

Q. What did he do afterwards? A. He ordered me to get
the boat and the crew ready.

Q. Had you anything to do in regard to taking the bearings ?
A. The captain called me on the bridge and asked me to ascertain
by the compass the bearings of Liscombe Light.

O. Did you take the bearings of Liscombe Light? A. I did.

O. How was it bearing? A. It was bearing N. E. 3^ N.

Q. What did he say then? A. He said to take the bearings
of Big White Island and I did so. It was bearing W. N. W. :
that is, the N. W. part of the island.

Q. What did you do after you took the bearings? A. The
captain said that she was inside the limit.

Q. Did you consult the chart? A. Yes, I went down with
the captain and consulted the chart, and we found that she was
inside.

O. You went down and laid off the bearings on this chart
marke^'d "J. M. D. ?" A. Yes.

Q. What do you say about these lines marked "W. N. W."
and "N. E. Yz N.?" A. These are the bearings of the Gerring
that we took.

O. You were within a cable length of her when you took these
bearings? A. Yes.

O. After you had taken these bearings, and consulted the
chart, what f]id the captain do? A. He said that she was inside,
and that we would go and seize her. He ordered the boat got
ready and I did it, and he took the boat and went on board of
the Gerring.

62 The Frederick Gerring, Jr.

Q. You measured the depth of water at the place where the
Gerring was seized? A. I did.

Q. What depth of water was there there? A. There were

29 fatlioms.

Cross-examined by Mr. MacCoy:

O. Did you take the chart or did the captain? I mean, did
you lay down the lines on the chart? A. No, I did not do that.

Q. Who laid it down on the chart? A. The captain did
that. I laid the scale and measured it, after he laid it down on
the chart. I did not make a mark on the chart myself.

Q. You did not go on the boat ? A. No.

Q. You did not go on board the Gerring at all? A, No.

LEVI WHITMAN, called and sworn.

Examined by Air. Ritchie:

O. You are 3rd Officer on board the Dominion Cruiser Aber-
deen F A. Yes.

Q. Do you hold a master's certificate? A. I hold a coasting
master's certificate.

Q. How many years' experience have you had on the coast
of Nova Scotia? A. I have been off and on the coast, but not
much of late years. In former years I had a good deal of ex-
perience.

Q. Where were you at the time the Gerring was seized? A.
I was on board of the Aberdeen.

O. From that place where the Gerring was seized can Gull
Ledge be seen distinctly? A. Yes.

Q. Would you describe the appearance of the island called
Gull Ledge? A. It has the appearance of an ordinary small island.

O. Which portion of it is highest? A. I think the western
portion of it is highest.

Q. And how does it slope? A. It slopes down the same as
any other island would slope to the water.

Q. Does it slope from the west, or is there any other liigh
part? A. Towards the east end, there is high land.

O. Then it slopes to the sea? A. Yes.

Append is to the Memorial. 63

O. Have yon seen it on other occasions? A. I have, but not
to mark it so distinctly.

O. What would you judge the height of the highest part to
be? A. I would judge it to be 30 feet at all event.

O. Did you observe this island when you were coming past
on the 26th ? A. Yes.

Q. Was the water breaking over it? A. No, there was no
water breaking over it. The surf was breaking around the shore,
the same as any other island.

Q. Did you see Capt. Morin take the bearings he has spoken
of? A. Yes.

Q. Did you do anything to verify the correctness of them?
A, Yes, I looked at the compass immediately afterwards. I am
prepared to say that they are correct.

Q. How did you find them correspond ; the north part of it
■■ cuid bear how? A. White Island bore W. N. W., and Liscombe
Light bore N. E. ^ N.

Q. W^ill you look at the chart and tell us if the places from
which you took the bearings are correctly laid off on the chart?
A. (After looking at chart) Yes.

Cross-examined by Mr. MacCoy:

Q. You did not lay down the lines on the chart ? A. No.

Q. W'ere you present when they were laid down? A. No.

Q. Yet you swore that they are correct ? A. I swore that the
bearings are correct.

Q. In this chart it is called "Gull Ledge," is it a ledge or an
island? A. I would call it a small island.

O. What is it composed of? A. The same material as the
rest of the coast.

Q. That is, rock? A. Rock, and there may be vegetation on
the top.

O. I am asking what it is composed of, from your own per-
sonal knowledge? A. Rock.

Q. There are two rocks which, together, are called Gull Ledge?
A. There is only one to my knowledge.

O. Will you look at this chart and see; that is a ledge is it
not? A. Yes.

O. And according to the chart they are separate and distinct?
A. Yes, there are two ledges, one inside the other.

64 The Frederick Gerring, Jr.

Q. You did not know that, did you? A. No, you could not
see any land between from my point of observation.

Q. Will you say that Gull Ledge is an island? A. Yes, it is.
It is far enough above the water to look like an island.

Q. How often have you seen it ? A. I could not say.

O. Have you seen the sea breaking right over it? A. I
have not been there in a heavy sea. No ordinary sea would break
over. It would break further up on it. The highland would
be on the west end.

Q. Does the sea break up to the 30- foot rock? A. I can-
not see how it would to any extent. It might spray over it, but,
judging from other islands on the coast, it would not break over
it much.

CHRISTOPHER BENNETT, called and sworn.

Examined by Mr. Ritchie:

Q. You are second officer of the Aberdeen f A. Yes,

O. You were on board on the 25th of May when the Ger-
ring was seized? A. I was.

Q. Tell me at what time that evening you went on duty
yourself? A. I was to go on duty after 6 o'clock.

Q. Would that be Halifax time? A. Yes.

Q. Did you go on deck to go on duty at that time? A. I was
coming out of the after companion way to go on duty when I
met Captain Knowlton coming down.

O. What I want to know is this, — when you went on duty
at 6 o'clock on the evening of the 25th May had the captain of
the Aberdeen then gone on board of the Gerring? A. No, he
was coming down.

O. How long after that did he go on board of the Gerring?
A. It may have been ten minutes, or more.

O. It was sometime after six o'clock when he went on board?
A. Yes.

O. Did you go on board the Gerring that night? A. Yes.

Q. How long did you remain there? A. I remained there
until 9 o'clock that night.

Q. When did you go on board? A. I went on board about
half past six.

Appendix to the Memorial. 65

Q. Did you hear the conversation between the captain of
the Gerring and the captain of the Aberdeen with regard to
towing the log? A. I heard the captain of the Gerring ask our
captain to allow him to run the ship to Liscombe Light and tow
the log.

Q. Did the captain of the Gerring say anything about tow-
ing the log to Gull Ledge? A. Not in my presence.

Q. What did Captain Knowlton say when the request was
made about towing the log? A. He told him that it would be
of no benefit to him, and that he did not feel that it was necessary
to do so.

Q. Did you hear the captain of the Gerring make a request
to tow his own log to Liscombe Light ? A. No.

Q. Were any orders given that he should not be allowed to
do so? A. There were no such orders given to me.

Q. After the Gerring was seized in whose custody was she
placed? A. She was placed in mine.

Q. How long did she remain in your charge? A. Until 9
o'clock.

O. Tell us what conversation you had with the captain of the
Gerring during that time in regard to his position? A. We did
not have much ; he said if he was put on oath he would not swear
if she was inside or outside of the limits; that he had an old
chart there that he could not depend on.

Cross-examined by Mr. MacCoy:

Q. Did you go on board at 6.30 o'clock, captain? A. No,
the captain sent the boat back for me.

Q. You say there was no request made by the captain of the
Gerring in your presence to be allowed to tow the log to Liscombe
Light; did he not ask to tow his own log to Liscombe Light?
A. No.

Q. He did not make any request to be allowed to tow his own
log? A. He made none to me.

Q. Did you hear any request made to the captain of the
Aberdeen? A. No.

Q. How long was the captain of the Aberdeen on board
the Gerring before you? A. I judge that he was on board about
20 minutes before me.

66 The Frederick Gerring, Jr.

Q. Have you had much experience on that shore? A. Not
a great deal ; I have been on deep water mostly.

Q. The Aberdeen sails up and down the line to give notice
to people, does she not? A. No, we are sometimes 3 and some-
times 6 miles off.

Q. But she would run up and down the shore, would she not?
A. Not always.

O. If you are asked as to your position, you tell people? A.
We have not been asked more than once this season, as far as I
know.

CAPT. HECTOR MacKENZIE, called and sworn.

Examined by Mr. Ritchie:

Q. You are the captain of the Dominion cruiser Vigilant f
A. Yes.

Q. She is a sailing vessel? A. Yes.

Q. How long have you been engaged in the fishery protection
service of Canada? A. Since 1886.

Q. How long have you been a master manner? A. For over
40 years.

O'. You remember the 25th day of May. last? A. I do.

Q. What were you doing that day? A. I was cruising off
Liscombe, on the Vigilant.

Q. Did you see the Gerring there that day? A. I did.

Q. What time in the day did you first sec her? A. It was
between four and half past.

Q. What was she doing? A. When I first noticed her she
was going up alongside a seine boat.

Q. Was there a seine alongside the boat? A. Yes, the seine
was set and pursed up.

Q. That indicates that the fish are caught and in the seine?
A. Yes.

Q. How close were you to her at that time? A. I was inside
of 200 yards from the seine.

Q. How long did you remain in that vicinity after the
schooner went alongside of the seine boat? A. I took the bear-
ings and found that she was outside of the limit, and left.

Appendix to the Memorial. 67

Q. How far did you find that she was outside of the three-
mile limit? A. She was a good half mile.

O. Can you give us the bearings? A. Liscombe Lighthouse
bore N. E. by N. j/^ N., and Little White Island, the middle
part, N. W.

O. Are these the bearings at the time the seine was set, or
at the time that the schooner came alongside? A. Those are the
bearings at the time the seine was out. Those are the bearings
where the Vigilant was.

Q. About what time of the day was that ? A. It was between
4 and half past four in the afternoon.

Q. Did you take bearings after that? A. No, I went to the
westward then.

O. You say that you w^ere close to the Gcrring when she
came up to the seine boat? A. Yes.

Q. How long after you took the bearings did the Gerring
come close to the seine boat? A. It was about ten minutes.

O. Shortly after that you went away? A. Yes, I went right
along to the westward.

Q. How long after you left that vicinity and went to the
westward was it before you saw the Aberdeen? A. It would
be over an hour ; an hour or an hour and a half.

O. Did you see the Aberdeen go alongside of the Gerring?
A. Yes.

Q. How long would it be from the time you left the Gerring
until the Aberdeen came alongside of her? A. I think it would
be about 2 hours, but I was not very particular about it.

Q. Did you take any bearings at the time the Aberdeen went
alongside the Gerring? A. Yes, I did; I wanted to see how she
bore from me. As near as I can recollect it was E. N. E.

Q. Was the Gerring in the same position at the time the
Aberdeen went alongside as when you left her? A. No.

Q. Was she nearer inshore or further^ off? A. She was
nearer inshore.

Q. How did you observe that? A. By my own position. I
know that she was inside the limit of the Gull Ledge. I had
drifted in myself. The current was drifting me in all the time.

Q. Can you tell us what it was that drifted you in? A. There
was a heavy swell from the south and no wind. There was a
westerly set.

68 The Frederick G erring, Jr.

Q. Was that peculiar to that particular day? A. No, we
always guard against it on that coast.

Q. When do you find it strongest? A. In the spring of the
year.

Q. And before what wind? A. Before or during an easterly
wind.

Q. How was the wind the next day after this? A. It was
east or E. S. E.

Q. Was it a strong wind? A. It was pretty strong; it was a
wholesale breeze.

Q. You noticed that drift on that occasion? A. Yes.

Q. Bearing in mind the position that the Gerring was in
at the time you left her, and the extent and effect of the current,
what \vould be your judgment as to whether she would drift
within the limit between the time that you left her, and the time
that the Aberdeen went alongside? A. I think that she would
drift in.

Q. Have you observed that the Gerring had got inside the
limit before the Aberdeen went to her? A. I had.

Q. You had noticed that? A. I had.

Q. How long after you left her was it before you noticed
that? A. 1 don't know that I noticed it until I saw the Aber-
deen come.

Q. That would be how long after you left? A. It would be
over an hour after I left.

O. Did you see the fishing schooner Haskins there that after-
noon? A. I did.

Q. At the time you left the Gerring, had the Gerring taken
any fish out of her seine? A. No.

Q. At the time you left what was the Haskins doing? A.
She was taking her fish out.

Q. At the time you left, which was nearest the shore? A.
The Gerring.

Q. What is this current that you speak of, what direction
does it set in? A. There is an indraft through the islands all
along that shore.

Q. This Gull Ledge, have you been on it? A. I have.

Q. You might describe it as well as you can? A. It is a
ledge of rocks with some vegetation on the top, earth and moss
and stuff. I did not take much notice of it.

Appendix to the Memorial. 69

Q. When did you land there? A. It was a year ago last
August.

Q. Give us an idea of the size of that portion of it not cov-
ered at high water? A. The portion never covered, as far as my
remembrance goes, is nearly a quarter of a mile long, and one-
eighth of a mile wide. That is the two ledges together.

Q. And the highest part is how high? A. It is about 25 or
30 feet I would judge.

Q. Does the sea wash over it? A. No, but the spray may
blow over it.

Q. That is in heavy weather? A. Yes, it does not wash over
as far as my judgment goes.

Cross-examined by Mr. MacCoy:

Q. You were sailing up and down the limit that day? A.
I was sailing up and down the coast.

Q. Were you not sailing up and down the line? A. No, I
came out of Liscombe and saw the fleet to the westward, and
worked up to them.

Q. Did you go to the eastward that day? A. I did in the
evening.

Q. What time did you come out of Liscombe? A, We got
under way about 6 o'clock in the morning.

Q. How far to the westward did you come? A. When we
came to the Gerring that was the furthest. The furthest I went
was off of White Island. That is west of where the Gerring was.

Q. You say the Gerring was outside the limit when she set
her nets? A. Yes.

Q. You saw her when she pursed up the seine? A. Yes.

Q. How far were you from her then? A. I was less than
200 yards from her.

Q. The fish would be all in the net at that time? A, Yes.

Q. You saw the seine boat out? A. Yes.

0. And you saw the Gerring go down to where the boat
was? A. Yes.

Q. At that time the Gerring was outside tlie limit? A. She
was.

Q. Had she not commenced to dip before she went to White
Island? A. I did not see them dipping, but they may have done
so.

70 The Frederick Gerring, Jr.

Q. How close did you pass? A. I was within 200 yards.
We were east quite a piece before the Gcrring got alongside the
seine boat.

Q. How far outside the Hmit was the net when they pursed
it? A. It was half a mile outside.

Q. How far was the vessel herself outside the limit when
you passed going to White Island? A. She was nearly alongside
the seine boat.

Q. And the seine boat was alongside the net? A. Yes.

O. Now you heard the testimony of the captain of the Aber-
deen; will you tell me what is the rate of current there at this
particular date? A. No, I cannot.

Q. Was there any wind at the time you passed? A. There
was just enough for the Gcrring to get alongside of her net.

Q. With her sails balanced, and half a mile away, and the net
in the sea, would she be carried half a mile in the course of an
hour? A. Yes, with the swell and the current.

Q. Further than that, I suppose? A. It may be.

Q. What is your judgment about that? A. That day, ac-
cording to the way I was carried in myself, she would.

Q. The head of your vessel with the heavy swell would be
constantly changing? A. She would be slapping about.

Q. That would make it more difficult to take exact bearings?
A. No.

Q. You will not say that they had not commenced to get out
their fish when you passed? A. No.

O. Do you know a man named Capt. John McKinnon that
you met at Sydney? A. Yes.

Q. You had a conversation with him? A. Yes.

Q. Did you tell him that at the time the Gcrring was seized
she was outside of any land, about 4 miles off? A. No.

O. You were in Sydney? A. Yes.

O. Do you remember at what time? A. I got into Sydney?

Q. While your vessel was in the harbor, you met McKinnon
on board of your own vessel? A. Yes.

Q. And you had a conversation with him about the seizure?
A. Yes.

O. Did you on that occasion tell McKinnon that the Gerring
was outside of any land 4 miles when they set their seine? A.
No, I said he was outside the limit when he set his seine.

Appendix to the Memorial. 71

Q. You contradict that do you? A. Yes, I do.

Q. Do you recollect the whole conversation? A. Recollect
his being on board and talking about the Gerring.

Q. He says at that time you told him that at the time the
seine was set he was 4 miles off of any land. You say that you
did not say that? A. Yes.

Q. You are quite clear about that? A. Yes.

Q. What did you say? A, I said that he was outside the
three-mile limit.

Q. How far did you drift in that day? A. I could hardly
say, but I got inside the three miles.

Q. How far will a vessel balanced drift if there is no cur-
rent? A. She will not drift at all unless there is a swell.

Q. How far will the swell carry her? A. The swell would
not carry her with the seine attached as far as it would us.

Q. How far would it carry her? A. It would throw her in
half a mile in an hour.

Q. What rate of current is there at this season of the year?
A. The indraft I would say would be perhaps half a knot an
hour.

Q. Between the two, she would drift a mile; would you say
that? A. Yes, she has drifted a mile. I judge by the bearings
when Capt. Knowlton seized her.

Q. Where were you when she was seized? A. I was a mile
or a mile and a half away.

Q. Why did you not bear down and seize her yourself? A.
I did not feel myself justified in doing so, because I know that she
had taken the fish outside.

Q. You saw the captain of the Haskins there? A. Yes.

Q. Do you remember the captain of the Haskins asking you
if he was outside the 3 mile limit? A. I don't know who it was,
but someone did.

Q. Was it someone in a boat? A. No, he was at the mast
head.

Q. You told him that he was all right? A. What I said was
"You are all right, go ahead."

Q. How long does it take to put the net out, and to purse it
up and catch the fish? A. A good crew will do it in 10 or 15
minutes.

72 The Frederick Gerring, Jr.

Q. From the time the net is set until it is pursed up would
not be more than 10 minutes? A. It would be 10 or 15 minutes.

Q. So that at the time the fish were in the net, and at the time
the Gerring run down to secure the fish, they were outside the
three-mile limit at that time ? A. They were.

Wednesday, August 6th [5th], 1896.

The Court resumed at 11 a. m.

Mr. Ritchie tendered in evidence the ship's papers (marked
J. M. D. "a") and the chart (marked J. M. D. "b").

CAPT. OSPREY C. V. SPAIN, called and sworn.

Examined by Mr. Ritchie:

Q. You are commander of the fishery protection service of
Canada? A. Yes.

Q. You have been so for how many years? A. I have been
so for 5 years.

Q. Do you know what is called Gull Ledge off the coast of
Nova Scotia, near Liscombe ? A. Yes, I know it well.

Q. Have you visited that vicinity recently? A. Yes, I have
been there three times within the last month.

Q. How did you visit it? A. I visited it in the Dominion
cruiser Acadia.

Q. Did you make any measurements on the water near that
place? A. I did.

Q. When did you do so? A. I did so on the first occasion
we were there; I think it was in the middle of July,

Q. What measurements did you make there on the water at
that time? A. We got the ship into bearings with Big White
Island, and Liscombe Light.

Q. Give me the bearings of the place into which you got your
vessel? A. Liscombe Light bore N. E. ^ N. and the northern
point of Big White Island bore W. N. W.

Appendix' to the Memorial. 73

Q. Show me on the chart J. M. D. "b" what you call the
northern point of Big White Island? A. I mean that point of it
touched by the line marked W. N. W. in ink on the chart. It is on
the western extremity of the island, and might be called the norih-
western point of the island.

Q. From the place you were when you got the bearings, you
made measurements on the water to where ? A. Made a measure-
ment from there to Gull Ledge. I found it to be a little over a
mile and a half. It would not be as much as a mile and three-
quarters.

Q. How did you make the measurements? A. I made it by
means of a patent log.

Q. Did you have more than one log? A. Yes, I had two —
there was one on the port side and one on the starboard side.

O. With your two logs out you ran from the point of inter-
section of the two bearings to Gull Ledge? A. Yes.

Q. What do you say about the correctness of those Patent
logs? A. I say that they were absolutely correct.

Q. How do you know that? A. I know it by observation
and experience ; they are the two logs we have used all winter.

Q. Have you tested them before and since? A. Yes.

Q. Did any of your officers have an opportunity of observing
the bearings and measurements you took? A. Yes, my first and
second officers had. They are Mr. Kinney and Mr. Milne.

Q. What do you say about the correctness of the compass
with which you took the bearing? A. It is perfectly correct. It
is one of Sir William Thompson's patent compasses and is cor-
rected more or less every day. It was probably corrected the day
before I took the bearings, and it might have been corrected the
day following, that evening, or the next morning. I can say posi-
tively that it was corrected the day before and the day after.

Q. Did you do anything to verify its correctness on this par-
ticular occasion? A. Yes, I took an angle with a sextant, between
the northern point of Big White Island and Liscombe Light.

Q. What did that indicate? A. It indicated the same num-
ber of degrees on the sextant that were shown as points on the
compass.

Q. And what did that show in regard to the correctness of
the bearings? A. It showed that the compass was correct.

74 The Frederick G erring, Jr.

Q. Look at the chart J. M. D. "b," and tell us what you say
in regard to the correctness of the chart in the vicinity of Gull
Ledge and Liscom'be. A. As far as I know it is absolutely cor-
rect. This is the chart we invariably use when running up and
down the coast, and I have always found it correct in every way.
It is the Admiralty chart. I have been using it personally for live
seasons.

Q. Have you had occasion to know that it is correct in this
particular vicinity by passing there? A. I know that the sound-
ings in that vicinity are perfectly correct.

Q. How do you know that? A. I know because we have
sounded on it.

Q. In using a chart like that do you have an opportunity of
verifying its correctness? A. Yes, continually. I have done that
and have found this chart quite correct.

Q. Have you ever been on this place called Gull Ledge? A.
Yes, I have been there twice. I was there the day before yester-
day, and the Saturday before that.

Q. What does this Gull Ledge consist of? A. It consists of
the islands about thirty foot apart, — the one lying inside of the
other. I landed on the inner island, which is the largest.

Q. Give us an idea of the size of the inner island? A. Speak-
ing approximately it is larger than George's Island in this harbor,
but not as high. The area is larger.

Q. Did you make any measurements of the island? A. Yes,
it was 400 yards long, 160 yards wide, and 42 feet high.

Q. How did you measure the length and breadth of it and
the height? A. We measured the height of the island with a
tape measure.

Q. Would that give you the exact height above water? A.
We made the highest point from the water line, 52 feet, but I
took the height afterwards with a sextant, and found that it was
only 42 feet.

Q. Did anyone assist you in making the measurement of
the height? A. Yes, my second officer, Mr. Milne.

Q. Give us a description of the island as to the nature of it?
A. We landed on the inner island, and I found a fisherman's
shanty there with a stove in it, and a large number of lobster traps.
There was a fair amount of veg'etation on the island. There was

Appendix to the Memorial. 75

a patch of hay land about 100 yards long, by about 150 yards
wide. There was a spring of fresh water, and there were pools
of fresh water all over the place.

Q. Did you make any examination as to the character of
the soil? A. Yes, we thrust a stick down and found that the
average depth was about a foot. The soil was a sort of brown
loam. I brought away specimens of the soil and grass with me.

Q. What would you say as to the possibility of waves break-
ing over the island? A. I would say that at no time during the
heaviest storm would waves break over the island; it would be
quite impossible. I am speaking of the inner island.

Cross-examined by Mr. MacCoy:

Q. There are a large number of Admiralty charts, are there
not? A. Yes.

Q. They are all pretty much alike I suppose? A. Yes.

Q. This chart is the same as yours, is it not? (Hands chart
to witness for examination.) A. This chart would be more likely
to be correct, as it has later corrections on it. (Chart marked
J. M. D. "c")

Q. Speaking of the chart that you put in here the bearings
shown on it from Liscombe Light to the northwestern point of
Big White Island were laid down by you? A. Yes.

Q. You were not there at the time the bearings were taken?
A. No. I was not on the spot.

Q. Then you laid the bearings down on the chart not having
been present when the Gerring was seized? A. Exactly; I put
the bearings there.

Q. Did you take the height of the outer island? A. I did
not, but it is higher than the inner island.

Q. Was it high or low tide when you took the height of the
island? A. It was just about half high.

Q. Your chart says that Gull Ledge is 30 feet out of the
water at high tide? A. Those heights are only approximate.

Q. Are the charts not made from actual surveys? A. Yes.

Q. Then do you say that any statement made there with re-
gard to the height of the island is incorrect? A. No.

O. What do you mean then ; do I understand you to say
that the island marked on the chart is more than 30 feet high?
A. By my measurement it was 42 feet.

76 The Frederick Gerring, Jr.

Q. Will you say that the measurement as shown on your own
chart is incorrect? A. No.

Q. Then if it is not. and the island is only 30 feet high, how
do you say that you are correct? A. The measurement of 30
feet was taken at high water, while I took my observation at
half high.

Q. Will you tell me how high the tide rises there? A. No
I cannot, I don't know ; it might rise six or eight feet.

Q. That would not be sufficient to account for the difference;
I think you were there after the last big rain storm? A. I was
there after the rain storm and before.

ERNEST KINNEY, called and sworn.

Examined by Mr. Ritchie:

Q. You are the first officer of the Dominion cruiser Acadia?
A. Yes.

Q. How often has the Acadia been in the vicinity of Gull
Ledge during the last month or so? A. She has been there three
times.

Q. On the first occasion were any bearings taken? A. Yes.

Q. Can you tell us the bearings that were taken? A. Yes,
Liscombe Light bore N. E., ^ N., and the North or North west-
ern part of Big White Island bore W. N. N.

Q. And the Acadia was placed at the junction of those bear-
ings? A. Yes.

Q. From the point of intersection of those two lines, what
was the distance to Gull Ledge? A. It was about a mile and
six-tenths. We took the distance with the Patent log. It was
a little over a mile and a half.

Q. Have you ever been on the island? A. Yes, I have been
on the inner island twice. I was there last Saturday, and again
on Monday.

Q. What would you say as to the extent of soil that you found
covered with grass? A. I should say that there was about half
an acre, or perhaps more on the inner island covered with grass.

Q. What is the nature of the grass? A. It is long grass. I
brought a sample of it away with me. There were also some
kinds of wild flowers.

Appendix to the Memorial. 77

Q. Did yon see any buildings on the island? A. Yes, there
was the frame of a shanty, and part of the roof.

O. Did it look as if it had been there for some time? A.
Yes. it had the appearance of having been there for a number of
years.

Cross-examined by Mr. MacCoy:

Q. When you took the measurements you spoke of, did you
measure to the inner island, or to the outer island? A. We ran
in to the eastern end of the inner island.

Q. Why did you not go to the outer island? A. The outer
island is to the westward of the inner island. We could not go
to the outer island without running the ship ashore on the inner
one.

O. How close did you go to it? A. We went within a few
yards of it.

O. What depth of water did your ship draw? A. She drew
about 15 feet 6 inches. We went within 30 or 40 yards of the
island.

O. What was the size of the shanty? A. I suppose it was 4
feet by 6 feet-

{The Court: What would be the distance of any other land
from the point of intersection from which you took the bearings?
A. I suppose Goose Island would be the nearest. That is a mile and
a half or two miles inside of Gull Ledge.)

WILLIAM J. MILNE, called and sworn.

Examined by Mr. Ritchie:

O. You are the second officer of the Dominion Cruiser
Acadia f A. Yes.

O. Were you on board of the Acadia on the three occasions
when she visited Gull Ledge? A. Yes.

O. Did you see the bearing taken on the first of those occa-
sions? A. Yes.

O. Tell us what they were? A. Liscombe Light bore N. E.
>< X., and the north jjoint of White Island bore W. N. W.

O. Tlie northern point of Big White Island, at which end of
the island was it? A. It was at the western end of the island.

78 The Frederick G erring, Jr.

Q. Then did see the measurement indicated by the patent
log from the point of intersection of these lines to Gull Ledge?
A. Yes.

Q. What is the distance? A. It is a little shade over a mile
and a half.

Q. Can you give the distance exactly? A. It is between a mile
and a half and a mile and six-tenths.

Q. Can you give us an idea of the length and breadth of the
inner island ? A. I should think it would be about a quarter of
a mile long and 200 yards wide.

Q. Did you assist in the measurement made by Capt. Spain
for the purpose of ascertaining the height of the island? A. Yes,
I did. I carried the tape to the water's edge.

Q. What do you say about the correctness of that measure-
ment ? A. I suppose the tape line is correct.

Q. Is it a correct measurement? A. Yes.

Q. How much of the inner island is covered with grass? A.
I should say that a little over half an acre is covered with soil and
grass.

Q. Did you test the depth of the soil? A. Yes, I put a stick
down in several places and found that it averaged about a foot in
depth.

The plaintiff rests.

CAPT. JOHN ANGROVE, called and sworn.

Examined by Mr. MacCoy:

Q. You are a master mariner? A. I am.

Q. How many years have you been going to sea? A. I have
been going to sea for about 36 years.

Q. How many years have you been a master mariner? A.
For 27 years.

Q. Were you captain of the steamer St. Pierre for a num-
ber of years? A. Yes, for 12 years.

Q. You have sailed, where? A. From here to St. Pierre and
return.

Q. Do you know the coast of Nova Scotia from Sheet Har-
bor to Liscombe Light? A. T know the general outlines of it.

Appendix to the Memorial. 79

Q. Are you pretty well acquainted with it? A. I know all the
outlying dangers.

Q. Do you know the place spoken of as Gull Ledge? A. I
know where it is situated.

Q. You laid down the red lines on this chart marked J. Mc.
D. "c"'? A. I did.

Q. I suppose you know the Admiralty charts, and have found
them correct along that shore? A. They are what I have been in
the habit of using.

Q. (Mr. AlacCoy here reads to the witness the bearings of
the schooner Frederick Gerring, Jr., as stated in Capt. Knowlton's
testimony.) You have laid those bearings down on the chart? Is
that correct according to that testimony? A. Yes.

Q. Then this would be the place where the schooner was at
the time she was seized? A. Yes.

O. Capt. MacKenzie states where he found her when she ran
down to her net (read statement as to this from Capt. MacKenzie's
testimony), the place marked position of Gerring according to
Capt. i^IacKenzie's testimony shows where she would be, according
to Capt. MacKenzie's statement as to where he found her? A. Yes.

Q. These bearings that you have marked on the chart are cor-
rect according to that testimony? A. Yes.

O. Now before an easterly blow, what is the direction of the
current on that shore? A. Just before an easterly blow, the cur-
rent sets to the westward.

Q. Do you know the direction? A. It sets directly westward,
west along the shore, conforming somewhat to the trend of the
land.

Q. Have you marked the direction of the current on that
chart? A. Yes.

O. Immediately before a strong easterly blow, what would be
the rate of the current there according to your experience? A. It
depends upon the force of the following wind. I have seen it run
as high as a mile and a half an hour. With a strong easterly wind
it would run from half to three-quarters of a mile an hour.

Q. Capt. Knowlton says that the next day there was quite a
strong easterly wind. Assuming that to be so, in your judgment
what would be the rate of current on that coast? A. I should say
it would be less than half a mile an hour in that vicinity. It
was running to the westward.

80 The Frederick G erring, Jr.

Q. Captain Knowlton says that when he first saw the Gerring
she was lying with her head sails down, and her fore-sail and
main-sail set with the booms off to starboard. (Reads evidence on
this point. ) I want to ask you with the wind blowing very lightly
from the eastward, the current running half a mile an hour to the
westward, the booms over the starboard side well out, the vessel
fastened to her seine, with about 100 barrels of mackerel in it,
and the seine about 15 fathoms deep in the water, in what direc-
tion the vessel would drift? A. Fishermen usually take their seine
on the quarter to keep it clear of the vessel when in motion. The
trend of the wind and current would send her in a south-westerly
direction. I would say that she would probably make a course west
by south. That is leaving a large margin.

