INTERNATIONAL REGULATIONS OF FISHERIES ON THE HIGH SEAS. pe i 
for the purpose of protecting the spawning grounds, to interdict trawling within 
a line drawn from Duncansby Head, in Caithness, to Rattray Point, in Aberdeen- 
shire, a distance of 85 miles, inclosing an area of about 1,700 square miles outside 
the British maritime belt, all of which had been defined asa part of the high seas 
in the North Sea convention of 1882. Although neither the statute nor the 
by-law made, confirmed, and published thereunder was explicit on this point, 
it was generally understood—indeed, semiofficial expressions seemed to justify 
the construction—that this enactment applied solely to British subjects, and 
had no reference to the operations of foreign fishermen. 
In November, 1905, Emmanuel Mortensen, captain of a Norwegian vessel, 
the Niobe, was arrested and charged with trawling in Moray Firth about 5 miles 
from land, contrary to this by-law. When found guilty in the lower court, the 
defendant appealed the case* on the ground of nonjurisdiction of the court, 
the alleged offense having been committed on the high seas 5 miles from land. 
After able argument on each side, the court dismissed the appeal on the ground 
that as Parliament had, apparently from the enactment, assumed jurisdiction 
over the water in question for the purpose of regulating the fisheries, the court 
was bound to give effect to its terms, and that it was not for the court to ques- 
tion whether the legislature had done what foreign powers might consider an 
usurpation.” Owing to her peculiar policy in regard to wide claims over mar- 
ginal waters, no exception was taken to the action of the British Government by 
the Kingdom of Norway, to which country the arrested vessel belonged; and 
as no other nation was concerned in that particular case, the claim to juris- 
diction has not been brought into international review, where possibly it would 
share the fate of several previous attempts to extend jurisdiction beyond the 
marine league.° 
@ Mortensen v. Peters (High Court of Judiciary, full bench). Reported in The Scots Law Times, 
vol. XIv, p. 227, August 4, 1906. 
b This decision is in accord with the rule in this country, where in a controversy between the United 
States and a foreign nation as to boundary, the courts follow the decision of those departments of the 
Government to which the assertion of its interests against foreign powers is confided, i. e., the legislative 
and executive. (Moore, Digest of International Law, sec. 154.) 
¢ Indeed, the opinion has been expressed by eminent authorities that seizures beyond the marine 
league for revenue purposes can not be sustained as a right, and that revenue laws authorizing such 
action are enforceable at peril, and rest on the tacit permission of the states whose vessels may be seized. 
In his opinion given to the Sardinian Government in the case of the Cagliari, Sir Travers Twiss added: 
“In ordinary cases, indeed, where a merchant ship has been seized on the high seas, the sovereign 
whose flag has been violated waives his privilege, considering the offending ship to have acted with 
mala fides toward the other state with which he is in amity, and to have consequently forfeited any 
just claim to his protection.” And Dana writes: “ Doubtless states have made laws for revenue pur- 
poses touching acts done beyond territorial waters, but it will not be found that in later times the 
right to make seizures beyond such waters has been insisted upon against the remonstrance of foreign 
states, or that a clear and unequivocal judicial precedent now stands sustaining such seizures when the 
question of jurisdiction has been presented.” And he adds, in the same connection: ‘It may be said 
that the principle is settled that municipal seizures can not be made for any purpose beyond territorial 
waters. Itisalso settled that the limit of these waters is, in the absence of treaty, the marine league 
or the cannon shot.’”” (Dana, note 108, Wheaton’s International Law, sec. 179, p. 258-260.) 
