QUESTION TWO. 47 



can fishery is essentially a ship fishery, no law of Newfoundland 

 should be enforced on American fishing-vessels which would un- 

 reasonably interfere with the exercise by the American fishermen 

 on board of their rights under the Convention. 



Great Britain contended, however, that the national character of 

 an American fishing vessel did not entitle fishermen employed by it 

 who were not inhabitants of the United States to fish in treaty waters. 



The position of the United States on this point is shown in the 

 following extract from Mr. Koot's letter of June 30, 1906 : 



It is true that the Memorandum itself [Sir E. Grey's] uses the same 

 form of expression when asserting that American ships have com- 

 mitted breaches of the Colonial Customs Law, and ascribing to them 

 duties, obligations, omissions, and purposes which the Memorandum 

 describes. Yet we may agree that ships, strictly speaking, can have 

 no rights or duties, and that whenever the Memorandum, or the letter 

 upon which it comments, speaks of a ship's rights and duties, it but 

 uses a convenient and customary form of describing the owner's or 

 master's right and duties in respect of the ship. As this is conceded 

 to be essentially " a ship fishing," and as neither in 1818 nor since 

 could there be an American ship not owned and officered by Ameri- 

 cans, it is probably quite unimportant which form of expression is 

 used. 



I find in the Memorandum no substantial dissent from the first 

 proposition of my note to Sir Mortimer Durand of the 19th October, 

 1905, that any American vessel is entitled to go into waters of the 

 Treaty coast and take fish of any kind, and that she derives this 

 right from the Treaty and not from any authority proceeding from 

 the Government of Newfoundland. 



Nor do I find any substantial dissent from the fourth, fifth, and 

 sixth propositions, which relate to the method of establishing the 

 nationality of the vessel entering the Treaty waters for the purpose 

 of fishing, unless it be intended, by the comments on those proposi- 

 tions, to assert that the British Government is entitled to claim that 

 when an American goes with his vessel upon the Treaty coast for the 

 purpose of fishing, or with his vessel enters the bays or harbors of the 

 coast for the purpose of shelter and of repairing damages therein, or 

 of purchasing wood, or of obtaining water, he is bound to furnish 

 evidence that all the members of his crew are inhabitants of the 

 United States. We cannot for a moment admit the existence of any 

 such limitation upon our Treaty rights. The liberty assured to us 

 by the Treaty plainly includes the right to use all the means cus- 

 tomary or appropriate for fishing upon the sea, not only ships and 

 nets and boats, but crews to handle the ships and the nets and the 

 boats. No right to control or limit the means which Americans 

 shall use in fishing can be admitted unless it is provided in the t^nns 

 of the Treaty, and no right to question the nationality of the crews 

 employed is contained in the terms of the Treaty. In 1818, and ever 

 since, it has been customary for the owners and masters of fishing 

 vessels to employ crews of various nationalities. During all that 



U. a. Case, p. 215. 



