126 The Frederick G erring, Jr. 



that Act, as well as of the order in council, will show, I think, 

 without doubt, that there was no intention on the part of Parlia- 

 ment in passing the Act. or of His Majesty in making the order 

 in council, to in any way repeal or modify the treaty of 1818, 

 or the Imperial Act providing for the enforcement of its provi- 

 sions, and the Imperial Act last referred to, and the order in coun- 

 cil above quoted, is the only basis upon which any claim of right 

 on the part of the Gerring to do what she did in the territorial 

 waters of Canada can stand. The Gerring, therefore, was found 

 in British waters for a purpose not authorized by law, and conse- 

 quently, under the express provisions of our own statute became 

 liable to forfeiture. 



There is another ground, already incidentally referred to. jus- 

 tifying the forfeiture of this vessel, though not of her cargo, and 

 as this is par excellence a case of purse seining, it is just as well 

 to deal with and settle the question now. Section 1 of the statute 

 of 1891, above referred to, is as follows: 



1. Section fourteen of "The Fis'heries Act" is hereby 

 amended by adding thereto the following subsection : 



15. The use of purse seines for the catching of fish in any 

 of the waters of Canada is prohibited, under a penalty for 

 each offence of not less than fifty dollars, and not exceeding 

 five hundred dollars, together with the confiscation of the 

 vessel, boat and apparatus used in connection with such 

 catching. 



Of course the same controversy may arise as to the meaning 

 of the word "catching" here as has arisen in respect to the words 

 "fishing" and "taking fish," but if I am right as to these latter 

 words, it follows that "catching" includes "bailing," and that as this 

 "bailing" was done within the territorial waters by the use of 

 the seine the case is within the statute. But the words "in any 

 of the waters of Canada" qualify, according to proper gram- 

 matical construction, not the word "catching," but the word "use," 

 and it is the using in Canadian waters of a purse seine that is 

 prohibited. There was such a "user" here, and forfeiture is the 

 consequence. 



In my judgment the appeal should be dismissed with costs. 



