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WASHINGTON TREATY, 1871.
1871-85.-During this period the rights of the parties were regulated by the treaty of Washington.
UNITED STATES PROPOSAL FOR SETTLEMENT, 1886.
1886. On the 15th November, 1886, the United States Secretary of State, Mr. Bayard, instructed Mr. Phelps (the United States Minister at London) to suggest a general limitation of bays to those with 10-mile headlands. He said (App., p. 358):
In proposing the adoption of a width of ten miles at the mouth as a proper definition of the bays in which except on certain specified coasts, the fishermen of the United States are not to take fish, I have followed the example furnished by France and Great Britain in their convention signed at Paris on the 2nd August, 1839. This definition was referred to and approved by Mr. Bates, the Umpire of the Commission under the treaty of 1853, in the case of the United States fishing schooner "Washington," and has since been notably approved and adopted in the convention signed at The Hague in 1882, and subsequently ratified in relation to fishing in the North Sea between Germany, Belgium, Denmark, France, Great Britain, and the Netherlands.
The clause which he proposed was as follows (App., p. 417):—
1. To agree upon and establish, by a series of lines, the limits which shall separate the exclusive from the common right of fishing on the coast and in the adjacent waters of the British North American colonies, in conformity with the 1st article of the convention of 1818, except that the bays and harbours from which American fishermen are in the future to be excluded, save for the purposes for which entrance into the bays and harbours is permitted by said article, are hereby agreed to be taken to be such bays and harbours as are 10, or less than 10 miles in width, and the distance of 3 marine miles from such bays and harbours shall be measured from a straight line drawn across the bay or harbour, in the part nearest the entrance, at the first point where the width does not exceed 10 miles, the said lines to be regularly numbered, duly described, and also clearly marked on charts prepared in duplicate for the purpose.
The Canadian reply (1st February 1887) to this proposal was the same as the United States would have made to a proposal to forgo sovereignty over a number of their bays (App., p. 402) :—
This provision would involve a surrender of fishing rights, which have always been regarded as the exclusive property of Canada, and would make common fishing grounds of territorial waters, which by the law of nations have been invariably regarded both in Great Britain and the United States as belonging to the adjacent country.
In the case, for instance, of the Baie des Chaleurs, a peculiarly wellmarked and almost land-locked indentation of the Canadian coast, the 10-mile line would be drawn from points in the heart of Canadian territory, and almost 70 miles distant from the natural entrance or mouth of the bay. This would be done in spite of the fact that, both by Imperial legislation and by judicial interpretation, this bay has been declared to form a part of the territory of Canada (see Imperial Statute, 14 & 15 Vict., cap. 63, and Mowat v. McPhee, 5, Supreme Court of Canada Reports, p. 66)
CONVENTION OF 1888.
1888.-A convention was negotiated (known as the Chamberlain-Bayard convention). It provided that the limits of exclusion of United States fishermen from British waters should be as follows:
Certain named bays whose headlands are as follows: Bay of Chaleurs, 16 miles; Miramichi Bay, 14 miles; Egmont Bay, 17 miles; St. Ann's Bay, 17 miles; Fortune Bay, 10 and 11 miles; Sir Charles Hamilton Sound, 5 and 6 miles.
Three marine miles seaward from lines drawn across headlands of other bays as follows: Barrington Bay, 6 and 73 miles; Chedabucto and St. Peter's Bays, 8 and 9 miles; Mira Bay, Placentia Bay, 7 and 10 miles.
As to bays, creeks, or harbours (App., p. 42.)—
"not otherwise specifically provided for in this treaty, such three marine miles shall be measured seaward from a straight line drawn across the bay, creek, or harbour, in the part nearest the entrance at the first point where the width does not exceed ten marine miles."
The United States Senate did not ratify this convention, and it never became operative.
Since 1888 the question has not been further discussed.
His Majesty's Government contends that the term "bays," as used in the renunciation clause of article one, includes all tracts of water on the nontreaty coasts which were known under the name of bays in 1818, and that the 3 marine miles must be measured from a line drawn between the headlands of those waters.
It will be seen, on reference to a map, that the shores of His Majesty's Dominions, to which article one applies, are indented to a very marked extent.
These indentations had all been surveyed and named at the time the convention was entered into. They were well known to mariners
and fishermen and were known under the names which they now bear. In other words, the waters to which this discussion relates were known as bays in 1818.
Maps of the coasts had been published before that date. Of these, probably the most important were a wall map known as Mitchell's map (1755), and a book of maps called "The American Atlas," prepared by "Thomas Jeffreys, geographer to the King and others." In the appendix to this Case will be found reproductions of Mitchell's map, and of such of Jeffrey's maps as cover the territory in question. Not only were these maps available to the negotiators in 1783, but the report of the American Commissioners proves that the Mitchell map was actually being used by them during the negotiations. They said: "The map used in the course of our negotiations was Mitchell's." a
When, therefore, in 1783, an agreement was entered into with reference to the "bays" in these territories, no one could have been in the slightest doubt as to what was intended. The maps showed it, and every fisherman knew it without looking at the maps. And the word was used in the same sense in 1818. It appears from an entry in Mr. John Quincy Adams' diary, 8th July, 1823, that the same map (Mitchell's) was made use of in subsequent negotiations. A minority report of a committee of the United States Senate said in 1888 (App., p. 462):
The treaty had reference to extensive lines of seacoast, upon which the bays, harbours, and creeks were as well known by name and location in 1818 as they are now. . . .
