CO885-(13-15) — Page 149

PUBLIC RECORD OFFICE

Reference :-

111111C.0.885

13 PUBLIC RECORD OFFICE, LONDON

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Perhaps I ought to state that the "boarding station" is a spot at or near the mouth of the river, or at some similar point as regards each port, fixed by order of the Board of Customs under powers in their main Act, and at which every vessel arriving from a " foreign" voyage is, by statute, required to

bring to," and await the arrival of the boarding Officers of Custom.

"

I ought also, perhaps, to explain that Revenue cruisers are now, as a fact, around the United Kingdom mainly vessels of a caractère militaire, because, since "The Coastguard Service Act, 1856," the Coastguard vessels are vessels of the Royal Navy, but before that Act they were Customs vessels only, and yet they exercised just the same powers; and at the present day there are in a few of the big rivers cruisers still remaining in the Customs Service.

As regards searches under the Fishery Acts, there is not in those Acts any provision as to the kind of boats from or by means of which a Fishery Officer may act; but I am of opinion that the same principle would apply as in Revenue cases :-"Fishery Officers" may be officers of the Board of Trade, of the Navy, or of the Customs; for this purpose again, it is usual in exercising powers in the territorial waters to make use of the Coastguard vessels, but I feel clear that any of the Officers specified going in a vessel of his own Department, with proper pendant and ensign, would be legally exercising the powers conferred.

Whether a Fishery Officer getting alongside of a fishing vessel in the territorial zone by means of a private boat or a boat not of Government character, while unable to force the fishing boat to await his arrival might yet, when there, step on board her, and be within his right, might possibly be questioned, but I should answer it in the affirmative. But I think it would be correct to say that, as a matter of practice, officers on Coastguard cruisers are the officers who, in the Territorial Waters around the United Kingdom, usually exercise the rights of search, &c. under the Fishery Acts.

"

I observe that at the end of the last paragraph but one of Sir T. Lister's letter there Territorial Waters" and the is apparently some distinction drawn between the "Customs Zone.' I do not think now that there is any such distinction. The limits of the Territorial Waters may fairly be accepted as three miles; and, as I mentioned ip my first memorandum of the 12th November last,* although there were in old times, and expressly under the "Hovering Acts," certain undefined claims to wider jurisdiction, they are not now insisted on, nor are any such rights exercised.

At the

In order to prevent misapprehension, I would make one more remark. beginning of the third paragraph of the letter it is said:" Mr. Follett is of opinion that Her Majesty's Government do possess that right" (ie. the right of search)," and "that it can be exercised by a British Official on board of any ship," and later on these words are used: "The right of search, the existence of which is undisputed."

What I have written above will show that I scarcely do think that forcible search in the Territorial Zone can be made by or from a purely Commercial ship, and had only expressed that it could be done from a vessel showing the pendant and ensign, i.c. in Government employ.

As to the right of search mentioned as " undisputed," of course a main point of the French contention is to dispute this, except when a ship or boat is en flagrant délit- my opinion (as I endeavoured to set forth in my first memorandum*) was that, while a Government has without breach of International obligation the right to enact a law authorising search whether en flagrant délit or not it is most probable that it cannot properly be exercised without such enactment.

Such an enactment has always existed for the United Kingdom, and on that account Her Majesty's Government do possess the right as regards the United Kingdom. There was, as regards their Fisheries, no such enactment in the Colony of Newfoundland when these vessels were searched. The recent Colonial Act, just passed, has supplied it. In reply to the last paragraph of the letter, I believe there is no record of any foreign vessel being detained and searched in the Territorial Waters by officials acting on board of ships “having no public character," but vessels of other countries, and undoubtedly of France, have been detained in such waters by officials on board ships, not of a caractère militaire, but yet in Government service.

(Signed)

CHARLES J. FOLLETT.

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P.S. Since writing the above report, I have had occasion, in connection with another question with the Colonial Office, to inspect nearly all the existing Customs Acts of the Colonies; and I find that they nearly all enact search by officers for Revenue purposes-and many of them state, in express terms, that the search may be made from on board vessels in the Navy or in the service of the Colonies.

As regards the Colony of Newfoundland, there is an express enactment that “officers of the Revenue " may go on board ships within three miles of any of the coasts of the Island or its Dependencies; but there is no statement, as regards that Colony, as to what character of vessels may be used for the purpose of effecting search.

In my first memorandum I referred, once or twice, to the fact that there might be, in some other Act of the Colony (and I particularly had in my mind a Customs Act) some section which would aid the Bait Act, and supply the deficiency (which then existed) of any power to search.

I do not think, however, that the provision which I have quoted above would supply this deficiency, because the power is only given to officers of the Revenue; and I think as the section runs, and looking at the general tone of the Act, that the power would be limited to Revenue purposes.

boat"

The letters on behalf of the French Government refer to the officers who boarded these vessels as "inspectors de la douane" and "douaniers," and they are quoted from the Foreign Office as "Custom House Officers," and one of the vessels as a "revenue ; but as a matter of fact the vessel was not a revenue boat, but a boat used in the Bait Protection Service in Placentia and Fortune Bays, and the officers acting as Fishery Commissioners were a Commander in the Royal Navy and a Sub-Inspector of Constabulary, and not Customs House Officers..

(Signed) C. J. F.

8th January 1890.

• No. 163.