The Sovereignty of the Sea / An Historical Account of the Claims of England to the Dominion of the British Seas, and of the Evolution of the Territorial Waters

by Thomas Wemyss Fulton

[1153] 31 & 32 Vict., c. 45, s. 67.

[1154] Report from the Select Committee on Oyster Fisheries, 8, 166 (1876).

[1155] Had the coasts of the United States been visited by British fishermen, it is not unlikely that the Government of that country would have been more willing to admit the ordinary interpretation with regard to bays. British vessels do not, however, fish on the coasts of the United States, and the United States fishermen, having exhausted the once productive waters of their own coasts of the New England States, go to catch a large part of their fish to the waters on the coasts of British North America, and hence it is to their interest that the limit of exclusive fishing on the latter should be as small as they can get it made. The position is very similar to that of the English trawlers who, having impoverished the North Sea, now go to foreign coasts, as Iceland, to keep up the supplies. [See p. 707].

[1156] Treaty between Her Majesty and the United States of America, signed at Washington, 1st June 1854, Art. i., ii. I. “It is agreed by the high contracting parties that in addition to the liberty secured to the United States’ fishermen by the above-mentioned convention of October 20, 1818, of taking, curing, and drying fish on certain coasts of the British North American Colonies therein defined, the inhabitants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty to take fish of every kind, except shell-fish, on the sea coasts and shores, and in the bays, harbours, and creeks of Canada, New Brunswick, Nova Scotia, Prince Edward’s Island, and of the several islands thereunto adjacent, without being restricted to any distance from the shore, with permission to land upon the coasts and shores of those Colonies and the islands thereof, and also upon the Magdalen Islands, for the purpose of drying their nets and curing their fish; provided that, in so doing, they do not interfere with the rights of private property, or with British fishermen, in the peaceable use of any part of the said coast in their occupancy for the same purpose.” The second article accorded to Canadian fishermen similar privileges in the waters of the United States, north of 36 degrees N. latitude.

[1157] Before this arrangement was made, the British Government, on 12th April 1866, instructed the Admiralty “that American fishermen should not be interfered with, either by notice or otherwise, unless they are found within three miles of a line drawn across the mouth of a bay or creek, which is less than ten geographical miles in width, in conformity with the arrangement made with France in 1839.”

[1158] 27th June 1870. “The limits within which you will, if necessary, exercise the power to exclude United States’ fishermen, or to detain American fishing vessels or boats, are for the present to be exceptional.... Her Majesty’s Government are clearly of opinion that, by the Convention of 1818, the United States have renounced the right of fishing, not only within three miles of the Colonial shores, but within three miles of a line drawn across the mouth of any British bay or creek. It is, however, the wish of Her Majesty’s Government neither to concede, nor for the present to enforce, any rights in this respect which are in their nature open to any serious question. Until further instructed, therefore, you will not interfere with any American fishermen, unless found within three miles of the shore, or within three miles of a line drawn across the mouth of a bay or creek, which, though in parts more than six miles wide, is less than six geographical miles in width at its mouth. In the case of any other bay—as Bay des Chaleurs, for example—you will not interfere with any United States’ fishing vessel or boat, or any American fishermen, unless they are found within three miles of the shore.”

[1159] Treaty between Her Majesty and the United States of America, signed at Washington, 8th May 1871, Art. xviii., xix.

[1160] Parl. Papers, No. 1 (1888), (C.—5262).

[1161] The number of American fishing vessels which take the licenses for Canadian waters is usually about 100, the fees aggregating 10,000 or 12,000 dollars per annum. Ann. Reports, Marine and Fisheries, Ottawa.

[1162] The three-mile limit is measured from the ten-mile arc.