3382 AWARD OF THE FISHERY COMMISSION. 



two months in proceeding against the vessel, which was seized, as 

 alleged by Captain Betts, for a violation of the terms of the Convention 

 and the Laws of Canada ; her voyage was broken up, and her crew 

 dispersed at the time of the seizure. 



By the Imperial Statute, 59 George III., cap. 38, it is declared that if 

 any foreign vessel, or person on board thereof, " shall be found to be 

 fishing, or to have been fishing, or preparing to fish within such dis- 

 tance (three marine miles) of the coast, such vessel and cargo shall be 

 forfeited." 



The Dominion Statute, 31 Vic., Cap. 01, as amended by 33 Vie., Cap. 

 15, enacts: " If such foreign vessel is found fishing, or preparing to fish, 

 or to have been fishing in British waters, within three marine miles of 

 the coast, such vessel, her tackle, etc., and cargo, shall be forfeited." 



The White Fawn was a foreign vessel in British waters; in fact, 

 within one of the Counties of this Province when she was seized. It is 

 not alleged that she is subject to forfeiture for having entered Head 

 Harbour for other purposes than shelter or obtaining wood and water. 

 Under Section III, of the Imperial Act, no forfeiture but a penalty can 

 be inflicted for such entry. Nor is it alleged that she committed any 

 infraction of the Customs or Revenue Laws. It is not stated that she 

 had fished within the prescribed limits, or had been found fishing, but 

 that she was "preparing to fish," having bought bait (an article no 

 doubt very material if not necessary for successful fishing) from the 

 inhabitants of Campobello. Assuming that the fact of such purchase 

 establishes a " preparing to fish" under the Statutes (which I do not 

 admit), I think, before a forfeiture could be incurred, it must be shown 

 that the preparations were for an illegal fishing in British waters: 

 hence, for aught which appears, the intention of the Master may have 

 been to prosecuting his fishing outside of the three-mile limit, in con- 

 formity with the Statutes; and it is not for the court to impute fraud 

 or an intention to infringe the pro% isions of our statutes to any person, 

 British or foreign, in the absence of evidence of such fraud. He had a 

 right, in common with all other persons, to pass with his vessel through 

 the three miles, from our coast to the fishing grounds outside, which he 

 might lawfully use, and, as I have already stated, there is no evidence 

 of any intention to fish before he reached such grounds. 



The construction sought to be put upon the statutes by the Crown 

 officers would appear to be thus : "A foreign vessel, being in British 

 waters and purchasing from a British subject any article which may 

 be used in prosecuting the fisheries, without its being shown that such 

 article is to be used in illegal fishing in British waters, is liable to for- 

 feiture as preparing to fish in British waters." 



I cannot adopt such a construction. I think it harsh and unreasona- 

 ble, and not warranted by the words of the statutes. It would subject 

 a foreign vessel, which might be of great value, as in the present case, 

 to forfeiture, with her cargo and outfits, for purchasing (while she was 

 pursuing her voyage in British waters, as she lawfully might do, within 

 three miles of our coast) of a British subject any article, however small 

 in value (a cod line or net for instance) without its being shown that 

 there was any intention of using such articles in illegal fishing in British 

 waters before she reached the fishing ground to which she might legally 

 resort for fishing under the terms of the Statutes. 



I construe the Statutes simply thus : If a foreign vessel is found 1st, 

 having taken fish ; 2nd, fishing, although no fish have been taken ; 3rd, 

 " preparing to fish," (i. e.), with her crew arranging her nets, lines, and 

 fishing tackle for fishing, though not actually applied to fishing, in 