Q. I want to ask you, supposing that there was a heavy swell
on the shore, that the wind was blowing from the east very lightly,
and that the vessel was in that position, and fastened to her net,
whether she would drift inshore, or along shore, or more to the
southward and westward? A. I don't think, with the weather
you state, that there would be swell enough from the Southward to
give her an inshore trend against any light breeze that might be
blowing at the moment. Of course if a vessel is lying without her
sail she would not go more than a few hundred yards an hour.

Q. With the booms out to starboard and the sails well over,
would the wind be sufficient to counteract the heavy swell? A. I
should say so, if not more. If the vessel was keeping clear of her
net she must have been making to the southward.

Q. Under circumstances such as Capt. Knowlton details,
would it be possible for the vessel to drift from where she was
found by Capt. AlacKenzie to where she was seized by Capt.
Knowlton? A. I cannot see very well how she could do it. I
would say that she would not.

O. Have you any doubt about it? A. No, not the slightest.

Q. She would have to drift north by west? A. Yes, about
that.

O. Then she would have to drift north by west from the
place where Capt. MacKenzie found her, to the place where Capt.
MacKen.zic seized her? A. Yes.

Appendix to the Memorial. 81

Q. From your experience, with the current setting to the
west, and the condition of the wind, and the position of the vessel
as stated, would it be possible for her to drift north by west on
that course? A. I cannot see it.

O. In your judgment could it be done? A. No, it could not,
the vessel would have to go back against her own sails.

O. If she is fastened to her seine, and that seine is deep in the
water, say from 8 to 10 fathoms, would that vessel have a tendency
with her sails up and the wind from the east, to follow the direc-
tion of the swell or the direction of the current? A. She would
have a tendency to follow the direction of the current ; the seine
would carry her with the current.

O. Capt. Knowlton says that her head was to the southward,
off shore, at the time he found her, and I think he says that the
net was on the port side? A. It would have to be on the port
side. If the boom was to starboard the seine was certainly on
the port side.

Q. If the seine, at the time of the seizure was on the port
side, and the vessel's head vras off shore, and her sails were in the
position Captain Knowlton describes, eould she have fouled her
seine? A. Not unless there was not sufficient wind to counteract
the swell.

Q. According to your judgment, without the seine at all sup-
pose the vessel was there headed off shore with the current setting
to the westward, and very little wind, and there was a heavy
swell on shore, would that swell be sufficient to counteract the
wind from the east and the current, so as to carry her in the
direction she must have gone if she was found where Capt. Knowl-
ton says she was? A. The vessel must have had wind enough to
counteract the swell.

Q. How many times have you been up and down that coast,
and taken observations on it? A. Once a fortnight for 15 years.

O. I understand that there is always a strong current setting
to the west before an easterly blow? A. Yes.

Q. What is the depth of a seine when it is pursed up? A.
From 12 to 18 fathoms.

Q. Do you know whether there is a roll towards the shore
before an easterly blow? A. There is always more or less swell
running in before an easterly blow.

82 The Frederick Gerring, Jr.

Q. I want you to give me, as near as you can get to it, the dis-
tance from the place where Capt. MacKenzie left the vessel fastened
to her seine to where Capt. Knowlton said she was. A. It is very
little short of two miles, say a mile and seven-eighths.

Q. You said that her drift would be west by south? A. Yes,
about that.

Q. Of course a vessel would drift quicker if she were light,
than if she had a seine attached? A. Yes.

Cross-examined by Mr. Ritchie:

Q. According to the chart marked J. Mc. D. "c," how far are
Capt. Knowlton's bearings showing the place where the seizure was
made from Gull Ledge? A. Somewhere about a mile and three-
quarters.

Q. You know the cruiser Vigilant? A. Yes, I have seen
her.

Q. Assuming that she left the place indicated as that where
the seine of the Gerring was set, going to the westward at about
4 o'clock in the afternoon, with a swell from the southward and
hardly any wind, would she drift inshore at all ? A. If she was
tending outwards, I don't think she would.

Q. If she were keeping about three miles from the shore, keep-
ing to the westward, with hardly any wind and a southerly swe/1,
would she drift inshore? A. She would have tendency to do so,
but the master would be able to correct it.

Q. The lighter wind there was, the greater would be the tend-
ency to drift inshore? A. Yes.

Q. I want to ask you, supposing the seine of the Gerring
was set at about 4 o'clock, or between 4 and half past 4 o'clock, at
the place indicated by Capt. McKenzie, and the schooner then left
the seine and was sailing up and down while they were pulling the
seine, during that operation assuming that there was little or no
wind, and a southerly swell, what would be the trend of the seine?
A. The trend of the seine would be with the current. The swell
would have no effect upon it. The seine would be 12 to 14 fathoms
deep, while the swell would be simply on the surface, so that the
current would have more effect upon the seine than it would have
on the vessel.

Appendix to the Memorial. 83

Q. Have you made any experiments to determine that? A.
Nothing more than that I have seen fishermen out working when
I was passing through them.

Q. Have you got a positive idea about that? A. I would not
like to swear positively, but speaking from a general knowledge of
ocean currents. I imagine that that would be the case.

O. Supposing the seine was made fast to the schooner some-
where near where it was put out, upon what do you base your opin-
ion that she would not work inshore? A. Capt. MacKenzie says
that the schooner was fast to the seine with the boom on the star-
board side, the vessel headed to the south, and the current setting
to the westward. This was setting the seine towards the schooner,
and if the schooner did not get out of the way of the seine, she
would foul it. Therefore there must have been air enough to keep
the schooner drifting faster than the net. She certainly would not
go astern.

Q. Then the first ground you state in support of your opinion
that she would not drift inshnre, is the fact that the seine was on
the port side of the schooner? A. Yes.

O. And the next is the fact which you assume that the seine
did not foul the schooner? A. Yes.

Q. Bringing the seine on the port side of the schooner, would
that bring it inshore? A. Not necessarily, it would bring it to the
eastward of the schooner. The schooner going ahead would trail
the seine to a certain extent behind her.

Q. What other reason have you for stating this opinion of
yours? A. The impossibility of the schooner going astern with
her sails full on one side.

Q. Now, if the seine were set where Capt. MacKenzie says it
was between 4 and half past 4 o'clock, and if the vessel was seized
something after six, you base your opinion on the fact of the sails
having been in what position that time? A. On the ship's starboard
side.

Q. If that is not so, you would not express any opinion about
it? A. I would not express so strong an opinion.

Q. That is the main ground you have? A. Yes.

Q. Now, with a southerly swell, and the current as it is there,
the natural tendency would be to drift the vessel inshore with a
tendency to the westward? A. If there was nothing to influence

84 The Frederick Gerring, Jr.

the vessel in any way, I would say that she would probably make a
northwesterly course. I understand the meaning of the question
to be that she was not attached to the seine. That would take her
in the direction of Little White Island.

Q. You would not be prepared to say that she would not drift
more inshore than that? A. If I was in a disabled vessel there, I
would expect her to go ashore in the vicinity of Little White Is-
land. The current is about equal to the trend of the swell.

Q. She might go north or north-west? A. She might but
it would not be much.

Q. It would depend on the force of the swell ? A. Yes.

Q. The heavier the swell the more she would go to the north ?
A. Yes.

Q. Is there anything else that you base your opinion on than
the fact of the vessel being in that position with her sails on the
starboard side? What other ground have you for saying that she
did not drift as Capt. MacKenzie says he saw her drift? Is there
anything else than the fact that the sails were on the starboard
side ? A. In all my experience at sea, I never knew the opposite to
happen under the circumstances. I know of nothing else. If Capt.
MacKenzie's statement is correct, the other man must be wrong.

Q. If the sails had been down all the time what would you say
in that case? A. That would be a different thing; I think that she
would have drifted more in a northwardly direction.

Q. I suppose these swells and currents do not always work in
the same way? A. They repeat themselves pretty correctly.

Q. Do you not sometimes drift in a way that you cannot ac-
count for? A. Very seldom.

Q. Do you mean that it is impossible, or only that it is un-
usual ? A. If a person has taken note of the weather on our coast,
he finds that they repeat themselves as regularly as clockwork. I
never knew the currents to get out of their regular course, taking
everything into consideration at the time.

Q. How is it possible for you to tell us the westerly drift that
a vessel would have on that day without having an accurate knowl-
edge of the extent of the swell? A. I know from Capt. Mac-
Kenzie's report of the next day that a south-easterly gale was
blowing up.

Q. In finding out whether she will drift further to the north
you must estimate the extent of the swell? A. Certainly.

Appendix to the Memorial. 85

Q. How do you arrive at an accurate knowledge of the extent
of the swell that day? A. That comes from practice; it does not
happen every day the same. ; I

Q. How do you know the extent of the swells on shore that
day? A. I have a pretty good knowledge of the swells that roll
in on the shore almost any day. It varies every day.

(The Court: How far would you pass from this locality on
your trips going to St. Pierre? A. Not more than 4 miles.)

O. When you were speaking of the strength of the current
there, you said it would run half a mile an hour? A. I imagine
that it would not be less.

Q. Did you mean a nautical mile? A. Yes.

Q. Your experience along the coast has been how far from
the shore ? A. Generally, between 3 and 4 miles, but I have been in
right close to the rocks.

Q. Can you tell me whether nearer to the shore, the current
is more variable in consequence of following the trend of the land
than it is further out? A. Inside the shoals, I think it is more
influenced by the tide than it is further off.

Q. Therefore, close inshore the current would not have the
same effect upon an object? A. I imagine not among the islands.

Rc-examincd by Mr. MacCoy:

Q. In speaking of the force of the current that day, you base
your judgment upon the fact that there was very little wind, and
that there was an easterly blow the next day? A. That is what I
base my opinion on.

Q. Is there with very little wind, immediately before an east-
erly blow, what is called a heavy swell on the shore? A. (Ob-
jected to.) The south-west swell always increases 24 hours be-
fore a south-easterly gale.

O. Would that be a heavy ground swell, or would it be pretty
much on the surface? A. I don't think it would go more than a
couple of fathoms under water.

(The Court: I understood you to say that assuming the bear-
ings given by Capt. Knowlton and Commander Spain to be ac-
curately stated, the location they made of the bcarin;;s on the map
is correct? A. Yes, quite correct.)

86 The Frederick Gerring, Jr,

O. And assuming the bearings given by Capt. MacKenzie to be
correct, those bearings are also correctly stated on the chart? A.
Yes, it is correctly stated on the chart,

CAPTAIN WILLIAM NAUSS, called and sworn.

Examined by Mr. MacCoy:

Q. You have been engaged in the fishing business? A. Yes.

Q. Have you commanded many fishing vessels? A. Yes, I
have commanded vessels from this port and from the port of
Gloucester also.

Q. For how many years? A. I commanded vessels for 14
years for one firm out of Gloucester.

Q. How many years have you been in our own vessels? A.
For 10 or 12 years.

Q. You are a Nova Scotian? A. Yes.

Q. You live in Halifa:?^? A. I live here now.

Q. Do you know the coast that has been spoken of? A. Yes,
I have known it pretty well for 36 or 37 years.

Q. Have you fished off the place known as Gull Ledge? A.
Yes.

Q. For many years? A. I have been back and forward for 27
or 29 years.

Q. You have laid down the courses on this chart too? A.
(Referring to chart J. Mc. D. "c") Yes.

Q. As laid down they are correct? A. Yes.

Q. Will you tell me the direction or trend of the current in the
vicinity of Gull Ledge immediately before an easterly blow? A.
I always found the current ruuning westwardly, and more so
before an easterly breeze.

Q. You have tested the bearings as testified to by Capt. Mac-
Kenzie? A. Yes.

O. And this chart shows the spot where the vessel would be
according to Capt. MacKenzie's evidence? A. Yes.

Q. Captain Knowlton says that she was heading off shore.
Bearing this in mind, is it possible with a westwardly current for
a vessel placed in the position that she was in, with the wind to the
east, and very little wind, and the current running in a westerly
direction, and a heavy swell setting on shore, to have drifted from

Appendix to the Memorial. 87

where Capt. MacKenzie placed her to where she was found by Cap-
tain Knowlton? A. In my judgment it is not possible. I have
been in fishing vessels for 27 to 30 years. When bailing fish
out we always have to keep the vessel going ahead a little. When
bailing fish, we have to have the booms out and the further they are
out the further the vessel will go ahead. We have to keep the
booms well out or she will back down on the seine.

O. The booms being on the starboard side, would that indi-
cate the direction of the wind? A. The wind was from the east.
You can bail fish on either side. The wind would be on the opposite
side to the side that the booms were out over,

O. Now with the current she would have to drift north by
west? A. Pretty near,

Q. She would have to go against the wind, and in a straight
direction to the point where she was found? A, Yes,

O. And that v/ould be north by west? A, Yes.

Q. Now at the time she was found by Capt. Knowlton, she
was heading off shore. What is the depth of a seine when it is
pursed up? A, They vary. The depth would be from 25 to 30
fathoms at first, and then they purse up to 15 or 16 fathoms.

Q, When a seine is pursed up, is the vessel brought alongside ?
A, Yes, she must be. The seine is fastened fore and aft to the ves-
sel, so as to make her lie square or you cannot bail out.

Q. Have you pursed up seines in this locality? A, Yes, or not
far from it,

Q. What efifect has the seine, after it is pursed up, upon the
drift of the vessel? A. She would tend the way the current goes.
The current goes in a westerly direction, the seine would drag the
vessel that way.

Q, With very little wind from the east, and the seine in the
water as you describe, and the current running as you describe, in
what direction would the vessel drift in your judgment? A. She
would drift west by south. She would drift from half to three
quarters of a mile an hour. It would depend on the wind. She
would go fully as fast as the current,

Q. There being very little wind, and a heavy swell on shore,
would that have a tendency to carry her in, or would she still drift
in the direction you speak of? A, The seine would have a tendency
to keep her in a westerly or south-westerly direction.

88 The Frederick Gerring, Jr.

{The Court: The current would have more effect on the seine
than it would on the vessel? A. Yes.)

Q. Would that counteract the tendency of the swell towards
the shore? A. Yes.

Q. Suppose that there is very little wind from the east, and
her booms are over as described, would that be sufficient to coun-
teract the effect of the swell ? A. Yes, it would.

Q. Suppose a vessel is not fastened to her seine and is headed
off shore, and her booms are out as described, and the current is
running to the west, and there is very little wind from the east, in
what direction would she drift; would she drift to the shore? A.
She would drag a little in but not much.

Q. If there was any wind, would it counteract the swell ? A.
It would take very little wind to do it.

Cross-examined by Mr. Ritchie:

O. Do you say that assuming the Gerring to have set her
net in the place indicated by Capt. MacKenzie, and assuming the
other conditions to be as stated, it is impossible that she could drift
from that point in a north-westerly direction? A. Yes, it is im-
possible.

O. The position stated by Capt. MacKenzie is represented on
the chart marked J. Mc. D. "c?" A. Yes.

Q. And you say that assuming the conditions to be as stated,
it would be impossible for the vessel to drift to White Island ? A.
Yes, according to the conditions stated.

Q. In making up your opinion how do you understand that
the sails of the Gerring were from the time her net was set down
to the time of her seizure? A. It is said that the sails were on the
starboard side, that is what I understand.

Q. How do you understand the vessel was heading during that
time? A. I understand that she was heading in a southwardly di-
rection from the shore, and that the wind was to the eastward.

Q. Have you ever been on Gull Ledge? A. I have been all
around it, but I have never been on shore. I have sailed pretty
close to it, both inside and out.

Q. Your opinion is that on that day off White Island there
was not sufficient swell to take a vessel inshore at all ? A, I don't
say it would not take her inshore at all, but it would not be as
much as is stated by the witnesses for the crown.

Appendix to the Memorial. 89

Q. The extent to which the swell would take her in depends
upon the strength of the swell? A. The effect of the current on
the seine would more than counteract the swell.

Q. But the extent to which the vessel would go in would de-
pend upon the strength of the swell? A. Yes, the more swell, the
more she would go in.

Q. But you think the swell that day was not more than suffi-
cient to counteract the current ? A. I would think that the current
and the sail would more than counteract the swell.

Q. Suppose there was no wind, in that case she would drift
in more? A. She would go in a westwardly direction; I don't
think she would go northwardly.

Q. You think it would not take her inshore ? A. It would take
her in very little. The seine with 200 barrels of mackerel in it,
would hold her like an anchor.

Q. You assume that there were 200 barrels of mackerel in the
seine ? A. If there were only 100 barrels in it, it would be quite a
drag on her.

O. How do you understand that she was heading? A. I
understand that she was heading off shore.

Q. In what direction ? A. It would be hard for me to tell. -

Q. Towards which point of the compass did you assume that
her head was, or did you take that into consideration at all? A.
They said the wind was east ; I understood that she was going to
the westward.

Q. In forming your opinion, how did you assume that her
head was pointing? A. I assumed it was in somewhat of a south-
wardly or eastwardly direction ; it depends upon how the wind
was.

Q. You would not be surprised to find a vessel with a heavy
southwardly swell on that coast, making from 150 to 200 yards,
supposing a seine was fastened to her? A. I don't think she could
if she had anything fastened to her. I could not say how much
she would go if she were separate.

Q. Do you say it is impossible for a schooner in a couple
of hours with a heavy southwardly swell to get 200 yards nearer
to the shore? A. She might with nothing fastened to her.

Q. With the seine fastened to her, what would you give her?
A. I would not give her anything. She would drag to the west-
ward.

90 The Frederick Gerring, Jr.

Q. Assume that there was no wind, would it be impossible
for her to drift 100 yards nearer to the shore? A. With the cur-
rent running she would not.

Q. Do you know that the current varies? A. As a rule it
runs in a westwardly direction; sometimes it runs a little slack.

Q. You are assuming that at this time it was running at its
strongest? A. Well, it is said that there was a heavy wind the
next day.

FRANCIS HENRY, called and sworn.

Examined by Mr. MacCoy:

Q. You are a fisherman? A. Yes.

Q. How many years have you been engaged in fishing? A.
For about 17 or 18 years, I have been master of a fishing vessel
for 4 or 5 years.

Q. Do you know this coast ? A. Yes, I have been up and down
it frequently.

Q. Are you a Nova Scotian? A. Yes.

Q. Where do you live? A. I live in Halifax.

Q. When were you last at the place referred to in this suit?
A. I cannot say exactly.

Q. What business are you engaged in now? A. I have been
in the wrecking and diving business for 4 or 5 years.

Q. Do you know the place spoken of in this suit? A. Yes.

Q. Have you been close there? A. No, not very close; I have
been 20 or 30 miles from there.

Q. Do you know anything about the tides there ? A. Yes, the
tides there are about the same as on any other part of the coast be-
tween Halifax and Canso.

Q. What is the trend of the tide? A. It trends west to
W. S. W.

Q. Do you know anything of the rate of the current ? A. Yes,
it runs from a half to three-quarters of a mile an hour.

Q. Is it stronger before an easterly blow? A. Yes, generally.

Q. Suppose you find a fishing vessel headed off shore with her
booms well out on the starboard side, would that indicate which
way the wind was? A. Yes, the wind would be to the eastward.

Q. Do you know which way the vessel would drift with a

Appendix to the Memorial. 91

very light wind from the eastward, the current setting to the west-
ward, and the booms of the vessel well over to the starboard side?
A. With a little wind, I think she would make a west by south
course. If the vessel had a seine attached she would make a west-
wardly course.

(By the Court: Have you a personal experience as to how a
seine attached to a vessel acts? A. The nets will always go with
the tide.)

Q. With a heavy swell setting on shore, notwithstanding that
the current is setting to the westward, and a net attached to the
vessel she would go with the current ? A. Yes that is my opinion.

{The Court: Have you any personal experience upon which
to base your opinion? A. No, I never was in a vessel with a seine
attached to her.)

Q. From your experience would you say that it was possible
for that vessel under the circumstances, to drift from where Capt.
MacKenzie placed her, to where Capt. Knowlton found her? A.
No, not under these conditions.

Cross-examined by Mr. Ritchie:

Q. Would the fore-sail and main-sail set with the booms off
to starboard, have any effect upon her drift if the sheets were off?
A. If she was headed in a southwardly direction, it would have the
effect of taking her off a little.

Q. If the sheets were off with a slight easterly wind, and with
the sails off, would they have any effect ? A. Yes, they would have
the effect of taking her off shore.

Q. You think that the fact of the sheets being off does not
make any difference? A. Yes, there is a difference.

Q. The wind would not have as much effect if the sheets
were off? A. There would be a different effect.

Q. With the sheets held in flat the wind would have more ef-
fect ? A. Yes.

Q. What is the object of throwing the sheets off? A. It is to
make the vessel lie steady.

Q. The sails were arranged so that the wind would not have
the effect of moving her? A. She had to move a little to prevent
the seine from getting up under the bow.

92 The Frederick Gerring, Jr.

Q. With the sheets off, the sails would have very little more
effect than if they were not up at all? A. They would have more
effect than that.

Q. I said very little more effect? A. They would have some
effect ; they would have the effect of making the vessel move ahead
a little.

EDWARD MORRIS, called and sworn.

Examined by Mr. MacCoy:

Q. You are the owner of the schooner Frederick Gerring Jr.?
A. Yes.

O. You are a native of Guysboro' County in this province?
A. Y?s.

Q. You are now living in the United States? A. Yes.

Q. How many years have you been going to sea? A. I have
been going almost ever since I could lift an oar.

Q. In what capacity ? A. I have been going in fishing vessels.

Q. Do you know the place spoken of as Gull Ledge? A. Yes.

Q. How long have you known it ? A. When I was a boy my
father used to fish out of Liscombe, and I have fished with him. I
have also fished there in vessels.

Q. For how many years? A. For many years.

Q. What do you know about the current? A, The current
sets along the coast about W. S. W.

Q. Have you had experience in pursing seines? A. Yes, for
7 or 8 years.

Q. Describe how it is done? A. You take the seine and set
it out of the boat, and when you get a school of fish you go along-
side the seine with the vessel, and make it fast to the vessel for-
ward and aft. You make the jibs fast and guy out the booms
and bail out the fish with a long handled dip-net right on the deck
of the vessel.

Q. Have you had experience when a seine is in the water in
regard to the direction the vessel will go in? A. When you get
alongside the seine, and are dipping out the fish the vessel must sag
ahead a little or the seine will sag around the bow.

Q. In sagging ahead a little with a westwardly current, a
light breeze from the east, and a heavy swell towards the shore in
which direction will the vessel go according to your judgment? A.
If the vessel heads the swell, it does not make as much impression
as if she is lying sideways.

Appendix to the Memorial. 93

Q. Therefore, if there was no wind at all the current running
against the seine and the vessel should carry her along the coast
in the direction of the current. With the booms well over on the
starboard side and a slight wind from the east without the seine
attached at all in which direction would she drift? A. If there
was no wind at all she would go with the current. A little air
in the sails would counteract the swell.

Q. Have you had personal experience as to the effect of the
swell and currents upon a vessel with a seine attached to her? A.
Yes, I have been a good many times on the coast. The vessel is
only a small item on the seine. The seine goes to the bottom and
the current sweeps it right along.

Q. What is the depth of the seine? A, 28 fathoms to the
bottom.

Q. What is the depth of the seine when it is pursed up? A.
It is 12 to 14 fathoms.

Q. Would the tide have a greater effect upon a vessel with the
seine attached than if the seine was not attached? A. Yes, a great
deal more.

Q. The booms being out on the starboard side and the vessel
heading off the land, did that indicate the direction of the wind ? A.
The wind must have been to the east with the booms out on the
starboard side.

O. Which side would she take the fish in on then? A. On the
port side.

O. From your experience on the coast would it be possible for
a vessel under the conditions testified to here, to drift from the
place where Capt. MacKenzie placed her to where she was found
bythe captain of the Aberdeen F A. No, it is impossible.

Q. Wliy? A. She would have to drift across the wind and
tide stern foremost, and that is an impossible thing to do.

Q. Now which way would the wind and tide carry her? A.
They ought to carry her west by south.

Q. Why would she go that way? A. On account of the tide.

O. Would the swell have any effect upon her? A. No, it
would only affect the vessel and would not have any effect at all
upon the seine.

Q. If there was a little wind there would be a smooth swell?
A. Yes.

Q. Which would not affect the vessel? A. No.

94 The Frederick Gerring, Jr.

Cross-examined by Mr. Ritchie:

O. Is it usual for a fishing vessel to lie with her sheets off and
her jibs down when she is taking fish out of the net? A. Yes, that
is the way they have to do.

Q. What is the object of it? A. It is on account of the seine.
If the jibs were kept up it would tear the seine all to pieces.

O. Why do you let the sheets off? A. They have to do it.
If the sheets were kept in she would go stern foremost if the jibs
were down.

Q. The object is to keep her in about the same position? A.
Yes.

Q. In what direction do you think the vessel would have
drifted if the sails had been down and everything else as it was?
A. She would go to the westward.

Q. So the fact of the sails being up with the sheets off does
not affect the matter much, one way or the other? A. If there was
no wind it would not. With a breeze it would. She would have
drifted about the same way if the sails had been down with the
seine fast to her as it was.

O. Then what you base your judgment upon is the fact that
the current in your opinion was so strong that it would prevent the
swell from setting the vessel inshore at all? A. Yes, and there
must have been a little air or wind.

Q. What would be the effect while the vessel was taking in her
fish if she was making to the eastward? A. She could not make to
the eastward at that time with the wind and tide. The wind was to
the eastward.

Q. What I want to ask you is, supposing when the vessel was
taking in her fish she was making to the eastward, how would that
affect her drift? A. I did not understand that. If the wind was to
the eastward and the tide was setting to the west I do not see how
the vessel could make an easterly drift.

O. Suppose she was working up against the current she would
drift in a little more ? A. She could not be doing that ; it is im-
possible.

O. Is this correct, considering that the current was running to
the west, and that there was a swell inshore, if the vessel had been
in such a position that she was working to the eastward she would
make more inshore than if she was not working to the eastward?

Appendix to flic Memorial. 95

A. I cannot agree with that. I don't see how a vessel can make to
the eastward with the current running to the westward.

Q. But if she is going against the current she will drift more
inshore? A. Yes.

Judgment of Chief Justice MacDonald.

This is an action claiming the condemnation of the schooner
Frederick G erring, a vessel of the United States of America for
a violation of the Fishery Laws of Canada.

The vessel was seized on the 25th day of May last past off
Liscombe, on the southern coast of Nova Scotia, by the Dominion
cruiser Aberdeen, where it is alleged she was engaged in fishing
within three miles of the coast in violation of law. It is clearly
proved that the defendant vessel when seized was engaged in
fshirg mackerel, but the defendants allege by way of defense.
I'irst. that when seized the vessel was not within three miles of
the const, and Second, that if at the time of seizure she was within
the three-mile limit, she had thrown her seine, in which the fish
were taken, while beyond three miles from the coast, and when
seized was engaged only in saving from the seine the fish there
lawfully enclosed by the seine. The facts appear to be concisely
as follows : On the morning of the 25th of May aforesaid the
fishing cruiser Vigilant, Capt. MacKenzie, commander, was cruis-
ing off Liscombe when he saw the defendant vessel with others, also
fishing vessels, sailing along the coast. He first saw the Fred-
crick Gerriuff between four and half past four p. m. fishing.
The seine had been thrown and was then pursed up, and the
schooner was going up to her boat which was attached to the
seine, in which a quantity of fish was enclosed. Capt. MacKenzie
passed within two hundred yards of the schooner and seine, but
(lirl not disturb her operations, as having taken his bearings and
that of the schooner he decided that she was at least a half a
mile outside of the prohibited line. The Vigilant then proceeded
to the westward, cruising slowly along the coast, when about an
hour and a half afterwards he observed the Canadian steam cruiser
Aberdeen coming up from the west and south, and about half an
hour afterwards saw her alongside the Frederick G erring. The

96 The Frederick Gerring, Jr.

Vigilant was at this time some distance to the westward of the
Frederick Gerring. On approaching the Frederick Gerring and
finding her engaged in fishing Capt. Knowlton of the Aberdeen
took the bearings of his own ship and that of the Frederick
Gerring and found that according to those bearings she was
within two miles of the coast, and after communicating
with the master of the Frederick Gerring arrested her for the
offence of fishing within the prescribed limits. The evidence of
Capt. Knowlton and his officers as to the exact locality in which he
found the Frederick Gerring when the Aberdeen came up to her,
appear to be very definite and precise. The cross bearings by
which he determined that locality appear to be very carefully taken
by himself and verified by his oflficers, all very intelligent and seem-
ingly capable men, and it was admitted by Mr. MacCoy, the learned
counsel for the defense, that if these bearings were correct, and no
error, accidental or intentional, occurred in taking them, it could
not be disputed that the defendant vessel was more than a mile in-
side of the prohibited line when seized. The master of the Fred-
erick Gerring took no bearings and could give no idea of his posi-
tion other than an impression he entertained that he could not in
the time which had intervened since he threw his seine, have drifted
so far inwards from the place where Capt. MacKenzie had at that
time located him. This in fact is the only argument on which the
defendants rest this point of their case, that is to say, if Capt. Mac-
Kenzie was right in the position assigned to the schooner when he
left her about half past four o'clock p. m., it was improbable
if not impossible she could have in the intervening time
drifted inshore so far as the spot where Capt. Knowlton
alleges he found her, and several respectable sea-faring per-
sons were examined, who stated their opinion as experts that
taking into consideration the state of the weather, wind, tide
and currents then prevailing at this particular locality, they
did not think it likely or possible that the change of the posi-
tion of the schooner or seine involved in the contention of Capt.
Knowlton could have taken place. Apart from the recognized un-
certainty of expert evidence of this character, it is in evidence that
the master of the Frederick Gerring at the time the Vigilant
was in his neighborhood was himself uncertain as to his position
and was guided in his decision to throw his seine by

Appendix to the Memorial. 97

the statement of Capt. MacKenzie that it was safe to
do so, and his subsequent declaration that he could not
on his oath state on which side of the line he was
when he threw his seine, indicates the same uncertainty as to his
position. But the expert testimony to which I have referred, is
very much weakened by the evidence of Capt. MacKenzie of the
Vigilant, a man fully as capable, experienced and intelligent as
those persons called by the defense, and perhaps from the nature
of his recent employment, more likely to be familiar with the
movements of the tides and currents in the locality referred to,
than most of those expert witnesses. He says that while sailing
westerly after leaving the Frederick G erring his own schooner
was carried by the currents or tides inside the three-mile limit. At
the time he observed the approach of the Aberdeen Capt. Mac-
Kenzie was asked. "Was there any wind at the time you passed
the Gerring? A. There was just enough for the G erring to get
alongside her net.

O. With her sails balanced and half a mile away, and the net
in the sea, would she be half a mile in the course of an hour?
A. Yes, with the swell and the current.

Q. Further than that, I suppose? A. It may "be.

Q. What is your judgment about that? A. That day, accord-
ing to the way I was carried in myself, she would.

O. How far did you drift in that day? A. I can hardly say,
but I got inside the three miles."

Capt. MacKenzie also states the very important fact, that
when he saw the Aberdeen approaching the Frederick G erring,
he observed that the latter had got within the three-mile limit.
When in addition to all this evidence, we consider that of Capt.
Spain, the commander of the Canadian Fishery Fleet and his of-
ficers, I cannot help feeling that the allegation of the Crown, as to
the position of the Frederick Gerring when seized is strongly
supported. Capt. Spain visited the locality in his own ship and
with his chief officers, verified by actual measurements the state-
ment of Capt. Knowlton, unless we are to assume that the latter of-
ficer and his subordinates on board the Aberdeen were guilty of
the most gross and criminal negligence in noting the courses on
which their bearings and cross bearings were based, the point of
intersection fixed bv Cant. Knowlton and verified by Capt. Spain,

98 The Frederick Gerring, Jr.

must be correct. There is not a particle of evidence to justify
such suspicion of such error, and assuming as I do, the correct-
ness of the courses given by Capt. Ktiowlton, Capt. Spain has
shown by the cross bearings taken by himself from these courses
and the measurements made by entirely reliable instruments that
the locality of the Frederick Gerring at the time of seizure was
correctly indicated by Capt. Knowlton. That being so, it is im-
material to inquire how tl*e vessel reached that position. She was
there found, and found fishing, and the legal consequence must
result.

