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Have the inhabitants of the United States, while exercising the liberties referred to in said article, a right to employ, as members of the fishing crews of their vessels, persons not inhabitants of the United States?
By article one of the treaty of 1818, the liberty to take fish on the treaty coasts is given to "the inhabitants of the United States." The short question is whether those inhabitants may employ fishermen of other nationalities to fish on their behalf. Great Britain contends that the article means what in terms it says, and that it confers the right to fish on the inhabitants of the United States only. The United States contend that the liberty to fish is conferred on American fishing-vessels, and that if it once be established by proper evidence that a vessel is an American vessel, then there is no right to question the nationality of fishermen employed on her.
The question has been recently discussed in regard to the employment of British subjects in the fisheries on those coasts of Newfoundland. Americans carry on a large trade in herrings, which are found on those coasts. The fish are caught in nets worked from small boats; they are then put on board American fishing-vessels, packed, and carried direct to the United States.
So long as the fishermen actually engaged in this trade are Americans, there can be no difficulty, but it has become common to send American vessels to the fishing grounds with crews sufficient only to handle the vessels themselves, and to rely for the catching of fish on Newfoundland fishermen. The operations are controlled by Americans: they provide the capital; and the fish caught are their property; but the actual fishing is done by inhabitants of Newfoundland. In this way, under cover of the fishing rights given by the treaty, a business is in many cases carried on in which, so far as the actual fishing is concerned, American fishermen take little or
no part. Great Britain holds that Americans employing Newfoundlanders to fish for them are not within the convention and that there is nothing to prevent her prohibiting British subjects from joining American vessels for this purpose.
The question, however, is not confined to the employment of British subjects. The crews of American vessels are largely composed of foreigners-Norwegians, Portuguese, &c. And it is now claimed, as of right, that any number of such foreigners may be employed upon American vessels in British waters.
The contentions of the two Governments are stated in the diplomatic correspondence of 1905-6, and it will be seen that they deal with the general question as well as with the particular case. Mr. Root, in a letter to Sir M. Durand of the 19th October, 1905, formulated certain propositions indicative of the United States' view upon the matters involved in the situation.
The first, third, and fourth of these asserted that (App., p. 492) :-
1. Any American vessel is entitled to go into the waters of the treaty coast and take fish of any kind. She derives this right from the treaty (or from the conditions existing prior to the treaty and recognised by it), and not from any permission or authority proceeding from the Government of Newfoundland.
3. The only concern of the Government of Newfoundland with such a vessel is to call for proper evidence that she is an American vessel, and, therefore, entitled to exercise the treaty right, and to have her refrain from violating any laws of Newfoundland not inconsistent with the treaty.
4. The proper evidence that a vessel is an American vessel and entitled to exercise the treaty right is the production of the ship's papers of the kind generally recognised in the maritime world as evidence of a vessel's national character.
In answer to these assertions, Sir Edward Grey, in a memorandum sent to Mr. Whitelaw Reid (the 2nd February, 1906), said (App., p. 494) :
The privilege of fishing conceded by article 1 of the convention of 1818 is conceded, not to American vessels but to inhabitants of the United States and to American fishermen. His Majesty's Government are unable to agree to this, or any of the subsequent propositions if they are meant to assert any right of American vessels to prosecute the fishery under the convention of 1818, except when the fishery is carried on by inhabitants of the United States. The convention confers no rights on American vessels as such. It enures for the benefit only of inhabitants of the United States.
Mr. Root replied in a letter to Mr. Whitelaw Reid (the 30th June, 1906) (App., p. 498)—
Yet we may agree that ships, strictly speaking, can have no rights or duties, and that whenever the memorandum, or the letter upon which it comments, speaks of a ship's rights and duties, it but uses a convenient and customary form of describing the owner's or master's right and duties in respect of the ship. As this is conceded to be essentially "a ship fishing," and as neither in 1818, nor since, could there be an American ship not owned and officered by Americans, it is probably quite unimportant which form of expression is used.
I find in the memorandum no substantial dissent from the first proposition of my note to Sir Mortimer Durand on the 19th October, 1905, that any American vessel is entitled to go into waters of the treaty coast and take fish of any kind, and that she derives this right from the treaty and not from any authority proceeding from the Government of Newfoundland.
Nor do I find any substantial dissent from the fourth, fifth, and sixth propositions, which relate to the method of establishing the nationality of the vessel entering the treaty waters for the purpose of fishing, unless it be intended, by the comments on those propositions, to assert that the British Government is entitled to claim that when an American goes with his vessel upon the treaty coast for the purpose of fishing, or with his vessel enters the bays or harbours of the coast for the purpose of shelter and of repairing damages therein, or of purchasing wood, or of obtaining water, he is bound to furnish evidence that all the members of his crew are inhabitants of the United States. We cannot for a moment admit the existence of any such limitation upon our treaty rights. The liberty assured to us by the treaty plainly includes the right to use all the means customary or appropriate for fishing upon the sea, not only ships and nets and boats, but crews to handle the ships and the nets and the boats. No right to control or limit the means which Americans shall use in fishing can be admitted unless it is provided in the terms of the treaty, and no right to question the nationality of the crews employed is contained in the terms of the treaty. In 1818, and ever since, it has been customary for the owners and masters of fishing-vessels to employ crews of various nationalities. During all that period, I am not able to discover that any suggestion has ever been made of a right to scrutinise the nationality of the crews employed in the vessels through which the treaty right has been exercised.