The negotiators of the convention were dealing, therefore, with tracts of water on the shores of His Majesty's dominions which were known to everyone under the name of "bays "—tracts of varying size and of varying conformation, some with greater and some with less width between their headlands, ranging from inclosures of considerable extent to inlets of small size. They used the term "bays" without any qualification whatever, and the inference is irresistible, as His Majesty's Government submits, that the term was intended to apply to all the waters on those shores which were known to the negotiators and to the public, and were marked on the maps at the time, as "bays." If it had been intended that the term should apply only to a limited class of the waters which were then called "bays," an express limitation would have been inserted to give effect to that intention.
Rev. Dip. Corresp., vol. vi, p. 133. A letter from the British Peace Commissioner, Mr. Oswald, dated the 29th October, 1782, shows that Mr. Strachey took maps with him from London to Paris for use in the negotiations there. These maps were probably Jeffrey's maps.
COMPARISON OF OTHER PASSAGES.
This construction is supported by a comparison of other passages in which the term "bays" occurs in the same article. It is clear from them that the term is used generally of all bays. For instance, the right given to American fishermen to dry and cure fish on the shores of any of the unsettled bays on certain specified coasts, could hardly be read as limited to the smaller bays only; yet apart from the convention there could be no such right in any bays. Again, the proviso at the end of the article, that American fishermen should be permitted to enter bays on the non-treaty shores of His Britannic Majesty's dominions in America for the purposes, amongst other things, of repairing damages, purchasing wood, and obtaining water, cannot reasonably be construed as applying to the smaller bays only. If it were, American fishermen would have no right to resort to the larger bays for those purposes; for even if a right to fish in bays existed apart from the treaty, there would have been no right to land in the absence of an agreement to that effect.
It is submitted that the term must have the same meaning throughout the whole article, and that it is used throughout to include all bays.
The construction of article one has been on two occasions the subject of decision. The first of them is the award made in 1853 in the case of the "Washington," to which reference has already been made. (Ante, p. 100.) In that case it was held, as before stated, that the Bay of Fundy was not a British bay, because one of its headlands belonged to the United States. Mr. Dana, the counsel for the United States, arguing before the Halifax Commission in 1877, stated that this was the real ground of the award. (App., p. 266.) The decision related therefore to the Bay of Fundy, rather than to the general construction of article one. His Majesty's Government have contended that the Bay of Fundy is within article one equally with the other bays on the coasts affected, but for reasons of policy they have not insisted on that view, and since the year 1845 have made no objection to American fishermen plying their trade within the headlands of the bay. It is not necessary, therefore, for the Tribunal to take into consideration the question of this particular bay, 106 nor to re-examine the issue of fact decided by the award of 1853, as to whether the headlands are or are not both within British territory. Indeed the understanding between the arbitrating Powers is
that no question as to the Bay of Fundy, considered as a whole, apart from its bays or creeks, or as to innocent passage through the Gut of Canso, is included in this question as one to be raised in the present
arbitration, it being the intention of the parties that their respective views or contentions on either subject shall be in no wise prejudiced by anything in the present arbitration.
The second decision related to Conception Bay on the coast of Newfoundland, and the argument in the case involved the consideration of the very question now before this tribunal. It was a decision of Her Majesty's Privy Council composed of Lord Blackburn, Sir J. A. Colville, Sir Barnes Peacock, Sir Montagu Smith, and Sir Robert Collier. On the general question of the meaning of the term "bays" they held that it was impossible to doubt that the convention of 1818 applied to all bays whether large or small.
The opinion of these eminent jurists is an exact authority in favour of the contention which His Majesty's Government submits to this tribunal.
LINE TO BE MEASURED FROM HEADLANDS.
Assuming that the term "bays" is construed to include all bays, then it is clear that the 3-mile limit must start from a line drawn between the headlands of all those bays.
The reference to the discussions which have taken place and which have already been summarised in this case, show that Great Britain has from the first put forward the contention which is urged before this tribunal to-day; she has from the first contended that all bays on the coasts affected by article one are within that article, and to that contention she adheres. They also show that the United States have more than once accepted this construction of the language of the convention.
UNITED STATES CONTENTION.
The contention of the United States, so far as it is at present known to His Majesty's Government, is to be found in its "answer" laid before the Halifax Commission in 1877. It is as follows (App., p. 256) :
For the purposes of fishing, the territorial waters of every country along the sea-coast extend three miles from low-water mark; and beyond is the open ocean, free to all. In the case of bays and gulfs, such only are territorial waters as do not exceed six miles in width at the mouth, upon a straight line measured from headland to headland. All larger bodies of water, connected with the open sea, form a part of it. And wherever the mouth of a bay, gulf, or inlet exceeds the maximum width of six miles at its mouth, and so loses the character of territorial or inland waters, the juridictional or proprie
The Direct United States Cable Co. v. The Anglo-American Telegraph Co. L.R., 2 App., Cas. 394.