I must not omit to notice the contention of Mr. MacCoy, that
admitting the seine to have been thrown and the fish enclosed in it
outside of the three mile limit, it is not an offense against the Act
to continue to bail the fish from the seine into the vessel after per-
mitting her to drift across the prohibited boundary. I cannot ac-
cept his contention that the "fishing" and the "catching of the fish"
was completed when the seine was successfully thrown. Further
labor is required to save the fish from the sea, and reduce the prop-
erty to useful possession, and until that be completed the act of
fishing and "catching" fish is not in my opinion completed, and in
the case before us tlie crew were in the act of bailing the fish from
the seine into the vessel when the seizure was made. It would, I
apprehend, be difficult, if not impossible to enforce these Fishery
Laws, to which our people attach supreme importance, if those
American subjects who so eagerly seek to compete with our people
along our shores in this industry, and who are not. I fear, always
over scrupulous in tlie observances of laws of which they have
ample notice, should be permitted to plead accident or ignorance
to a charge of infraction of these laws. Such a plea, however
effective it may be to the executive authority of the country, can-
not avail in this court.

There will be a decree condemning the vessel and cargo with
costs.

Order for Judgment.

On the 5th day of August, 1896, before the Honorable James
MacDonald, Local Judge in Admirahy for the Admiralty District
of Nova Scotia.

Appendix to the Memorial. 99

The judge having heard this cause, and the witnesses and evi-
dence adduced, and having heard counsel on behalf of the plaintiff
and of Edward Morris owner of the above named schooner, her
cargo, tackle, rigging, apparel, furniture and stores, pronounced
that the said schooner Frederick Gcrring, Jr., being a foreign
ship or vessel, not navigated according to the laws of the United
Kingdom of Great Britain and Ireland, or of Canada, but being a
ship of the United States of America, owned by foreigners, did on
the 25th day of May, 1896, off Gull Ledge, in the Province of Nova
Scotia, within three marine miles of the coast of Canada, fish for
mackerel and other fish, and was found so fishing, and that the place
where the said schooner Frederick Gerring was so fishing and
was so found fishing, was in the portion of the Dominion of
America, formerly of his late Majesty George the Third, King of
the United Kingdom of Great Britain and Ireland, and not lying
and included in that part of the southern coast of Newfoundland
which extends from Cape Race to the Rameau Islands, nor on the
western or northern coast of Newfoundland from said Cape Race
to the Quirpon Islands, nor .m the shores of the Magdalen Islands,
nor on the coast, bays, harbors and creeks, from Mount Joly on
the southern coast to Labrador, to and through the Straits of
Belle Isle and thence northerly along the coast.

And that said ship or vessel Frederick Gerring, Jr., was
so fishing contrary to the provisions of the convention made be-
tween his late Majesty George the Third, King of the United King-
dom of Great Britain and Ireland, of the one part, and the United
States of America of the other part, made on the 20th day of
October, 1818, and contrary to the provisions of the Acts of the
Parliament of Great Britain and Ireland, made and passed in the
fifty-ninth year of the reign of his late Majesty George the Third,
King of the United Kingdom of Great Britain and Ireland, being
Chapter 58 of the Acts of the said last named Parliament, made
and passed in said year.

And that said ship or vessel Frederick Gerring, Jr., was
found so fishing, and to have been fishing in British waters, within
three marine miles of the coast of Canada, not included within the
limits specified and described in the first article of the convention
between his late Majesty King George the Third, and the United
States of America, made and signed at London on the 20th day of
October, 1818.

100 The Frederick Gerring, Jr.

And that said ship or vessel Frederick Gerring, Jr., was
so found fishing, and to have been fishing, by a fishery officer of
Canada on board of a vessel in the service of the Government of
Canada, and employed in the service of protecting the fisheries.

And that said ship or vessel Frederick Gerring, Jr., be-
ing so found fishing, and to have been fishing, by said fishery officer
was by him brought into the port of Halifax, in the Province of
Nova Scotia, in Canada.

And that said ship or vessel Frederick Gerring, Jr., was
so fishing, and found fishing, and to have been fishing contrary to
the provisions of the Revised Statutes of Canada, Chapter 94, made
and passed by the Parliament of the Dominion of Canada. And the
judge condemned the said ship or vessel Frederick Gerring,
Jr., her cargo, tackle, rigging, apparel, furniture and stores,
together with the fish, seine, fishing gear, supplies and other prop-
erty on board said ship or vessel Frederick Gerring, Jr., at the
time of her seizure by said fishery officer as forfeited to Her
Majesty.

The judge further ordered and it is hereby ordered, adjudged
and decreed, that said Edward Morris, who resides at Gloucester,
in the State of Massachusetts, in the United Stales of America, do
pay to the plaintiff in this action. Her Majesty Queen Victoria,
Queen of the United Kingdom of Great Britain and Ireland, the
plaintiff's costs of this action to be taxed, including costs of the
commission ordered to issue herein and application therefor.

Dated at Halifax, in the Province of Nova Scotia, in the Do-
minion of Canada, this 28th day of August, A. D. 1896.

L. W. Des Barres,

District Registrar.

Order Extending Time.

On reading the affidavit of William F. MacCoy, solicitor for
the owner of the above property, and on motion

It is ordered that the said owner have until the fifteenth day
of September, A. D. 1896, to appeal herem, and perfect the same.
Dated at Halifax this 28th day of August, 1896.

(Signed) L. W. Des Barres,

District Registrar.

Appendix to the Memorial. 101

Notice of Appeal.

Take notice that the appellants have appealed from the
judgment or decision of His Lordship Chief Justice MacDonald,
the Local Judge in Admiralty for the Nova Scotia district, filed or
given herein on the trial of this cause of Our Sovereign Lady the
Queen, Plaintiff, against the ship Frederick Gerring, Jr., her
cargo, tackle, rigging, apparel, furniture and stores. Defendant, in
the Exchequer Court, Nova Scotia district, which said judgment
or decision was filed or delivered on the 18th of August, A. D.
1896, and also appeals from the rule, order or decree granted by
said judge thereupon on the 28th day of August, A. D. 1896.

And also take notice, that the Appellants did on the 31st
day of August, 1896, deposit with the Registrar of the Supreme
Court of Canada at Ottawa, the sum of fifty dollars by way of
security for costs, and said Registrar did set the appeal down for
hearing before the said Supreme Court of Canada for the first day
of the next ensuing session of said court.

The whole of the said judgment or decision, order or decree,
is appealed from.

Dated Halifax, September 1st, A. D. 1896.

William F. MacCoy,

Solicitor of Appellant.
To W. B. A. Ritchie, Esq.,

Solicitor of Respondent.

Statements of Ship's Papers Constituting Plaintiff's
Exhibit J. McD. "A."

License in pursuance of title L, regulation of vessels and do-
mestic commerce of the Revised Statutes of the United States,
given under the hand and seal of the Collector of Customs at the
port of Gloucester, in the district of Gloucester, the 9th day of
May, 1896, granting license to the schooner Frederick Gerring, Jr.,
of Gloucester, Mass., whereof Daniel Doren is master, to be em-
ployed in carrying on the fisheries for one year. Burden. 67
tons and 34 hundredths.

102 The Frederick G erring, Jr.

Certificate of enrolment in conformity to title L, regulation
of vessel in domestic commerce of the Revised Statutes of the
United States, given under the hand and seal of the Deputy Col-
lector of Customs at the port of Gloucester, in the district of
Gloucester, the 9th day of February, 1893, certifying that Edward
Maurice of Gloucester, State of Mass., having sworn that he is a
citizen of the United States and sole owner of the ship or vessel
called the Frederick Gerring, Jr., of Gloucester, whereof John A.
Campbell is at present master, and is a citizen of the United States,
and that the said ship or vessel was built at Essex, in the State of
Mass., in the year 1870, as appears by Register No. 47, issued at
this office, November 29th, 1892, now surrendered, trade changed
and after said Registrar having certified the said ship or vessel has
one deck and two masts and that her length is 7Z 6-10 feet, her
breadth 21 1-10 feet, her depth 7 7-10 feet, and that she measures
67 34-100 tons net tonnage and that she is a schooner and has a
billet head and square stern and that security having been given
according to the said title, the said ship or vessel has been duly
enrolled at the port of Gloucester.

Said certificate bears an endorsement of change of master
dated at Gloucester, May 9th, 1896, signed by the Deputy Col-
lector, stating that Daniel Doren, having taken oath required by
law, is at present master.

Clearance signed by Collector of Customs at port of Liverpool,
N. S., of the Frederick Gerring, Jr., of Gloucester, 67 tons
burden, Doren, Master, from port of Liverpool to the fishery on
the banks, with cargo of fishing supplies for mackerel voyage and
the necessary sea stores for the voyage.

Dated 21st May, 1896.

Settlement of Case.

Writ of Summons

Evidence, viz: —

Capt. Daniel Doren.

James Gracie.

Harvey L. Bailey.

Appendix to the Memorial. 103

Henry Burnester.

John Gough.

Leander Gaudet.

John Gammett.

Alfred Dean.

Capt. Charles Knowlton. ■

Arthur Morin.

Levi Whitman.

Christopher Bernett.

Captain MacKenzie.

Commander Spain.

Ernest Kinney.

WilHam J. Mihie.

Captain Angrove.

Capt. WilHam Hause.

Francis Henry.

Edward Morris.

Ship's Papers, J. McD. "A" Statement of

Chart, J. McD. "B"

Chart, J. McD. "C"

Judgment of Chief Justice MacDonald

Decree

Order enlarging time for appeal

Deposit receipt for appeal

Notice of Appeal

Certificate Registrar

W. B. A. Ritchie,
For Attorney-General of Canada.
William F. MacCoy,

Solicitor for Appellant.

Registrar's Certificate.

Action for Forfeiture.

I, the undersigned Registrar of the Nova Scotia Admiralty
District of the Exchequer Court of Canada, do hereby certify that
the foregoing printed document from page 1 to page 61, inclusive.

104 The Frederick G erring, Jr.

is the case stated by the parties pursuant to section 44 of the Su-
preme and Exchequer Courts Act, and the rules of the Supreme
Court of Canada, in an appeal to the said Supreme Court of Can-
ada between the ship Frederick G erring, Jr., her cargo, etc., De-
fendants (Appellants), and our Sovereign Lady the Queen, Plain-
tiff (Respondent).

In testimony whereof I have hereunto subscribed my name
and affixed the seal of the Nova Scotia Admiralty District of the
Exchequer Court of Canada this 8th day of September, 1896.
(Sgd.) L. W. Des Barres (Seal),
Registrar of the Exchequer Court, Admiralty Division,

Nova Scotia District.

EXHIBIT 6.

The Secretary of State to the American Ambassador at London.

No. 1304. Department of State,

Washington, October 14, i8p6.
His Excellency

Thomas F. Bayard,
etc. etc. etc.
Sir:

I send you a copy of the papers filed in this Department Sep-
tember 12, 1896, by Mr. Edward Morris, of Gloucester Massa-
chusetts, in relation to the seizure by the Canadian authorities of
the fishing schooner Frederick Gerring.

The undisputed facts as disclosed by these papers are, that the
Frederick Gerring cast her nets off Liscombe Island, near the
southern coast of Nova Scotia, May 25, 1896, in the presence of
the Dominion cruiser Vigilant, whose business it was to prevent
poaching within the three-mile limit of Canadian territory by ves-
sels of the United States and other nations. The net was lowered
after consultation with the Commander of the Vigilant and an
expression of his opinion that the schooner was on the high seas
M^ithout the three-mile limit from Liscombe Island. The Vigilant
steamed away while the nets of the Frederick Gerring were in

Appendix to the Memorial. 105

the water, and a few hours later, before the seine had been hauled,
another Canadian police boat, the Aberdeen, came along and seized
the Frederick Gerring on the charge of fishing within the three-
mile limit.

Your attention is especially referred to the opinion of the Ad-
miralty Court in this case, which is among the documents enclosed.
From the recital of facts given by the Judge, the inference is con-
clusive that the Frederick Gerring was outside the limit when she
cast her nets but had drifted within the limit before hauling it.-
The Court held that this was a technical violation of the Canadian
Fishery Laws, and imposed the penalty of forfeiture upon the ves-
sel. The Court closes the opinion in the following language :

'Tt would, I apprehend, be difficult if not impossible to enforce
"these fishery laws, to which our people attach supreme importance,
"if those American subjects, who so eagerly seek to compete with
"our people along our shores in this industry, and who are not, I
"fear, always over scrupulous in the observance of laws of which
"they have ample notice, should be permitted to plead accident or
"ignorance to a charge of infraction of these laws. Such a plea,
"however effective it may be to the executive authority of the
"country, cannot avail in this Court."

There is a plain intimation by the Court that this is a proper
case for the exercise of executive clemency, and you are requested
to bring the facts to the attention of the Secretary of State for For-
eign Affairs and request that the forfeiture of this vessel be re-
mitted, as it is clear from the judgment of the Canadian Admiralty
Court setting aside altogether the testimony furnished by the own-
ers of the vessel, that this was merely an accidental and technical
infraction of the Canadian statute, committed, so far as any volun-
tary act of the Master of the Fishing Schooner is concerned, in the
presence and with the consent of a Canadian police cruiser. It is
not believed that the British Government will permit the penalty
imposed by the Court to be enforced against this vessel.

I am, etc., etc.

Richard Olney.

106 The Frederick G erring, Jr.

EXHIBIT 7.

The American Ambassador to the Secretary of State.

No. 873. Embassy of the United States,

London, February 26 jSpy.
Sir:

Referring to your Instruction No. 1304 of October 14th, 1896,
in relation to the seizure by the Canadian Authorities of the United
States fishing schooner Frederick Gerring, on a charge of fishing
within the territorial waters of the Canadian Dominion, I have the
honor to enclose herewith a copy of my note to Lord Salisbury on
the subject, together with his Lordship's reply thereto of the 20th
instant, in which it is stated that a despatch has been received from
the Governor-General of Canada reporting that no action can be
taken in the matter by the Dominion Government pending the
judgment of the Supreme Court, to which the owner of the vessel
has appealed, and that the case has already been argued before the
Supreme Court, and that it is probable that the decision will be
given in the course of this month.

I have the honor to be,
Sir,
Your obedient servant,

T. F. Bayard.

Enclosures.

1/873 Copy — Mr. Bayard to Lord Salisbury — Nov. 6/96.
2/873 " Lord Salisbury to Mr. Bayard— Feb. 20/97.

The Honorable

Richard Olney,

Secretary of State.

[Enclosure No. 1/873.]

The American Ambassador to Lord Salisbury.

Embassy of the United States,

London, November 6th, 1896.
My Lord:

Under instructions just received from the Secretary of State
of the United States, I have the honor to present, for your Lord-

Appendix to the Memorial. 107

ship's favorable consideration, a case wherein Mr. Edward Mor-
ris, of Gloucester, in the State of Massachusetts, the owner of the
fishing schooner Frederick Gerring, Jr., a citizen of the United
States, appears to have suffered very great hardship and injury at
the hands of the Authorities of the Dominion of Canada, and for
which I believe Her Majesty's Government will not fail to grant
him relief.

In the documents, of which I have now the honor herewith
to enclose copies, a case of great hardship is fully disclosed, which
plainly calls for the equitable interposition and relief by the Execu-
tive Authority, as is suggested in the closing paragraph of the
opinion of the Admiralty Judge at Halifax, in whose court the de-
cree of forfeiture was pronounced.

A clear and succinct statement of the circumstances under which
the seizure of the vessel in question was made, and of the reasons
for confidently anticipating relief at the hands of Her Majesty's
Government, from the harsh technicality, upon which the decree
of condemnation is placed by the Judge, are contained in an Ex-
tract from the Instruction received by me from the Secretary of
State, a copy of which is enclosed herewith and craving your
Lordship's reply, and attention thereto.

I have the honour to be, &c.

(Sd.) T. F. Bayard.
The Most Honorable

The Marquis of Salisbury, K. G.,
&c., &c., &c.

[Enclosure No. 2/873.]

Lord Salisbury to the 'American Ambassador.

Foreign Office,
February 20th, 1897.
Your Excellency:

Referring to my letter of the 31st of December, relative to the
seizure of the United States fishing vessel Frederick Gerring, on
the charge of fishing within the territorial waters of the Canadian

108 The Frederick G erring, Jr.

Dominion, I have the honor to inform your Excellency that a
despatch has been received from the Governor-General of Canada
reporting that no action can now be taken in the matter by the
Dominion Government pending the judgment of the Supreme
Court, to which the owner of the vessel has appealed.

It is stated that the case has already been argued before the
Supreme Court, and that it is probable that the decision will be
given in the course of this month.

I have the honor to be &c.,

(Sd.) Salisbury.
His Excellency,

The Hon. T. F. Bayard,
&c., &c., &c.

EXHIBIT 8.

Edward Morris to the Secretary of State.

Gloucester, Mass., March 29, 'gy.

Hon. John Sherman,

Dear Sir : As I am owner of the Schr. Frederick Gerring,
which was seized by the Canadian Government last May, thought
I would write you about her.

The case was tried in the Supreme Court at Ottawa the first
of November and they have not reached a decision yet. This
case has been up four times since then and been postponed. I
see, now they have postponed it until the first of May again and
I don't know as ever they will reach a decision. My lawyer and
myself are getting pretty well discouraged over it.

After the case was tried in the Admiralty Court at Halifax I
had an interview with Sec. Olney and he advised me to appeal
the case.

I told him they had treated me so badly in the Courts at
Halifax by putting every obstacle in my way that I thought they
would do the same in the upper courts.

I also told him it would cost Five Hundred Dollars.

He said not to let Five Hundred Dollars stand in my way of
appealing this case.

Appendix to the Memorial. 109

I told him the vessel was to be sold in two days' time.

They had only given me fifteen days to appeal in, whereas
they should have given me thirty days.

He stopped the sale of the vessel and the case was appealed.

This vessel has been laying there so long she won't be good
to anyone in a little while and her seines and boats will be all
spoiled.

They let her trip of mackerel stay on board of her until they
were spoiled and only brought half the value when they sold them.
In fact, they have never taken care of anything.

There is no use of my telling all the particulars of the case,
as Sec. Olney looked them over and told me to send them to
Washington, and they are all there now.

It is evident they have no case against the vessel or they
vou!.l have decided it long ago. She was seized over six and
. :ie-half miles from the mainland.

This is hard on me, as I lose between seven and eight thou-
sand dollars, besides the whole year's earnings of the vessel, and
as I am a poor man it has just about ruined me. It has hurt my
credit and damaged me every way.

I am fifty-three years old and have now got to go fishing
again in order to make a living.

In fact, this is a clear case of piracy.

There is no doubt but what they will put it oflf again the
first of May, as I think they will wait until the Behring Sea Claim
is settled.

I sent to Washington a copy of what Chief Justice Strong
of Ottawa said. The decision of the Admiralty Court was wrong
and the Crown should make a clear case and discharge the vessel.

You will see that even their own paper think it unjust the
way they are detaining this case. The piece enclosed is a cutting
from the Halifax "Echo."

You would think it impossible that people could act so preju-
diced. Their Gov. Officers will swear to anything to try to for-
feit the vessel.

I hope you will be kind enough to look into this.
Yours respectfully,

Edward Morris.
(G. E. Morris.)

110 The Frederick G erring, Jr.

Extract from the Halifax Echo.

[Enclosure with Edward Morris' letter of March 2g, iSgy.]

ROTTING AT HER WHARF.

Scii. Frederick Gerring, Jr., Still Tied Up Awaiting the

Decision.

A writer in the Halifax Chronicle thus speaks concerning the
case of sch. Frederick Gerring, Jr.:

"The tardiness of justice or at least how slow our courts of
law handle matters is exemplified in the case of the Frederick
Gerring, Jr. I had almost forgotten the seizure, until taking a
stroll on the Marine and Fishing wharf a few days ago, I saw
the schooner tied up in one of the docks.

"On or about the 25th of last May, she was seized and brought
to Halifax, and in compliance with the law, she was stripped and
handed over to the Admiralty court. Nearly a year has come and
gone and the case rests undecided in the Supreme Court of
Canada, while tlie ship, totally valueless to the owner, gradually
decays. Her cargo has no doubt long before this become worthless.

"The Gerring was condemned by the Cliief Justice of the
Supreme Court of Nova Scotia and then the case was appealed,
but it seems like a hardship on the owner, having to wait such a
length of time since that appeal, which was about six months ago,
for a decision.

"Apart from the question, whetlicr she was guilty of violating
the law or not, it is hard on the owner to have to be in suspense,
and also out of pocket as a consequence of the seizure, and the
delay in giving judgment. It would be quite different if, when
the vessel was seized, her owner was allowed to give bonds equal
to her value and then use her pending the decision of the courts,
which if unfavorable would mean a forfeiture of the bonds."

Appendix to the Memorial. Ill

EXHIBIT 9.

SUPREME COURT OF CANADA.

The Ship Frederick Gerring, Jr. (Defendant), Appellant,

and
Her Majesty the Queen (Plaintiff), Respondent.

On Appeal from the Exchequer Court of Canada, Admi-
ralty District of Nova Scotia.

Appeal from the decision of the Exchequer Court of Can-
ada, Admiralty District of Nova Scotia,^ which decreed that
the ship, her cargo, &c., should be forfeited with costs.

The action was brought against the American fishing schooner
Frederick Gerring, Jr., her cargo, tackle, rigging, apparel, furni-
ture and stores for the condemnation and forfeiture of the same,
the ship having been arrested for the violation of the treaty or
convention of 1818 between Great Britain and the United States
of America, and of the statutes 59 Geo. III. (Imp.) ch. 38, en-
titled "An Act to enable His Majesty to make regulations with
respect to the taking and curing of fish on certain parts of the
coast of Newfoundland, Labrador, and His Majesty's other pos-
sessions in North America according to a convention made be-
tween His Majesty and the United States of America;" and R.
S. C. ch. 94, entitled "An Act respecting Fishing by Foreign Ves-
sels, and the Acts in amendment thereof;" upon the hearing before
the local judge of the Admiralty District of Nova Scotia a decree
was made declaring the forfeiture with costs, and from this de-
cree the owners have taken the present appeal.

The substance of the treaty and of the above mentioned Acts
are set out in the report of the decision of the Exchequer Court.

The vessel was seen fishing off Gull Ledge and Liscombe Light
on the coast of Nova Scotia on the 25th May, 1896, about half
a mile outside of the prohibited line by the captain of the Canadian
fisheries cruiser Vigilant, her seine had been thrown and was then
pursed uj) and she was going up to her boat which was attached

1-5 Can. Ex. R. 164.

112 The Frederick G erring, Jr.

to the seine in which a quantity of fish was enclosed. The Vigi-
lant passed on without disturbing her operations, as her captain
had decided from the bearing he then took that the Gerring was
beyond the three-mile limit. A couple of hours afterwards the
Gerring was seized by the Canadian steam cruiser Aberdeen at a
point within three marine miles of the Nova Scotia coast for the
offence of fishing within the proscribed limits. At the time of the
seizure the crew of the Gerring were engaged in bailing fish out
of the seine and claimed that these fish had been caught when
the seine was cast outside of the prohibited line, and that if they
were at the time of seizure within the three-mile limit (which
they denied), they had drifted across tlie line after the fish had
been taken in the seine, and further, that even if they were with-
in the three-mile zone, it was no offence against the treaty or the
statutes to continue to bail the fish from the seine into the vessel
after she had drifted across the prohibited boundary, for the "fish-
ing" and "catching of the fish" had been completed when the seine
was successfully thrown, outside.

The trial judge found that the bearing taken showed that the
vessel was within the prohibited line when seized, and that the
operation of "fishing" or "taking fish" was then still being carried
on, the process being incomplete until the fish had been bailed into
the vessel and saved from the sea, thus being reduced into useful
possession.

MacCoy, O. C., for the Appellant.
Nezvcombe, Q. C., for the Respondent.

The Chief Justice: For the reason given by Mr. Justice
Gwynne I am of opinion that this appeal should be allowed.

GwYNNE, J. : This appeal must, in my opinion, be allowed
with costs. The evidence is conclusive, and indeed it is not disputed,
that the ship Frederick Gerring, Jr., on the day upon which she
was seized, had laid her seine for the purpose of catching fish in
the sea well outside of the line constituting the limit of three
marine miles from the coast of Nova Scotia, and that while out-
side of such limit she had caught a quantity of fish in the seine,
and had secured them there by hauling up the seine and tying the
ends so as to enclose the fish, pursing the net as it is called, and

Appendix to the Memorial. 113

attaching it with the fish so secured in it to the vessel. All this was
done outside of the three-mile limit, and while inside of it the
persons in charge of the vessel proceeded to bail the fish out of
the seine into the hold of the vessel. While engaged in this opera-
tion she was seized. There was a question raised as to whether
the place where she was seized was in point of fact inside of the
three-mile limit, but assuming it to have been, there was no doubt
that the vessel had drifted to that position while the persons in
charge of her were engaged in bailing the fish out of the seine
into the hold, and unless the being engaged in that operation con-
stitutes "fishing or taking fish within the three marine miles of
the coast of Nova Scotia" there is not a particle of evidence that
the vessel had been, or was then, "fishing for fish" in Canadian
waters within the three marine miles of the coast, or that she was
then preparing to fish in such waters. To construe the act of
bailing fish out of a seine in which they had been caught and
secured outside of the three mile limit, into the hold of a vessel,
which after the fish had been so caught, and while the parties
employed on her were so securing the fish by transferring from
the seine to the hold of the vessel, had drifted by force of cur-
rents inside of the three-mile limit, as a violation of the treaty
rights of the citizens of the United States, or of the Acts of
Parliament passed in relation thereto, would be altogether too
hypercritical a construction to put upon the treaty securing such
rights and the said Acts of Parliament, and can not, in my opinion,
have the sanction of this court, and is. not warranted by any of
the cases referred to on the argument.

The case of Young v. Hichins^ has no bearing upon the
present case. The plaintiff there complained in trespass for that
the defendant had seized and disturbed a fishing seine and net of
the plaintiff thrown into the sea for fish, wherein, as alleged in
the declaration, the plaintiff had taken and enclosed, and then held
enclosed in his own possession, a large number of fish, and tlie
defendant threw another fishing seine and net within and upon
plaintiff's seine, and prevented plaintiff from taking the fish so
taken and enclosed out of his seine, as he otherwise could have
done. It appeared in evidence that the plaintiff had only thrown

16 Q. B. 606.

114 The Frederick Gerring, Jr.

his net partially round the fish in question, leaving a space of
about seven fathoms open which the plaintiff was about to close
up when the disturbance complained of took place. Until this
open space should be closed the fish round which the net was only
partially drawn were at large in the sea, and so could not be held
to have been taken and enclosed and then held enclosed in the
plaintilT's possession, as averred in the declaration. As to the
fish, therefore, it was held that the plaintiff had them not in his
possession, and could not therefore maintain trespass as regarded
them, but for the trespass to the seine he recovered twenty shil-
lings.

Now in that case it was not held that if the fish had been
secured in the seine the action of trespass would not have lain;
much less can that case be an authority for holding that the fish
taken in the seine set by the Gerring, which with the fish secured
in it was hauled up and pursed, as it is called, and attached to
the vessel, were not so in possession of the owners of the Gerring
as to give them an action of trespass against any one who should
bring a vessel alongside of the seine and either put the fish therein
into such vessel, or cut the seine and let the fish fall into the sea.
But the question with which we have to deal is whether or not
the officers of the Dominion Government had any right to seize
the Gerring, with or without the fish so secured in the net so
hauled up and pursed and attached to the vessel as aforesaid. And
this they had no right to do unless the fact of a vessel which had
been engaged in fishing in the open sea, and in tlic seine laid by
which in the open sea fish had been caught, which fish while the
vessel was still in the open sea were secured by the net being
hauled up, the ends tied so as to secure the fish, and so pursed as it
is called, had been attached to the vessel, which afterwards by
force of the winds or currents was driven or drifted into Canadian
waters within the three-mile limits, can by the terms of the laws
of the Dominion of Canada be held to have subjected the vessel
to seizure as a vessel then engaged in fishing for fish in Canadian
waters, and in my opinion the laws of the Dominion are open to
no such construction.

Sedgewick, J. : There can be no question as to whether the
vessel, at the moment she was seized by the S. S. Aberdeen was
within three marine miles of the coast of Nova Scotia. The

Appendix to the Memorial . 115

learned Local Judge in Admiralty for the Nova Scotia Admiralty
District, before whom the case was tried, and who had before him
a number of witnesses as well for the Crown as for the defence,
came to that conclusion, and we must not disturb his finding unless
it is manifest that he is wrong. In my view it is manifest that
he is right. The direct evidence, the evidence of every witness
who made any examination, and who was in a position to testify
as to the result of his own actual observation, was in favour of
the Crown. The three ofiicers of the seized steamer testified that
the Gerring, when seized, was within the three-mile limit. None
of the witnesses who formed part of the crew of the seized vessel
ventured to assert, except as a matter of opinion unsupported by
actual observation, anything to the contrary. Expert evidence,
however, was called on behalf of the defence for the purpose of
showing that if at three o'clock in the afternoon the seized vessel
was outside the three-mile limit, it would be impossible for her
to be within that limit at the time of the seizure. This evidence
was based upon a number of hypotheses which may or may not
have been accurate, but its legal effect or tendency was, in my
view, to prove, not that the Gerring was outside of the three-mile
limit at the time of the seizure, but that she was continuously
within it from the time the seine was set down to the time that
the seizure was made, and that Captain MacKenzie was mistaken
in his opinion as to the exact position, both of his ship and the
Gerring in the early part of the day. We must, however, take
for granted that at the time when the seine was set out the Ger-
ring was outside the three-mile limit, and for the purpose of this
opinion 1 will assume that to have been the fact.

The main question, therefore is: Assuming the seine to have
been set out and the mackerel encompassed by it outside the ter-
ritorial limit, and that the vessel with the seine subsequently
drifted, or came, no matter how, to a point within the three-mile
limit, and that at such point her crew were found bailing the fish «
from the seine into the vessel, was the Gerring, or those control-
ling her, doing an act which would justify her seizure and con-
demnation ?

By the convention of 1818 the United States renounced
forever

116 The Frederick G erring, Jr.

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 said
(Britannic) Majesty's Dominions in America.

By the Imperial statute^ it was enacted that if any foreign
vessel should be found fishing, or to have been fishing, or preparing
to fish, within three marine miles of such coasts, bays, creeks, or
harbours, she should be forfeited, etc. And by our own Act" it is
enacted that if a foreign ship (unlicensed) has been found fishing,
or preparing to fish, or to have been fishing in British waters with-
in three marine miles, etc., she shall be forfeited. The question,
therefore, is not strictly whether under the treaty the Gcrring, at
the time of the seizure, was "taking" fish, but whether under the
Imperial as well as the Canadian statute, she was "fishing." In
my view there is not, and it never was intended that there should
be, any difference between the two, but strictly speaking It is the
statute which governs ; and the vital question, therefore, is : Was
she "fishing" at the time of the seizure, or was she notf

It is, I think, desirable that we should have a clear under-
standing as to what the crew of the vessel were actually doing at
the time of the seizure. It is, I suppose, a matter of common
knowledge what constitutes purse seine fishing, but a brief descrip-
tion of it. as I understand it, may not be out of place.

