from their respective public services. The Scientists shall make the studies and reports provided for in paragraph (b) of that part of the Joint Report which includes the findings of the International Joint Commission, in respect to the fifth question.

The Scientists shall also make such inquiries and investigations as are necessary in order to assist in carrying out the provisions of the parts of the Joint Report relating to complaints in respect to damage caused by the operations of the Trail Smelter after the 1st day of January, 1932, and the assessment of indemnity therefor, and particularly the provisions of the findings of the International Joint Commission in respect to the fourth question, and the provisions of paragraph (ƒ) and the proviso to paragraph (g) of the findings, in answer to the fifth question. For this purpose complaints shall be submitted to the Consolidated Mining and Smelting Company and to the Scientists, and in the event that such claims are not adjusted by the Company within a reasonable time, they shall make a report thereon to the Governments. The Scientists shall have assigned to them from the services of the two Governments such staff as may be necessary to carry out the duties provided for by this Convention and by the Joint Report.

ARTICLE IV

The Scientists shall make investigations and reports to the Governments with regard to such matters, relating to the general question arising out of the drifting of sulphur dioxide from the Trail Smelter into the United States, as may from time to time be referred to the Board by the Governments.

ARTICLE V

The Scientists shall make their reports to the Governments with regard to the questions referred to them. They shall make their report in respect to the matters referred to in the first paragraph of Article III hereof, as soon as is possible, and without waiting for the completion of such other investigations as are or may be referred to it, and shall make their reports in respect to the matters referred to in the second paragraph of Article III hereof from time to time, and with due despatch, in order that the damages determined, if any, may be paid to the claimants promptly.

The Government of Canada will cause the damages, if any, assessed in accordance with the provisions of the Joint Report and of the second paragraph of Article III hereof, to be paid to the claimants within three

months after the date of each assessment.

The Government of Canada will cause such other action as may be necessary, in order fully to carry out the provisions of the Joint Report, to be undertaken and carried out with due despatch.

The Scientists shall have access to the Trail Smelter and to the remedial works already constructed or to be constructed and shall be furnished with such information as they may require for the purposes of their investigations, inquiries and determination hereunder. They shall have access to lands and other property of the claimants for the purpose of investigating claims under the provisions of the second paragraph of Article III hereof and for the purpose of their investigations generally, they shall be afforded access to and the right to inspect prop

erty within the affected area. They shall also be permitted to acquire such limited interests in land as may be necessary to enable them to conduct their investigations.

The Government of the United States will cause notification to be made promptly, by telegram, of all complaints with regard to damage from sulphur dioxide fumigations and with regard to excessive concentrations of sulphur dioxide caused in the United States by the Trail Smelter. These notifications will be made to the Consolidated Mining and Smelting Company, Limited at Trail, and to the Scientists, in order that an immediate investigation may be made.

APPENDIX A-Report of the International Joint Commission in the Trail Smelter Reference, February 28, 1931

It is hoped that the Government of the United States will be prepared to follow a course along these lines and thus to effect a permanent settlement of the problem. In any event, it is hoped that your Government, pending the conclusion of a convention or agreement, will be prepared to take the necessary steps for the appointment of the Scientists to make an immediate inquiry into existing complaints, and into such complaints as may be notified from time to time, pending the conclusion of a permanent arrangement. Accept [etc.]

R. B. BENNETT

REPRESENTATIONS REGARDING THE SEIZURE OF AMERICAN SALMON TROLLERS "MAY," "QUEEN CITY," "SUNRISE,” AND “TILLIE M." BY THE CANADIAN VESSEL “RIVIDUS"

711.428 Queen City/79

The Secretary of State to the Minister in Canada (MacNider)

No. 562 WASHINGTON, May 25, 1932. SIR: The Department refers to your despatch of March 24, 1932,24 regarding the seizure of the American salmon trolling vessels May, Tillie M., Sunrise, and Queen City,25 and encloses for your information copies of letters of March 4 and April 4, 1932, from the Trolling Vessel Owners' Association.24 You invite attention to the fact that in presenting the matter to the competent Canadian authorities you did not deem it desirable to request that the vessels be returned to the owners without a penalty of some kind for the reason that such a request would have no chance of success.

The Department regrets that you did not, in your informal memorandum presented to the Prime Minister,26 give an indication of the opinion.

24 Not printed.

These ships were seized by a Canadian patrol boat in Canadian waters near Prince Rupert, B. C., on June 18, 1930.

28

Richard Bedford Bennett.

of the Department that the seizure of the vessels in question was not justified by the laws of Canada or the law of nations and the subsequent forfeiture by judicial decree was a denial of justice. Furthermore the deprivation of the use of the vessels for a period of nearly two years is in itself a severe loss to the owners.

As you are aware the ship May was declared forfeited under Section 10(b) of the Customs and Fisheries Protection Act 27 which reads as follows:

"10. Every fishing ship, vessel or boat which is foreign, or not navigated according to the laws of Great Britain or of Canada, which, "(a)

"(b) has entered such waters for any purpose not permitted by treaty or convention or by any law of Great Britain or of Canada for the time being in force . . . shall, together with the tackle, rigging, apparel, furniture, stores and cargo thereof, be forfeited."

