ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 283 



witli, I should say that it might be very strong evidence, as one would 

 say in our English Courts, to go to the Jury, of malice; but it is not 

 every act which causes destruction, and even destruction which may 

 be disproportionate to the gain derived, which constitutes an action- 

 able wrong. Let me illustrate that in a way that will be familiar to 

 each Member of the Court. Take, for instance, the mode of fishing 

 known as trawling. I think you all realize what trawling is : that mode 

 of fishing — dragging a heavy beam with a net along the bottom — has 

 the effect of destroying enormous quantities of small fish and, still 

 more, of disturbing spawning ground, and causing an enormous 

 amount of mischief in the destruction of fish. 



Has any international law ever declared, or has any nation ever 

 asserted that that destruction outside its territorial limits, — because 

 trawling goes on many miles out at sea and in very deep waters — would 

 give a cause of international complaint as a matter of right against 

 the trawlers of another nation? No, because on the high sea all are 

 equal; and although that ijarticular method is a destructive method, 

 the case is met in tlie only way in which it can be met, by regulations, 

 by conventions, but not by the assertion of a legal right to prevent the 

 trawling, even although it cause that great mischief. 



Lord Hannen. — Are there conventions on that subject? 



Sir Charles Eussell. — Oh yes, my Lord — conventions, as the 

 President will tell you, between France and Great Britain on that very 

 subject. I will mention later conventions between Canada and the 

 United States with a view to preventing the use of dynamite by the 

 nationals of either country on the high sea. 



Then may I also put the question with reference to the use of dyna- 

 mite from another point of view? One might use dynamite for the 

 purpose of trying some very important experiment, or testing some 

 important invention connected with war — torpedo experiments, or what 

 not — these may be tried upon the high seas, outside territorial waters; 

 and yet such experiments may be conducted in such a position as 

 regards an adjoining nation that very considerable mischief may be 

 done temporarily to the fishing interests of that particular 

 1059 nation. But that would be a perfectly legitimate use of the high 

 sea. The nation conducting the experiment would be acting for 

 a justifiable cause, and within its right; and if, acting within a right, 

 it causes damage to another person, it gives that other person no cause 

 of complaint, because no legal right of his has been invaded. 



Senator Morgan. — It seems to me we are getting into a difficulty 

 here by failing to take notice of the well-established distinction between 

 express and implied malice. The law implies malice from any wanton 

 act done against the life or property of another, or from any act that is 

 necessarily destructive of the life or pro])erty or business of another — 

 when that is a requisite element in the right of action. The law implies 

 it from the nature of the act. 



Lord Hannen. — But that implication may be met by showing it was 

 done with an excusable cause. 



Senator Morgan. — Always; but if a process by which a certain spe- 

 cies of property is destroyed, as by dynamite, is used in the neighbour- 

 hood of property which belongs to another person, that process would 

 be considered malicious in law and the answer that it was done in pur- 

 suit of 3/ legitimate object would not be good. For instance, if the seal- 

 ers draw up a cordon of ships around the three mile limit, and take seals 

 there as they come to and as they go from the Pribilof group of Islands 

 during the breeding season, taking them indiscriminately — then it 



