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Law of Fisheries


FISHERIES, LAW OF. As fishing is carried on both within and beyond regions over which national laws are in operation, any consideration of the law of fisheries naturally falls into two main divisions. Accordingly the national and the international as pects of the subject will be dealt with separately, the English law applicable within territorial waters (as to the extent of which see WATERS, TERRITORIAL) being explained in the first place.

English Law.—There is some confusion in the nomenclature used by early writers on the English law of fisheries, but the classification may be reduced to fisheries which are exclusive, and those which are not. In exclusive fisheries the right of fishing belongs to the owner of the soil, or is derived from him. These fisheries are sometimes referred to as "several" or "free." They may be corporeal, where they comprise both the soil and the fish ing, or incorporeal, where they have been granted without the soil. Fisheries which are not exclusive comprise (I) common fishery, which is the right of the public to fish in tidal waters not appro priated as exclusive fisheries, and (2) common of fishery, where one or more persons have a right to fish in common with the per son who owned the exclusive right. A fishery does not necessarily include all fish. Thus one person may own the soil and oyster fishery, and another the fishery for floating fish. Royal fish, i.e., whales and sturgeons, are under the statute De Praerogativa Regis (13 24) the property of the Crown and not of the finder.

"Ancient records from Domesday downwards show us that the most ancient and usual mode of enjoying the profit of fisheries, both in tidal and non-tidal waters, was by wiers, kiddels, fish garths, stake nets, bucks, and other engines fixed into and perma nently erected in the soil of the fishery" (Stuart Moore). Thus fisheries originally were profits of the soil over which the water flowed. This is still the general principle. The title to a fishery arises from the right to the soil. The rule is so well established that upon it has been based the converse proposition, namely, that ownership of a several fishery is evidence of the ownership of the soil (Attorney-General v. Emerson, 1891, A.C. 649). A fishery may be severed from the soil, or so/um, and become a profit a prendre in alieno solo and an incorporeal hereditament, i.e., a right exercisable over the property of another person. This broad principle is not restricted to inland or non-tidal waters. It gives to the owners of lands on the foreshore or within an estuary or elsewhere where the tide flows and reflows a title to fish in the water over such lands, and this is equally the case whether the owner be the Crown or a private individual. But in the case of tidal waters (whether on the foreshore or in estuaries or tidal rivers) the exclusive character of the title is qualified by another and paramount title which is prima facie in the public. "The com mon people of England" (wrote Lord Hale) "have regularly a liberty of fishing in the sea or creeks or arms thereof, as a public common of piscary, and may not without injury to their right be restrained of it, unless in such places, creeks or navigable rivers where either the king or some particular subject hath gained a propriety exclusive of that common liberty." The subjects of the Crown are entitled as of right not only to navigate but to fish in the high seas and tidal waters alike. This is probably a right enjoyed, so far as the high seas are concerned, by common prac tice from time immemorial, and it was probably in very early times extended by the subject without challenge to the foreshore (i.e., to between high- and low-water mark) and to tidal waters which were continuous with the ocean, if indeed it did not in fact first take rise in, them. The right into which this practice has crys tallized resembles in some respects the right to navigate the seas or the right to use a navigable river as a highway. To the practice and the right there were and are exceptions. The king had the prerogative of excluding the right of public fishing in tidal waters. He could keep the fishery in hand, or grant it to a subject, but, since Magna Carta, no new exclusive fishery could be created by royal grant in tidal waters, and no public right of fishing in such waters, then existing, can be taken away without competent legislation. (This statement is summarized from the judgment of the privy council in Attorney-General for British Columbia v. Attorney-General for Canada, 1914, A.C. 153. Though the ques tion at issue arose in relation to British Columbia, it was gov erned by the law of England, which, accordingly, was stated in the judgment.) The public right above referred to depends upon the water being tidal and not comprised within the limits of any several fishery. There is no public right to fish in non-tidal waters, although navi gable. The public right (which is subject to statutory regulations referred to later) includes the right of fishing over the foreshore (i.e., between high- and low-water mark) when not within the limits of a several fishery, and of laying lines and drawing nets. It does not include the right of fixing stakes or fixed engines on the foreshore, or the right of drawing up boats above high-water mark and leaving them there for future use, though such rights may be gained by custom by fishermen in a particular locality. The public right does not include a right to appropriate part of the foreshore for the storage of oysters to the exclusion of the rest of the public (Truro Corporation v. Rowe, 1902, 2 K.B. 709). Oyster ponds or layings, it appears, may be the property of a private person, and may exist quite apart from the existence of a several oyster fishery (Foster v. J'Varblington U.D.C., 1906, I K.B. 648).

The public rights of navigation must be exercised with due regard for the rights of owners of fisheries. If, by negligent navi gation, injury is caused, e.g., to an oyster bed, damages may be recovered. On the other hand, navigation must not be obstructed by, e.g., the deposit of unreasonably large masses of oysters in the bed of a navigable river (Mayor of Colchester v. Brooke, 7 Q.B. 339).

Statutory Provisions.