As to tlie kind of seine used in this case the evidence is not
clear, but it would probably be from 150 to 175 fathoms in length
and from 10 to 12 fathoms in depth. It is rectangular in shape.
When a school of mackerel has been descried the captain, accom-
panied by most of the crew, proceeds as quickly as possible in the
seine-boat to encircle the school with the seine, while the cook is
left to look after the vessel. The seine is paid out by two of the
men in the seine-boat. As soon as the first end of it has been
thrown overboard two of the crew, who did not get into the seine-
boat, row up to the spot in a dory, and seize the buoy attached
to the cork-line at the end, which they hold until the seine-boat
has made a circle. The seine is kept in proper position by means

159 Geo. III. ch. 38.
2R. S. C. ch. 74, Sec. 3.

Appendix to the Memorial. 117

of sinkers attached to the bottom and of floats attached to the top.
When the two ends of the seine are come together it is more or
less cyHndrical in shape, the fish being surrounded by the cylinder.
At the bottom, and running all round it, is a rope, called the purse
line, both ends of which are secured by the men in the seine-boat.
After both ends of the seine have been brought together, one end
of this line is taken by one portion of the crew in the boat and
thp other end by the remainder. By pulling this rope in opposite
directions, the net, which until now is cylindrical in shape, is closed
at the bottom, such closing constituting what is known as the
"pursing" of the seine, the result being to make it assume the form
of a bag or purse, while the school of mackerel, or such portion
of it as has been entrapped, are enclosed within it. The fishing
vessel is then brought alongside the seine, and the latter still float-
ing in the water, with the fish therein enclosed, is attached to the
vessel fore and aft. The area of the enclosure is circumscribed as
may be necessary by gathering in the ends of the seine, and thus
confining the fish to a more limited space in order to render easier
the operation of bailing them out. In nautical language this process
of circumscribing the area of the enclosure is known as "drying
up" the seine. The fish are then bailed out of the seine on board
the vessel. The operation of setting the seine and of pursing it
up is over in about ten or twelve minutes. Hours, in the present
case, at least two, are occupied in the operation of taking the fish
from the seine, the time being dependent upon various causes, but
mainly, I suppose, upon the quantity of fish in the seine. At no
time during any of these operations is the vessel or seine at
anchor; the vessel lays to, and the whole drifts at will with the
tide or current.

As I understand the argument of the appellant, it is contended
that, the fish having been surrounded by the seine, and enclosed
therein outside the three-mile limit, the act of "fishing" was then
complete, and that anything done by the crew of the vessel after
the pursing up process could not be called "taking fish," or "fish-
ing" within the meaning of the convention or of the statutes re-
ferred to. I do not think it necessary to refer at length to the
canons of construction which govern in a case like the present.
Penal statutes, of course, must be construed strictly. When one
is accu.sed of having violated a statute it is clear that he must un-

118 The Frederick G erring, Jr.

mistakably be brought within its provisions ; there must be Ho
doubt about it. But we must not do violence to ordinary lan-
guage; we must not take from plain words their ordinary and
universal meaning for this purpose. The question is whether this
vessel was ''fishing," when, for two hours or more, her crew were
bailing, or scooping out, by means of a dip-net, from the area of
w^ater surrounded by the seine, the one hundred and thirty barrels
(more or less) of mackerel which they finally secured. The act
of fishing is a pursuit consisting, not of a single but of many acts
according to the nature of the fishing. It is not the isolated act
alone either of surrounding the fish by the net, or by taking them
out of the water and obtaining manual custody of them. It is a
continuous process beginning from the time when the preliminary
preparations are being made for the taking of the fish and extend-
ing down to the moment when they are finally reduced to actual
and certain possession. That, at least, is the idea of what "fish-
ing," according to the ordinary acceptation of the word, means,
and that, I think, is the meaning which we must give to the word
in the statutes and treaty. There is here, as I conceive, no need
for interpretation, and the fundamental canon is : "Do not inter-
pret where there is no need of interpretation." If when the S. S.
Aberdeen, moving eastward saw the G erring, a mile and three-
quarters from shore, engaged as I have described, some of her
crew bailing fish from the water, others assisting to confine the
fish into smaller and smaller compass, so as to be more easily
secured; others driving the fish within the ambit of the dip-net
by splashing with their oars in the water; others sorting and dress-
ing and otherwise treating the fish, the question were asked :
"What is the vessel doing?" Would not the inevitable answer be:
"She is fishing?" and if any one on board could be found bold
enough to affirm that she was not "fishing," that that operation
was completed hours before, when the seine was pursed up and
the mackerel therein enclosed, would he not be set down as either
ignorant of language or as bereft of reason?

Even if the question depended upon the "taking" of the fish,
I do not understand that fish are "taken" when they are enclosed
in a seine, or encompassed about by it. They are still alive in
their native element, possibly with few but still with some chances
of escape. As I understand, they are never all taken; numbers

Appendix to the Memorial. 119

escape. There is the contingency of the seine breaking, or the
fish falHng from the dip-net between the seine and the vessel, or
of a storm arising and the vessel breaking away from the seine
altogether. And there are, doubtless, many other chances of
escape. The "fishing" is not over — although there may be a moral
certainty that the fish will eventually be secured — until as a fact
they arc secured. If the other view is the sound one, then the
hardy fishermen along our multitudinous coast waters and tidal
rivers are "fishing" when at even-tide they set their nets, but they
are not "fishing" when in the morning, with nets full to over-
flowing, the fish not only enmeshed but dead, they bring them on
board and stow away their fare. I am "fishing" while I am
whipping the water with my line, "fishing" also when the salmon
rises and takes the fly, but, having hooked him, I am not "fishing"
when for minutes, or perhaps hours, I play him in the water,
weaken him before the final tragedy, and at last land him dead
upon the sward. The negro boys referred to by Fraude in his
"English in the West Indies" (p. 137), were "fishing" when they
were placing the net in the water and surrounding the fish with
their improvised contrivance, but when the cord was drawn and
the net closed, they were not "fishing" while they were hoisting
them into the boat and carrying them ashore. And when more
than eighteen and a half centuries ago seven men stood out in
their little craft from the shores, on the waters of the Galilean
Sea, they went afishing. They were "fishing," though all night
they caught nothing; "fishing" too, when in the morning at the
behest of their Master they cast their net at the right side of the
ship; but they were not "fishing" when with help from friends
they dragged their net all unbroken ashore, filled with a "multitude
of fishes."

Neither in my view, as I have already suggested, can it be
said that these fish were "taken," if anything depended upon that,
until they were actually on board the ship. True, they were en-
compassed by the net ; true, there was, I admit, almost a certainty
that they would ultimately be secured, but they were not yet
"taken." A city may be besieged, even beleaguered, by an in-
vincible host, there may be a strong probability, nay, even an abso-
lute certainly that the siege will be successful, but the city is not

120 The Frederick Gerring, Jr.

yet "taken." Storm and stratagem may yet be necessary before
the final overthrow, and not until that catastrophe is the "taking"
consummated. It was only after Troy had been besieged for ten
weary years that the Greeks succeeded, and then by wile, in taking
her. It was only then that "Ilium fuit" became an historic fact.

The treaty itself affords, I think, strong evidence against the
position contended for. The United States thereby renounced the
liberty to "take, dry or cure" within Canadian waters. The
framers of the treaty at least seemed to have thought that taking
and drying, or taking and curing, were consecutive acts embracing
all the natural operations of the fishing avocation. Were there a
number of acts after the taking, and before the curing or the
drying — intercalary or intermediate processes, acts that were not
"fishing" but that had a relation to fishing, such as the acts of
bailing, etc., to which I have referred — that might legally be done
in domestic waters? They evidently intended (whether or not
that intention has been sufficiently expressed) to prohibit in British
waters the doing of anything in connection with fish that would
make it an article of commerce, while the word "taking" was
intended to include all operations between the throwing of the
line or the casting of the net, and the processes directly necessary
to prepare or preserve the fish for human food.

The question as to whether this vessel was "fishing" at the
time of the seizure must, I submit, be determined altogether irre-
spective of the position of the vessel at the time of the seizure;
for, wherever she was, she was "fishing" or she was not "fishing"
within the meaning of the statute. The quality of the act cannot
be determined by any consideration of position or location. She
was "fishing" or not "fishing" in that spot, whether it was three
or three hundred miles from land, its relative position quoad the
shore being immaterial.

Nor is the question to be determined upon any consideration
as to legal property or legal possession. It is not necessary to
determine at what particular point of time, or at the conclusion of
what particular operation, did the fish become the property of the
catchers. I may have an exclusive right of fishery, a property
right to the fish of a particular stream, but whether I am or am
not "fishing" does not and cannot depend upon any question as to

Appendix to the Memorial. 121

my ownership. The statute has no regard to ownership or pos-
session ; it is the act of fishing without reference to the ownership
of the thing fished for that it prohibits.

Nor does the fact that the master and crew of the G erring
may have been ignorant of their whereabouts, may have had no
desire or intention of trespassing upon Canadian territory or of
violating Canadian law, affect the legal question. We are not
dealing here with the master or crew. Neither the treaty nor the
statute purports to punish them for violating the treaty's provi-
sions. In the eye of the statute the vessel itself is the offender.
The statute gives to it a moral consciousness — a personality — a
capacity to act within or without the law, and imposes upon it the
liability of forfeiture in the event of transgression. In the en-
forcement of fiscal law, of statutes passed for the protection of
the revenue or of public property, such provisions are as necessary
as they are universal, and neither ignorance of law, nor, as a
general rule, ignorance of fact, will prevent a forfeiture when
the proceeding is against the thing ofifending, whether it be the
smuggled goods or the purloined fish, or the vehicle or vessel, the
instrument or abettor of the offence. If I bring dutiable goods
into Canada without paying duty, I am liable to penalty although
ignorant of the tariff. The goods themselves, endowed by law
as they are with faculty and right of speech, cannot plead my
ignorance either of law or fact as a bar to forfeiture.

According to my understanding of my own language, accord-
ing to my idea as to what is the universal meaning of the term
"fishing," no one, it seems to me, would describe the acts being
done by the Gerring at the time of seizure by any other term than
that of "fishing"; nor do I feel called upon out of deference to
any supposed canon of strict construction — a rule as often honoured
in the breach as the observance — to emasculate language, to filch
from that word — a word which, with recognized variations, ap-
pears to be common to all the Aryan races — all but a fraction of
its meaning, confining it to a petty segment of that wide circum-
ference of idea that has belonged to it for centuries.

An additional consideration is not without weight. In order
to the success of the appellant, a modified, secondary or circum-
scribed meaning must be given to that word "fishing." To ex-
cuse, much more to justify, a deviation from its primary meaning,

122 The Frederick G erring, Jr.

there must be overwhelming and absolutely conclusive considera-
tions. But no considerations at all — not even unwarrantable ones
— are forthcoming. Why do violence to the mother tongue and
shock the intelligence of the ordinary English student, why give
aid and comfort to those profane babblers who reiterate the fiction
that judicial tribunals are accustomed deliberately to defeat the
legislative intent by constructive canons of their own devising, in
order to give immunity to a vessel engaged in a business that,
according to present light and present scientific knowledge, may be
characterized as nefarious, a business, the tendency of which is to
annihilate for all time the fish-food supply of this continent, a
business, too, wdiich, so far as Canadian waters are concerned has
been prohibited and criminalized?^ We Canadians are in a sense
the world's trustees. The North American fisheries have been
committed to our guardianship, not for ourselves alone, but for
posterity; not for Canada alone, but for humanity. They are the
most prolific in the world. One can only imagine, he cannot
measure, their potentiality of blessing to mankind, and the Cana-
dian Parliament has recognized its obligation to conserve them
for the benefit of future generations. That is the declared policy
of the Canadian people, and that too is the desire and the proposed
policy (so far as I am informed) of the United States Govern-
ment. Purse seining is inimical to that policy. It means, not a
reasonable use of, or participation in, the deep sea fisheries or their
natural annual increment, not their preserva'tion, but their anni-
hilation, their absolute destruction for all time; in familiar words,
"the killing of the goose that lays the golden tgg.'' The history
of the United States fisheries on the Atlantic seaboard proves this,
and it was the conviction of it that induced our Parliament, as a
partial remedy, to pass the Act of 1891, above referred to. To
allow this vessel to escape would be to that extent to defeat the
beneficent preservative policy of the Canadian Parliament as evi-
denced by the statute, as well as to point out a way by which in
many cases its penal consequences might be avoided. Nothing
but overmastering considerations would justify that.

There is another ground upon which the judgment appealed
from may be supported. Neither the Imperial statute, nor the

I'See "Fisheries Amendment Act, 1891," 54 aud 55 Vict, ch., 43.

Appendix to the Memorial. 123

Canadian statutes up to 1886 appear to cover by way of penalty
all the acts prohibited by the convention of 1818. Although they
penalize other acts with a view to its enforcement they appear to
have dealt only with "fishing" or "preparing to fish." The treaty
forbade the drying or curing of fish, and contained a proviso that
an American fishing vessel might enter bays and harbours for the
purpose of shelter and repairing damages, of purchasing wood and
of obtaining water, but for no other purpose whatever. The ques-
tion had arisen as to whether the purchase of bait was a "preparing
to fish" within the meaning of the statutes. It had been decided
in the affirmative in Nova Scotia in the case of the /. H. Nickerson,
and in the negative in New Brunswick in the case of the White
Fazcn, the first decision having been subsequently followed in the
Nova Scotia case of the David J. Adams. In order to set at rest
this question the statute law in force in that year was changed by
the Act 49 Vict, ch., 114 (1886), which expressly provided in
addition that if a foreign vessel (unlicensed) has entered within
three marine miles of any of the coasts, bays, creeks or harbours
of Canada for any purpose not provided by treaty or convention,
or of any law of the United Kingdom, or of Canada for the time
being in force, such vessel should be forfeited. It is worth noting
that this statute is in a special sense an enactment of Her Majesty,
carrying with it all the dignity and prestige of Imperial law. It
was an Act, not assented to by the Governor General, but reserved
for the signification of Her Majesty's pleasure, and it was subse-
quently, by Imperial order in council, solemnly and after due con-
sideration approved by Her Majesty.

If, therefore, the Gerrincj, at the time of the seizure, was "un-
lawfully" where she was, she became liable to forfeiture. The
Canadian Act. it will be noted, does not in this relation apply to
bays and harbours only, but coasts as well. The convention
specifies the circumstances and all the circumstances under which
a foreign fishing vessel may enter into our territorial waters, viz.,
for wood, water, shelter or repairs, and for no other purpose zvhat-
ever. For what purpose was the Gerring where she was when
seized? Certainly for none of these purposes, but for the sole
purpose of securing the fish inclosed by her seine. She was there,
therefore, clearly in contravention of the terms of the convention.
Is there any law either in the United Kingdom or in Canada which

124 The Frederick G erring, Jr.

authorized her presence there? There is certainly no Canadian
statute law on the subject, and there is now no commercial treaty,
other than the convention of 1818, between Great Britain and the
United States which gives to American vessels the right to enter
Canadian territorial waters for any purpose whatever. According
to international usage the only purpose for which the ships of one
nation may enter the territorial waters of another nation, at all
events during war, is for refuge or asylum. If there is any right
beyond this it must be a right secured either by statute or treaty.
Up to 1830 the United States had no commercial, as distinguished
from fishing, privileges for any of its vessels in the ports of the
British North American possessions. In a letter from Mr. Daniel
Manning, the Secretary of the Treasury of the United States, to
the Hon. Perry Belmont, dated February 5th, he says:

I am advised and concede that up to President Jackson's
proclamation of October 5th, 1830, set forth on page 817 of
the 4th volume of the United States Statutes at Large, this
Government had not even commercial privileges for its vessels
in Canadian ports. We had such privileges as colonists, we
lost them as colonists, we regained them in 1830 by an
arrangement of legislation finally concerted with Great Brit-
ain, which was the result of an international understanding
that was in effect a treaty, although not technically a treaty
negotiated by the President, ratified by the Senate, signed by
the parties, and the ratification formally exchanged by them.^

He says in the same letter:

The treaty of 1818 secured to our fishermen what, up to
that time, they did not have as a treaty right, which was,
admission to Canadian bays or harbours for the purpose of
shelter, and of repairing damages therein, or purchasing wood
and of obtaining water, "and for no other purpose zvhatever."
As colonists we had those rights, but as colonists we lost them
by just rebellion.^

By reference to the provisions of the treaties of 1794 and 1815,
it will appear that while the subject of commercial intercourse

M9th Congress, 2d Session, No. 4087, p. 20.
Hh., p. 19.

Appendix to the Memorial. 125

between the United States and the British possessions in Europe is
expressly dealt with, the British possessions in America are not
provided for. The treaty of 1794, as to commercial privileges,
provided that it should

not extend to the admission of vessels of the United States
into the seaports, harbours, bays or creeks of His jMajesty's
said territories in America.

When the convention of 1818 was framed an attempt was
made to place the commercial intercourse between the two coun-
tries upon a permanent basis, but that attempt proved abortive.
It was not until 1830 that the negotiations carried on by President
Jackson, through Mr. McLane on the part of the United States,
and Lord Aberdeen on the part of Great Britain, resulted in an
arrnngement wdiich, up to the present, governs the commercial
"ntercourse between the United States and His Majesty's British
North American possessions. This is embodied in a proclamation
of the President, and in an order in council of the British Gov-
ernment.

The proclamation, after recital, directs that :

British vessels and their cargoes are admitted to an entry
in the ports of the United States, from the islands, provinces
and colonies of Great Britain, on or near the North American
continent, and north or east of the United States.^

The order in council is in the following terms :

And His Majesty doth further, by the advice aforesaid,
and in tlie pursuance of the powers aforesaid, declare that the
ships of and belonging to the United States of America may
import from the United States aforesaid, into the British
possessions abroad, goods, the produce of those states, and
may export goods from the British possessions abroad, to be
carried to any foreign country whatever.^

This latter order in council of 1830 was passed under the
authority of the Imperial Act of 1825, ch. 114, but a perusal of

'Congressional Debates, 1830, p. CXCI.
^Ibid.. p. CXCIII.

126 The Frederick G erring, Jr.

that Act, as well as of the order in council, will show, I think,
without doubt, that there was no intention on the part of Parlia-
ment in passing the Act. or of His Majesty in making the order
in council, to in any way repeal or modify the treaty of 1818,
or the Imperial Act providing for the enforcement of its provi-
sions, and the Imperial Act last referred to. and the order in coun-
cil above quoted, is the only basis upon which any claim of right
on the part of the Gerring to do what she did in the territorial
waters of Canada can stand. The Gerring, therefore, was found
in British waters for a purpose not authorized by law, and conse-
quently, under the express provisions of our own statute became
liable to forfeiture.

There is another ground, already incidentally referred to. jus-
tifying the forfeiture of this vessel, though not of her cargo, and
as this is par excellence a case of purse seining, it is just as well
to deal with and settle the question now. Section 1 of the statute
of 1891, above referred to, is as follows:

1. Section fourteen of "The Fisheries Act" is hereby
amended by adding thereto the following subsection :

15. The use of purse seines for the catching of fish in any
of the waters of Canada is prohibited, under a penalty for
each offence of not less than fifty dollars, and not exceeding
five hundred dollars, together with the confiscation of the
vessel, boat and apparatus used in connection with such
catching.

Of course the same controversy may arise as to the meaning
of the word "catching" here as has arisen in respect to the words
"fishing" and "taking fish," but if I am right as to these latter
words, it follows that "catching" includes "bailing," and that as this
"bailing" was done within the territorial waters by the use of
the seine the case is within the statute. But the words "in any
of the waters of Canada" qualify, according to proper gram-
matical construction, not the word "catching," but the word "use,"
and it is the using in Canadian waters of a purse seine that is
prohibited. There was such a "user" here, and forfeiture is the
consequence.

In my judgment the appeal should be dismissed with costs.

Appendix to the Memorial. 127

King, J. — This is an appeal from a judgment in the Admiralty
Court condemning the American fishing schooner Frederick Gcr-
ring, Jr., for violation of the fishery laws.

According to the testimony of the seizing officer the vessel
when seized was about a mile and a half outside of Gull Ledge,
on the coast of Nova Scotia. Her crew at the time were engaged
in taking mackerel from a purse or bag seine made fast to the
vessel.

A couple of hours previously she had been observed by Capt.
MacKenzie, of the fishery protecting cruiser Vigilant, in the act of
going up to her seine boat after the seine had been thrown and
drawn together, or pursed. The vessel and her seine boat were
then, in Capt. MacKenzie's opinion, about a half mile outside of
the three-mile limit. The interval appears to have been wholly
spent in taking the fish from the seine. In this operation the
^liecLs are eased off, and headway taken off the vessel to prevent
;;cr fouling the seine, or destroying it by too rapid movement
through the water ; and it w^as contended for the appellant that it
was not possible, in the existing conditions of wind and current,
that the vessel could have got inside the limit. This contention
assumed the correctness of Capt. MacKenzie's observation respect-
ing the position of the G erring when he saw her. as already stated,
and was suf)ported by a substantial body of expert evidence as to
the effects of currents, etc. There was. however, evidence of like
character the other way, and (what w-as more material) direct
testimony as to cross bearings taken on board the seizing vessel
iust before the seizure, of certain objects on the land, which, if
correct, would show the Gcrring to have been then, within the
limits. It appears also, that the commander of the Aberdeen,
the seizing vessel, took the reasonable course of endeavoring to
show to the master of the Gerring the position of his vessel upon
his own chart, by bearings taken with his own compass. It is
admitted that the seizing officer asked for the compass and chart
in order to take the bearings of certain points and indicate them
on the chart. There is. however, a difference between the parties
as to what took place when the chart was produced. The com-
mander of the Aberdeen says that it was in a condition that
rendered it useless for the purpose. The master of the Gerring
took no bearings, and his opinion as to his vessel's position rests

128 The Frederick G erring, Jr.

entirely upon the general appearance of the coast to the eye. Capt.
MacKenzie's testimony is important, as he places the vessel outside
the limits when the seine was thrown. He was not concerned in
the seizure, and his observation of the subsequent position of the
Gerring is entitled to much consideration. During the two hours
his vessel appears to have drifted considerably inshore, and he
observed the Aberdeen steaming up to the Gerring, and, at that
time, noticed that the latter vessel was then inside the three miles
limit. It further appears that there is an indraught amongst the
islands along the coast, and we all know that amongst things not
fully understood is the cause of the variation in strength of coast
currents at different seasons.

The direct testimony in the case was quite sufficient to war-
rant the conclusions of the learned judge as to the position of the
vessel.

The remaining question is whether what the vessel did within
the three miles limit v^as a violation of any of the provisions of the
fishery laws. It is to be taken as the fact that when she entered
Canadian waters the purse seine had been drawn together inclosing
the fish in it. The appellant's contention is that, upon this, the act
of fishing or taking fish was completed, and that the Gerring was
afterwards merely taking on board her ow^n property.

Upon this point MacDonald, C. J., says:

I must not omit to notice the contention of Mr. MacCoy,
that, admitting the seine to have been thrown, and the fish in-
closed in it, outside of the three-mile limit, it is not an offence
against the Act to continue to bail the fish from the seine
into the vessel after permitting her to drift across the pro-
hibited boundary. I cannot accept his contention that the
"fishing" and the "catching of the fish," are completed when
the seine is successfullv thrown. Further labour is required
to save the fish from the sea and reduce the property to useful
possession, and until that be completed the act of "fishing"
and "catching fish" is not in my opinion completed.

The evidence is somewhat meagre respecting the operation
of taking fish by purse seines. It appears that the seine is about
twenty-eight fathoms in depth, and. when drawn together, about
twelve or fourteen fathoms. It is set from a boat rowed rapidly
around the school of fish, and then drawn together from below in

Appendix to the Memorial 129

such a way as to enclose the fish in a kind of bag, the mouth of
which is then made fast to the vessel forward and aft, and drawn
above the level of the water, and the live fish taken from it by
bailing. The setting and drawing of the seine is the work of a
short time, but the proper handling of the seine afterwards and
getting the fish from it is an operation taking considerable time, in
this case two hours.

It is a recognized principle of maritime and international law
that every nation has jurisdiction over the waters adjacent to its
shores to the distance of a marine league. There is, however, in
every other nation, the right to navigate such waters for harmless
purposes subject to such supervision as may be deemed necessary
to prevent abuse. "It seems to me," says the present Master of
the Rolls, in The Queen v. Keyn^ —

that this is in reality a fair representation of the accord or
agreement of substantially all the foreign writers on interna-
tional law, and that they all agree in asserting that, by the
consent of all nations, each which is bounded by the open sea
has a right over such adjacent sea as a territorial sea, that
is to say, as a part of its territory, and that they all mean
thereby to assert that it follows, as a consequence of such sea
being part of its territory, that each such nation has in general
the same right to legislate and enforce its legislation over
that part of the sea as it has over its land territory. With
its own consent, given to all other nations in the same way
as they have consented to its right of territory, consent from
which neither it nor they can rightly depart without the con-
sent of all, there is for all nations a free right of way to pass
over such sea with harmless intent, but such a right does not
derogate from the exercise of all its sovereign rights in other
respects.

This, it is true, is from a dissentient opinion, but by a declara-
tory Act, 41 & 42 Vic, ch. 73, the territorial rights thus asserted
were declared to have always existed. See also The Queen v.
Dudley.'

Upon the close of the war of 1812, and in consequence of a
difference of opinion between the governments of Great Britain and

12 Ex. D. 63 at p. 135.
114 Q. B. D. 273.

130 The Frederick Gcrring, Jr.

the United States as to the effect of the war upon the contnuiance
of former treaty rights of American fishermen in the waters of
His Majesty's Dominion in British North America, the convention
of 1818 was concluded, whereby it was {inter alia) agreed that
within certain limits (chiefly in and about Newfoundland, Labra-
dor, Magdalen Islands, etc.), the inhabitants of the United States
were to have forever in common with the subjects of His Majesty
the liberty to take fish of every kind, and also the limited right to
dry and cure fish in certain bays, harbours and creeks. It was
then agreed by the United States as follows:

And the United States hereby renounces forever any
liberty heretofore enjoyed or claimed by the inhabitants there-
of to take, dry or cure fish on or within three marine miles
of any of the coasts, bays, creeks or harbours of His said
Majesty's Dominions in America, not included within the
above mentioned limits, provided, however, that the American
fisherman shall be admitted to enter such bays or harbours
for the purpose of shelter or 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 them taking, drying or curing
fish therein or in any other manner whatever abusing the
privileges hereby reserved to them.

Then, as to domestic legislation. The Imperial Act, 59 Geo., 3,
c. 38, declared it to be unlawful for any person other than a natural
born subject of His Majesty in any foreign ship, etc., to fish for,
or to take, dry, or cure any fish of any kind whatsoever within
three marine miles of any coasts, bays, creeks or harbours v;hat-
ever in any part of His Majesty's Dominions in America, not
included within the limits specified and described in the first article
of such convention, and it is enacted that, if any such foreign
ship, etc., or any person on board thereof should be found fishing
or to have been fishing or preparing to fish within such prohibited
limits, such vessels, etc., should be forfeited, etc., provided, how-
ever (as in terms of the treaty), that it should be lawful for any
fishermen of the United States to enter into any such bays or
harbours for the purpose of shelter and repairing damages therein,
and of purchasing wood or obtaining water and for no other pur-
pose whatever.

Appendix to the Memorial. 131

The subject has also been dealt with by the Parliament of
Canada, and it is enacted by ch. 94, R. S. C, that any fishery
officer concerned in the protection of the fishery (amongst other
officers) "may go on board of any vessel within any harbours of
Canada, or hovering in British waters within three marine miles
of any of the coasts, bays, creeks or harbours in Canada, and may
bring such vessel into port. * * * ^j-,(^ jf g^^j^j^ vessel is for-
eign, and (a) has been found fishing or preparing to fish, or to
have been fishing in British waters within the three marine miles
of any of the coasts, bays, creeks or harbours of Canada, not in-
cluded within the above mentioned limits, without a license * * *
or (b), has entered such waters for any purpose not permitted by
treaty, or convention, or by any law of the United Kingdom or
Canada for the time being in force, such ship, etc., shall be
forfeited."

The convention of 1818 deals not merely with the catching of
fish, but with the entire subject of the rights of American fishermen
to the use of territorial waters and adjacent coasts in the prosecu-
tion of their enterprise.

The rights and privileges of American fishermen therein are
stated affirmatively and negatively. There is the right to take fish
in common with British subjects in certain waters, and to dry and
cure fish (wheresoever taken) on certain coasts; and, with regard
to the remaining waters and coasts, a renunciation of all claim or
liberty to take, dry or cure fish; but, along with this, a certain
saving, viz. : to enter bays and harbors for the specified purpose of
shelter, repairs, purchasing wood and obtaining water, but for no
other purpose whatever.

This seems not only not to permit, but, by necessary implica-
tion to exclude, the using of territorial waters (other than those in
which the right of fishing is recognized) for a purpose so material to
and connected with the actual taking of the fish, as that of making
good and effectual the capture of fish brought under certain dominion
and control outside of such waters; that is to say. of acquiring
absolute property in that which previously may have been the sub-
ject of a qualified property, liable to be defeated in various con-
tingencies as, for instance, by the state of the weather, or by the
fouling of the seine, or the breaking of it with the weight and
pressure of the fish, or by a variety of causes. To enter territorial

132 The Frederick G erring, Jr.

waters for such a purpose is a substantial use of them for a purpose
directly connected with the taking of fish, and not being permitted
by treaty or by any statute, Imperial or Canadian, is within the
terms of clause (b) of ch. 94, Revised Statutes of Canada. It is
immaterial, so far as the question of right is concerned, that the
vessel may have drifted within the limit, for, if appellant's conten-
tion is correct, it avails equally where the act is deliberate. The
remedy for cases of hardship lies in the pardoning power of the
Crown.

Further, as to the meaning of the words "taking fish" and
"fishing," in the treaty and statutes: "to fish" is defined in Web-
ster's dictionary as "to be employed in taking fish as by angling or
drawing a net." It covers the attempt although the fish may not
be present in the waters, and a fortiori, it covers all that is in-
volved in the continuous act of acquiring complete and absolute
dominion over fish, subject to certain possession and control. It
may well be that the Gerring people had sufficient control and
dominion to have acquired a qualified property in the fish; Young
V. Hichens;^ Pollock & Wright on Possession, 37; 2 Kent's Com.,
348; but an operation at sea of taking several hundred, or one
hundred barrels (as here) of loose and live fish from a bag net,
is attended with such obvious chances of some of them at least
regaining their natural liberty, that the act of fishing cannot be
said to be entirely at an end in a useful sense until the fish are
reduced into actual possession. The whole is a continuous act re-
quiring for its successful carrying out that the fish should with-
out delay be taken from the water, and the whole operation may
properly have applied to it the terms "fishing" and "taking fish."

I have not arrived at this conclusion without hesitation and
doubt, enhanced by the knowledge that the learned Chief Justice
and Mr. Justice Gwynne are of a dififerent opinion.

The result, according to my view, is that the appeal should
be dismissed.

GiROUARD, J. : — It is not claimed by the appellants that foreign
vessels have the right to fish within the territorial jurisdiction of
Canada. They admit that both by the principles of international
law and the articles of the Fishery Convention of 1818, American

i'6 Q. B. 106.

Appendix to the Memorial. 133

vessels have no right to fish or take fish within the three-mile
Hmit of the coasts of Nova Scotia. Their main contention, at the
hearing before ns. was that when the Gerring was seized, the fish-
ing or taking fish had been completed in the open sea, and that
the mere bailing of fish after they had been caught, and lifting them
on the deck of the vessel, is not fishing and was no offence.

