190 The Frederick G erring, Jr. 



vicinity of which the Frederick Gerring, Jr., was found fish- 

 ing w^ere not part of the territory of the Province of Nova Scotia, 

 and it is believed with great confidence that no such contention 

 can be maintained. 



The introduction moreover of the Headland question into 

 the argument appears irrelevant, as it had not at the trial, and 

 has not now, any bearing on tlie question whether the vessel was 

 legally seized and condemned. The condemnation of the ship was 

 not sought on any such ground, and it is not necessary now to 

 invoke it. The Crown asked that the vessel should be condemned 

 because she was found to be illegally fishing within three miles 

 of Gull Rock or Island, which was part of the territory of Nova 

 Scotia, and the Vice Admiralty Court found that to be a fact, 

 while the Court of Appeal unanimously upheld such decision. 



With regard to the facts- in the case now under discussion, 

 the following points must be considered. 



There are two questions presented by the evidence, first, 

 whether the schooner when arrested was within the three-mile 

 limit of Nova Scotia, and secondly, whether she was fishing at 

 that time. Both these questions were determined adversely to 

 the schooner. 



Chief Justice MacDonald, who tried the case below, and the 

 five judges who heard the appeal, concurred in the view that the 

 vessel was, at the time of the seizure, within the three-mile limit. 

 No other conclusion is reasonably open upon the evidence. 



The measurements taken show the vessel to have been with- 

 in less than a mile and three-quarters from the Gull Islands, which 

 are conspicuously marked upon the chart, and lie about thirty feet 

 apart. The inner island is larger than George's Island, in Halifax 

 Harbor, measuring four hundred yards long, one hundred yards 

 wide and forty two feet high. There was at the time a fisher- 

 man's shanty there with a stove in it and a large number of lob- 

 ster traps. There was a fair amount of vegetation on the Island, 

 and a patch of hay land about one hundred yards long by about 

 fifty yards wide with a spring of fresh water. The soil averaged 

 about one foot in depth, consisting of brown loam. At no time, 

 even during the heaviest storm, would waves break over this Is- 

 land. These statements are supported by the evidence of Com- 

 mander Spain of the Court of Appeal. 



