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PUBLIC RECORD OFFICE

Reference :-

C.O.885

16 PUBLIC RECORD OFFICE, LONDON

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No. 67.

(JAMAICA: GENERAL.)

FOREIGN OFFICE to LAW OFFICERS.

[Eddystone Lighthouse : As to raters surrounding it being territorial.]

Foreign Office, January 15, 1907.

GENTLEMEN,

I HAVE the honour, by the direction of Secretary Sir Edward Grey, to transmit herewith copy of a letter from the Admiralty (Paper A) respecting the arrest by the Commanding Officer of His Majesty's ship" Circe" of two French fishing-vessels found fishing for crab within three miles of the Eddystone Lighthouse, on the ground that they were fishing within British territorial waters.

It will be seen that as a matter of fact the vessels in question were released or the recommendation of the Board of Trade, but it is considered desirable to ascertair whether the arrest was justifiable in the first instance. This must, in Sir E. Grey's opinion, depend on whether the waters surrounding the Eddystone can be regarded as part of the territorial waters of this country.

A somewhat analogous case is that of the British schooner "Admired," which was scized by an American revenue cutter within three miles of the rock or cay upon which the lighthouse known as the Fowey Light was erected, and was condemned by the United States authoritics at Key West. On the 5th March, 1889, the then Law Officers of the Crown, Sir Richard Webster, Attorney-General, and Sir Edward Clarke, Solicitor-General, were asked for their opinion as to whether the exclusive maritime jurisdiction of the United States within a radius of three miles from the Fowey Rock might safely be admitted, and on the 2nd April (Law Officers' Report, 1889, No. 59, pp. 114-116) they reported* that, in the existing state of their informa- tion as to the character of the Fowey Rock, and the neighbouring rocks and reefs, they could not advise the admission that the territorial jurisdiction of the United States extends three miles seawards of that rock. It appeared, however, that in any case the "Admired" had been captured within three miles of the coast line of the Cay of Biscayne, which would bring her clearly within the jurisdiction of the United States, and they saw no ground for any further representation on behalf of the claimants. No further action was therefore taken in the matter by Her Majesty's Government, and the question as to the waters round the lighthouse remained unsettled.

A copy of the Report of the Law Officers (Paper B) is annexed.

Sir Edward Grey understands that the Eddystone Lighthouse is a permanent stone structure, inhabited by the lighthouse keepers, that it is built upon a rock which is not permanently above high water, and that the rock cannot in the circum- stances be regarded as being per se an island.

The Lords Commissioners of the Admiralty are of opinion that the waters surrounding the lighthouse are part of the territorial waters of this country. The Assistant Legal Adviser to this Department, in a Minute on the Admiralty letter of the 2nd September, 1905, expressed the same view, the grounds on which he based his conclusion being that the limits of territorial waters must be drawn from the low-water mark at any particular moment, and that if low-water mark advances appears or recedes, the limits of territorial waters move with it, and this being so it

to be immaterial whether the cause of the change of position in the low-water mark is natural or artificial, or whether the artificial creation is, as for instance in the case of a pier, annexed to the mainland or detached from it as in the case of an outlying breakwater or a lighthouse.

If this view can be upheld, it appears to Sir Edward Grey that the waters surrounding the Eddystone are territorial 'for all purposes.

On the other hand, it seems open to contention that the mere erection of a lighthouse on an island or rock situated outside the ordinary limits of British territorial waters is not per se sufficient to constitute of necessity a claim to British sovereignty and jurisdiction over such island or rock. Moreover, the primary object of the occupation may well be looked to. In the case of a lighthouse erected on a No. 147 in Vol. IV,

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