ORAL ARGUMENTS BEFORE THE PERMANENT COURT OF ARBITRATION.

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EIGHTEENTH DAY: MONDAY, JULY 4, 1910.

The Tribunal met at 10 o'clock a. m.

THE PRESIDENT: May I ask the Secretary-General to read a communication:

BARON MICHIELS VAN VERDUYNEN: The two counsel who have opened the case for both parties, having discussed all the questions, and some of them in all their details, the Court expresses the opinion that the four counsel who are next to follow might content themselves with the discussion of those topics which have not so far been treated ex professo, and might succeed in doing so by taking together not more than two weeks, that is to say, four days for each party.

For the purpose of enlarging the time at the disposal of these counsel, the Court is willing, if wanted, to sit in the next two weeks in the afternon till 5 o'clock.

Of course, it is expected that the counsel who close for the respective parties will cover all the questions at issue without any limitation as to time.

THE PRESIDENT: Now, Sir James Winter, will you address the Court?

ARGUMENT OF THE HONOURABLE SIR JAMES S. WINTER, K. C., ON BEHALF OF GREAT BRITAIN.

SIR JAMES WINTER: Mr. President and gentlemen of the Arbitration, I can assure you, in appearing to-day on behalf of Great Britain, as one of the counsel in this case, I am fully sensible of the importance of the trust which has been committed to me, in association with others, and of the gravity of the duty which I am called upon to perform. I am also deeply conscious of the inadequacy of the faculties and powers which I possess to deal efficiently with a 92909°-S. Doc. 870, 61-3, vol 10-2

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task of such great magnitude. I am sustained by the hope and belief that I shall at least have the indulgence of the Court in the effort I shall make to present my part of the case, which indulgence has already, I think, been assured by the very patient and kind manner in which the Court has listened to the counsel who have preceded me. I am also sensible of the importance of presenting what I have to submit to the Court within as short a time as possible, not only because of the great length of the arguments up to the present time, but also from the intimation which has just been given by the Tribunal as to their views upon the matter. I shall endeavour, as far as it is possible, to follow the intimation given by the Tribunal, and to compress such observations as I have to make within as small a space as possible, having due regard to the great importance of the subject with which I have to deal.

Anticipating the necessity for abbreviation, I may state that, as the result of conferences with my associates, we have arrived at an understanding that, so far as possible, those who immediately follow me, as well as myself, will divide the subjects and questions among us in such manner that each one will address himself to particular questions and topics, so far as practicable, and with as little overlapping or repetition as possible.

Following that understanding, I propose this morning to begin by addressing myself to one branch only of Question No. 1, relating to the right of regulation. By one branch of the subject, I mean the observations that were made by counsel for the United States, Mr. Turner, towards the close of his address, when he referred particularly to the subject of the legislation of the Colony of Newfoundland relating to the prosecution of the fisheries, the methods, appliances, and so forth.

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With a view of impressing upon the Court, so far as I could understand his observations, he dealt with two leading and main ideas, for whatever bearing they might have, upon the ultimate decision of the question. These two leading and main ideas, so far as I could gather them, were that Newfoundland, in its statutes in relation to the fisheries, and the adoption under those statutes of regulations for the prosecution of the fisheries, had obviously and plainly directed its legislation against the fishermen of the United States, and that it was of such a character as might be described, and was I think described by him, as discriminating-discriminating in favour of the fishermen of Newfoundland, as against the fishermen of the United States-and, in such a manner as not only to give the fishermen of Newfoundland an advantage over the fishermen of the United States, but seriously to hamper and interfere with and impede the fishermen of the United States in the liberty

and freedom to which they were entitled under the terms of the treaty.

His second ground of complaint against this legislation, statutory and by regulation, was, that the regulations in themselves were objectionable, unnecessary, and such as he and those whom he represented, did not approve of. Therefore, it would follow, as a consequence, that they would not have consented to them.

Although the learned counsel did not put it in so many words, his argument and his observations had a very important bearing, not only upon the question I am immediately discussing, but upon the other very important question, which the Tribunal will have to consider. That is, the question of the consequence of the fishermen of the United States, or the United States, refusing their consent to the legislation of Newfoundland. He not only tells us, on behalf of the United States, that the fishermen of the United States consider that this legislation, prohibiting this and forbidding that, is unnecessary, vexatious, unreasonable, and discriminating, but he goes further, at least by implication, in his observations, to the extent that, the United States, being a party, standing upon equal terms, upon an equal footing with Great Britain, or with Newfoundland (which is the same thing) in the framing of laws and regulations for the conduct of the fishery it would refuse its consent to legislation of the objectionable kind that he pointed out.

However, without regard to this graver question, and the consequences that might follow upon taking such a course as this, upon which important question the Tribunal will have to determine, I will pass on to an examination of the legislation itself, and endeavour to put before the Tribunal such explanation as I am able to give for the purpose of helping the Tribunal to determine whether or not this legislation is open to the objection which the learned counsel has set forth.

In order to understand the nature of his objections, to put them as clearly and as briefly as possible, I cannot do better than read the learned counsel's own observations, which are compressed, for the present purpose, within not a very long space.

