184 The Frederick G erring, Jr. 



the three-mile limit, and used for that purpose what is known 

 as a purse seine. (A purse seine is one where the fish are sur- 

 rounded by the seine whose bottom is then closed by drawing a 

 purse line which clasps the seine tightly as a purse is closed.) 

 The seine was then attached to the Gcrring and preparations made 

 to remove the mackerel to the vessel. Up to this point everything 

 was done without the three-mile limit. The crew of the Gerring 

 then began to remove the mackerel from the seine to the deck of 

 the vessel. It is sometimes the custom to allow the fish in the 

 seine to remain there for several days taking part out each day 

 for the purpose of dressing and salting them. While thus remov- 

 ing the fish from the seine the Gerring was seized by the Canadian 

 steamship Aberdeen. Both the Vigilant and the Aberdeen were 

 public vessels of the Canadian Government charged with the duty 

 of enforcing the fishery laws. It was claimed by the crown at 

 the trial that after the fish were taken and secured in the seine 

 and while the crew of the Gerring were removing them to the 

 deck of the vessel she had drifted within the three-mile limit and 

 upon this ground her seizure was justified and her condemnation was 

 sought. Upon the other hand the Gerring contended that in point 

 of fact she had not drifted within the three-mile limit and that it 

 was impossible for her to do so without drifting against the action 

 of the wind and tide, and introduced a large amount of testimony 

 in support of this contention. The trial court, however, found 

 that while the fish were seined and secured in the seine outside 

 the three-mile limit the vessel had drifted within that limit while 

 removing the fish. It is respectfully submitted, however, that as 

 the rights of our citizens upon the high seas by the common law 

 of nations are involved, this Government is not bound by the 

 finding of fact of the Canadian court. 



In the Supreme Court of Canada Mr. Justice Wynne in an 

 opinion concurred in by the Chief Justice held that upon the facts 

 found by the trial court the Gerring had neither gone beyond her 

 treaty rights nor violated the laws of the Dominion of Canada. 

 Mr. Justice Sedgwick was of opinion that at the time of seizure 

 the Gerring was "fishing" within the meaning of the Convention 

 of 1818 and the Canadian laws. In this conclusion Mr. Justice 

 Giroward [Girouard] and Mr. Justice King ("not without hesita- 

 tion and doubt") concurred. Accordingly by a majority of one the 



