BEPOET OF THE AGENT OF THE UIHTED STATES. 19 



where it ceases to have the configuration and characteristics of a bay." 

 This answer leaves open the question of where such line is to be 

 drawn in each particular case, and also the question of whether any 

 particular body of water has the " configuration and characteristics 

 of a bay." The tribunal recognized this difficulty, and in order to 

 " render the decision more practicable and to remove the danger of 

 future differences " the award contains a further provision recom- 

 mending the adoption of the rule approved and accepted by Great 

 Britain in many treaties that " only bays of 10-mile width should be 

 considered as those where the fishing is reserved to nationals " — 

 extending this rule, however, to include certain larger bays as excep- 

 tions to it. These recommendations are substantially in accordance 

 with the agreement adopted by the unratified Bayard-Chamberlain 

 treaty of 1888, with certain considerable modifications in favor of the 

 United States. 



The Bay of Fundy, which is the only large bay where the American 

 fishermen now fish or have fished to any extent within recent years, is 

 expressly excepted from the application of the award on this question. 



The strength of the position of the United States on this question 

 is shown by the very able argument presented in the dissenting 

 opinion by Dr. Drago and by the fact that the British contention 

 was not fully sustained, and that this was the only question of the 

 seven submitted upon which the decision of the tribunal was not 

 unanimous. 



The sixth question deals with the contention of Great Britain, 

 advanced for the first time in recent years, that the treaty did 

 not secure to American fishermen the liberty of fishing in the 

 bays on the southern and western coasts of Newfoundland and 

 on the Magdalen Islands. This contention rested on the argument 

 that the liberties secured by the treaty to fish on the southern and 

 western coasts of Newfoundland and on the shores of the Magdalen 

 Islands did not extend to the bays on those coasts, inasmuch as the 

 treaty does not mention bays in connection with those coasts, and 

 does expressly mention them in connection with the coast of Labra- 

 dor, which forms part of the treaty coast. The United States, on 

 the other hand, contended that the liberty secured by the treaty to 

 fish on those coasts necessarily extended to the bays of such coasts, 

 and that this interpretation must be adopted, not only because it was 

 supported by the language of the treaty read in the light of the 

 evident intention of the parties in entering into it, but also because 

 usage and custom and the action of both Governments subsequent 

 to the treaty had combined to give the treaty that interpretation in 

 actual practice for the entire period since the treaty was entered into. 



The award of the tribunal sustained fully and without qualification 

 the contention of the United States on this question. 