I will refer the Tribunal to the typewritten report of the learned gentleman's speech at p. 2826 [pp. 463-4 supra], because, for this purpose, that will be a convenient starting point. He says:

"I now pass on to the Consolidated Statutes of Newfoundland of 1892, chapter 124, which contain provisions with reference to the taking of herrings, and which the United States insists were manifestly passed with a purpose to discriminate against the vessel-fishing of the Americans in favor of the shore-fishing of the local inhabitants, and which were likewise designed to give local vessels in the bank fisheries an advantage over American vessels in the matter of taking herring for bait.

"Section 1 of these Consolidated Statutes, to be found in the United States Case Appendix at p. 175, exhibits this discrimination to which I have referred:

"No person shall haul, catch or take herrings by or in a seine or other such contrivance, on or near any part of the coast of this colony or its dependencies, or in any of the bays, harbours, or other places therein, at any time between the twentieth day of October in any year, and the eighteenth day of April in the following year, or at any time use a seine or other contrivance for the catching or taking of herring, except by way of shooting and forthwith hauling the same, under a penalty not exceeding two hundred dollars: Provided that nothing herein contained shall prevent the taking of herrings by nets set in the usual and customary manner, and not used for in-barring or enclosing herrings in a cove, inlet or other place. This section shall not apply to the coast of Labrador.'

"Now the United States insists that that distinctly and clearly gives an advantage to the shore fishermen over the boat fishermen who, when they come there to fish, are compelled to conduct their operations from their boats, and who cannot conduct their operations in the peculiar manner by which the shore fishermen conduct theirs. These nets set in the usual and customary manner-I imagine that what they are is clear to the apprehension of everybody who has ever been around the sea where fishing is carried on, without calling any expert to determine what it is. They are nets set out from the shore, anchored to the ground, with floats which keep them from sinking, in which the fish come along in their natural course through the water and entangle themselves and are thereby caught. That is the usual and customary manner' in which the herring are taken, as I understand it, by the local fishermen upon those shores. Under the theory of the American right there, which has been rigidly prescribed against them, they have no right to use the shores for any purpose whatever. They cannot anchor their nets there; they must conduct their fisheries from their boats, and with a seine, with which only a boat fishery can be conducted.

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Here we see in this provision to which I call the attention of the Tribunal, a prohibition against the catching of these herrings by seine or any other similar contrivance, between these extremely extended periods, and a proviso that nothing shall be construed to prevent the taking of herrings in nets set in the usual and customary manner' that is, by the usual and customary manner of shore fishing, a provision which strikes me as exhibiting in the very clearest light the discriminatory character of the legislation to which the American fishermen have been and are subjected by the laws of Newfoundland.

"This discrimination against the American fishermen is further illustrated by a consideration of sections 4 and 5 of these same Statutes."

I shall not trouble the Court with those at present; I may have to refer to them later.

For the present I will confine my observations to those parts of the learned counsel's address which relate to seines as distinguished from nets. He says:

"The comment to be made on that, of course, is very apparent to the Members of the Tribunal."

Then he says at the top of p. 2850 [p. 467, supra]:

"So that, it seems to me that this testimony of this Royal Commission in England, and of Professor Huxley and the gentlemen who were engaged with him in the investigation of the subject is that in so far as the decimation and destruction of the fish are concerned, these regulations against the peculiar manners of fishing are absolutely unnecessary and that after all if there were destruction to the breeding of fish shown in special measures of fishing, it is not found in the method of purse seine fishing, which is the only method by which fishing can be carried on profitably by a vessel from the United States, any more than it is found in the fixed nets of the local fishermen, which entangle the fish, with the result that the fish, being injured in their struggles to get loose, die and thereby decimate the fishery as much as the small fish which might be caught and destroyed in the purse seines.

"Section 21 of these Regulations, to which I have been referring, contains another provision to which I desire to call the attention of the Tribunal, and which, I think, will be found to be discriminatory: "Unless otherwise provided, no person shall use a seine for the purpose of catching herring in any of the waters of Newfoundland, except exclusively for bait and for immediate use for that purpose in the fisheries, between the 1st day of April and the 1st day of August in any year.'

"They shall not catch these fish with a seine during these particular periods; yet, with reference to certain districts of the non-treaty coasts, it was provided by section 24 of this same Act:

"provided that herring may be taken at any time and by any means for bait purposes and for immediate use for these purposes in the fisheries.'

"Now by section 25 of the Regulations dealing with the American treaty coast, the prohibition of section 21 was reinforced by this provision:

"No herring seine or herring trap shall be used for the purpose of taking herring on that part of the coast from Cape La Hune, on the West Coast, and running by the West and North through the Straits of Belle Isle to Cape John.

"An absolute prohibition upon the American treaty coasts against taking fish at any season of the year by seines, but permission, by sections 21 and 24, to take fish by these means, for bait and for immediate use, by the local inhabitants during any period of the year. The particular part of this coast to which I refer-Cape LaHunecommences, I am told, about thirty miles to the eastward of the Rameau Islands which are found here. It is an absolute prohibition to take any herring with the seine extending all around here down to Cape St. John which is here, these regulations having been made during the time that both the American and French fishery rights existed on this coast, being made to take in both the French coast and the American coast, and thus affording an additional reason to believe that they were made for the purpose of discriminating against the rights of foreign fishermen visiting those coasts. Thus, herring are to be taken at any time for bait purposes and for the purpose of the