They quote no authority in support of this proposition, except
Webster's definition of the word fishing: "An attempt to catch
fish, to be employed in taking fish by any means." I have before
me the latest edition of Webster, the "International" of 1896,
where the word "fishing" is perhaps more definitely defined : "The
act, practice, or art, of one who fishes." But neither this nor the
other definition decides the point at issue. Was the act of bailing
the fish out of the seine into the vessel an operation of fishing or
taking fish? That is the question which must be decided according
to the principles of law. And to do so, we are brought to examine
this other question : Is the fisih inclosed in the seine the property
and in the possession of the fishermen before it is actually trans-
ferred to the vessel? Chief Justice MacDonald. who tried this case
in the court below, answered this question in the negative. He
said:

I must not omit to notice the contention of Mr. MacCoy,
that admitting the seine to have been thrown and the fish en-
closed in it outside of the three-mile limit, it is not an offence
against the Act to continue to bail the fish from the seine into
the vessel after permitting her to drift across the prohibited
boundary. I cannot accept his contention that the "fishing"
and the "catching of the fish" was complete when the seine
was successfully thrown. Further labour is required to save
the fish from the sea, and reduce the property to useful pos-
session, and until that be completed the act of fishing and
"catching" fish is not in my opinion completed, and in the
case before us the crew were in the act of bailing the fish
from the seine into the vessel when the seizure was made.^

After a careful research in the text books and digests, both
English and American, I have been able to find only one English
case in point, but it fully supports the views of the learned Chief
Justice. I refer to the case of Vuiing v. Ilichcns,- decided in 1844

15 Can. Ex. R. 173.

21 D. & M. 592; 6 Q. B. 106.

134 The Frederick G erring, Jr.

by the Court of Queen's Bench. The facts are thus summarized
in the report of the case :

On the day in question a very large shoal of mackerel
came into the bay of St. Ives. The plaintiff's boat, the Wes-
ley, put out, and shot her seine, not conducting herself at that
time, as the defendant alleged, according to the regulations
of the fishery. The seine, nearly 140 fathoms long, was
drawn in a semicircle completely round the shoal with the
exception of a space of seven fathoms, according to the plain-
tiff's witnesses, ten fathoms according to the defendant's,
which was not filled up by it. In this opening, according to
the plaintiff's witnesses, the fishermen in the plaintiff's boat
were splashing with their oars and disturbing the water in
such a manner that, as they affirmed, the mackerel within
would have been effectually prevented from escaping. At
this conjuncture, before the plaintiff could draw his net closer,
the Ellen, the defendant's boat, rowed in through the opening
thus made, shot her seine, enclosed the fisih, and captured the
whole of them.

It was held that the first person could not maintain trespass
for taking his fish, his possession not having been complete. Lord
Denman, C. J., said :

It certainly results from the evidence in this case, that the
fish were reduced to a condition in which it was in the highest
degree probable that the plaintiff would become possessed of
them. But it is equally certain that he had not become pos-
sessed. Whether the necessary possession be rightly described
by the word "custodia" or "occupatio," I think it is not at-
tained until the plaintiff has brought the animals into his actual
power. It may be indeed that the defendant has committed a
tortious act in preventing the plaintiff from completing his
possession.

Patterson, J. :

I do not see how we can say this action is maintainable,
unless by holding that a person on the point of taking pos-
session of a thing is actually in possession of it.

It is said that this decision does not apply to the present case,
as the seine was pursed up, but it cannot be pretended that a seine

Appendix to the Memorial. 135

can be so closed up that no escape is possible for the fish; an open
space must be left for the dip-net used in the bailing out of the fish.
The whole process of pursing and bailing is thus described by the
owner of the G erring.

Q. Have you had experience in pursing seines ? A. Yes,
for 7 or 8 years.

O. Describe how it is done? A. You take the seine and
set it out of the boat, and w^hen you get a shoal of fish you
go alongside the seine with the vessel and make it fast to the
vessel forward and aft. You make the jibs fast and guy out
the booms and bail out the fish with a long-handled dip-net
right on the deck of the vessel. * ♦ ♦

Q. Is it usual for a fishing vessel to lie with her sheets
ofiF and her jibs down, when she is taking fish out of the
net ? A. Yes, that is the way they have to do.

Q. What is the object of it? A. It is on account of the
seine. If the jibs were kept up it would tear the seine all to
pieces.

Q. Why do you let the sheets oflf? A. They have to do
it. If the sheets were kept in she would go astern foremost
if the jibs were down.

Q. The object is to keep her in about the same position?
A. Yes.

It is not difficult to understand that owing to various causes —
mismanagement, mishaps or mere accidents — the fish may and do
in fact escape from the seine after it is pursed up. The seine may
break, the fastenings at either end of the vessel may give way,
the jibs and sheets may become unmanageable, the fish may jump
into the sea over the floating sides of the seine, or from the dip-
net, and many other things may happen which would prevent the
fishermen from capturing the fish enclosed in the seine. In the
eyes of the law, the possibility of such accidents, mishaps and
mismanagement renders the property and possession of the fish not
complete till it is in the vessel.

But admitting that the fish enclosed in a seine pursed up is in
the possession of the fisherman, upon what ground can it be pre-
tended that the bailing of the fish is not an operation of fishing?
As remarked by Chief Justic MacDonald. the baiiiiig was neces-
sary to reduce the property to useful possessions.

136 The Frederick G erring, Jr.

The soundness of the decision in Young v. Hichcns^ has never
been questioned either in England or in the United States; it is
quoted with approbation in American text books and digests, and
more particularly in the American and English Encyclopedia of
Law, V. "Fish and Fisheries," p. 27; Addison on Torts'; Gould on
Waters.^

Angell, Tide Waters,* observes:

As the right of fishing in the sea, and in all inland and
navigable waters, is prima facie common to all, it follows
that an actual appropriation or manucaption must be made of
the fish to complete the right of property; and that when the
fish are taken they become the exclusive property of the
I taker, unless voluntarily restored to their native element.
Bracton and Fleta both lay it down as the common law that
fishes are animalia qucc in mari nascimter qiicr cum capiuntur
captoria Hunt. But the possession of the fish must be com-
plete.

The learned writer then quotes Young v. Hichcns.^
I have no hesitation in following the decision in Young v.
Hichcns,^ as I find it based upon the Roman law, which every-
where is considered as written reason, and in the absence of other
regulations has been accepted as law by all modern civilized na-
tions. The Institutes of Justinian de rerum divisione^ (translation
of Sandars) say:

12. Wild beasts, birds, fish, that is, all animals which live
either in the sea, the air or on the earth, so soon as they are
taken by any one, immediately become by the law of nations
the property of the captor for natural reason gives to the first
occupant that which had no previous owner. And it is imma-
terial whether a man takes wild beasts or birds upon his own
ground, or on that of another. Of course, any one who en-
ters the ground of another for the sake of hunting or fowling,
may be prohibited by the proprietor, if he perceives his inten-

'•6 Q. B. 606.

2Am. ed. 1891, vol. 2, p. 689.

3Ed. 1891, sec. 1.

*Ed. 1847, p. 137.

»Lib. 2, t. 1, LL. 12 and 13.

Appendix to the Memorial. 137

tion of entering. Whatever of this kfad you take is regarded
as your property, so long as it remains in your keeping, but
when it has escaped and recovered its natural liberty, it ceases
to be yours, and again becomes the property of him who
captures it. It is considered to have recovered its natural
liberty if it has either escaped out of your sight, or if, although
not out of sight, it yet could not be pursued without great
difficulty.

13. It has been asked, whether, if you have wounded a
wild beast, so that it could be easily taken, it immediately be-
comes your property. Some have thought that it does become
yours directly you wound it, and that it continues to be yours
while you continue to pursue it. but that if you cease to pursue
it, it then ceases to be yours, and again becomes the property
of the first person who captures it. Others have thought that
it does not become your property until you have ca])tured it.
We confirm this latter opinion because many accidents may
happen to prevent your capturing it. D. xli., tit. 1.

Gains in this passage of the Digest informs us that the former
opinion was that of Trebatius,

It cannot be denied that these Roman rules never prevailed
in England or on the continent of Europe to their full extent, at
least as to wild animals taken or caught on private grounds by a
trespasser or a wrongdoer. As Lord Chelmsford, referring to the
passage from the Institutes, points out in Blades v. Higgs, in
1865^":

With respect only to live animals in a wild and unre-
claimed state, there seems to be no difference between the
Roman and the common law.

Jurists agree that the word "occupation," "capture," or "cus-
tody," used in the Institutes, means bodily possession, corpore et
animo, although it is contended by some that the fisherman who
has secured fish in his seine, or the hunter who has wounded a
wild animal, has acquired some qualified rights of ownership over
the same, provided the fishing or hunting be continued, but if

ni H. L. Cas. 637.

138 The Frederick Gerring, Jr.

abandoned he loses every claim or right to the animal. In such
cases, therefore, fishing or hunting is not terminated till the animal
is actually captured.

The best interpreters of the Roman law hold that wild animals
are not possessed till they are actually and beyond peradventure
in our power.

Domat, says:^

Wild beasts, fowls, fishes, and everything that is taken,
either in hunting, fowling or fishing, by those who have a
right thereto, belong to them as their property by virtue of
the seizure which they make of them.

The original text says more :

Les betes sauvages, les oiseaux, les poissons et tout ce
que peuvent prendre, ou a la chasse ou a la peche, ceux qui
en ont le droit, leur sont acquis en propre par la prise qui
les met en leurs mains.

Savigny, Jtis Possessionis, says :'

Wild animals are only possessed so long as some special
disposition (custodia) exists, which enables us actually to
get them into our power. It is not every custodia, therefore,
which is sufficient ; whoever, for instance, keeps wild animals
in a park, or fish in a lake, has undoubtedly done something
to secure them, but it does not depend on his mere will, but
on a variety of accidents, whether he can actually catch them
when he wishes ; consequently, possession is not here retained ;
quite otherwise with fish kept in a stew, or animals in a yard,
because then they may be caught at any moment.

Puffendorf says:'

With regard to things movable, every one agrees that,
in order to appropriate the same by right of first occupation,
the possession must be bodily, and that it is necessary that

iLiv. 3 tit. 7, 2 par. 7.
^Perry's ed., p. 257.
•Lib. 4, cap. 6, s. 9.

Appendix to the Memorial. 139

they should be removed from the place where they were found
to the place of domicile of the finder, or the place where they
are intended to be kept.

And he then explains that it is not essential that this posses-
sion should at first be manual.

That possession may also be acquired with instruments,
such as snares, nets, traps, weirs, hooks and the like ; * * *
provided that these instruments are entirely under our con-
trol * * * and also that the animal is so well caught
that it cannot possibly escape, at least during the length of
time required to put the hand on it.

Heinneccius^ lays down the same rule, and so far both he and
Puffendorf merely repeat what Grotius^ says on the same subjects
Puffendorf finally makes the distinction at Sec. 10:

That if I ihave mortally wounded or at least seriously

disabled an animal, no one can lay any claim to it so long as I

pursue it on grounds where I have the right to hunt; but if

^ the wound be not mortal, and the animal can well escape, it

still goes to the first occupant.

Barbeyrac criticises Puffendorf, and holds that it is not always
necessary that the animal should be wounded or removed from
its natural element, and that its mere discovery and pursuit, with
the intention to capture it, are sufticient. Pothier^ observes that
in France the latter opinion prevails in practice, dans I'usage; but
Laurent,* says that the jurisprudence has been to the contrary. A
decision of the Superior Court of Quebec holds that it is sufficient
that the animal be wounded and pursued, and quotes the authority
of Cujas. Charlebois v. Raymond^

iSect. 342.

^Lib. 2, cap. 8, sect. 3 and 4.

'Propriete, n, 26.

*Vol. 8, n. 442.

HZ L. C. Jur. 55.

140 The Frederick Gerring, Jr.

For the purposes of this case, it may be asserted that all the
authorities agree in holding that a wild animal caught in a net
or trap is not in the full possession or the absolute property of its
owner unless finally seized. This feat, therefore, cannot be accom-
plished till the hunting or fishing is successfully completed.

These principles were recognized in two American cases
quoted with approbation by Chancellor Kent. In Picrson v. Post^
the Supreme Court of the State of New York held in 1805 that:

Pursuit alone gives no right of property in animals fercB
naturcc; therefore an action will not lie against a man for
killing and taking one pursued by, and in view of, the person
who originally found, started, chased it, and was on the point
of seizing it. Occupancy in wild animals can be acquired only
by possession, but such possession does not signify manu-
caption, though it must be of such a kind as by nets, snares
or other means, to so circumvent the creature that he cannot
escape.

Tompkins, J., delivering the opinion of the court, said :

If we have recourse to the ancient writers upon gerjeral
principles of law, the judgment below is obviously erroneous.
Justinian's Institutes^ and Fleta' adopt the principle, that pur-
suit alone vests no property or right in the huntsman ; and
that even pursuit, accompanied with wounding, is equally in-
effectual for that purpose, unless the animal be actually taken.
The same principle is recognized by Bracton.^

Puffendorf* defines occupancy of beasts ferce naturco, to
be the actual corporal possession of them, and Bynkershock
is cited as coinciding in this definition. It is indeed with
hesitation that Puflfendorf affirms that a wild beast mortally
wounded, or greatly maimed, cannot be fairly intercepted by
another, whilst the pursuit of the person inflicting the wound
continues. The foregoing authorities are decisive to show

«3 Caine 175.

iLib. 2, tit. 1, s. 13.

2Lib. 3, c. 2, p. 175.

»Lib. 2, c. 1, p. 8.

*Lib. 4, c. 6, ss. 2 and 10.

Appendix to the Memorial. 141

that mere pursuit gave Post no legal right to the fox, but
that he became the property of Pierson, w'ho intercepted and
killed him.

It therefore only remains to inquire whether there are any
contrary principles, or authorities, to be found in other books,
which ought to induce a different decision. Most of the cases
which have occurred in England, relating to property in wild
animals, have either been discussed and decided upon the prin-
ciples of their positive statute regulations, or have arisen be-
tween the 'huntsman and the owner of the land upon which
beasts fercr naturcc have been apprehended, the former claim-
ing them by title of occupancy, and the latter ratione soli.
Little satisfactory aid can, therefore, be derived from the Eng-
lish reporters.

Barbeyrac. in his notes on Puffendorf, does not accede
to the definition of occupancy by the latter, but, on the con-
trary, affirms that actual bodily seizure is not, in all cases,
necessarv to constitute possession of wild animals. He does
not, however, describe the acts which, according to his ideas,
will amount to an appropriation of such animals to private
use, so as to exclude the claims of all other persons, by title
of occupancy, to the same animals : and he is far from aver-
ring that pursuit alone is sufficient for that purpose. To a
certain extent, and as far as Barbeyrac appears to me to go,
his objections to Puffendorf's definition of occupancy are rea-
sonable and correct. That is to say, that actual bodily seizure
is not indispensable to acquire right to, or possession of. wild
beasts: but that, on the contrary, the mortal wounding of sudh
beasts, by one not abandoning his pursuit, may, with the
utmost propriety, be deemed possession of him since, thereby,
the pursuer manifests an unequivocal intention of appro-
priating the animal to his individual use, has deprived him
of his natural liberty, and brought him within his certain con-
trol. So also, encompassin;^- and securing such animals with
nets and toils, or otherwise intercepting them in such a manner
as to deprive them of their natural liberty, and render escape
impossible, may justly be deemed to give possession of them
to those persons who, by their industry and labor, have used
such means of appreliending them. Barbeyrac seems to have
adopted, and had in view in his notes, the more accurate opin-
ion of Grotius^' with respect to occupancy. That celebrated
nntlior% speaking of occupancy, proceeds thus: "Requirifur

^T.his is a mistake. Puffendorf reproduces in this respect the opinion of

Grotius.

2Lib. 2, c. 8, s. 3, p. 309.

142 The Frederick Gerring, Jr.

antem corporalis qiiadam possessio ad dojninium adipiscen-
diim; atqiie idco vulnerasse non sufHcit." But in the follow-
ing section he explains and qualifies this definition of occu-
pancy: "Sed possessio ilia potest non soils manibus, scd in-
striimcnlis, ut dccipiilis, ratibus, laqueis dum duo adsint; pri-
mimi ut ipsa instrumenta sint in nostra potestate, deinde lit
feva, ita incliisa sit, ut exire indc ncqucat." This (jualiiicalion
embraces the full extent of Barbeyrac's objection to Puffen-
dorf's definition, and allows as great a latitude to acquiring
property by occupancy, as can reasonably be inferred from
the words or ideas expressed by Barbeyrac in his notes. The
case now under consideration is one of mere pursuit, and pre-
sents no circumstances or acts which can bring it within the
definition of occupancy by Puffendorf, or Grotius, or the ideas
of Barbeyrac upon that subject.

Pier son v. Post^ was reaffirmed in 1822 by the same court in
Buster v. New Kirk.*

Per Curiam. The principles decided in the case of Pier-
son v. Post^ are applicable here. The authorities cited in that
case establish the position that property can be acquired in
animals fercc naturcr, by occupancy only; and that, in order to
constitute such an occupancy, it is suiTicient if the animal is
deprived of his natural liberty, by wounding, or otherwise,
so that he is brought within the power and control of the
pursuer. In the present case, the deer, though wounded, ran
six miles; and the defendant in error had abandoned the pur-
suit that day, and the deer was not deprived of his natural
liberty, so as to be in the power or under the control of N.
He, therefore, cannot be said to have had a property in the
animal, so as to maintain the action. The judgment must be
reversed.

Having arrived at the conclusion that the bailing of the fish is
an operation of fishing, or taking fish, it is not necessary for me
to express any opinion upon two important questions which were
raised by the Crown, namely, whether the recent Dominion statute
prohibiting purse seining, applies to this case, and whether the con-
vention of 1818 prohibits American fishermen from entering with-
in three miles of the coasts of the Dominion — others than bays and

33 Caine 175.
420 Johns, 74.

Appendix to the Memorial. 143

harbours — for any purpose not authorized by the convention, and
particularly for the purpose of bailing fish caught in the open sea,
if such an act cannot be considered as fishing, or taking fish.

Finally, I am of the opinion that the appeal should be dis-
missed with costs.

Appeal dismissed with costs.

Solicitors for the appellant: MacCoy, MacCoy & Grant.
Solicitor for the respondent: JV. B. A. Ritchie.

EXHIBIT 10.

Edivard Morris to the Secretary of State.

Gloucester, Mass., June 12, iS^j.
Hon. John Sherman,

Secretary of State,

Washington, D. C.
Sir:

On the twenty-fifth day of May, 1896, the fishing schooner
Frederick G erring, Jr., owned by me, a citizen of the United
States, was seized by the Canadian authorities on a charge of fish-
ing witliin the territorial waters of the Canadian Dominion. Upon
a trial had in the Exchequer Court of Canada, Nova Scotia Admi-
ralty District, before the Hon. James MacDonald, Judge of said
Court, the said vessel and her cargo were condemned. I then ap-
pealed to the Supreme Court of Canada, where, after a long delay,
the appeal was dismissed by a divided court, three judges deciding
that the appeal should be dismissed, and two judges, one of whom
was the Chief Justice, deciding that the appeal should be allowed
with costs. The Gerring was seining for mackerel and had set her
seine around a school of fish, which were being hauled on board from
her seine at the time she was seized. It was agreed that when the
seine was set around the fish, the Gerring was more than three
miles from shore, but it was contended by the Canadian govern-

144 The Frederick Gerring, Jr.

ment that when she was seized she was within three miles of the
shore, and that the act of bailing was "fishing" within the meaning
of the Canadian statute. The testimony for the Canadian gov-
ernment was that the Gerring was within three miles of "Gull
Ledge," so-called, when she was seized. Our testimony was that
she was at that time more than three and one-half miles distant
from said ledge. This "Gull Ledge" is nothing more than a bar-
ren rock over which the sea breaks in rough weather, and we con-
tend is no part of the Canadian coast. At the time she was seized
the Gerring was four and three-quarter miles distant from "Bar-
ren Island," "so-called, and six and one-half miles distant from the
mainland. After the decision of the Exchequer Court, I called this
matter to the attention of your Department and forwarded to Mr.
Olney a transcript of the testimony taken in the case, together with
a copy of the opinion of the Judge of said Court. I enclose here-
with a copy of the opinion of Sedgewick, J. of the Supreme Court,
which was concurred in by two other justices of that court ; also a
copy of the opinion of Gwynne, J. which was concurred in by the
Chief Justice. An examination of the testimony and of the opinions
above referred to, will, I have no hesitation in saying, satisfy you
that I have been treated harshly and unjustly by the Canadian
courts and authorities, and that the decision condemning my vessel
is unwarranted. I am advised that it is a case which calls for the
interposition of the government of the United States, and I re-
spectfully ask you to give the matter your consideration and to take
such action as justice nnd the protection of my rights as a citizen
of the United States demand. The Gerring at the time of the
seizure, with outfits and catch on board, was valued at Seventy-five
Hundred Dollars. The fish were allowed to spoil, and in conse-
quence were sold at a reduced price. The vessel has been moored to
a wharf in Halifax since the time of the seizure, so that if the
vessel is returned to me she will be greatly depreciated in value,
the outfits practically worthless, and her fishing gear, boats, and
provisions absolutely of no value whatever. Besides all this I have
been put to an expense of eleven or twelve hundred dollars for legal
advice and other services.

Respectfully yours,

Edward Morris.

Appendix to the Memorial. 145

EXHIBIT 11.

Mr. Edzvard Morris to Honorable John D. Long.

Gloucester, Mass., July 12, iSgj.
Hon. John D. Long,

Dear Sir:

I am the owner of the Schr. Frederick Gerring that was seized
last year by the Canadian authorities. I was not at home at the
time you was in Gloucester, and I would have liked to have seen
yon very much so I could have explained to you about this case.
I am afraid it has never been put before the State Department at
Washington as it had ought to have been, for the reason that Mr.
Sherman does not seem to take any notice of it.

I appealed this case and carried it up to the Supreme Court
at Ottaw^a, Canada, through the advice of Secretary Olney.

The case was tried before four Judges and the Chief Justice
Strong, I lost the case, the Chief Justice and one judge in my
favor and three judges again?! me.

After the case was tried it came up four times before they
gave the decision.

IMr. Olney is very much interested in the Gcrring's case and
he has written Mr. Sherman lately about it. He says that they
never had proof enough to condemn the vessel.

Congressman ^Nloody writes to me that he thinks that the State
Department will ask for the release of the vessel. As regards to
the vessel and the fishing gear, it is hardly worth while to go to
Halifax after them as they are nearly completely spoiled.

Capt. Collins, Agent of the Mutual Fishing Insurance Co., was
on board the Gerring a week ago. He told me that everything was
in a wretched condition, for they have never taken care of her or
anything belonging to her since they have had possession of her.

The seine which was worth a thousand dollars has laid in a
pile ever since they have taken her and must be completely spoiled.

Her large boat which was worth Two Hundred and Seventy-
five Dollars is all split to pieces. Her two small boats have been
laying in the weather all the time since she was taken. All her
stores and provisions are spoilt. Her sails were unbent and put
in a store when not near dried. I saw that myself and I told them
they would spoil if left lay in that condition, in which they have
laid ever since.

146 The Frederick G erring, Jr.

The mackerel which were on board they let spoil, by not tak-
ing care of them, and sold them for four dollars a barrel when they
were rusty, which if they were taken care of would have brought
Thirteen dollars the same day. Her string of cable was even left
lay on the deck and of course that is spoilt. When the vessel was
taken, her and her fishing gear, fish and stores were worth Eight
Thousand Dollars and now the whole thing isn't worth anything.

There is a very important question in this case "What con-
sists of a Headland?" I could not get the Canadian Authorities
to take any notice of that, and I think that the American Govern-
ment had Ought to look into this and see what consists of a Head-
land.

I am going to send you the chart that was in the Canadian
Court with the positions the two Canadian Captains said the vessel
was in. Capt. MacKenzie of the Cruiser Vigilant said she was
over ZYz miles from Gull Ledge. His is the outside position.
Capt. Knowlton of the Aberdeen who seized the vessel said she was
1% miles from Gull Ledge. His is the inside marks.

Now this Gull Ledge is claimed to be 30 feet high, but all the
people who live on the coast say the sea breaks over it continually
in rough weather. The nearest land to where Knowlton says the
vessel was, is Barren Island, which is a little over 3 miles away,
which you will see on the chart. I don't think it would be any use
to send Mr. Sherman this chart as probably it would never be
looked at. You are used to the water and whenever you look at it
you will understand the positions.

Now here is where my Captain wanted to measure the dis-
tance, and asked the Captain of the cruiser to tow his log to Gull
Ledge to see if he was not three miles away, which he would not do
saying he would run his steamer ashore. My Captain said "Take
my seine-boat, my men and your mate with my log, or yours, or
both of them, and measure the distance for I am sure I am 3 miles
away from that ledge," which he would not do.

When he went to tow the vessel into Liscomb Harbor the Cap-
tain went to put his log out, but the Captain of the cruiser told his
mate not to let him do it.

Capt. Knowlton, of the Aberdeen, said that he took the cross-
bearings of the position the vessel was in and laid it down on the

Appendix to the Memorial. 147

chart and when the mate went on the stand in court he said he
was the one that took the cross-bearings and position of the vessel
while the Captain was walking on the bridge.

It was also proven that Capt. Knowlton never laid the courses
down on the chart, but Commodore Spain marked them on the
chart in Halifax three days after the seizure, and he, Spain, was
nowhere near where the vessel was seized, but at the time was a
hundred miles to the westward. Everything they said seemed to
go all right in court.

This is all in print in Washington, with the State Department,
and you can see there is a good deal of crooked work in this seizure,
and it is pretty hard for one man alone to fight that Canadian Gov-
ernment, for I don't think any vessel taken, whether she be inno-
cent or guilty, will have any justice shown her in that court.

Will you kindly look into this case and see if you can help me,
as it has completely ruined me.

I hope you will excuse my long letter as I wished to state the'
particulars to you.

Yours very truly,

Capt. Edward Morris,

:^36 Beacon St.

EXHIBIT 12.

The Secretary of State to Lord Paunccfote.

No. 709.

Department of State,
Washington, June 22, i8p/.

His Excellency The Right Honorable

Sir Julian Pauncefote, G. C. B., G. C. M. G., etc.

Excellency :

I beg to call your attention to the case of the seizure of the
fishing schooner Frederick Gerring, Jr., owned by Mr. Edward
Morris, of Gloucester, Massachusetts. The short facts of the case
are as follows :

148 The Frederick G erring, Jr.

On May 25, 1896, the Frederick Gerring, Jr., cast her nets
off Liscombe Island, near the southern coast of Nova Scotia. The
seine had surrounded a school of mackerel on the high seas out-
side of the three-mile limit. While removing the fish from the
seine, — an operation which took at least two hours. — the seine and
the vessel drifted within the three-mile limit, and while there con-
tinuing the operation of removing the fish from the seine, the
vessel was seized by the Canadian steamship Aberdeen for unlaw-
fully fishing within the three-mile limit, and she was condemned
by the Judge of Admiralty for the Nova Scotia Admiralty District
and the judgment affirmed by the Supreme Court of Canada in an
opinion in which three of the Justices concurred, and from which
two of the Justices, including the Chief Justice, dissented.

When the net was lowered it was after consultation with the
commander of the Vigilant and an expression of his opinion that
the schooner was on the high seas without the three-mile limit.
The Vigilant steamed away while the nets of the Gerring were in
the water, and the vessel was seized in the manner aforesaid after
she had drifted within the three-mile limit.

I beg to call your Excellency's attention to the opinion of the
Admiralty Court in this case, and especially to the dissenting opin-
ion. From the recital of facts given by the Court, the inference
is conclusive that the Frederick Gerring was outside the limit when
she cast her net and had drifted within the limit wdiile engaged in
the operation of hauling it. The Court held tliat this was a tech-
nical violation of the Canadian Fishing Laws and imposed the
penalty of forfeiture upon the vessel. The Court closes the opin-
ion in the following language:

"It would, I apprehend, be difficult, if not impossible, to
enforce these fishery laws, to which our people attach supreme
importance, if those American subjects, w'ho so eagerly seeli:
to compete with our people along our shores in this industry?
who are not, I fear, always overscrupulous in the observance
of the laws of which they have ample notice, should be per-
mitted to plead accident or ignorance to a charge of infraction
of these laws. Such a plea, however eflFective it may be to the
executive authority of the country, cannot avail in this
Court."

Appendix to the Memorial. 149

I beg to call your Excellency's attention to the reasoning of
the dissenting opinion as indicating the real equity of the case, even
though there might be a technical violation of the law, as held in
the majority opinion. It would seem to the undersigned that the
consequences apprehended in the above quotation from the major-
ity opinion would not ordinarily follow in cases of the character
of the one now under consideration, where there seems to have
been no criminal intent, and where peculiar care seems to have
been exercised at the outset to avoid a violation of the Fishery
laws. But in any event, the concluding sentences above quoted
from the majority opinion contains a plain intimation by the Court
that this is a proper case for the exercise of executive clemency;
and in view of the spirit of comity existing between the two Gov-
ernments, and of Your Excellency's high sense of equity, the under-
signed would respectfully request the exertion of Your Excellency's
good offices with the Canadian authorities to the end that the
penalty of confiscation may be remitted, as, in view of the strait-
ened financial circumstances of Mr. Morris, the case is one of very
great hardship.

I have the honor to attach hereto, for your consideration, a
copy of the decree of the Supreme Court of Canada, and also copy
of letter from Mr. Richard Olney, late Secretary of State, in which
he suggests the propriety of this appeal.

I have the honor to be, etc.,

John Sherman.

Enclosure :

Decree as above.

[Enclosure.^

Richard Olney,

23 Court Street.

Boston, 14 June, i8gy.
Hon. John Sherman,

Secretary of State, Washington, D. C.

Sir: The contents of the enclosed papers require no expla-
nation.

150 The Frederick Gcrring, Jr.

I am not counsel for the party interested — Mr. Edward Mor-
ris— and have consented to forward them to you only out of friend-
liness and because his case seems to be one of great hardship.

You will observe that it is doubtful if there has been any
violation of law by Mr. Morris or his vessel and that, if there has
been, the violation is purely technical and entirely devoid of the
element of criminal intent. Two judges of an appellate court of
five, including the Chief Justice, are of opinion that the vessel
should not have been condemned.

Mr. Morris could undoubtedly take an appeal from the Cana-
dian court to the Privy Council in England. But the expense
would be large, the delay great and indefinite with the prospect,
almost the certainty, that meanwhile the subject-matter of the liti-
gation would perish.

Mr. Morris is an active, practical fisherman of small resources,
to whom the loss of his vessel would be a great financial disaster.
He has already spent in litigation much more than he could afiford.
Under the circumstances I have advised Mr. Morris that the true
course for him to pursue is not to carry the litigation farther nor
to present a claim against the British government, but to endeavor
to get a remission of the sentence through the intercession and
good offices of the British Ambassador at Washington. Sir Julian
Pauncefote has great influence with the Canadian authorities, is
animated by a keen sense of justice and a strong desire to promote
the friendly relations between Great Britain and the United States
by recommending and urging any course which under the circum-
stances of any particular case equity and fair dealing seem to
warrant.

I should have little doubt that, if Mr. Morris' case were pre-
sented to Sir Julian by the State Department with the request that
he w^ould exercise his good offices with the Canadian Government
in Mr. Morris' behalf, he would probably exert himself in the mat-
ter both strenuously and successfully.

Trusting the State Department may find no obstacle to taking
action on Mr. Morris' behalf in the direction above suggested,
I am.

Respectfully yours,

Richard Olney.

Appendix to the Memorial. 151

Enclosures :

(1) Letter of Edward Morris to Secretary of State, June
12, '97;

(2) Opinion of Sedgwick, J. (concurred in by two other
judges) ;

(3) Judgment of Gwynne, J. (concurred in by the Chief
Justice).

EXHIBIT 13.

The British Charge d'Aifaires to the Secretary of State.

Washington, June 23, i8p/.

