ENCLOSURE 3
130
Extract from the "Hongkong Daily Press' dated 2nd. July,
1900.
THE SHELL CASE.
THE ACTING. PUISNE JUDGE'S FINDING. In our issue on Saturday we gave the Chief Justice's finding in the Shell Case, and stated that while the Chief Justice found for the de- fendant, the Acting Puisne Judge found for the plaintiff.
The Acting Puisne Judge said:-The con clusion at which I have arrived in this case is, I regret to say, at variance with the conclusion arrived at by the Chief Justice. Having had an opportunity of reading that judgment, I adopt that portion of it which is introductory and sets out the facts of the case.
By a Convention dated 9th June, 1898, it was agreed between the Governments of Great Britain and China that the limits of British territory should he enlarged under lease. In pursuance of the Convention, a certain portion of Chinese territory which includes the locus in quo in the present oase, was leased to Great Britsin from 1st July, 1898.
As lessee of the locus in quo the Government of Hongkong on the 20th December, 1899, sublet that locus in quo to the plaintiff firm with the right to search for and obtain coral or shells from the bed of the sea, but so as not to inter- fere with fishing and navigation.
Under this lesso the plaintiff firm sues the defendant for damages for trespass and conver- į sion, to which defendant pleads that he has a right to take coral and shells because he had i that right before 1st July, 1898, is an inhabitant! of the leased territory, and is protected by the Convention from being expropriated or dis- possessed of that right.
During the hearing of the case counseli for plaintiffs admitted that Chinese fisher.! men had been in the habit of dredging for shells and coral for the purpose of lime-burning from Lantan M.L. 2(the looms in quoj, openly and believing themselves untitled as of right so to do, without interference by any one, from the! limits of living memory until the granting of! the lease of the above lot.
When looked at, this admission is nothing more than an admission of a habit; and, as such, may be evidence to help establish a right. But! ntil the habit, either by itself or in company, with other evidence, establishes a right, it re mains a habit and cannot be styled a right,
Before defendant can successfully set up that he has been expropriated by the granting of the lease of 20th December, 1899, he must prove that he has been dispossessed of a right which he en- joyed under Chinese municipal law before 1st July, 1898. Moreover, he must establish that right by recourse to Chinese municipal law. Admitting that the defendant and his brother- ishermen have been in the habit from time immemorial of taking coral and shells without let or hindrance from the fundus maris belonging to the Emperor of China, he has yet to show that by the municipal laws of China such a proved habit has created a right in him and his comrades which he could maintain in a Chinese court.. That proof has not been forth- coming. And since the right must be proved by Chinese law, it follows that no principles of English law may be utilised to prove that by anology or directly, a right existed under Chinese law.
The only other source of law available is publie international law: but that governs the relation of uations inter se, and is not a guide on ques tions affecting the relations of a sovereign and his subject, which are regulated by municipal
law.
Notwithstanding however that the defen- dant has u
cause to complain of an ex. propriation guarded against in the Convention, it may be that, since 1st July, 1898, when the loens in quo became a portion of the leased territorial land and waters of Her Majesty the Queen, the defendant has, as a subject of Her Majesty, acquired certain rights of which the lease of the 20th December, 1899, deprived him. The rights of sovereign and subject in respect of the newly acquired territorial waters may be said briefly to be that the Crown has the right of ownership in such waters and the bed of such waters subject to the public right of navigation and anchoring in theu: and that the Crown has also the rights of fishing sabject to a right of a common fishery in the subject.
It is contended for the defendant not that rights of navigation or of anchorage have been infringed but that the right of a common fishery has been infringed, because such right carried with it a right to the bottom of the sea and there- fove to the contents of that bottom. That how. ever was a mere statement of counsel unsupported by authority. There are several reasons against this view. First it is incontestable that the fundus maris in territorial waters is rested ab- solutely in the Crown: this absolute ownership of the soil curries with it the absolute owner. ship of what is found on, in or under the soil: and I can find nothing to countenance the idea that the subject has, by common law or in any other way, a right to joint-ownership in the fundus maris or to participation in its products. Next, the right of a common fishery enjoyed by the public is a floating liberty of fishery with nets, hooks, etc., and is the right of fishing in the sea and public rivers open to all the public (see Hall on Seashore, pp. 50, 51, 52, 2nd edi- tion). Thirdly, the shells taken by the defendant were dead shells or the shells of fish des- troyed by natural causes before capture. In the case of Bagot v. Orr. 5 R.R. 668, the Court, while laying down that prima facie every subject had a right to take fish upon the sex- shore, pansed before it would establish a general right to take shells in the absence of authority to support a claim of a right to take shells. A fortior, it appears to me, should this Court pause before establishing, in the absence of supporting authority, a general right to take sholls from the fundus maris. The distinction drawn between fish and shelis is a clear one. A common fishery, being a right to take fish in the sea and public rivers open to all the public, does not, therefore, in the light of Bagot v. Orr, include a right to take dead shells.
In my judgment, accordingly, defendant has failed to show either that he has been dispos sessed of a right which he enjoyed prior to 1st July, 1898, or that he has been deprived of any right which acerned to him on and after that date. I am also of opinion that the Crown, as absolute owner of the fundus marie in question, was not prevented by any known rule of law from granting to the plaintiffs the rights con. ferred by the lease of 20th December, 1899.
I hold, therefore, that the plaintiffs are entitled to ten dollars as damages and to their costs of the suit.
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