The fishermen contended that they were not anchored within the territorial waters of Canada and that if they were they were justified in anchoring in such waters under the Canadian Customs Act 28 and the Treaty of October 20, 1818,29 because of the stress of weather. They testified that when they entered McIntyre Bay for shelter the weather was thick, that they took soundings and were satisfied that they were anchored safely beyond the three-mile limit. The arresting officer testified that they were anchored two and one-half miles from the shore. The fishermen also testified that the weather was of sufficient severity to justify seeking shelter in the bay. The arresting officer, who was not present at the time of the ship's alleged entry into Canadian territorial waters, testified that there was no urgent necessity for seeking shelter. The court held that the evidence established that the ship May was within the territorial waters of Canada, that the fishermen did not show any necessity whatever for entering Canadian waters and that the Treaty of October 20, 1818, was not intended to be applicable to the Pacific Coast.

With respect to the contention that the fishermen sought shelter from the stress of weather, the Canadian Supreme Court stated after citing four reported cases that:

"A perusal of the above authorities leads to the conclusion that an entry by a foreign vessel into Canadian waters can not be justified on the ground of 'stress of weather' unless the weather is such as to produce in the mind of a reasonably competent and skillful master, possessing courage and firmness, a well-grounded bona fide apprehension that if 27 Revised Statutes of Canada, 1927, vol. 11, ch. 43.

28 Ibid., ch. 42, sec. 183.

29 Convention respecting fisheries, boundary, and the restoration of slaves, Malloy, Treaties, 1776-1909, vol. I, p. 631.

he remains outside the territorial waters he will put in jeopardy his vessel and cargo. In every case the questions whether the master fairly and honestly on reasonable ground believed it necessary to take shelter, and whether he exercised reasonable skill, competence and courage in the circumstances, are questions of fact for the tribunal whose duty it is to find the facts. The evidence in this case does not show any necessity whatever for entering Canadian waters, much less any apprehension on the part of Knudsen that if he continued his voyage he would be risking the loss of his vessel."

The case of the ship May as reported in the Dominion Law Reports, 1931, Volume III, not only discloses a disregard for the humane principles of international law relating to shelter, but indicates the nature and extent of the comity and courtesy which American fishing vessels can in the future expect in Canadian territorial waters.

The cases cited in the decision rendered by the Canadian Supreme Court in the case of the ship May in support of an alleged rule regarding the stress of weather required to justify the entry of a vessel seeking shelter are not apposite. Moreover they did not involve innocent fishing vessels. The facts in the cases cited were omitted.

The case of the ship Diana, 7 Wallace 354, involved a trading vessel which attempted, under the disguise of a fabricated distress, to enter a blockaded port in time of war.

The case of the ship New York, 3 Wheaton 59, involved a trading vessel which attempted under a pretended distress to import into the United States a cargo interdicted by the laws of the United States.

The case of the ship Eleanor, (Edwards Admiralty Reports 135) decided in November 1809 by Sir William Scott, involved a merchant vessel which attempted to violate the British navigation laws under a simulated distress.

The case of Phelps James and Company v. Hill, (1891) 1 Q. B. 605, related to a merchant vessel which was obliged to return to Queenstown for repairs and later, while proceeding to Bristol where the repairs could be made, collided with another vessel. The question presented was whether the master exercised reasonable discretion in proceeding to Bristol. From this statement of the facts in each of the cases cited it appears that they are not pertinent to the question involved.

The cases involving the ships Queen City, Tillie M. and Sunrise are also reported in the Dominion Law Reports, 1931, Volume III, on page 147. The Court held that the entry of the vessels was not justified by the alleged stress of weather for the conditions of atmosphere and sea at the time of the entry did not satisfy the test enunciated in the case of the ship May. The Court stated:

"All these witnesses for the defense claim that it was too rough to remain outside of the three-mile limit in safety. "Whether there was 'stress of weather' within the meaning of S.183

...

on the afternoon and evening of June 17 was a question of fact depending upon the credibility of the witnesses. The trial judge is known as an able and careful judge, with more than thirty years experience in cases similar to those before us, and he accepted the evidence submitted on behalf of the Crown in preference to that submitted on behalf of the several vessels . . . The trial judge found that there was no stress of weather or other sufficient cause to justify the entry of these vessels into Canadian territorial water and, in our opinion, the evidence amply supports the finding which should be affirmed." (pp. 152–153).

The decision was reached notwithstanding the fact that the arresting officer was sixty or seventy miles away. (Case on Appeal Vol. 1, p. 32). It is pertinent to observe in this relation that the three boats in question and two others were seized in Canadian waters at two o'clock in the morning while the crews were asleep and that two of the vessels were released because one had lost part of its sail and its anchor in the stress of weather from which shelter was sought and the other was released because it had a supply of fuel oil deemed insufficient to ride out the storm if it had desired to do so. It is also pertinent to observe that some Canadian fishing vessels had also sought shelter within sight of the American vessels.

Elaborate signal systems and safety devices are maintained at the seaports of all civilized countries for the purpose of saving life and property at sea from stress of weather. They would not prevent the loss of lives and the destruction of property of fishermen, if courts when considering cases of fishermen in small fishing craft who have entered territorial waters in distress, subject them to the risk of forfeiture of their vessels under the same rigid rules of domestic law that are applicable to merchant vessels attempting under the disguise of distress, to import interdicted cargoes. Such a novel doctrine has not received universal approbation. The fact that the Canadian Supreme Court did not cite a case, involving the forfeiture of an innocent fishing vessel, in support of the rigid rule it applied to the vessels in question indicates that none was available for citation. A diligent search by the law officers of the Department has failed to bring any to light.

In the case of the shipping vessel Paquete Habana, 175 U. S. 677, Mr. Justice Gray, who delivered the opinion of the Court, stated:

"This review of the precedents and authorities on the subject appears to us abundantly to demonstrate that at the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law, founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of belligerent States, that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed, and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war." (Page 708).