Sir : I have the honour to acknowledge the receipt of your
note No. 709 of the 22nd instant transmitting correspondence re-
specting the seizure of the fishing schooner Frederick G erring,
Jr., by the Canadian steamship Aberdeen in May last year.

In compliance with instructions left by Sir. J. Pauncefote,
I have this day forwarded the correspondence in question to the
Governor-General of Canada for the favorable consideration of
the Dominion Government.

I have the honor to be with the highest consideration, Sir,
Your most obedient, humble servant,

Reginald Tower,
H. B. M. Charge d'Aifaires.
The Hon. John Sherman.

EXHIBIT 14.

The British Charge d' Affaires ad Interim to the Secretary of

State.

British Embassy, Manchester, Mass., July 75, iSgy.
Sir:

With reference to your note to Sir Julian Pauncefote, No.
709 of the 22n(l ullinio, respecting the seizure and condemnation

152 The Frede.ick G erring, Jr.

of the American fishing schooner Frederick Gerring, Jr., of
Gloucester, Massachusetts, for unlawful fishing in Canadian waters,
I have much pleasure in informing you that, in view of all the cir-
cumstances of the case, the Government of the Dominion have de-
cided that the vessel should be restored to her owner, on payment
of a nominal fine, together with the costs incurred in her prosecu-
tion.

I have the honour to be, with the highest consideration.
Sir,

Your most obedient, humble servant,

C F. Frederick Adam.

The Honorable John Sherman.

EXHIBIT 15.

The Acting Secretary of State to Edivard Morris.

Department of State, Washington, Jidy /p, 18^7.

Edward Morris, Esquire,

Gloucester, Massachusetts.
Sir:

Referring to your letter of May 12th last, relative to the
seizure and condemnation of the American fishing schooner Fred-
erick Gerring. Jr., I enclose for your information a copy from
the British Charge d'AfTaires ad interim at this capital, stating that
in view of all the circumstances of the case the Government of the
Dominion of Canada has decided that the vessel in question should
be restored to the owner on payment of a nominal fine, together
with the costs incurred in her prosecution.

Respectfully yours,

William R. Day,

'Acting Secretary.
Enclosures :

From British Charge d' Affaires.
July 15, 1897.

Appendix to the Memorial. 153

EXHIBIT 16.
The Acting Secretary of State to the British Charge d' Affaires.
No. 727.

Department of State, Washington, July iq, i8gj.

Mr. C F. Frederick Adam,

etc., etc., etc.
.Sir : —

I have the honor to acknowledge the receipt of your note of the
15th instant, stating that in view of all the circumstances of the
case the Government of the Dominion of Canada has decided
that the American fishing schooner Frederick Gerring, Jr., should
be restored to her owners on payment of a nominal fine, together
with the costs incurred in her prosecution.

I beg to express to the proper authorities of Her Majesty's
Government the great gratification with which the Department has
learned of the decision of Canadian Government in regard to the
matter.

I have the honor to be, etc., etc.,

William R. Day,

Acting Secretary.

EXHIBIT 17.

The American Ambassador to the Secretary of State.
No. 100

American Embassy,
London, August i8, iSgy.
Sir, —

Referring to your Instruction No. 136, of the 19th ultimo,
and to previous correspondence, I have the honour to enclose here-
"with the copy of a note which I have received from the Marquis
of Salisbury, stating that, although the Supreme Court upheld.

154 The Frederick G erring, Jr.

by a majority of one, the judgment of the Admiralty Court of
Nova Scotia, in the case of the American fishing schooner Fred-
erick Gerring, the Canadian Government has, on the recommenda-
tion of the Minister of Marine and Fisheries, decided that the
schooner should be released, and given back to her owners on
payment by them of all the costs incurred, both in the Admiralty
Court of Appeal, as well as of all charges for custody or other-
wise in connection with the seizure, and also on payment of a
nominal fine for infraction of the law.

I have, in accordance with your instruction aforesaid, ex-
pressed to the Foreign Office the gratification afforded to you by
this decision of the Canadian Government.
I have the honour to be.
Sir,

Your obedient servant,

John Hay.
The Honorable

John Sherman,

Secretary of State.

Enclosure.
1/100 Lord Salisbury to Mr. Hay, Aug. 12, 1897.

[Enclosure.^

Lord Salisbury to the American Ambassador.

1/100.

Foreign Office, August I2 i8gy.
Your Excellency:

On the 28th of May last you did me the honour to address to
me a note requesting that the penalty incurred by the American
fishing schooner Frederick Gerring, for contravention of the
Convention of 1818, between Great Britain and the United States,
might be remitted. I have now received from the Secretary of
State for the Colonies a copy of a despatch on the subject from the
Governor General of Canada, with the substance of which I have
the honor to acquaint Your Excellency.

Appendix- to the Memorial. 155

The Supreme Court upheld, by a majority of one, the judg-
ment of the Admirahy Court of Nova Scotia, but in view of the
circumstances of the case, the Minister of Marine and Fisheries
recommended that the enforcement of the judgment of confiscation
would be open to the charge of hardship. He considered that there
was room for the belief that there was no intention on the part of
the master to violate the treaty or break the law, and, being sup-
ported in this view by a perusal of the reasons for the judgments
as stated by the judges of the Court of Appeal, he held that the
protection of Canadian territorial rights and the supremacy of the
law had been sufficiently vindicated by the seizure and successful
prosecution of the vessel. The Canadian Government have ac-
cordingly decided that the schooner should be released and given
back to her owners, on payment by them of all the costs incurred,
both in the Admiralty Court and in the Court of Appeal, as well
as of all charges for custody, or otherwise, in connection with the
seizure; and also on payment of a nominal fine for infraction of
the law.

I have the honor to be, &c.,

( Signed ) Salisbury.
His Excellency

The Honble. John Hay,

&c., &c., &c.

EXHIBIT 18.
Edward Morris to the Secretary of State.

Gloucester, Mass., Sept. 7, i8Qy.
Hon. John Sherman,
Secretary of State,

Washington, D. C.
Dear Sir: —

I received a letter from Alvey A. Allen [Adee], your Assistant
Secretary, and also a copy of Lord Salisbury's letter concerning
Schr. Frederick Gerring, where they say I can have the vessel back
by paying all expenses. In regard to the vessel, she is not worth

156 The Frederick Gerring, Jr.

going after. As they have kept her so long and have taken no
care of her, she is now ruined. Her seines are completely ruined,
and her boats have lain in the water until they are good for
nothing. Her stores are all ruined and her cooking utensils and
stoves are a mass of rust. They unbent the sails while they were
damp and put them in a store. I told them that they would spoil
if left in that condition and they have lain there ever since. There
were one hundred and twenty barrels of mackerel on board the
vessel when she was seized, which were worth Thirteen dollars
a' barrel ai; the time. They allowed these mackerel to spoil and
some of them brought only Four Dollars a barrel. The whole lot
brought only Eight Hundred and Ten Dollars which they do not
mention. This vessel, her fish and fishing gear were worth Eight
Thousand Dollars, and if the vessel and fishing gear were sold,
to-day they would not bring One Thousand Dollars. The Can-
adian Government knows this and that is why they want me to
take her back. They are ashamed of what they have done, as
they never had any case against the vessel. They admit that the
vessel caught her fish outside of the three mile limit, but claim
that she drifted across the three mile limit while bailing out the
fish, and she had just as much right to do that as she has to sail
across the line with the fish on deck, and Chief Justice Strong,
one of the greatest learned judges Canada ever had, sat on this
case and said the same. He has been appointed since to the Privy
Council in England.

H the vessel was inside the three mile limit as they claimed
she was, why did not the Captain of the Cruiser let my Captain
measure the distance to Gull Ledge with the log when he said,
"Take my boat, my men, your officers and my log or your own
and measure the distance to Gull Ledge as I know that I am more
than three miles off." Could anything be fairer than that? When
they went to tow the vessel to Liscomb, which was six miles and
a half away, my Captain wanted to tow the log but the Captain
of the Cruiser would not allow him to. Don't you think that if
the Captain of the Cruiser was sure he was inside the three mile
limit he would have allowed him to tow the log quick? If I had
been aboard of the vessel at the time I should have anchored her
right where she was.

Appendix to flic Memorial. 157

Captain Moulton, of the Cruiser Aberdeen, swore he took the
cross-bearings and the position of the vessel himself, but when
the Mate was called, on the stand in court he said that he took
the bearings while the Captain walked on the bridge. The chart
that the Captain claimed he marked the position of the vessel on
at the time of the seizure was never produced in court, but another
chart on which Commodore Spain had marked the position of the
vessel three days after the seizure was produced, and he was
eighty miles away at the time of the seizure. He also went on
the stand and swore that one-half of Gull Ledge was larger than
George's Island in Halifax H^arbor, which was the largest false-
hood that a man ever swore to.

I tried to hold a commission in Gloucester to take the evi-
dence of the captains of the fourteen vessels that were there at the
time, but the}'- disappointed me in every way until I had to give
it up. Commodore Spain and their lawyer put every obstacle in
my way that they could. When Captain McKenzie, of the cruiser
Vigildnt, was asked in court how far outside of the three mile
limit the vessel was, he said, "A good half mile," and for him
daring to tell the truth his cruiser was taken away from him by
Commodore Spain. I talked with the mate of the Cruiser Vigilant
lately and he said it was the biggest outrage he ever saw and that
they had no right to seize the vessel at the time.

As to the seizure of the vessel, it was nothing less than steal-
ing her. If I had the means I would have carried this case to the
Privy Council in England and I know I would have gotten the
case as Judge Strong is now one of the members of the Privy
Council in regard to the vessel, if this is the way it had got to be
settled, they are perfectly welcome to her, for poor as I am I shall
never go after her, as it has ruined me anyway, and they are wel-
come to her as they will never get another dollar out of me. I
see that the press all through Nova Scotia condemns the Canadian
Government for the action they have taken in the case, I hope
you will excuse my long letter, as I cannot help writing the whole
particulars to you as I feel very sore over the way it has turned
out.

I have never published anything concerning this case or gave
it to any of the reporters that have been after me, and they have

158 The Frederick G erring, Jr.

been to me from the leading New York and Boston papers as this
case interests the whole New England Coast. They even went so
far as to try to get out of me what Secretary Qlney told me before
he went out of office and you have written me since you came into
office. I suppose the Democrats want something to play on their
harp next election time.

Yours truly,

Edward Morris.

EXHIBIT 19.

The Secretary of State to the British Ambassador.
No. 934.

Department of State^
Washington, March i, i8p8.

His Excellency The Right Honorable

Sir Julian Pauncefote, G. C. B., G. C. M. G.,
Etc., etc., etc.

Excellency : Your Excellency will recall the case of the Amer-
ican fishing schooner Frederick Gerring, Jr., which in the course
of last year was the occasion of considerable correspondence both
with your Embassy and directly with Her Majesty's government
through the United States Embassy at London.

My note to Your Excellency of the 22nd of June last pre-
sented the equities of the case with a view to obtaining in a spirit
of clemency the remission of the extreme penalty of confiscation
of the vessel which was decreed by the Nova Scotia Admiralty
Court and confirmed by the Supreme Court of Canada by a major-
ity of one vote, — three of the Justices concurring in the finding of
the lower court, while two of the Justices, one of them being the
Chief Justice of the Supreme Court of Canada, disagreed.

When that note was written and subsequently in accepting the
remission of the penalty of confiscation which Her Majesty's Gov-
ernment graciously ordered and which this Government had pleas-
ure in accepting, it was believed that such a remedy would afford
a complete and satisfactory settlement of the case. The note ad-
dressed to ?^Tr. Adam by the Acting Secretary of State on the 19th

Appendix to the Memorial. 159

of July accordingly expressed the great gratification with which
the Department had learned the decision of the Canadian Govern-
ment in regard to the matter.

I regret to say that circumstances have since been brought to
the attention of this Department which, while not perhaps exactly
in the nature of after discovered evidence, and not directly affecting
the original questions which may have been brought before the
trial court and passed in review by the Supreme Court of Canada,
were nevertheless pertinent to the settlement of the case as between
the two Governments and which, had they been known to the De-
partment, would doubtless have led to further correspondence at
the time and delayed, if not perhaps obstructed, the acceptance of
the remission of the penalty of forfeiture and the reduction of the
fine imposed upon the vessel to a nominal sum as a sufficient and
equitable settlement.

The Department is now informed that the catch of mackerel
which was admittedly seined by the Frederick Gerring, Jr., out-
side the three-mile limit, and while engaged in the removal of which
from the seine the vessel drifted within the three-mile limit of a
barren and isolated rock called "Gull Ledge," near the southern
coast of Nova Scotia, where the vessel was seized by the Canadian
fishery cruiser, was sold by the British authorities for a consid-
erable sum, which does not appear to have been taken into account
in adjusting the reduced penalty and costs to which the vessel re-
mained liable after the commutation of her sentence. It further
appears that the seized vessel, while in the custody of the British
authorities, was treated in such a careless manner that her hull,
rigging and outfit have become so damaged as to be practically
worthless and their owner has found them to be of no value to him
whatever.

I am not unaware that when a case of this character passes
from the judicial to the diplomatic resort and becomes the subject
of a settlement offered by the one party and accepted by the other
it becomes virtually barred from further treatment in that channel
unless exceptional circumstances, unknown to the high parties
reaching the agreement, should subsequently become developed.
I ha\c no disposition to rc-open the case upon its original merits,
although I must frankly confess that this Government has never
felt that the Frederick Gerring, Jr., violated the treaty provi-

160 The Frederick Gerring, jr.

sions between the United States and Great Britain, or that her
seizure and condemnation were justified by the letter or spirit of
that compact. That the equities of the case leaned strongly in
favor of the inculpated vessel is obvious on the high authority
of the Chief Justice and an Associate Justice of the Supreme
Court of Canada. Nevertheless, believing at the time that the
measure of clemency offered by Her Majesty's authorities of the
Dominion of Canada would aft'ord adequate relief and reduce the
loss of the owner of the vessel to a minimum sum which might be
conveniently disregarded, this government hastened to accept the
tendered settlement without, however, yielding its conviction as
to the doubtful character of the proceedings upon which the orig-
inal penalty was founded. The object of this present note is not
to re-open the case but to call the attention of Her Majesty's
government to the facts now represented which deprive the gra-
ciously tendered reparation of a large part if not of all of its suffi-
ciency, so that the outcome leaves the owner of the Frederick
Gerring, Jr., as much a sufferer by the actual loss of his catch,
or its value, and the virtual loss of his vessel as though the orig-
inal penalty of confiscation had been carried out. That the order
of restitution of the vessel necessarily involved the moral obliga-
tion to return it in substantially the same condition as that in which
it was seized, is a proposition which I venture to believe is not
open to disagreement and I further think the sale of the seined fish
and the appropriation of the proceeds may admittedly be regarded
as a proceeding contrary to the spirit in which the offer of clem-
ency was made and accepted.

I trust, therefore, that these circumstances may be taken into
account by Her Majesty's Government in that large spirit of justice
which properly animates the treatment of international incidents
of this character, and with a view to such examination and dis-
position of the subject I address this friendly note to you instead
of making the matter the occasion of an instruction to the United
States Ambassador at London. I am the more disposed to adopt
this comparatively informal manner of treating the question in
view of the previous correspondence had with Your Excellency on
the subject.

J have the honor to be, etc., etc., etc.,

John Sherman.

Append Lv to the Memorial. 161

EXHIBIT 20.

The British Ambassador to the Secretary of State.

Washington, i8 April, 1898.
Sir:

With reference to your note No. 134 (934) of the 1st ultimo,
I have the honor to forward to you a copy of the minute of the
Privy Council of Canada in the case of the seizure of the Ameri-
can fishing vessel Frederick Gerring, Junior.

In transmitting this reply to the representations made in this
case by the United States Government, the Dominion Govern-
ment express confidence that their view as to the lenient and equit-
able character of the action taken by them in the matter will be
shared by the United States Government.

I have the honour to be, with the highest consideration,
Sir,

Your most obedient humble servant,

Julian Pauncefote.
The Hon. John Sherman,
Etc. Etc. Etc.

[Enclosure.l
759 K.

Extract from a Report of the Committee of the Honorable the
Privy Council, Approved by His Excellency on the ^ist day
of March, iSgS.

Privy Council
Canada
The Committee of the Privy Council have had under con-
sideration a despatch, hereto annexed, dated 3rd March, 1898,
from Her Majesty's Ambassador to the United States, covering
copy of a communication from the United States Secretary of

162 The Frederick G erring, Jr.

State on the subject of the seizure of, and subsequent proceedings
in connection with, the United States fishing schooner Frederick
Gerring, Jr.

The Minister of Marine and Fisheries, to whom the matter
was referred, submits the following observations : —

Briefly, it may be said that the vessel in question was seized
by a Canadian Cruiser, for fishing within the territorial waters of
Canada, in violation of the Convention of 1818, and the Statutes
provided thereunder.

She and her cargo and equipment were condemned in the
Vice Admiralty Court of Nova Scotia and forfeited to the Crown,
and on appeal to the Supreme Court of Canada the decision of the
Court of first instance was confirmed.

The United States Government having through diplomatic
channels intervened for a suspension of the penalty, Your Excel-
lency's Government in the exercise of their executive clemency,
decided that the vessel should be released and given back to her
owners, on payment by them of the costs incurred by Your Ex-
cellency's Government, in the Admiralty Court and the Court of
■Appeal ; and also the charges for custody and otherwise in con-
nection with the seizure, as well as a nominal fine for infraction of
the law.

The exact nature of this conditional release can perhaps be
best understood from an examination of the amount of expenses
which would accrue to the owners : —

Legal expenses $977.25

Care of vessel 20th January, 1898 239.00

Nominal fine 1.00

Total $1217.25

Credit proceeds sale of fish 606.55

Balance $610.70

On the 13th. of January, 1898, the legal representative of the
owner of the vessel was informed that the vessel would be handed
over on the payment of the sum of $610.70, and the officer who
personally tendered the vessel was informed that his clients had
not decided whether to take the vessel back or not.

Appendix to the Memorial. 163

The despatch at present under review states that in the ac-
ceptance of the remission of the penalty of confiscation which
Her Majesty's Government graciously ordered, it was believed
that such a remedy would afford a complete and satisfactory
settlement of the case, but that circumstances have since been
brought to the attention of the State Department, which, had they
been known at the time, would doubtless have led to further cor-
respondence, and delayed, if not obstructed the acceptance of the
remission of the penalty of forfeiture, and the reduction of the
fine imposed upon the vessel to a nominal sum, as a sufficient and
equitable settlement.

Mr. Secretary Sherman seems to have misapprehended the
attitude of Canada in the leniency shown in this case. The con-
ditional release of the vessel was not ordered by Her Majesty's
Government, but on the contrary, when it became known to your
Excellency's Government that the United States Government had
invoked diplomatic intervention, and Her Majesty's Government
signified a desire to be informed as to what reply Your Excel-
lency's Government would wish to be returned, it was pointed out
that as the appeal was pending in the Supreme Court, it would
be advisable to await the result, thus exhausting the legal remedy
in Canada, which might have involved the restoration of the
vessel.

When, however, the seizure was confirmed. Your Excellency's
Advisers, without any pressure from Her Majesty's Government
beyond the request above referred to, for an intimation of the
nature of the intended reply, voluntarily offered to exert Execu-
tive clemency, and remitted the penalty of forfeiture, substituting
a fine of one dollar.

The communication then explains that this subsequent in-
formation is to the effect that the proceeds of the catch of the
vessel, which had been sold by British authorities, had not been
taken into account in adjusting the reduced penalty and costs. In
this, the Honorable Mr. Sherman has been wholly misinformed,
since Your Excellency will observe from the foregoing statement,
that a sum of $606.55, the proceeds of the sale of the vessel's
catch of fish, is deducted from the expenses incident to the con-
demnation and care of the vessel.

The Minister is advised that these fish were sold as soon as

164 The Frederick Gerring, Jr.

possible for the benefit, and with the consent of both parties, the
amount realized being $813.10 and the expenses attaching to the
care and sale $206.55.

The communication of the United States Secretary of State
proceeds that it further appears that the seized vessel, while in
the custody of the British Authorities "was treated in such a
careless manner that her hull, rigging and outfit have become
practically worthless, and their owmer has found them to be of no
value to him whatever."

Your Excellency will be able to judge of the accuracy of
this information, with which Mr. Secretary Sherman has been
supplied, when it is pointed out that as much care as possible has
been taken of the vessel ; a man has been placed specially in charge
of her since she was seized, paid at the rate of $1.25 a day; the
seine is in the Government store at Halifax, carefully placed,
overhauled and kept salted ; the boats are bottom up on the wharf,
not damaged in any way; the sails, outfit, running gear, &c. were
all dried and marked, and put together in the store, and the stove
is in good order.

It is difficult to appreciate under these circumstances, how,
if the vessel was worth anything at the time of the seizure, she
is now devoid of all value to the owner.

The Minister is of opinion that since the specific objections,
which Mr. Secretary Sherman urges, are shown to have no foun-
dation in fact, he will be induced to change his views as to the
relief to the owner of the vessel, which the Canadian Govern-
ment have proposed, and to accept the same in the spirit in which
it was tendered.

Mr. Sherman characterizes the action of Canada in the light
of "reparation" and proceeds to say, that the order of "restitu-
tion" of the vessel "necessarily" involved the "moral obligation"
to return it in substantially the same condition as that in which
it was seized, which proposition he ventures to believe is not
open to disagreement.

The Minister is unable to share this view of the matter, inas-
much as the action of the Canadian officers in seizing the vessel,
on being submitted to the British Admiralty, was approved as
being in accordance with the practice of the Imperial officials
under precisely similar circumstances, and was judicially con-

Appendix to the Memorial. 165

firmed by the Court of Vice Admiralty and afterwards by the
Supreme Court of Canada.

The Minister under these circumstances submits there is no
question of reparation for a wrong done; but of the remission of
a penalty of forfeiture judicially adjudged — accompanied by con-
ditions which are reasonable, and he ventures to think, should be
accepted by the Government of the United States.

The Minister desires also to point out, that every day the
expense is increasing in connection with the storage of the arti-
cles, and the wages of the watchman in charge of the vessel, and
it is desirable that some decision should be reached by the owners.

The Minister cannot believe that after the above explanation,
Mr. Secretary Sherman will further press the views he advanced
in his despatch now being considered, and in any event he is un-
able to see what further relief Canada could afford in the prem-
ises.

The Committee, on the recommendation of the Minister ot
Marine and Fisheries, advise that Your Excellency be moved to
transmit certified copies of this Minute to the Right Honorable
Her Majesty's Principal Secretary of State for the Colonies, and
to His Excellency, Her Majesty's Ambassador to the United
States.

All of which is respectfully submitted for Your Excellency's
approval.

John J. McGee,
Clerk of the Privy Council,

EXHIBIT 21.
The British Ambassador to the Secretary of State.

Washington, / July, i8q8.

Sir,

With reference to previous Correspondence on the seizure
of the Schooner Frederick Gerring, Jr., for violation of the
Canarlian Fishinir Laws. I have the honor to transmit to you.

166 The Frederick G erring, Jr.

herewith, a copy of an approved Minute of the Privy Council as
to the future disposal of the vessel.

As you will doubtless recollect, the vessel- was conditionally
released by the Dominion Government upon the representations
of the United States Government; but has apparently not been
claimed by the owners.

As the prolonged custody of this vessel is a cause of expense
and inconvenience to the Dominion Government and further de-
lay would be attended by deterioration of the vessel and outfit,
I should be glad to learn for communication to the Dominion
Government, whether the owners still refuse to accept the con-
ditions of the release.

I have the honour to be with the highest consideration,
Sir,

Your most obedient humble servant,

Julian Pauncefote.
The Hon. W. R. Day

etc., etc., etc.

[Enclosure.']
1436.

Extract from a Report of the Committee of the Honorable the
Privy Council, approved by His Excellency on the 17th
June, i8p8.

In triplicate.
John J. Meyers.

On a report dated 7th June, 1898, from the Minister of Marine
and Fisheries, referring to a Minute of Council, approved on the
31st March, 1898, replying to the remarks of Mr. Secretary Sher-
man on the condemnation and subsequent conditional release of the
United States fishing schooner Frederick Gerring, Jr.

The Minister observes that the custody and care of this vessel
continue to be a source of expense to the Government, and her
occupancy of the Government wharf, a source of inconvenience.

The Minister states that he is advised that certain ofTers have
been made for the vessel, but before making any final disposition

Appendix to the Memorial. 167

of the case, he considers it might be well that enquiries be made of
Her Majesty's Ambassador to the United States whether anything
further has been heard on the subject from the United States Sec-
retary of State.

The Minister recommends also, if the owners still refuse to ac-
cept the conditions of the release authorized, that authority be
granted him to dispose of the vessel to the best advantage, without
any further delay, which is attended by expense and deterioration
of the vessel and her outfit.

The Committee, on the recommendation of the Minister of
Marine and Fisheries, advise that Your Excellency be moved to
forward certified copies of this Minute to the Right Honourable
Her Majesty's Principal Secretary of State for the Colonies, and to
His Excellency Her Majesty's Ambassador to the United States.

All of which is respectfully submitted for your Excellency's
approval.

John J. Meyers,
Clerk of the Privy Council.

EXHIBIT 22.

The Acting Secretary of State to the British Ambassador.

No. 1172

Department of State,
Washington, September 2, i8g8.

His Excellency the Right Honorable

Sir Julian Pauncefote, G. C. B., G. C. M. G.,
etc., etc., etc.
Excellency:

Referring to previous correspondence concerning the case of
the American Schooner Frederick Gerring, Jr., I have the
honor to inform you that Captain Edward Morris, the owner of
the vessel, asserts that it is irremediably damaged by the deten-
tion, and he objects to taking it back in such a worthless condition
as to afford him no remedy.

168 The Frederick G erring, Jr.

Under these circumstances, the Department begs to suggest
that a survey of the vessel be had by the nearest United States
Consul, jointly w^ith a representative of the Dominion Govern-
ment, in order to ascertain the present condition of the vessel.
I have the honor to be, etc., etc., etc.,

J. B. Moore,
Acting Secretary.

EXHIBIT 23.

Edzvard Morris to the Secretary of State.

Gloucester, Mass., March 2, i8pp.
Hon. John Hay,

Washington, D. C.
Dear Sir: —

I send you a chart with the position laid down on it where
the Schooner Frederick Gerring, Jr., was fishing when seized,
which by the courses and cross-bearings taken by Captain Mc-
Kenzie of the cruiser Vigilant at the time, gives the position
of the Gerring a good half mile outside of the three mile limit.
Both Canadian captains claimed the wind was east south-east and
the tide running west by south, and the vessel heading south
south-west with the booms guyed well out on the starboard side.
The vessel would have to make a little headway so the seine would
not swing around the bow. You can see for yourself how utterly
impossible it was for the vessel to drift stern- foremost across the
wind and tide, towards the shore. Captain Knowlton, of the
cruiser Aberdeen, who seized the Gerring, claimed she was
only a mile and three-quarters from Gull Ledge. According to
his statement she would have to drift, across the wind and tide,
a mile and three-fourths in an hour, and any seaman would know
that this would be impossible under those circumstances. Captain
Jacobs of the American schooner Ethel B. Jacobs took the cross-
bearings at the same time, and he claims she was three-fourths of
a mile outside of the three mile limit. Chief Justice Strong, one
of the ablest judges Canada ever had, now in the Privy Council

Appendix to the Memorial. 169

in England, said that he supposed the three mile limit was to
protect the fish for Canadian fishermen, and that he could not
understand how fish admitted caught outside of the three mile
limit on the high seas were British property, and even if she had
drifted over the line while bailing in her fish, they were un-
doubtedly American property, and anyone molesting them would
be liable to an action. The next question is, what consists of a
headland? Gull Ledge is a slate ledge over which the sea breaks
in a gale of wind and it lies between where Captain
Knowlton said the vessel was and Barren Island. All
seamen claim it is no headland. There is a shoal be-
tween Gull Ledge and Barren Island called the Nightcap
shoal with over three feet of water on it all the time.
From the edge of Barren Island to where Captain Knowlton said
the vessel was is just three miles and one-fourth. There were
eighteen American fishing vessels with two hundred and seventy-
five men on board, present at the time, and they all said that the
seizure was a terrible outrage, and that the vessel should not have
been molested. One reason I send you this chart is, that people
say here that some years ago you used to go yachting a great
deal and would know all about courses and cross-bearings, and
as soon as you look at the chart you can see the courses and posi-
tion of the vessel. I hope you will be kind enough to look into
this case as this is a very serious question.

Yours respectfully,

Capt. Edward Morris.

EXHIBIT 24.
The British Ambassador to the Secretary oj- State.

Washington, March 20, iSpp.
Sir,

I referred Mr. Acting Secretary Moore's Despatch No. 1172
of September 2 last respecting the Schooner Frederick Gerring
Jr. to the Government of Canada.

I have now the honor to transmit to you a copy of an ap-

170 The Frederick G erring, Jr.

proved Minute of the Canadian Privy Council dealing with the
suggestions made in that despatch and concurring in the report
of the Minister of Marine and Fisheries to the effect that no
useful purpose could be served by the survey suggested, and that
the vessel should be sold without delay.

In sending me this report, Lord Minto adds that authority
has been granted to the Minister of Marine and Fisheries to have
the vessel sold at public auction, and I am requested to inform
your Government of the action which it is proposed to take, in
the matter.

I have the honor to be,

With the highest consideration,
Sir,

Your most obedient humble servant,

Julian Pauncefote.
The Honorable John Hay,

etc., etc., etc.

[Enclosure.^
1124 K.

Extract from a Report of the Committee of the Honorable the
Privy Council, Approved by His Excellency on the iph
March, i8pp.

Privy Council
Canada.

In Triplicate.

John J. McGee.
The Committee of the Privy Council have had under con-
sideration a Despatch, hereto annexed, dated 7th September, 1898,
from Her Majesty's Ambassador to the United States, in which
it is intimated that in answer to an enquiry made by His Excel-
lency the Ambassador as to the intentions of the owners of the
United States fishing schooner Frederick G erring, Jr., he learned
from the United States Government that the owners asserted that

Appendix to the Memorial. 171

she was irremediably damaged by detention and demurred to take
her back ; and that under these circumstances the United States
Government suggested that a survey of the vessel be made by the
nearest United States Consul jointly with a representative of the
Dominion Government in order to ascertain the present condition
of the vessel.

The Minister of Marine and Fisheries to whom the said
despatch was referred, observes that in his opinion no good could
have resulted from any such survey. The offer for the return of
the vessel was an offer made purely as a matter of grace and
favor on the part of the Crown, and whether the vessel had
deteriorated or not could not in any possible way affect the offer,
though it might affect the determination of the owners to receive
her.

The Minister further observes that by a Minute of Council
approved on the 17th June, 1898, referring to the condemnation
and subsequent conditional release of the Frederick Gerring Jr.
it was advised that if the owners still refused to accept the ves-
sel, her tackle, apparel, appurtenances and proceeds of the cargo
sold, less the actual costs incurred in her condemnation, authority
be granted to the Minister of Marine and Fisheries to dispose of
the vessel to the best advantage without further delay.

The Minister submits that the expenses of keeping this vessel
are large and becoming larger every season, and he, the Minister
recommends that authority be granted him to have the vessel
sold at public auction without any further delay.

The Committee concurring, advise that Your Excellency be
moved to forward certified copies of this Minute to the Right
Honorable the Principal Secretary of States for the Colonies
and to His Excellency Her Majesty's Ambassador at Wash-
ington.

All which is respectfully submitted for Your Excellency's

approval.

John J. McGee,
Clerk of the Privy Council.

172 The Frederick G erring, Jr.

EXHIBIT 25.

The American Ambassador to the Secretary of State.

No. 565.

