R
44209
No. 55.
(NEWFOUNDLAND.)
LAW OFFICERS to COLONIAL OFFICE.
[United States Fishing Rights: Draft Order in Council to give effect to the modus vivendi.]
Royal Courts of Justice,
November 30, 1906.
MY LORD,
We were honoured by your Lordship's commands signified to us by Mr. Bertram Cox in his letter of the 26th instant, stating that he was directed by your Lordship to lay before us draft of an Order which you proposed, if circumstances should make such a course necessary, to advise His Majesty to make to give effect to the modus vivendi concluded with the United States Government on the New- foundland Fisheries question. That in the preparation of this draft, the terms of our report of the 20th October* had been kept in mind.
That the modus vivendi, as we were aware, embodied four concessions on the part of His Majesty's Government :—
(1.) The undertaking not to bring into force the Newfoundland Foreign Fishing Vessels Act, 1906.
(2.) The undertaking that the provisions of the first part of Section 1 of the Foreign Fishing Vessels Act, 1905, as to boarding and bringing into port, and the whole of Section 3 of the same Act, would not be regarded as applying to United States fishing vessels exercising the treaty right of fishery.
(3.) The consent to the use of purse-seines subject to due regard being paid to other modes of fishery.
(4.) The undertaking that "the shipment of Newfoundlanders by American fishermen outside the three-mile limit was not to be made the basis of interference or to be penalized."
That the Foreign Fishing Vessels Act, 1906, was passed subject to the approval and confirmation of His Majesty in Council. That no provision was, therefore, required in the Draft Order to give effect to the first concession.
That the second concession was, in a manner, merely nominal, seeing that the late Law Officers of the Crown regarded the provisions in question of the Act of 1905 as conflicting with American rights under the Convention, and that even the Government of Newfoundland did not contend that they were applicable to American vessels on the Treaty Coast. That we advised, in our report of the 20th October, 1906,* that it was within the power of His Majesty under Section 1 of the Act 59 Geo. III. c. 38 to give orders and instructions which would, in effect, overrule tho provisions in question, so far as the American fishery rights were concerned. That it would, however, appear to be desirable that any such orders and instructions should be so framed as merely to exempt United States fishing vessels from the special rules as to boarding and bringing into port applicable to foreign fishing vessels which were not entitled to fish in the waters of the Colony, and not to exempt them from such general rules as apply under the ordinary law to vessels lawfully resorting to the waters of the Colony. That the draft Order had been prepared
with this point in view.
That the third concession had not caused much trouble. That purse seines had been but little used by American fishermen, and were not at present in use at all. That according to our report of the 20th October, 1906, His Majesty had power to give legal effect to this concession, also by instructions under Section 1 of the Act 59 Geo. III. Cap. 38. That if an Order in Council was to be issued, your Lordship thought, deal with the question of the use of the purse seines, not- should, withstanding that the American fishermen had forgone their rights under the modus vivendi in this respect, but that at the same time it would appear to be advisable not to mention purse seines nominatim, but to make the necessary provision in general terms, since it would hardly be politic at this stage to authorize in a formal
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• No. 47.
PUBLIC RECORD OFFICE
Reference :-
C.O.885
16 PUBLIC RECORD OFFICE, LONDON
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