1356 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



for having fished within the limits of the State, he could not escape 

 the penalty by saying that he was in the pay of a citizen of the State 

 of Delaware. 



In fact, Sirs, if this law is good, I cannot see why the United States 

 does not contend that they have a perfect right to employ New- 

 foundlanders; because, although the statute of Newfoundland pro- 

 hibits Newfoundlanders, all that the Newfoundlander would have 

 to say is that he was not fishing for himself, but was fishing for an 

 American; and, under the view of the law on this p. 94 of the 

 American Argument, that would be a good defence. He is pro- 

 hibited from fishing, but he says : " I am fishing in the pay of an 

 American, and therefore the statute does not affect me." 



It has been observed that the United States requires that non- 

 inhabitants, in order to be entitled to fish, should be engaged " for 

 and in the interest of American inhabitants," and it is therefore 

 important to know what exactly that means. I believe that it is 

 very common we have some proof of that in the papers before the 

 Tribunal that fishermen are remunerated, not by so much a day, 

 but by a share of the fish. The men fish upon shares. Sometimes 

 they are paid by a portion of the fish, sometimes by so much money 

 in proportion to the catch of fish, and sometimes by a rate of wage 

 calculated according to the time occupied by the voyage. 



Now, Sirs, if we are to investigate when these men come to New- 

 foundland, as to whether they are under engagement or not, we 

 should like to know w r hat is an engagement within the meaning of 

 those words. It seems to me that if they are fishing on shares they 

 are partners. If they are fishing to get money in proportion to the 

 catch of fish, it is a very delicate question whether they are em- 

 ployes or partners; and it would only be when they are being paid 

 so much a day that it would be quite clear that they would be em- 

 ployes. I only mention this for the purpose of showing the great 

 difficulties that Newfoundlanders would be placed in if it should be 

 held that the test of the right to fish is the nature of the engagement 

 which they have made before they get there. But, in any case, it is 

 quite clear that we are a very long way now from the easy sugges- 

 tion that, as long as the flag is flying and the ship's papers are right, 

 that is the end of the enquiry. 



A third contention which the United States made is to be found 

 at p. 95 of their Argument, in which they base their contention upon 

 the use of the words " in common." They say that that means an 

 equal right, and that if Newfoundland should permit Frenchmen or 

 Norwegians to go to the island and fish for Newfoundlanders, that it 

 must, by virtue of these words, give the same right to American 

 fishermen. That is, if Newfoundland chooses to open its fishing for 

 the purpose of helping its own people by giving assistance, that 