American Embassy,
London, May pth, igoi.
Sir,

With reference to your Instruction No. 618, of the 27th
ultimo, in relation to the case of the Schooner Frederick Gerring,
Jr., I have the honor to inform you that, in accordance with
your Instruction No. 492, of the 13th of November last, I ad-
dressed a note to Lord Lansdowne on the 6th of December last,
on the subject, a copy of which is enclosed, and received a reply
on the 4th of March last, a copy of which is herewith enclosed,
in which his Lordship states that the matter is being considered
by the Canadian Government.
I have the honor to be.
Sir,

Your obedient servant,

Joseph H. Choate.
The Honorable John Hay,
Secretary of State.

Enclosures.
Mr. Choate to Lord Lansdowne, December 6th, 1900.
Lord Lansdowne to Mr. Choate, March 4th, 1901.

[Enclosure.']
The American Ambassador to Lord Lansdowne.

American Embassy,
London, December 6th, ipoo.
My Lord :

Under instructions from my Government, I venture to draw
Your Lordship's attention to the case of the Frederick Gerring, Jr.,
which was referred to in Mr. Bayard's note to Lord Salisbur}-,

Appendix to the Memorial. 173

under date of the 6th of November, 1896, and in subsequent cor-
respondence.

It will be seen that on May 25, 1896, the Frederick Gerring, Jr.,
owned by Captain Edward Morris, of Gloucester. Massachusetts,
was seized, off the south coast of Nova Scotia, on a charge of fishing
within the territorial waters of Canada. The seizure was made by
the ship Aberdeen, under Captain Knowlton, of the Canadian Fish-
eries Protection Service.

Upon a trial had in September, 1896, in the Exchequer Court
of Canada for the Nova Scotia Admiralty District, before Judge
MacDonald, the vessel and her cargo were condemned.

An appeal to the Supreme Court of Canada was dismissed by a
divided court, three judges deciding that the appeal should be dis-
missed; two of them, one being the Chief Justice, dissenting.

It is not in dispute that the Gerring was seining for mack-
erel, and had set her seine around a school of fish, which
v,as bailed on board from her seine at the time she was seized.
It was not denied that when the seine was so set, the Gerring
v/as more than three miles from shore; but the vessel had per-
haps drifted shoreward; and it was contended and decided by the
court, in the majority opinion, that when she was seized, she
was bailing fish from the seine within the three-mile limit, and
that this act of bailing constituted an act of "fishing" within the
meaning of the law.

Mr. Ohiey, then Secretary of State, advised agjiinst an ap-
peal of the case to the Privy Council, and, under his instructions,
the above-mentioned note of Mr. Bayard was addressed to Lord
Salisbury, appealing to Her Majesty's Government for the remis-
sion of the forfeiture.

In line with his suggestion, the Department of State afterwards
invoked the good offices of Lord [then Sir Julian] Pauncefote with
the Canadian Government to that end. The result was that the
forfeiture was remitted, on condition of payment by the defendant
of all costs and charges, and the nominal fine of one dollar. The
State Department expressed its cordial appreciation to Lord Paunce-
fote for his intercession, supf)osing that the matter was satisfactorily
arranged.

The result was communicated to Captain Morris, the owner
of the Gerring, who refused to accept restitution on the con-

174 The Frederick G erring, Jr.

ditions named, on die ground that the schooner had become worth-
less by the want of care of the Canadian Authorities in keeping
the vessel.

The Canadian Government traversed Captain Morris' state-
ment as to the alleged injury the vessel had suffered in its keep-
ing, but it declined to appoint, at the request of the Department of
State, a joint commission to make a survey of its condition. The
negotiations, with a view to a mutually satisfactory adjustment,
were thus ended in an apparently hopeless impasse; and the Depart-
ment of State, with the hope that an appeal might still lie from the
decision of the Supreme Court, made inquiries with regard to the
conditions and the time limit for an appeal to the Privy Council, and
ascertained that the appeal would be barred by time.

The Department was not a little embarrassed by the unex-
pected turn of the affair through the refusal of the restitution
by Captain Morris, and appreciated the delicacy of a complete
change of its attitude in the treatment of the case, especially after
having invoked the exercise of executive clemency in the remis-
sion of the forfeiture. But my Government never intended for
a moment to concede the right of Her Majesty's Government to
seize the vessel for fishing outside of the three-mile limit. Cap-
tain Morris has at all times contended that the Gerring, at the
time of her seizure, was outside the three-mile limit from the Nova
Scotia shore. This contention raised two principal issues, to wit,
whether the ship, when seized, was inside the three-mile limit ;
and whether she was, while engaged in bailing fish from the seine
aboard the ship, engaged in "fishing," within the contemplation
of the treaty.

My Government has exhaustively studied the entire case,
and it does not seem to it that the evidence, when dispassionately
considered and weighed, establishes a case against the defendant.
At least, it can be most candidly and most earnestly maintained
that the case was not made out with sufficient clearness on the
evidence to justify a forfeiture, odious to the law.

Captain Knowlton testified at the trial that the Gerring was
seized less than 134 miles off "Gull Ledge"; that this ledge is
134 miles long and about ]/% mile wide; that the distance from Gull
Ledge to Barren Island, which is exactly north, is less than 1^
miles; that the distance from where the Gerring was seized to

Appendix to the Memorial. 175

Barren Island is exactly 3 miles. It would seem to follow that,
Barren Island not being a part of the mainland, as will be seen by
the accompanying" chart, the seizure was made outside the three-
mile limit.

On his re-examination, he testified that Barron Island is a
mile long and a mile wide; that it is more than one mile and less
than lj4 miles from Barren Island to the main coast of Nova
Scotia. The distances thus given from the point where the Ger-
ring was seized to the nearest mainland are:

From Gerring to Gull Ledge, about 1 ^4 miles

Width of Gull Ledge 3^ ''

From Gull Ledge to Barren Island l3^ "

Width of Barren Island 1

From Barren Island to coast I to ly^ miles

or, over 5 miles,

from the point where the Gerring was seized to the main coast.

Again he testifies from the chart that it was exactly three
miles from where tlie Gerring was seized to Barren Island. Now,
adding the width of the island, 1 mile, and the distance from the
island to the coast, 1 to lj4 rniles, still the Gerring was seized
outside the three-mile limit.

The trial and the condemnation, in the opinion of my Govern-
ment, could not be upheld on the headland or "King's Chambers"
theory, which Professor Lawrence, in his work on International
Law, states has been abandoned, or not exercised in recent times,
by Her Majesty's Government, and the principle of which, as ap-
plied to bays and gulfs whose mouth is over six miles wide, was
decided adversely to the British Government in the arbitration
in the case of the Washington, where the umpire held as follows:

"Taking it for granted that the framers of the treaty
intended that the word 'bay' or 'bays' should have the same
meaning in all cases, and no mention being made of head-
lands, there appears no doubt that the Washington, in fish-
ing ten miles from the shore, violated no stipulations of the
treaty.

"It was argued on behalf of the British Government that
by coasts, bays, etc., it is understood an imaginary line, drawn

176 The Frederick G erring, Jr.

along the coast from headland to headland, and that the
jurisdiction of Her Majesty extends three marine miles out-
side of this line ; thus closing all the bays on the coast or
shore, and that great body of water called the Bay of Fundy
against Americans and others, making the latter a British
Bay. This doctrine of headlands is new, and has received a
proper limit in the convention between France and Great
Britain of August 2nd, 1839. in which 'it is agreed that the
distance of three miles fixed as the general limit for the
exclusive right of fishery upon the coasts of the two coun-
tries shall, with respect to bays, the mouths of which do not
exceed ten miles width, be measured from a straight line
drawn from headland to headland.'

"The Bay of Fundy is from 65 to 75 miles wide and
130 to 140 miles long. It has several bays on its coast. Thus
the word bay as applied to this great body of water, has the
same meaning as that applied to the Bay of Biscay, the Bay
of Bengal over which no nation can have the right to assume
the sovereignty. One of the headlines of the Bay of Fundy is
in the United States, and ships bound to Passamaquoddy
must sail through a large space of it. The island of Grand
Menan (British) and Little Menan (American) are situated
nearly on a line from headland to headland. These Islands,
as represented in all geographies, are situated in the Atlantic
Ocean. The conclusion is therefore, in my mind irresistible
that the Bay of Fundy is not a British Bay, nor a bay with-
in the meaning of the word as used in the treaties of 1783
and 1818."

Captain Knowlton testified that the nearest headland was Lis-
combe Point (on the east), which was about six miles from where
the Gcrring was taking fish, and that the nearest headland to
Westward was Taylor's Head, and that it is 27 miles from head-
land to headland in a straight line from Liscombe Point to Taylor's
Head.

A careful reading of the plaintiff's evidence and of the
opinions of the courts does not leave it clear whether the theory
on which the case was prosecuted and the ship condemned was,
that the Gcrring was, at the moment of seizure, within the three-
mile limit of the nearest Nova Scotia coast, or within the three-
mile limit of a line drawn from headland to headland.

The evidence of Captain Knowlton, the first witness at the
trial, indicates the former theory, and at the same time shows
concln:^ivclv that the Gcrrinq was outside of that limit.

Appendix to the Memorial. \77

The evidence of the plaintiff's witnesses following him, to
wit: Captains North, Whitman and MacKenzie, states the bearings
taken by them at the time when the Gcrring was seized, and they
state, as a conclusion, that the Gcrring was within the three-mile
limit, without specifying the grounds of this conclusion.

Rut considering the theory suggested by the examination of
the plaintiff's first witness. Captain Knowlton, it is fair to assume
that the witnesses following him were examined on the same
theory, and their conclusions could not be reasonably accepted
against the specific facts attested by Captain Knowlton and un-
disputed by them.

No witness testified to the specific fact that the Gcrring
was inside the three-mile limit measured from headland to head-
land; and it is manifest from the evidence and the accompanying
chart that the Government of the United States could not acqui-
esce in the seizure on that theory, and it is not believed that Her
Majesty's Government will seek to justify it on that ground, either
in point of law, or in point of fact, in the light of the evidence.

The accompanying chart, already referred to was furnished
to my Government by Captain Morris and would appear on its
face to be a British chart of the waters and coasts in question. It
is the opinion of the United States Navy Department, to which
the chart with the pertinent evidence was submitted, that the Gcr-
ring was undoubtedly seized outside of the three-mile limit; and
that she was, when seized, equally outside that limit, whether her
position is determined by a direct line drawn from her position
to the main coast, or from a direct line drawn from headland to
headland.

My Government has appreciated the full force of the argu-
ment that might be urged against diplomatic intervention in this
case through the failure of Captain Morris to exhaust his legal
remedies by appeal. But in this respect the case is anomalous.
While the Department of State itself could not appeal the ease, it
would have rendered financial assistance to Captain Morris to do
so, had it not been for the hopeful prospect of an amicable and
practical solution of the question in the manner already indicated.
When these efforts had finally failed, the right of appeal was lost;
and Her Majesty's Government could not graciously plead, as a

178 The Frederick G err big, Jr.

bar to intervention, the loss of the appeal through the limitation
which expired during and on account of these friendly negotia-
tions.

Under all these circumstances, and in view of the hardship
of the case to Captain Morris, my Government cherishes the be-
lief that Her Majesty's Government will not be disposed to urge
this point, but should it be insisted upon, my Government would
meet it on its merits by the considerations that the seizure of the
vessel was an act of supreme administrative authority, which in
itself gave ground of diplomatic intervention, since the seizure
in such case of United States vessels on the high seas cannot be
defended by the judgment of municipal courts; and that, though
a sale pursuant to a decree in admiralty may be sufficient, under
some circumstances, to protect the title of the purchaser of the
vessel condemned and sold, yet if there was a want of jurisdic-
tion there is a perfect claim for restitution or indemnity; that,
in case of a seizure on the high seas, the British courts have, it is
submitted, no jurisdiction whatever; and therefore the party whose
property is seized is under no obligation to prosecute an appeal to
higher courts, unless he deem it for his own interest to do so ; and
in the present case it would not be reasonable to expect an Ameri-
can citizen to incur the cost, and be subject to the delay which
would be caused by appealing to a court sitting on the other side
of the Atlantic.

Captain Doran. the master of the Gerrinn, testifies that the
schooner was built in 1870, and the amount of the damages, by
footing the items is — for the vessel, $3,000, and 134 barrels
of mackerel at $5 to $10 per barrel. Captain Morris states, how-
ever, that the mackerel were worth in Gloucester, at the time of
the capture, $13.50 to $14.00 per barrel, and that they have not been
as low as $5.00 per barrel for twenty years ; and — the amount stated
in his behalf, covering all his damages, is mentioned at $11,549.11.

The amount is not large, yet to Captain Morris the loss is
serious, and the question is important from its nature. It has been
much agitated, and the prejudicial effects on the popular imagina-
tion of the agitation of questions of this character cannot be meas-
ured by the amount involved. It is believed that Her Majesty's
Government will not fail to appreciate the wishes and efforts of
the Department of State to avoid these consequences by an ar-
rangement mutually satisfactory to both parties.

Appendix to the Memorial. 179

It is not contended or pretended that Captain Morris was an
intentional transgressor of the Canadian law. The evidence, on
the contrary, would seem to demonstrate his good faith and his
expressed wishes at the time to keep outside of the three-mile
limit.

It might be mentioned that, in a similar case, my Govern-
ment, at the request of Lord Pauncefote, made in July, 1899, re-
leased six Canadian fishing boats, which had been seized by an
American cutter for fishing within the imaginary boundary line
at Point Roberts, opposite Vancouver Island.

The fishermen stated that they had no light to guide them,
and the trespasses were unintentional ; and for this reason the
British Embassy asked, on behalf of the Canadian Minister of
INIarine and Fisheries, for the release of the boats and their equip-
ment, to prevent the ruin of the fishermen through the confiscation
of their property.

Security to cover the value of the boats seized having been
ofifered, proceedings were stayed and the boats released, pending
furtlier investigation of the facts, July 28, 1899.

The United States Attorney at Seattle, after investigating
the case, was satisfied that the Canadian fishermen were not inten-
tional poachers in American waters and did not intentionally vio-
late the laws of the United States. He therefore recommended
the dismissal of the case and the release of the boats. In view
of this report, the vessels were released and the case dismissed —
of all of which Her Majesty's Ambassador at Washington was
duly notified on the 25th of August, 1899.

I have the honor of enclosing herewith for your Lordship's
information, a copy of the evidence taken at the trial ; also a copy
of the opinions of the Court of Exchequer, of the Supreme Court
of Canada, affirming and dissenting; and of two brief addresses
to the Secretary of State by the Senator from Massachusetts
and Mr, Moody, a Member of Congress, in behalf of the claimant.

In presenting this case so fully to your Lordship, it is earn-
estly hoped by my Government that Her Majesty's Government
may see their way to securing the payment of a just and reason-
able indemnity.

I have the honor to be, etc.

Joseph H. Choate.

180 The Frederick G erring, Jr.

Enclosures :

1. Chart as above mentioned.

2. Copy of evidence.

3. Brief of Senator Hoar.

4. Brief of Mr. W. H. Moody, M. C.

[Enclosure.]
Memorandum by Senator Hoar.

For the consideration of the Secretary of State, relating to
the claim of Captain Edward Morris of Gloucester, Mass., against
the Government of Great Britain for the unlawful seizure deten-
tion and condemnation of the fishing vessel Frederick Gerring, Jr.,
the property of said Edward Morris.

The facts as claimed by Captain Morris are stated in his
letter to the Honorable John Sherman, Secretary of State, dated
June 12, 1897, the original of which is on the files of the Depart-
ment. For convenience a copy of that letter is hereto annexed.

The point stated in Captain Morris's letter that the rock
therein referred to could not lawfully be considered as the termi-
nus of a line drawn from one headland to another for the pur-
pose of determining the three-mile limit from ihe shore, as de-
scribed in the Convention of 1818, does not seem to have been
taken in the Canadian court.

Captain Morris's statement that the vessel and fish captured
had been depreciated in value through the negligence of the
Canadian government so that the property returned to him was
practically worthless is denied, it is understood, by that govern-
ment.

It is also understood that the Department of State has ex-
pressed to the government of Great Britain its gratification in
view of the action of the Canadian authorities in ordering the
release of the vessel.

From Captain Morris's statement it appears that the Gerring
being without question on the high seas, enclosed a catch of
mackerel in her purse seine. She was on the high seas when cap-
tured unless beinp- within three miles of a line drawn to the barren

Appendix to the Memorial. 181

rock above named brought her within three miles of the shore and
so within the prohibition of the treaty of 1818;

That she was not fishing unless the taking fish so enclosed
from the nets be fishing;

That she only got within the territory claimed by the
Canadian Government to be within the three-mile limit by drifting
therein involuntarily after the fish were enclosed in her nets.

Now on these points it is insisted with great confidence :

First. The vessel was never within the three-mile limit until
the time of its capture. The government of the United States
has never submitted to the British headland theory. On the con-
trary, that question having been submitted to arbitration by the
two governments has been decided in favor of the United States.

Next. The vessel was never within the three-mile limit in
accordance with any reasonable application of the headland theory,
because the barren rock above mentioned is not a headland within
any reasonable claim.

Next. A foreign vessel drifting involuntarily from the high
seas into the territory or even into the port of any nation does
not thereby become subject to its jurisdiction.

Next. The acts complained of are not fishing within the
sense of the treaty, as seems reasonably established by the dis-
senting opinions of two of the five Canadian judges, one of whom
was the Chief Justice.

Next. If in any case it would be the duty of an American
given under such circumstances to exhaust his remedy in the judicial
tribunals of the country seizing the vessel before resorting to
diplomacy for a remedy, there can be no such obligation in the
present case.

1. The question what is fishing as prohibited by the treaty
cannot be interpreted by one party to the treaty without the
assent of the other.

2. The validity of the capture of an American vessel on the
high seas cannot be determined by the captor either through his
courts or any other authority.

3. The question of the limits of the high seas or the limits
of the three-mile line cannot be decided by one of ihc parties to
the trcatv as ao^ainst the other.

182 The Frederick Gerring, Jr.

4. If it were in any case reasonable to require an American
citizen against wliom there has been a judgment of an inferior
foreign court to exhaust his remedy by appeal or otherwise in the
higher courts such a requirement is not reasonable in the present
case, where the appeal to the Privy Council, tried and heard in a
distant place, would involve great and ruinous delay and expense
out of all reasonable proportion to the amount at stake. The
party demanding respect for its judicial tribunals in such cases
must afford a reasonable opportunity for a remedy in those tribu-
nals, and it seems to me clearly unreasonable to require an Ameri-
can citizen who is arrested or whose vessel is arrested in the
waters of Nova Scotia to pursue his remedy for a few thousand
dollars to the Privy Council sitting in London, a remedy which,
as is notorious, imposes on the person who seeks it great cost and
unreasonable delay.

A highly intelligent friend has collected some authorities and
prepared some observations in support of these several proposi-
tions, which will be found accompanying this communication.

I have the honor to be, with high respect,

Geo. F. Hoar.
The Honorable

The Secretary of State.

[Enclosure.]

Memorandum by Honorable W. H. Moody.

The Frederick Gerring, Jr., was an American fishing vessel
owned in Gloucester, Massachusetts, by Edward Morris. She
was seized by the Canadian steamship Aberdeen for unlawful fish-
ing within three marine miles of the coast of Nova Scotia, con-
demned by the Judge in Admiralty for the Nova Scotia Admiralty
District, whose finding was afifirmed by the Supreme Court of
Canada in a decision in which three of the Justices concurred and
from w^hich two of the Justices including the Chief Justice, dis-
sented.

Appendix to the Memorial. 183

This memorandum is submitted in behalf of Edward Morris,
the owner of the Gcrring, who complains that the condemnation
and seizure were in violation of his rights as an American citizen
under the law of nations and the Convention between Great
Britain and the United States relating to the Northeastern fish-
eries.

Before stating the facts of the case it is well to refer to the
Convention concluded October 20, 1818, between the two powers
and the conflicting construction placed upon it by them. That
Convention in its first article defined the rights of American fisher-
men in the waters of His Britannic Majesty's dominion in America,
giving to them the right of inshore fishing on certain named parts
of the coasts of Newfoundland and Labrador. It contains the
following renunciation :

"And the United States hereby renounce forever any
liberty heretofore enjoyed or claimed by the inhabitants there-
of 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 limits."

This Convention although it has been since twice temporarily
modified by other treaties now remains the instrument by which,
together with the International law upon the subject, all our fish-
ermen are governed.

The circumstances of the case under consideration were these.
The Gerring was lying prepared to fish off the southern coast of
Nova Scotia, some six and a half miles from Liscombe Light. Our
fishermen have not the right of inshore fishing on this part of the
coast.

The Canadian sailing cruiser Vigilant was in the neighbor-
hood, together with the Margaret Haskins, an American fishing
vessel which was lying a hundred yards inshore from the Gerring.
The captain of the Haskins rowed to the Vigilant and inquired of
her commanding officer whether they were without the three-mile
limit. He received an affinnative answer which was communi-
cated to the captain of the Gcrring. The Haskins then seized a
school of mackerel and went away- The Gerring seized a
school of mackerel at a place conceded by the Crown to be without

184 The Frederick G erring, Jr.

the three-mile limit, and used for that purpose what is known
as a purse seine. (A purse seine is one where the fish are sur-
rounded by the seine whose bottom is then closed by drawing a
purse Hne which clasps the seine tightly as a purse is closed.)
The seine was then attached to the Gcrring and preparations made
to remove the mackerel to the vessel. Up to this point everything
was done without the three-mile limit. The crew of the Gerring
then began to remove the mackerel from the seine to the deck of
the vessel. It is sometimes the custom to allow the fish in the
seine to remain there for several days taking part out each day
for the purpose of dressing and salting them. While thus remov-
ing the fish from the seine the Gerring was seized by the Canadian
steamship Aberdeen. Both the Vigilant and the Aberdeen were
public vessels of the Canadian Government charged with the duty
of enforcing the fishery laws. It was claimed by the crown at
the trial that after the fish were taken and secured in the seine
and while the crew of the Gerring were removing them to the
deck of the vessel she had drifted within the three-mile limit and
upon this ground her seizure was justified and her condemnation was
sought. Upon the other hand the Gerring contended that in point
of fact she had not drifted within the three-mile limit and that it
was impossible for her to do so without drifting against the action
of the wind and tide, and introduced a large amount of testimony
in support of this contention. The trial court, however, found
that while the fish were seined and secured in the seine outside
the three-mile limit the vessel had drifted within that limit while
removing the fish. It is respectfully submitted, however, that as
the rights of our citizens upon the high seas by the common law
of nations are involved, this Government is not bound by the
finding of fact of the Canadian court.

In the Supreme Court of Canada Mr. Justice Wynne in an
opinion concurred in by the Chief Justice held that upon the facts
found by the trial court the Gerring had neither gone beyond her
treaty rights nor violated the laws of the Dominion of Canada.
Mr. Justice Sedgwick was of opinion that at the time of seizure
the Gcrring was "fishing" within the meaning of the Convention
of 1818 and the Canadian laws. In this conclusion Mr. Justice
Giroward [Girouard] and Mr. Justice King ("not without hesita-
tion and doubt") concurred. Accordingly by a majority of one the

Appendix to the Memorial. 185

condemnation of the Gevring was affirmed. Subsequently, through
the interposition of this Government, the penalty of forfeiture was
remitted and the vessel and its contents were offered to the owner
upon the payment of costs. This interposition of our Government
and action of the British Government was made without the
knowledge that the so-called "headland" question was involved in
the case. It was supposed to be a satisfactory conclusion of the
subject. Upon investigation it has been found that through ne-
glect the vessel and its contents have been ruined while in the
custody of the Canadian officials. The vessel has not been taken
back by the owner and she is not worth the taking. It is respect-
fully submitted upon the foregoing facts that this Government
ought not to acquiesce in the view that the transaction of unload-
ing fish within the three-mile limit which have been already se-
cured in a seine on the high seas is a violation of the Convention
of 1818, The question is not only of importance to the owner
but as well to all American fishermen pursuing their avocation
upon the high seas near the Canadian coast but without the three-
mile limit.

There is, however, in the case a principle involved transcend-
ing in general importance that already referred to. For some
reason it was not brought to the attention of the Supreme Court
of Canada and has not received its consideration. It may well be
claimed that if it had received the consideration of that court
the result would have been different.

Since the conclusion of the Convention of 1818, Her Majes-
ty's Government and our own have differed and continue to
differ as to its proper interpretation. The British Government has
asserted that from bays more than six miles wide indenting British
shores American fishermen were excluded by the Convention of
1818. In other words that however wide the bay might be a line
should be drawn from headland to headland and from the waters
within three miles of this line American vessels were excluded by
the terms of the Convention. On the other hand our Government
has claimed that in the case of bays more than six miles wide
our fishermen were within their rights if they remained more than
three miles away from the coast of the bay. Neither Government
has up to the present receded from its position. So far as known
the only seizure made by the British Government for violation

186 The Frederick G erring, Jr.

of what may be shortly termed the "headland" claim was that of
the American fishing vessel Washington seized in the Bay of
Fundy while fishing more than three miles from the shore. A
claim was made by our Government for damages for this seizure
and under the Claims Convention of the eighth of February, 1853,
it was considered and the umpire decided that the seizure was
unlawful.

The coast of Nova Scotia near where the Gerring was seized
is irregular in its outline. The two extreme projections of the
mainland in the neighborhood are Liscombe Light to the east of
where the Gerring lay, and Taylor's Head to the west. A line
drawn from those two points would be approximately thirty miles
in length. The inshore waters included within this line are not
and can not be denominated a bay. At the time of the seizure,
even assuming that the Gerring was where she was claimed by
the Crown to be, she was four and one-quarter miles outside the
line thus drawn and very much more than that from any point
upon the mainland of Nova Scotia. There was, however, within
one and three-quarters miles from the point at which it is claimed
the Gerring was seized and toward the Nova Scotia shores an
isolated ledge called Gull Ledge which in the sailing directions'
issued by our Government is described as "composed of two bare
ridges of slate of thirty feet high and separated only by a narrow
gulley which is wide enough to afford shelter to a boat." The
ledge is unhabitable and without vegetation. When the sea is
high it breaks over the top of these ridges of slate. It is only by
considering this isolated piece of rock which is three and three-
quarters miles from the nearest point of the mainland of Nova
Scotia as a part of the "coast" of Nova Scotia that it can be pre-
tended that the Gerring was exceeding her rights under the treaty
or violating the Canadian law. Upon these considerations, none
of which were brought to the attention of the Supreme Court of
Canada, it is respectfully submitted that the Gerring was upon
the high seas and not "within three marine miles of any of the
coasts, bays, creeks or harbors of His Britannic Majesty's Do-
minions in America," and that whatever may be said of the asser-
tion heretofore made by the British Government that in the case
of bays more than six miles wide the line of exclusion should be
drawn three miles from a line drawn from headland to headland,

Appendix to the Memorial. 187

it has never yet been claimed that an isolated ledge more than
three miles from the mainland should be taken as a point of de-
parture of the exclusionary line. Such a contention would be
dangerous in the extreme to our fishing vessels and one which we
submit our Government ought to protest against.

The damages suffered by Captain Morris by this seizure, en-
tirely exclusive of the costs and expenses incurred in litigation
are $11,549.11. This amount it is contended the Canadian Gov-
ernment should pay to him.

\^Enclosure.'\
Lord Lansdowne to the American Ambassador.

Foreign Office,

March 4th, iqoi.
Your Excellency

With reference to my note of the 20th of December last,
relative to the seizure of the United States Vessel Frederick Ger-
ring, Jr., on the charge of fishing in the territorial waters of
Canada, I have the honour to state that the question has been re-
ferred to the Canadian Government.

On receipt of their reply, a further communication will be
addressed to Your Excellency.
I have the honour to be, &c.,

(Signed) Lansdowne.
His Excellency

The Honorable Joseph H. Choate,
&c., &c., &c.

188 The Frederick G erring, Jr.

EXHIBIT 26.

The American Ambassador to the Secretary of State.

No. 641.

American Embassy,
London, August i^, iqoi.
Sir,

With reference to my Despatch No. 565, of the 9th of May
last, in relation to the case of the Schooner Frederick G erring,
Jr., I have the honor to enclose herewith a copy of a Note I
have received from Lord Landsdowne, dated the 12th instant,
which states that the Government of the Dominion cannot admit
that the seizure of the above-named vessel was illegal, and that
His Majesty's Government feel that the claim for compensation
is one which they cannot entertain.

I have the honor to be,

Sir,

Your obedient servant,

Joseph H. Choate.

The Honorable John Hay,

Secretary of State.
Enclosure: Lord Landsdowne to Mr. Choate, August 12, 1901.

[Enclosure.]
Lord Lansdowne to the American Ambassador.

Foreign Office,

August 12, igoi.
Your Excellency: —

The Secretary of State for the Colonies did not fail to refer
to the Government of Canada Your Excellency's note of the 6th
of December last, relative to the case of the United States vessel
Frederick Gerring, Jr., condemned on the 5th of August, 1896,
in Nova Scotia Admiralty District of the Exchequer Court of
Canada to forfeiture on a charge of fishing within the territorial
waters of Canada.

Appendix to the Memorial. 189

Being now in possession of the views of the Dominion Gov-
ernment on the subject, I have the honor to offer the following
observations.

Your Excellency, while claiming compensation, admits that
Mr. Olney at the time he was Secretary of State for the United
States advised against an appeal to the Privy Council and under
his instructions Mr. Bayard made representations to Her Majesty's
Government with a view to obtain remission of the forfeiture,
the result being that the Canadian Government offered in the
circumstances and as an act of grace and favor, to remit the
forfeiture on condition of the payment by the defendant of all
costs and charges, together with a nominal fine of one dollar
($1.00). Of this offer the State Department expressed cordial
appreciation, although it was afterwards refused by the owner of
the vessel.

Your Excellency says that the Department of State and the
United States was not a little embarrassed by the unexpected re-
fusal of the owner to accept the offer which the Dominion Govern-
ment, as an act of grace and favor had made, and that "it appre-
ciated the delicacy of a complete change of its attitude in the treat-
ment of the case, especially after having invoked the exercise of
executive clemency in the remission of the forfeiture," but you
add that your "Government never intended to concede the right
of Her Majesty's Government to seize the vessel for fishing out-
side the three-mile limit."

There was, however, clearly no thought of such a concession
either having been asked or given, because there never was any
serious doubt raised in the diplomatic discussions respecting the
seizure that it was made within the three-mile limit. It was not
because of any doubt as to the position of the vessel at the time
of the fishing for which she was condemned that the clemency
of the Crown was asked or granted, but rather because it was
contended that the trespass was involuntary and not deliberate.

The question of the exact position of the vessel at the time
of the seizure was distinctly raised at the trial, and was as dis-
tinctly decided by the Court of Vice Admiralty, and afterwards
confirmed unanimously by the Court of Appeal.

It was never suggested, so far as His Majesty's Government
are aware, at the trial or on the appeal that the Islands in the

190 The Frederick G erring, Jr.

vicinity of which the Frederick Gerring, Jr., was found fish-
ing were not part of the territory of the Province of Nova Scotia,
and it is beheved with great confidence that no such contention
can be maintained.

The introduction moreover of the Headland question into
the argument appears irrelevant, as it had not at the trial, and
has not now. any bearing on the question wdiether the vessel was
legally seized and condemned. The condemnation of the ship was
not sought on any such ground, and it is not necessary now to
invoke it. The Crown asked that the vessel should be condemned
because she was found to be illegally fishing within three miles
of Gull Rock or Island, which was part of the territory of Nova
Scotia, and the Vice Admiralty Court found that to be a fact,
while the Court of Appeal unanimously upheld such decision.

With regard to the facts- in the case now under discussion,
the following points must be considered.

There are two questions presented by the evidence, first,
whether the schooner w^hen arrested was within the three-mile
limit of Nova Scotia, and secondly, whether she was fishing at
that time. Both these questions were determined adversely to
the schooner.

