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

Even in regard to the class of fisheries for what is termed “floating” fish—that is to say, the ordinary fisheries for sea fishes, carried on usually by nets and lines—there are a number of enactments conferring jurisdiction, or which have conferred jurisdiction, beyond the distance of three miles from shore. Old English and British Acts, previously referred to ([p. 608]), fixed limits of four-and-a-half and five miles from the coast, within which distance the use of certain apparatus, as drag-nets and trawls, was prohibited. In the Herring Fishery Act of 1808, which provided for the appointment of commissioners for the herring fishery, and for the regulation of the fishery and the curing of herrings, jurisdiction was extended over “all persons” engaged in catching, curing, and dealing in fish in all the lochs, bays, and arms of the sea, and also within ten miles of the coasts.[1279] At the Isle of Man an Act of Tynwald prohibited herring-fishing at a certain season within nine miles of the shore,[1280] and other instances might be given where municipal Acts extended jurisdiction beyond the ordinary three-mile limit for similar purposes.

It is, however, in connection with the great development of trawl-fishing from steamers in recent years, that the question of the inadequacy of the ordinary three-mile limit for the preservation and regulation of fisheries has been brought to the front, and it is around this method of fishing that most of the controversies affecting the territorial waters, at least in Europe, have gathered.[1281] It is therefore necessary to understand something about it, and how it is that it has given rise to demands for the extension of the ordinary limits and for the closure of large areas beyond these limits. It is the most effective and at the same time the most destructive method of fishing ever made use of. It differs from hook-and-line fishing, in which only a few kinds of fish are taken at the same time, according to the size of the hook and the kind of bait, and from gill-net or drift-net fishing, which is adapted, according to the dimensions of the mesh, to capture a particular fish, as herring or mackerel. Trawling consists essentially in dragging along the bottom of the sea a great bag of netting, which captures a large variety of fishes, big and little; and it may involve, at certain places and in certain seasons, the destruction of immense quantities of edible fishes too small to be marketable, and which are thrown back, dead, into the sea.[1282] It is a very old method, but until about a century ago it was confined on the British coast to the mouth of the Thames and neighbourhood and to certain localities in the Channel, its headquarters being Barking and Brixham. Trawling was then restricted to shallow water; the boats were small and the trawls were such as a man could carry on his shoulders. At the close of the French war, Brixham trawlers began to migrate eastwards, prospecting for new grounds, fixing their temporary headquarters first at Dover, then at Ramsgate in 1818, and at Harwich in 1828. Continuing their explorations, the Dutch coast was visited about 1830 and the southern part of the Dogger Bank a few years later, and in 1837 a great impetus was given to trawling by the discovery of enormous quantities of soles in the Great Silver Pit, south of the Dogger. Trawlers flocked thither from all quarters; the Brixham men fixed upon Hull, first as their temporary, and then as their permanent home, and from this time North Sea trawling was firmly established. It was not until 1858, little more than half a century ago, that trawlers began to be employed from Grimsby, which is now by far the greatest fishing-port in the world. Gradually the enlarging fleets of trawlers pushed northwards and eastwards as new grounds were discovered. By 1860 the whole of the Dutch coast and the coast of Schleswig was frequented; ten years later the Danish coast was included, and, for the first time, the whole of the Dogger Bank, as well as large areas north and west of it, off the coast of England and Scotland. About 1875 the Great Fisher Bank, which lies about 200 miles east of the Scottish coast, began to be visited, and in 1891 the English trawlers boldly pushed on to Iceland, where enormous catches of fish were obtained.

During this period, while the fishing-grounds were being vastly extended, great improvements were made in the means of catching the fish and bringing them to market. The trawling vessels gradually increased in numbers, size, speed, and storage capacity; the trawl-net grew larger and more efficient; the use of ice for the preservation of the fish enabled distant grounds to be visited, and the deeper waters of the north necessitated the substitution of steam-power for hand-labour in hauling the nets on board; the “fleeting” system, by which steam-carriers collected the fish each morning and brought them rapidly to market, allowed the fleets of sailing smacks to remain on the grounds constantly fishing for many weeks at a time. Then the industry was revolutionised by the substitution of steam vessels for the sailing smacks, a change which began about 1878; and trawling, which was at first a summer occupation owing to the frailty of the boats, and then a winter pursuit, as plenty of wind was required to drag the heavier nets, became independent of the season, and almost of the weather. A further improvement was the introduction in 1895 of the otter-trawl instead of the unwieldy beam-trawl, the mouth of the net being kept open by the divergence of two boards, one at each side, on the principle of the kite. This allowed the net to be made very much larger, and also to be used in much deeper water, and commercial trawling is now carried on in depths down to about 200 fathoms.

