ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 365 



coral, or whether they are oyster, and there is an obvious distinction in 

 fact, between a fishery of that description and one which deijends on 

 the pursuit of any free-swimming fish in the Ocean. Chief Justice 

 Cockburn, in tliat case of the Queen, v. Keyn, whicli has been so often 

 referred to, says that a portion of the bed of the sea, where it can be 

 physically, permanently occupied, may be subject to occupation in the 

 same manner as unoccupied territory ; Vattel also is cited upon page 52 

 of our Argument, he says : 



Who can doubt that the pearl fisheries of Bahrem and Ceylon may lawfully become 

 property ? 



Mr. Justice Harlan. — Where is Chief Justice Cockburn's judgment 

 reported? 



Sir Charles Russell. — It is in the Law IJeports, 2 Exchequer 

 Division, at page 63. I can lend any of the Tribunal the book if they 

 desire it. 



Mr. Justice Harlan. — Yes, I should like to see it. 



Sir Charles Eussell. — I may have to refer to it a little later. 



I must refer now to the Australian Pearl Fisheries as another instance 

 of a clear misunderstanding on the part of my learned friends. On 

 page 52 of our Argument we state that — 



In the United States Case reference is thus made to the Australian fishery laws: 

 "These Statutes extended the local regulations of the two countries mentioned 



(Queensland and Western Australia) to defined areas of the open sea of which the 



most remote points are about 250 miles from the coast of Queensland and about 600 



miles from the coast of Western Australia". 



It suffices to point out that these statutes are in express terms confined to British 



ships and boats attached to British ships. 



The reference is to page 233 of the United States Case. This is the 

 passage: 



The pearl fisheries of Queensland and Western Australia were, in the years 1888 

 and 1889, made the subject of regulation by two statutes enacted by the Fed- 

 1158 eral Council of Australasia. These statutes extended the local regulations of 

 the two countries mentioned to defined areas of the open sea, of which the 

 most remote points are about two hundred and fifty miles from the coast of Queens- 

 land, and about six hundred miles from the coast of western Australia. 



General Foster. — We go on to say that they are confined to British 

 subjects. 

 Sir Charles Eussell. — Yes that is just what I am going to read: 



These acts are, by their terms limited in their operations to British subjects, 



(And therefore of course have nothing to do with the case,) 



but as Sir George Baden-Powell has pointed out, in a recent address delivered before 

 the Association for the Codification of the Law of Nations, the reuioteuess of these 

 waters renders it practically impossible for foreign vessels to participate in the pearl 

 fisheries without entering an Australian port, and thereby rendering themselves 

 amenable to Australian law. 



Quite so, that is what I have been saying, and why that should have 

 been cited I do not know. 



Then the next case is the law of France as to which the Tribunal 

 have the best means within their reach of informing themselves if we 

 do not explain it correctly. France is referred to at page 1G5 of the 

 United States Argument thus: 



Legislation of the same character has also taken place in France and Italy in 

 reference to coral reefs in the o]ien sea and outside the jurisdictional limits. 



The French law of 1864 relating to the coral fisheries of Algeria ;iiid Tunis required 

 all fishermen to take out licenses to fish anywhere on the coral banks, which extend 

 iato the Mediten'auean 7 miles from shore. In addition to this license all foreign 



