OUTCOME OF THE ACTION IN THE CASE OF THE SEIZURE OF THE TUG GRACE
An Important Opinion.
The fishing tug GRACE , owned by Frederick Helwig, Willoughby, Meisner and David Waltus of Dunkirk was seized on April 21, 1894, by the Canadian cruiser DOLPHIN in l.ake Erie a few miles from Dunkirk for illegal fishing. The seizure was made for alleged infraction of the Fishery act and on that ground the Canadian Government claimed the right to confiscate the boat, nets, tackle, furniture, etc. The owners of the boat set up defense by an absolute denial of the commission of an acts that could be construed as an infraction of the fishery laws. Hon. John Laughlin of this city was counsel for tbe fishermen and associated with him was Hon. William German of Welland. The case was argued in the Exchequer Court of Canada, Toronto Admiralty district.
Judge McDougall, who presided, has recently rendered an exhaustive opinion and in view of the number of seizures and of the enormous fishing interests in our inland lakes the decision is one of great interest to fishermen. In so far as known tbe question of territorial line and other points covered by Judge McDougall have never before been specifically decided in either country.
According to the decision the alleged infraction charged to the owners of the GRACE was that the vessel was found fishing in British waters within the Province of Ontario on Lake Erie between eight or nine miles southwest of Port Colborne on the Canadian shore without a license from the Governor General of Canada. Mr. Germancouncel for the owners, contended that upon the evidence of the witnesses of the Crown there was no liability to forfeiture because it clearly appeared that the GRACE was fishing more than three marine miles from the Canadian coast.
Judge McDougall cites that by the treaty of Paris (1793) the boundaries between the Unitod States and Great Britain were oxpressly defined and quotes that portion of the treaty describing the territorial line on Lake Erie. Speaking of the boundary line, the treaty says it passes "througb the middle of said lake (lake Erie) until it arrives at the water communication between that lake and Lake Huron, etc, etc." International Law is then quoted to show that the same principles which govern territorial law on dry land is applicable to water lines.
It is shown that the boundary lines between the United States and Great Britain through the center of the lakes and that therefore in no sense can tbey be denominated "high seas." It is declared that it is an axiom of International Law that every State is entitled to hold that fishing on its coast is an exclusive right of its own subjects, and the laws passed to regulate such rights are cited. The law prescribes that every foreign vessel or boat found fishing or preparing to fisb or to have been Bshing upon the inland waters of Canada, such vessel, cargo, etc, shall be seized and forfeited.
It was contended that the penelties of this particular act do not apply to a foreign vessel fishing in the inland waters if the fishing is done outside the three mile limit; but it is said in the statute that the act should apply to the inland waters of Canada. "Had this been the form of expression," says the decision, "there would have been much force in the contention that the three-mile limit was equally applicable to the coasts of inland waters as to the sea coasts. But what the section does say is that the act shall apply to every foreign vessel in or upon the inland waters of Canada. In other words wherever in Canada a foreign vessel is found fishing without a license that foreign vessel incurs the penelty of the act and is liable to seizure and forfeiture."
The conclusion of all this is that if the GRACE was found to be fishing, preparing to fish, or to have been fishing within the territorial boundary of Canada, as described in this instance by a line through the center of Lake Erie, her seizure and forfeiture is just. The question then arises where was the GRACE fishing just before her arrest by the commander of the DOLPHIN ?
It was established by the evidence that a line drawn from Port Colborne on the Canadian shore to Dunkirk on the American shore would intersect the boundary line about 18 miles from Port Colborne light. If the line were drawn from Port Colborne to Silver Creek it would intersect the boundary line at a distance of II miles from Port Colborne light. By the wreck of the BENSON, wbich is visible out of water and which is 7. 4 miles from Port Colborne light, (tbis distance was carefully logged), the testimony with relation to the position of the GRACE to this wreck establishes that she was taken about one mile and a quarter south of it.
The distance from the wreclk to the bounary line would be fron 4 1/2 to 5 miles, so that even assuming that the GRACE was 8 1/2 miles away as claimed by two of her own witnesses she would then be at most not more than from 11 to 11 1/2 from Port Colborne or from 1/2 a mile to 1 mile north of the International boundary line. It was in evidence that the fish had been moving steadily northward all the spring and that they had worked their way from within a few miles from the American shore towards the Canadian shore; and the fishing tugs followed the run of the fish.
Upon this evidence Judge McDougall finds that the GRACE was engaged in fishing wholly within Canadian waters. Judgment was entered for the Crown with full costs of suit and the vessel and paraphernalia declared forfeited to Her Majesty.
Buffalo Evening News
Wednesday, January 9, 1895
FISHING TUG "GRACE" AT DUNKIRK AGAIN.
Dunkirk, Oct., 5. -- The fishing tug GRACE, which was seized by the Canadian Government 18 months ago for fishing in Dominion waters, arrived in port tonight. At the sale of the boat, a few days ago, she was bought in by Dunkirk parties and she will again sail under the American flag.
Buffalo Sunday Morning News
Sunday, October 6, 1895