Chief Justice MacDonald, who tried the case below, and the
five judges who heard the appeal, concurred in the view that the
vessel was, at the time of the seizure, within the three-mile limit.
No other conclusion is reasonably open upon the evidence.

The measurements taken show the vessel to have been with-
in less than a mile and three-quarters from the Gull Islands, which
are conspicuously marked upon the chart, and lie about thirty feet
apart. The inner island is larger than George's Island, in Halifax
Harbor, measuring four hundred yards long, one hundred yards
wide and forty two feet high. There was at the time a fisher-
man's shanty there with a stove in it and a large number of lob-
ster traps. There was a fair amount of vegetation on the Island,
and a patch of hay land about one hundred yards long by about
fifty yards wide with a spring of fresh water. The soil averaged
about one foot in depth, consisting of brown loam. At no time,
even during the heaviest storm, would waves break over this Is-
land, These statements are supported by the evidence of Com-
mander Spain of the Court of Appeal.

Appendix to the Memorial. 191

The schooner was seized by Captain Knovvlton of the cruiser
Aberdeen, who saw the crew of the schooner baihng fish from
the seine on board the schooner, and took bearings from the place
where they were doing so. From this place the north-west point
of Big White Island bore W. N. \V. and Liscombe Light bore N.
E. j/2 N. This place was less than a mile and three-quarters
from Gull Islands off the coast of Nova Scotia by actual measure-
ments. (See the evidence of Captain Knowlton, of Captain
Arthur Morin, 1st Officer of the Ahcrdce^i, of Levi Whitman,
3rd Officer of the Aberdeen, of Commander Spain, of Ernest
Kinney, 1st Officer of the cruiser Acadia and of William J.
Milne, 2nd Officer of the cruiser Acadia). The schooner took
no bearings and evidently no pains to ascertain her position during
the fishing. It is not controverted that immediately after the
seizure Captain Doren, master of the schooner, told Mr. Bennet,
3rd officer of the Aberdeen, that "if he was put on oath he would
not swear if she was inside or outside of the limits; that he
had an old chart there that he could not depend on."

Captain Angrove, who is a master mariner of considerable
experience upon the coast, and who moreover was called for the
defense gave as his opinion, in view of the time and place of the
seizure, and the conditions of the weather assumed to have ex-
isted at the time, that the schooner would not have drifted to the
position where she was seized if she had netted the fish outside
the three-mile limit, and his opinion is supported by several fisher-
men who were called upon the same point. Captain MacKenzie of
the cruiser Vigilant testifies, on the other hand, that in his opinion
the schooner would drift in, and that in fact he himself had
drifted in at the same time.

The main fact, however, that the schooner was at the time
of the seizure lying within a mile and three-quarters of the land
was established by the concurrent testimony of many witnesses,
and was not controverted. None of the six judges who considered
the evidence had any difficulty in finding that the vessel was seized
in that position.

From the tenor of Your Excellency's note it would seem
that tl:e L'nitcd States Government do not admit that Gull Ledge
is part of the coast of Nova Scotia, but it can scarcely be con-
tended thrit the territorial waters of Canada do not extend three

192 The Frederick Gerring, Jr.

miles seaward from the Gull Islands, as such a contention would
be at variance with the position taken by the State Department
at Washington, so far as concerns the eastern coast of North
America, and with the accepted authorities of international law.

It is stated in a letter from Mr. Bayard, written on the 28th
May, 1886, as United States Secretary of State, to Mr. ]\Ianning,
then Secretary to the Treasury, and quoted in "Wharton's Inter-
national Law Digest, pages 107-9," that the position of the State
Department "has uniformly been that the sovereignty of the shore
does not, so far as territorial authority is concerned, extend be-
yond three miles from low water mark, and that the seaward
boundary of this zone of territorial waters follows the coast of
the mainland, extending where there are islands, so as to place
around such islands the same belt."

"This necessarily excludes the position that the seaward
boundary is to be drawn from headland to headland, and makes
it follow closely, at a distance of three miles, the boundary of
•the shore of the continent or of adjacent islands belonging to
the Continental Sovereign."

"This position," Mr. Bayard adds "was not taken by the
Department speculatively, but advanced at periods when the ques-
tion of peace and war hung on the decision."

The same view as to the extent of territorial jurisdiction is
held by His Majesty's Government and has been supported on
various occasions by the decisions of the British Courts. To one
of these I refer more specifically as emphasising this contention.

In the case of the Anna, 5 Christopher Robinson's Ad-
miralty Reports, page ?)7?>, decided by Lord Stowell in 1805, the
ship under American colors with a cargo of logwood and about
thirteen thousand dollars ($13,000) on board, bound from the
Spanish Main to New Orleans, was captured by the Minerva,
a British Privateer, near the mouth of the River Mississippi, and
a claim was made under the direction of the American Ambas-
sador for the ship and cargo as taken within the territory of the
United States at a distance of a mile and a half from the western
shore of one of the Islands at the mouth of the principal entrance
of the Mississippi. The question raised was whether these islands
formed part of the territory of the United States, and the Court
had no diOiculty, on reasoning which appears irresistible, in hold-

Appendix to the Memorial. 193

ing that they were part of such territory. In the course of his
judgment, Lord Stowell says :

"Consider what this difference would be if lands of this de-
scription were not considered as appendant to the mainland, and
as comprised w'ithin the bounds of territory. If they do not be-
long to the United States of America, any other power might
occupy them; they might be embanked and fortified. What a
thorn would be this in the side of America! It is physically pos-
sible at least that they might be so occupied by European nations,
and then the command of the river w-ould be no longer in America
but in such settlements. The possibility of such consequence is
enough to expose the fallacy of any arguments that are addressed
to show that these islands are not to be considered as part of
the territory of America. Whether they are composed of earth
or solid rock, will not vary the right of dominion, for the right of
dominion does not depend upon the texture of the soil.

"I am of the opinion that the right of territory is to be
reckoned from these islands."

It is clear, therefore, following the position taken by the
State Department at Washington, and the Principles of Inter-
national Law generally accepted, that Gull Islands or Rocks form
part of the territory of Nova Scotia, and that the Frederick
Gerring, Jr., was seized one and three-quarter miles off the
coast of a part of that Province, while fishing there contrary to
the provisions of the Treaty of 1818.

The legal remedies of the owner of the ship, if he thought
she has been illegally seized, were not, on the advice of the United
States Government, exhausted. If there had been any doubt what-
ever as to whether the vessel was found fishing within three ma-
rine miles of the coast, it is probable that the United States Secre-
tar>' of State would not have advised that no appeal should be
taken to Her Majesty's Privy Council. When the United States
Government asked wdiether the right of appeal to the Privy Coun-
cil existed, and the time limit thereof, they were informed that
the prerogative right of the Crown to grant an appeal as a matter
of favor did exist in this case.

With regard to the contention that Captain Morris was not
an international transgressor of the Canadian Law, the Canadian
Government have already in answer to an application based on
that ground, made an offer which the owner of the vessel chose

194 The Frederick G erring, Jr.

to reject, but of which the Government of the United States ex-
pressed their warm appreciation.

The Dominion Government recognized the action of the
United States Government, referred to in Your Excellency's
Note, in releasing six Canadian fishing boats, seized by an Ameri-
can cutter, for having crossed the imaginary boundary line in the
neighborhood of Point Roberts, on the Pacific Coast, in the sum-
mer of 1900. There would appear, however, to be some misap-
prehension with regard to these seizures, which were not made for
any alleged infraction of Fishery Laws, as stated in Your Ex-
cellency's Note, but under the Customs Laws of the United States,
for hovering near the coast. The boats in question, mere open
fishing craft, had drifted across the imaginary boundary line, with-
out any intention of going into United States waters and with-
out any means of taking observations or otherwise ascertaining
that they had so crossed the line. The courtesy of the United
States Government in releasing them was fully appreciated and
acknowledged. The Canadian Government on their part in 1891
made a similar release of six United States fishing boats seized
in the waters of Passamaquoddy Bay, because it appeared that
they had drifted into Canadian waters in a fog, and had unwit-
tingly trespassed, and many instances might be cited wherein dur-
ing late years the most generous interpretations have been put
upon Canadian Laws and regulations in favor of United States
fishing vessels.

It can thus with justice be said that Canada has not yielded
to the United States in courtesy and leniency in this regard. So
far, however, as the present case is concerned the Government of
the Dominion cannot admit that the seizure of the Frederick
Gerring, Jr., was illegal, and His Majesty's Government, much
as they would wish to meet the views expressed in Your Ex-
cellency's Note, feel that the present claim for compensation is one
which they cannot entertain.

I have the honor to be, with the highest consideration,
Your Excellency's most obedient,
humble servant

Landsdowne.
His Excellency

The Honorable J. H. Choate,
&c., &c., &c..

Appendix to the Memorial. 195

EXHIBIT 27.

Edward Morris to the Secretary of State.

Gloucester, Mass., Oct. /, iqoi.

Hon. John Hay,

Secretary of State.

Dear Sir: I have just received from Hon. Wm. H. Moody
some correspondence, written to Hon. J. H. Choate by Hon. Mr.
Lansdowne, relating to the case of the Sch. Frederick Gerring, Jr.
On reading this letter, it seems to me that it was written in Canada
and only signed by Hon. Mr. Lansdowne. He speaks particularly
about the fact that the Canadian Government offered me the
vessel back and that I refused the offer. What was there for me
to accept, they had not taken care of anything, consequently every-
thing was ruined, and they ?Iso had Court expenses amounting to
twelve hundred and seventeen and thirty-five hundredths dollars
($1217.35) and charges for selling mackerel of two hundred and
six dollars ($206) which I would have had to pay. They tried
to make our Government believe, through the British Ambassador,
that everything was in first class condition, but when the seines
and boats were sold the prices received showed how true the state-
ment was. A seine worth one thousand dollars ($1,000) sold for
forty dollars ($40) ; a boat worth two hundred seventy-five
dollars ($275) sold for twenty-five dollars ($25) ; two more boats
sold for ten dollars ($10) apiece and the Government had to take
the vessel for a light-ship. In the letter he speaks of Com. Spain
and the measurements of Gull Ledge which he took, where Com.
Spain stated that the ledge was 42 feet high, the "English Coast
Pilot" in its description calls it, "a barren ridge of slate, thirty
feet high." The height of thirty feet results from a pinnacle of
rock at the western end of the ledge, which rises high above the
rest of the ledge. The captain of the steamer which seized the
Gerring testified that he took the cross bearings of the Gerring
at the time of the seizure and put them on the chart. The first
officer testified that he, the first officer, took the cross bearings
and put them on the chart while the Captain walked on the bridge.

196 The Frederick G erring, Jr.

This shows that there was a false statement made somewhere.
If he the captain, was sure that the vessel was inside of the three
mile limit, why did he not let my captain do as he wished when he
said, "Let me take my men, my boat, your officers, my log or
yours, or both and measure the distance to Gull Ledge as I know
I am more than three miles away." I am tired of seeing those
false statements introduced as proof by the Canadian Government,
through the English Government, and I should think that a man
holding such a position as the Hon. Mr. Lansdowne does would
look to the truth of such statements before signing them.

Hoping that our Government will not listen to any such false
statements, I remain,

Yours truly,

Edward Morris,
W. M.

EXHIBIT 28.

Affidavit of Edward Morris.

In re Claim of Edward Morris,
Owner of Schooner Frederick Gerriuq, Jr.

UNITED STATES OF AMERICA.

Commonwealth of Massachusetts, ,?^.;

I, Edward Morris, of Gloucester, in the County of Essex, in
said Commonwealth of Massachusetts, on oath depose and say
that I was the sole owner of the American fishing schooner Fred-
erick G erring, Jr., of the port of Gloucester aforesaid, her tackle,
apparel, furniture and appurtenances and of the nets, boats, stores
and all other effects on board said vessel at the time of her
wrongful seizure by the Canadian Cruiser Aberdeen, Captain
Knowlton, Commander, on the twenty-fifth day of May in the
year eighteen hundred ninety-six off Liscombe on the southern
coast of Nova Scotia, and at the time of the subsequent wrongful

Appendix to the Memorial. 197

confiscation of said vessel and cargo by the Canadian courts, and
that the damages sustained by me by such wrongful seizure and
confiscation were as follows :

1. That the fair value of the vessel and her tackle,
apparel and equipment, including seine, boats, nets, fish-
ing equipment, stores and other effects on board $5,251.50

as follows:

a. Value of vessel with her sails,

rigging, cables, anchors and

fittings $3,000.00

b. Value of seine and purse line. . . . 1,055.00

c. Value of seine boat 275.00

d. Value of two dories 40.00

e. Value of rigging for seine boat . . 40.00

f. Value of seine boat's painter and

shackle 19.00

g. Value of running lines 9.00

h. Value of two large dip nets and

six small ones 16.00

i. Value of forty (40) hogshead of

salt on board 70.00

j. Value of one hundred fifty-two

(152) empty barrels 114.00

k. Value of ice house 150.00

1. Value of bait-mill 18.00

m. Value of eight (8) kealers 12.00

n. Value of six (6) cooper's adze. . 3.00

o. Value of ten (10) flagging irons 2.50

p. Value of provisions on board.. 225.00

q. Value of crew's outfits on board 188.00
r. Value of medicine chest on

board 15.00

$5,251.50

2. Fair value of the mackerel actually taken and
on board said schooner at the time of seizure, including

198 The Frederick G erring, Jr.

the forty (40) barrels washed overboard while the ves-
sel was in tow by said Cruiser Aberdeen, and the
one hundred eighteen (118) barrels sold in a damaged

condition by the Canadian Government $1,639.00

as follows:

a. Value of one hundred eighteen

(118) barrels of mackerel at

$10.50 per barrel $1,239.00

b. Value of forty (40) barrels of

mackerel at $10 per barrel 400.00

$1,639.00

3. Loss sustained from breaking up of voyage by

seizure $2,100.00

as follows: : ' \i!z\i^

a. Two hundred (200) barrels of
mackerel which would have
been taken except for seizure
and consequent interruption
of voyage, at $10.50 $2,100.00

4. Expenses incurred and paid in connection with
the confiscation proceedings in Canadian Courts at Hali-
fax and Ottawa, including fees of counsel and wit-
nesses, personal travelling expenses and printing of

record $1,421.11

as follows :

a. Payment to William F. McCoy,

Esq., for his disbursements and
legal services i n Exchequer
Court at Halifax $808.11

b. Paid for printing record and en-

tering appeal in Supreme Court

of Canada 130.00

Appendix to the Memorial. 199

c. Paid W. F. McCoy, Esq., services

as counsel in appeal case at

Ottawa $250.00

d. Personal travelling expenses, 2

trips to Halifax in respect to con-
fiscation proceedings 78.00

e. Paid to John J. Flaherty, Esq.,

of Gloucester, services as counsel
in respect to seizure of vessel and
confiscation 105.00

f. Paid personal travelling expenses —

2 trips in re seizure of vessel . . . 50.00

5. Damages sustained by loss of use of vessel and
equipment during the remainder of mackerel season in
the year 1896 and of inability to procure and fit out,
before the close of the season or the run of mackerel
had ended, another vessel to take the place of the
Frederick Gerring, Jr., estimated at $2,000.00

6. Expenses incurred and paid in prosecution of

claim at Washington in District of Columbia 231.00

as follows :

a. Travelling expenses to Washington

and return $ 54.00

b. Telegrams and typewriting docu-

ments and letters 50.00

c. Travelling expenses, 2 trips to

Washington and return 127.00

$231.00

$12,642.61

7. Interest on the amount of loss or damage from January
1, 1897.

Edward Morris.

200 The Frederick G erring, Jr.

Commonwealth of Massachusetts, Gloucester, Dec. 16,

1912.

Essex, j.y. ;

Then personally appeared the above-named Edward Morris,
known to me to be the person named in the foregoing affidavit,
and subscribed the same in my presence, and made oath that the
statements therein contained are true, to the best of his knowledge,
information and belief, before me.

Frederic A. Shackelford

(Sexil.) Notary Public.

EXHIBIT 29.

Affidavit of Clarence A. Elwell.

UNITED STATES OF AMERICA.

Commonwealth of Massachusetts, ss.:

Clarence A. Elwell of the City of Gloucester, in said Common-
wealth, deposes and says — That on the fifteenth day of May, 1896,
he was, and for several years prior thereto had been, a member
of the firm of Peterson and Elwell (composed of Matthew Peter-
son and Clarence A. Elwell aforesaid) engaged in the business
of manufacturing, repairing and storing seines at Gloucester afore-
said; that said firm furnished the mackerel purse-seine and appur-
tenances used, during the spring of the year 1896, on the schooner
Frederick Gerring, Jr., registered at the port of Gloucester afore-
said and owned by Captain Edward Morris of said City ; that said
firm delivered said purse-seine and appurtenances on board said
schooner Frederick Gerring, Jr., on or about said fifteenth day of
May, 1896, in good order and condition for use; that your de-
ponent is informed and believes that said purse-seine and appur-
tenances so furnished and delivered by said firm was the same
purse-seine and appurtenances owned by said Edward Morris
which were seized, with said schooner Frederick Gerring, Jr., by

Appendix to the Memorhl. 201

the Canadian steam cruiser Aberdeen on the twenty-fifth day
of May, 1896, off the Nova Scotia between Liscombe Light and
White Island; that your deponent knows the value of the said
seine and appurtenances, and in his opinion the fair value of said
seine and appurtenances, not including the purse line, at the time
of said seizure, was one thousand dollars ($1,000), and that
the value of the purse line attached to said seine was fifty-five
dollars ($55).

Clarence A. Elw^ell.

Subscribed and sworn to before me at Gloucester, Massa-
chusetts, on this eighth day of November in the year one thousand
nine hundred and twelve.

Frederic A. Shackelford,

(Seal.) Notary Public.

EXHIBIT 30.
Affidavit of John W. McFarland.
UNITED STATES OF AMERICA.

Commonwealth of Massachusetts, ss.:

I, John W. McFarland of Gloucester in the County of Essex
in said Commonwealth of Massachusetts, on oath depose and say
that I am, and for more than thirty-eight years have been, the
master and part owner of a fishing vessel sailing from the port
of Gloucester aforesaid;

That I was well acquainted with the schooner FredericJi Ger-
ring, Jr., of said port owned by Edward Morris, and with the con-
dition and equipment of said vessel, and that in my opinion, the
fair value of said vessel with her sails, rigging, cable, anchors and

interior furnishings, was, in May, 1896,

thirty-five hundred dollars ;

That I was engaged in the mackerel fisheries in the spring
and summer of 1896 and knew the market price of mackerel in

202 The Frederick Gerring, Jr.

Gloucester aforesaid during the months of May and June of said
year, and that the fair market price of mackerel, in fishermen's
order, on or about the fifteenth day of June A. D. 1896, when the
voyage of said schooner Frederick Gerring, Jr., would have prob-
ably ended except for her seizure by the Canadian authorities was
Ten Dollars and Fifty Cents ($10.50) per barrel.

John W. McFarland.

Subscribed and sworn to before me this sixteenth day of
December, A. D. 1912.

Fred E. Morris,

(Seal.) Notary Public.

EXHIBIT 31.

Affidavit of Fred L. Davis.

UNITED STATES OF AMERICA.

Commonwealth of Massachusetts, ss.:

I, Fred L. Davis of Gloucester in the County of Essex and
Commonwealth of Massachusetts, on oath depose and say that
I was, during the year 1896, and for several years prior thereto
had been, the owner or part owner of several fishing vessels sailing
from the port of Gloucester aforesaid, and that I had knowledge
of the fair market value of fishing vessels and their equipment;

That I was well acquainted with the Schooner Frederick Ger-
ring, Jr. of said port, owned by Edward Morris, and with the
condition and equipment of said vessel, and that in my opinion,
the fair value of said vessel with her sails, rigging, cable, anchors

and interior furnishings was, in May, 1896,

Thirty-five Hundred Dollars ;

That some of the vessels so owned and operated by me during
the year 1896 were engaged in the mackerel fisheries, and I knew
the market price of mackerel in Gloucester aforesaid during the
months of May and June of said year, and that the fair market

Appendix to the Memorial. 203

price of mackerel, in fishermen's order, on or about the fifteenth
day of June, 1896. when the voyage of said schooner Frederick
Gerring, Jr., would have probably ended except for her seizure by
the Canadian authorities, was ten dollars and fifty cents
($10.50) per barrel.

Fred L. Davis,

Subscribed and sworn to before me this sixteenth day of De-
cember, A. D. 1912.

Fred E. Morris,
(Seal.) Notary Public.

; EXHIBIT 32.

Preamble and Article i of Treaty of i8i8.

Treaty of October 20, 1818.

(Ratifications exchanged, January 30, 1819.)

The United States of America, and His Majesty the King of
the United Kingdom of Great Britain and Ireland, desirous to
cement the good understanding which happily subsists between
them, have, for that purpose, named their respective Plenipotenti-
aries, that is to say:

The President of the United States, on his part, has appointed
Albert Gallatin, their Envoy Extraordinary and Minister Plenipo-
tentiary to the Court of France; and Richard Rush, their Envoy
Extraordinary and Minister Plenipotentiary to the Court of His
Britannic Majesty: — and His Majesty has appointed the Right
Honorable Frederick John Robinson, Treasurer of His Majesty's
Navy, and President of the Committee of Privy Council for Trade
and Plantations; and Henry Goulburn, Esq., one of His Majesty's
Under Secretaries of State: —

Who, after having exchanged their respective full powers,
found to be in due and proper form, have agreed to and concluded
the following articles.

204 The Frederick Gerring, Jr.

Article I.

Whereas differences have arisen respecting the liberty
claimed by the United States for the inhabitants thereof, to take,
dry and cure fisli on certain coasts, bays, harbours, 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 sub-
jects 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, harbours and creeks from Mount Joly
on the Southern Coast of Labrador, to and through the Straights
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 un-
settled bays, harbours, 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, 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 above-
mentioned limits; provided, however, that the American fisher-
men shall be admitted to enter such bays or harbours for the
purpose of shelter and of repairing damages therein, of purchas-
ing 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 re-
served to them.

Appendix to the Memorial 205

Done at London this twentieth day of October, in the year
of our Lord one thousand eight hundred and eighteen.

Albert Gallatin. (L. S.)

Richard Rush. (L. S.)

Frederick John Robinson, (L. S.)

Henry Goulburn. (L. S.)

EXHIBIT 33.

British Act of June 14, i8ip.

(59 Geo. III. Cap. 38.)

An .\ct to enable His Majesty to make Regulations with respect
to the taking and curing Fish on certain parts of the Coasts
of Newfoundland, Labrador, and His Majesty's other Pos-
sessions in North America, according to a Convention made
between His Majesty and the United States of America.

Whereas a Convention between His Majesty and the United
States of America was made and signed at London, on the
Twentieth Day of October, One Thousand Eight Hundred and
Eighteen ; and by the first Article of the said Convention, reciting
that differences had arisen respecting the liberty claimed by the
United States for the inhabitants thereof to take, dry and cure
fish in certain coasts, bays harbours and creeks of His Britannic
Majesty's Dominions in America, it is agreed, that the inhabitants
of the said L'^nited 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 Coasts of Newfoundland, from the said Cape Ray
to the Ouirpon Islands, on the shores of the Magdalen Islands,
and also on the coasts, bays, harbours and creeks from Mount
Joly on the Southern Coasts of Labrador, to and through the
Straits of Belle Isle, and thence northwardly indefinitely along the
coast without prejudice, however, to any of the exclusive rights

206 The Frederick Gerring, Jr.

of the Hudson's Bay Company ; and it was also by the said Article
of the said Convention agreed, that the American fishermen should
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 above described, and of the coast of Labrador but
that so soon as the same, or any portion thereof, should be settled,
it should 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 whereas it is expedient that His Majesty should be
enabled to carry into execution so much of the said Convention
as is above recited, and to make regulations for that purpose :

Be it therefore enacted by The King's Most Excellent
Majesty, by and with the advice and consent of the Lords Spirit-
ual and Temporal, and Commons, in this present Parliament as-
sembled, and by the authority of the same, that from and after the
passing of this Act, it shall and may be lawful for His Majesty,
by and with the advice of His Majesty's Privy Council, by any
order or orders in Council, to be from time to time made for that
purpose, to make such regulations, and to give such directions,
orders and instructions to the Governor of Newfoundland, or to
any officer or officers on that station, or to any other person or
persons whomsoever, as shall or may be from time to time deemed
proper and necessary for the carrying into effect the purposes of
the said Convention, with relation to the taking, drying and curing
of fish by inhabitants of the United States of America, in common
with British subjects, within the limits set forth in the said Arti-
cle of the said Convention and hereinbefore recited; any Act
or Acts of Parliament, or any law, custom or usage to the con-
trary in anywise notwithstanding.

n. And be it further enacted, that from and after the pass-
ing of this Act it shall not be lawful for any person or persons,
not being a natural born subject of His Majesty, in any foreign
ship, vessel or boat, nor for any person in any ship, vessel or
boat, other than such as shall be navigated according to the laws
of the United Kingdom of Great Britain and Ireland, to fish for,
or to take, dry or cure any fish of any kind whatever within three
marine miles of any coasts, bays, creeks or harbours whatever, in
any part of His Majesty's Dominions in America, not included

Appendix to the Memorial. 207

within the limits specified and described in the first Article of the
said Convention, and hereinbefore recited: and that if any such
foreign ship, vessel or boat, or any persons on board thereof, shall
be found fishing or to have been fishing, or preparing to fish within
such distance of such coasts, bays, creeks or harbours, within such
parts of His Majesty's Dominions in America out of the said
limits as aforesaid, all such ships, vessels and boats, together with
their cargoes, and all guns, ammunition, tackle, apparel, furni-
ture and stores, shall be forfeited, and shall and may be seized,
taken, sued for. prosecuted, recovered and condemned by such and
the like ways, means and methods, and in the same courts, as
ships, vessels or boats may be forfeited, seized, prosecuted and
condemned for any offence against any laws relating to the reve-
nue of customs, or the laws of trade and navigation, under any
Act or Acts of the Parliament of Great Britain, or of the United
Kingdom of Great Britain, and Ireland ; provided that nothing in
this Act contained shall apply, or be construed to apply to the
ships or subjects of any Prince, Power or State in amity with
His Majesty, who are entitled by treaty with His Majesty to any
privilege of taking, drying or curing fish on the coasts, bays, creeks
or harbors, or within the limits in this Act described.

HI. Provided always, and be it enacted, that it shall and
may be lawful for any fisherman of the said United States to
enter into any such bays or harbours of His Britannic Majesty's
Dominions in America as are last mentioned, for the purpose of
shelter and repairing damages therein, and of purchasing wood
and of obtaining water, and for no other purpose whatever; sub-
ject nevertheless to such restrictions as may be necessary to pre-
vent such fishermen of the said United States from taking, drying
or curing fish in the said bays or harbours, or in any other man-
ner whatever abusing the said privileges by the said Treaty and
this Act reserved to them, and as shall for that purpose be im-
posed by any order or orders to be from time to time made by
His Majesty in Council under the authority of this Act, and by
any regulations which shall be issued by the Governor or person
exercising the office of Governor in any such parts of His Majes-
ty's Dominions in America, under or in pursuance of any such
order in council as aforesaid.

208 The Frederick G erring, Jr.

EXHIBIT 34.

Sections j and 20 of Canadian R. S. of 1886, C. P4.

3. Any one of the officers or persons hereinbefore men-
tioned may bring any ship, vessel or boat, being within any har-
bor in Canada, or hovering in British waters, within three marine
miles of any of the coasts, bays, creeks or harbors in Canada,
into port, and search her cargo, and may also examine the master
upon oath touching the cargo and voyage; and if the master or
person in command does not truly answer the questions put to
him in such examination, he shall incur a penalty of four hundred
dollars ; and if such ship, vessel or boat is foreign, or not navi-
gated according to the laws of the United Kingdom or of Canada,
and (a) has been found fishing or preparing to fish, or to have
been fishing in British waters within three marine miles of any of
the coasts, bavs, creeks or harbors of Canada, not included within
the above mentioned limits, without a license, or after the expira-
tion of the term named in the last license granted to such ship,
vessel or boat, under the first section of this Act, or (b) has
entered such waters for any purpose not permitted by treaty or
convention, or by law of the United Kingdom or of Canada for
the time being in force, such ship, vessel or boat and the tackle,
rigging, apparel, furniture, stores and cargo thereof shall be for-
feited. 49 v., c. 114, s. 1.

20. This Act shall apply to every foreign ship, vessel or
boat in or upon the inland waters of Canada ; and the provisions
hereinbefore contained in respect of any proceedings in a court of
vice-admiralty shall, in the case of any such foreign ship, vessel
or boat, apply to the Maritime Court of Ontario and to the su-
perior courts, and any penalty or forfeiture under this Act may
be recovered or enforced in any of such courts in the Province
within Vv'hich the cause of prosecution arises. 31 V.. c. 61, s. 20.

Appendix to the Memorial. 209

EXHIBIT 35.

The Consul-General at Halifax to the Secretary of State.
No. 172.

American Consulate-General.
Halifax, N. S., January 24, ipi^-

Subject: Acknowledging Department's Instructions No. 117, of

January 13, 1913.
The Honorable

The Secretary of State,
Washington.
Sir:

I have the honor to acknowledge receipt of Department's
instructions No. 117, and in obedience to instructions I am inclos-
ing herewith information asked for in connection with the sale
of the vessel Frederick G erring, Jr.

It seems this vessel was sold at auction and was knocked down
to the Marine Fisheries and was afterwards, so I am informed,
converted into a light-ship for this coast.
I have the honor to be,
Sir,

Your obedient servant,

James W. Ragsdale,

Consul-General.

{Enclosure.^

In re Frederick Gerring, Jr.

Extract from hooks of the late Sheriff D. Archibald, Marshal of

the Vice Admiralty Court at Halifax.

Sheriff's Office, Aug. ^ist, i8q6,

Cause : The Queen, Plaintiff,

and

The Ship Frederick Gerring, Jr., Her Cargo, Tackle, Rigging,

Furniture, Apparel and Stores, Defendant.

Property as follows :

210 The Frederick G erring, Jr.

58 bbls. No. 3 Mackerel @ $8.80 per bbl $510.40

57 bbls. of sour Mackerel @ 5.10 " " 290.70

3 bbls. rusty Mackerel @ 4.00 " " 12.00

$813.10
Costs. Labor, advertising, custody, storage, etc., in all $207.55

$606.55

Paid over to Messrs. Borden, Ritchie & Co., Solicitors of

the Atty. Gen'l of Canada $606.55

Sale of schooner and contents to the Marine Fisheries :

Schooner Frederick Gerring $800.00

Purse seine 40.00

Seine boat 20.00

2 dories 10.50

$870.50

To Commission $21.75

" Advertising 13.60 35.35

$835.15

Above was sold at public auction on May 1st. 1899, by James
Duggan & Sons at Halifax, N. S.

[Enclosure.]

Copy of Letter to Sheriff Archibald.

Halifax, N. S., Sept. i^th, i8p6.

Queen vs. Gerring.
Dear Sir:

I beg to request that you will hand over the custody of the
schooner Frederick Gerring, Jr., and her seine, tackle and other

Appendix to the Memorial. 211

property now in your custody in this action to the agent of the
Marine and Fisheries Department here.

Yours faithfully,

(Sgd) W. B. A. Ritchie.
To Donald Archibald, Esq.
Marshal, City.

{Enclosure.']

Halifax, N. S., May i, i8^g.

Sales by
James Duggan & Sons.

By order and for a/c Marine and Fisheries Department :

Schooner Frederick Gerring $800.00

Purse seine 40.00

Seine boat 20.00

2 Dories @ $5.25 10.50

$870.50

To Commission $21.75

" Advertising 13.60 35.35

$835.15
Paid

James Duggan & Sons.

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