The language of the treaty of 1818 was taken from the 3rd article of the treaty of 1783. The treaty made at the same time between
Great Britain and France, the previous treaty of the 10th February, 1763, between Great Britain and France, and the Treaty of Utrecht of the 11th April, 1713, in like manner contained a general grant to "the subjects of France" to take fish on the treaty coast. During all that period no suggestion, so far as I can learn, was ever made that Great Britain has a right to inquire into the nationality of the members of the crew employed upon a French vessel.
Nearly 200 years have passed during which the subjects of the French King and the inhabitants of the United States have exercised
fishing rights under these grants made to them in these general terms, and during all that time there has been an almost continuous discussion in which Great Britain and her colonies have endeavoured to restrict the right to the narrowest possible limits, without a suggestion that the crews of vessels enjoying the right, or whose owners were enjoying the right, might not be employed in the customary way without regard to nationality. I cannot suppose that it is now intended to raise such a question.
In Sir Edward Grey's reply (addressed to Mr. Whitelaw Reid, the 20th June, 1907) he said (App., p. 507):
His Majesty's Government, on the one hand, claim that the treaty gave no fishing rights to American vessels as such, but only to inhabitants of the United States, and that the latter are bound to conform to such Newfoundland laws and regulations as are reasonable and not inconsistent with the exercise of their treaty rights. The United States Government, on the other hand, assert that American rights may be exercised irrespectively of any laws or regulations which the Newfoundland Government may impose, and agree that as ships, strictly speaking, can have no rights or duties whenever the term is used it is but a convenient or customary form of describing the owner's or master's rights. As the Newfoundland fishery, however, is essentially a ship fishery they consider that it is probably quite unimportant which form of expression is used.
By way of qualification, Mr. Root goes on to say that if it is intended to assert that the British Government is entitled to claim that, when an American goes with his vessel upon the treaty coast for the purpose of fishing, or with his vessel enters the bays or harbours of the coast for the purpose of obtaining shelter and of repairing damages therein, or of purchasing wood or of obtaining water, he is bound to furnish evidence that all the members of the crew are inhabitants of the United States, he is obliged entirely to dissent from any such proposition.
The views of His Majesty's Government are quite clear upon this point. The convention of 1818 laid down that the inhabitants of the United States should have, for ever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every kind on the coasts of Newfoundland within the limits which it proceeds to define.
This right is not given to American vessels, and the distinction is an important one from the point of view of His Majesty's Government, as it is upon the actual words of the convention that they base their claim to deny any right under the treaty to American masters to employ other than American fishermen for the taking of fish in Newfoundland treaty waters.
Mr. Root's language, however, appears to imply that the condition which His Majesty's Government seeks to impose on the right of fishing is a condition upon the entry of an American vessel into the treaty waters for the purpose of fishing. This is not the case. His Majesty's Government do not contend that every person on board an American vessel fishing in the treaty waters must be an inhabitant of the United States, but merely that no such person is entitled to take fish unless he is an inhabitant of the United States. This appears to meet Mr. Root's argument that the contention of His Maj
esty's Government involves as a corollary that no American vessel would be entitled to enter the waters of British North America (in which inhabitants of the United States are debarred from fishing by the convention of 1818) for any of the four specified purposes, unless all the members of the crew are inhabitants of the United States.
Whatever may be the correct interpretation of the treaty as to the employment of foreigners generally on board American vessels, His Majesty's Government do not suppose that the United States Government lay claim to withdraw Newfoundlanders from the jurisdiction of their own Government so as to entitle them to fish in the employment of Americans in violation of Newfoundland laws. The United States Government do not, His Majesty's Government understand, put their claim higher than that of a "common" fishery, and such an arrangement cannot override the power of the colonial legislature to enact laws binding on the inhabitants of the colony.
It can hardly be contended that His Majesty's Government have lost their jurisdiction not only over American fishermen fishing in territorial waters of Newfoundland, but also over the British subjects working with them.
It may be as well to mention incidentally in regard to Mr. Root's contention that no claim to place any such restriction on the French right of fishery was ever put forward by Great Britain, that there was never any occasion to advance it, for the reason that foreigners other than Frenchmen were never employed by French fishing vessels.
THE TREATY IS CLEAR.
1. His Majesty's Government submits that this question must be determined by the terms of the article, and by those terms alone. The article confers the liberty to take fish on the "inhabitants of the United States." These words are not ambiguous; they specify, quite clearly, the persons who are to be entitled to fish; and it is submitted that those persons, and no others, are so entitled.
VESSELS HAVE NO RIGHTS.
2. The article makes no reference to vessels, and confers no rights on fishing-vessels as such. The qualification necessary for the exercise of the liberty to take fish is the nationality of the fisherman, and not the flag of the vessel on which he happens to be engaged.
INTENTION OF NEGOTIATORS OF CONVENTION.
3. This construction gives effect to the intentions of the convention. It was the sole object of the American negotiators to secure the liberty to take fish in British waters for the fishermen of the United States. Their claim was supported by arguments which could apply only to men who were inhabitants of the United States and were fishermen by trade. They stated that there was a large population in the United