There has thus occurred during the last generation or so an enormous development in the extent and efficiency of trawl-fishing. The British fleet since about 1885 has grown from some 200 small vessels, of twenty to twenty-four tons, and using trawls of from twenty to thirty feet beam, to an aggregate of 3170 vessels in 1907, of which 1609 were steamers and 918 deep-sea sailing smacks.[1283] These figures, however, convey but little impression of the real increase in the catching power. It has been computed, both by practical men and by scientific experts, that the modern steam otter-trawler is approximately eight times more effective in catching fish than was one of the large sailing smacks of a generation ago,[1284] and thus the British deep-sea trawling fleet in 1907 was equal to about 13,790 of the older sailing smacks. But in addition to these there are the foreign steam-trawlers which fish on the same grounds, for many other countries have followed the English example in developing deep-sea trawling. The aggregate number of such vessels at the end of 1907 was about 634, of which 224 were French, 239 German, and 81 Dutch;[1285] and they would represent 5072 sailing smacks, so that the total trawling fleet of Western Europe was then equal to about 18,862 of the sailing trawlers of twenty or thirty years ago, the sailing trawlers in use on the Continent being left out of account. It has been calculated that the area of the sea-bottom which is swept each day by the nets of this great fleet is equal to about 2000 square miles.

Now, this extraordinary extension of trawl-fishing in recent times bears upon the question of territorial waters in two ways. One relates to the impoverishment of the older fishing-grounds near the coast and in the North Sea. The other relates to the incursion of steam-trawlers on foreign coasts as affecting the fishing of the inhabitants of such coasts.

With regard to the first, there have been many inquiries made by Royal Commissions and Parliamentary Committees, as well as by fishery departments and experts, which show that the excessive fishing has depleted the older banks. In the first of these inquiries, which began in 1863, when there were only from 650 to 700 smacks trawling in the North Sea (and then only in a part of it), the reporters expressed their belief that this method of fishing “in the open sea” was not wastefully destructive, and required no legislative interference, for if any ground were over-fished, the fishing there would become unprofitable, and the trawlers would go elsewhere.[1286] The next Commission, in 1878, by which time trawling had greatly developed, came to much the same general conclusions; but they found that a decrease of soles had occurred, and also a decrease of plaice and flounders in some localities, and they recommended that power should be given to the Secretary of State to forbid trawling “in any of the territorial seas,” which power was conferred in 1881.[1287] This inquiry was noteworthy as first revealing complaints by the trawlers themselves of the diminution of certain fish and the impoverishment of inshore grounds, and for the advocacy by Grimsby smack-owners of the prohibition of trawling at localities where small fish abound, as the inlets on the Dutch and German coast, the Wash, and off Yarmouth, and even within a nine-mile limit all round the shores of the North Sea. At the next Commission of inquiry, in 1883, the complaints of the trawlers were stronger, and the remedies they proposed more drastic. Those of Hull and Grimsby stated that the numbers of flat fishes, particularly soles, had much diminished; that the nearer grounds were impoverished, and that they had to go much greater distances for their supplies of fish. They expressed the belief that most damage was being done by trawling along the coasts, especially on the Continental side of the North Sea, and that the most effectual remedy would be to prohibit trawling within a ten-mile limit around the whole of the North Sea coasts. The conclusions reached by the Commission were that soles had decreased, and also flat fishes and haddocks in many parts of the territorial waters between Grimsby and the Moray Firth, and they recommended that the Scottish Fishery Board should receive powers to regulate or suspend trawling within territorial waters.[1288]

Fig. 26.—Showing the three-mile limit and a thirteen-mile limit in the North Sea.

From this time onwards the demand of the trawlers for some legislative restrictions on trawl-fishing increased to a clamour. At a conference of practical fishermen held in 1883, in connection with the International Fisheries Exhibition at London, statements were made by trawlers as to the enormous destruction of under-sized fish and the depletion of the grounds, and a resolution was passed calling upon the Government to bring about an international conference to consider the desirability of recommending legislation.[1289] At another conference, in 1888, they declared that a large and distressing diminution of flat-fishes had occurred in the North Sea; that they viewed the future with alarm unless some steps were immediately taken to protect immature fishes; and they called upon the Government to try to arrange for an international law for the purpose.[1290] As no result followed from the representations to the Government, the trawl-owners on the East Coast took independent action in 1890, and formally agreed, as a preliminary step, to prevent their trawlers from fishing in the summer within a very large area of extra-territorial water off the German and Danish coasts, where immature fish were generally caught in great abundance. The line of closure of this area extended along the coast for 130 miles, passing, to the west of Heligoland, at a distance varying from twenty to over fifty miles from the shore, and embracing no less than about 3600 square (geographical) miles of water lying outside the three-mile limit as defined by the North Sea Convention. The Conference also pressed for legislation of a national and international character to prevent the sale and purchase of immature fish, and they defined what they meant by that term.[1291] For some time at least the vessels of the great trawling companies abstained from fishing within the large area above referred to, but the voluntary arrangement fell through owing to the action of independent “single-boaters,” and the grounds were never effectually closed. The Government went so far to meet the wishes of the trawlers as to issue, through the Foreign Office, invitations from the National Sea Fisheries Protection Association to various Continental Governments to send delegates to a conference in 1890, and representatives from Belgium, France, Denmark, Germany, the Netherlands, and Spain attended a meeting at Fishmongers’ Hall in that year, but no representative of this country was present in an official capacity. Statements of the usual kind were made as to the impoverishment of the fishing-grounds and the necessity of remedial measures in order to keep up the fish supply, and it was resolved, in view of an official international conference being called, to circulate a set of questions regarding the scientific and statistical aspect of the subject.[1292]