The following are some of the prin cipal statutory provisions as to British fisheries. By the White Herring Fisheries Act 1771 persons employed in these fisheries have the free use of all ports, harbours, shores and forelands in Great Britain, but subject to payment of dues for artificial har bours and piers. The Cran Measures Act 1908 legalizes the use of cran and quarter cran measures (regulated by the Herring Fishery [Scotland] Act 1815) in connection with trading in fresh herrings in England and Wales. The Herring Fishery (Branding) Act 1913 provides for the branding of barrels filled with cured herrings in England and Wales.

Under the Sea Fisheries Act 1868 the Ministry of Agriculture and Fisheries (formerly the Board of Trade) may make orders (operative when confirmed by act of parliament) for the estab lishment or improvement of oyster or mussel (and, by the Sea Fisheries Act 1884, cockle) fisheries on the shore and bed of the sea, or of an estuary or tidal river. A number of these orders have been made. The Fisheries (Oyster Crab and Lobster) Act 1877 prohibits the sale of oysters between certain dates, and the sale of edible crabs and of lobsters under a certain size.

The Sea Fisheries Regulation Act 1888, as amended by the Fisheries Act 1891, enacts that the Ministry of Agriculture and Fisheries may, by order, create sea fisheries districts, comprising any part of the sea within which British subjects have by inter national law the exclusive right of fishing, either with or without any part of the adjoining coast of England and Wales. An order must be laid before parliament, and may establish in each dis trict a local fisheries committee, with power to make by-laws regulating fishing. The by-laws become valid on being confirmed by the Ministry of Agriculture and Fisheries, and are enforced by fishery officers appointed by the committee. Under acts of 1891 and 1894 a local fisheries committee has powers to enforce statutory provisions with respect to shell-fish, which expression includes all kinds of molluscs and crustaceans.

The Fishery Board (Scotland) Act 1882 established a Fishery Board for Scotland, which was to take cognizance of everything relating to the coast and deep sea fisheries of Scotland and to administer the Herring Fishery Acts, a long series of statutes ex tending from the time of George III. onwards. By the Herring Fishery (Scotland) Act 1889 power was given to the Fishery Board to prohibit by by-law the methods of fishing known as beam and otter trawling in certain localities. By the Sea Fisheries Regulation (Scotland) Act 1895 the Fishery Board for Scotland, established by act of 1882, was reconstituted, and provision was made for the establishment of sea fisheries districts, including parts of the sea adjoining Scotland, and for the establishment of fishery district committees for the regulation of sea fisheries. The Trawling in Prohibited Areas Prevention Act 1909 prohibits the landing and selling in Great Britain of fish caught by beam and otter trawling in prohibited areas adjoining Scotland. (As to the Moray Firth see WATERS, TERRITORIAL.) The Salmon and Freshwater Fisheries Act 1923 repeals nearly a score of former acts from 1861 onwards, and consolidates and amends their provisions. The act of 1923 prohibits certain modes of taking and destroying fish, and prohibits the taking of "un clean" or "immature" fish as defined by the act. Obstructions to the passage of fish, and times of fishing and selling and exporting fish are regulated. Provision is made for orders, to be made and confirmed by the Ministry of Agriculture and Fisheries, defining fishery districts, and establishing fishery boards to exercise certain powers given by the act, including the making of by-laws and the granting of licences to fish. Provisions are contained in the act as to inspectors, water bailiffs and other officers, and as to the recovery of penalties for offences. This consolidating statute ex tends only to England and Wales. The corresponding legislation applicable to Scotland must still be sought in a series of acts dating back for a century.

The Merchant Shipping Acts contain certain provisions ap plicable to fisheries. Part IV. of the principal act of 1894 as amended by later Merchant Shipping Acts deals with fishing boats. Its provisions, besides those applying to all fishing boats and to the whole fishing service, include others applying to (I) fishing boats of 25 tons tonnage and upwards and (2) trawlers. The provisions relate to the fishing boat register, discipline, casualties on board, disputes, apprenticeship, etc., and (with reference to trawlers) to the engagement, payment and discharge of seamen, and the certificates of skippers and second hands. The Regula tions for the Prevention of Collisions at Sea (which are inter national in their application, but, so far as Great Britain is con cerned, are operative under the provisions of the Merchant Shipping Acts) contain some provisions referring particularly to fishing vessels and fishing boats.

International Law.

Outside territorial waters fisheries are not subject to legal regulation, except where conventions have been entered into between States and have been made by legis lation applicable to the subjects of the States which are parties to the conventions. Territorial waters may be regarded as sur vivals from mediaeval assumptions of sovereignty by maritime States over extensive areas of the high seas. Instances were the early Italian republics, the Scandinavian nations, Spain and Portu gal. The English Queen Elizabeth contested the Danish, Spanish and Portuguese claims, but in the Stuart period a different policy, aimed at the Dutch, was pursued, and an extensive maritime juris diction was claimed by England. These extended claims to juris diction and to regulate fisheries have now mostly been expressly or tacitly abandoned or are maintained only in a modified form as (for instance) by Russia and Norway. (See HIGH SEAS; WATERS, TERRITORIAL.) Instances of international fishery conventions are those entered into between Great Britain and the United States in 1818 and 1872 as to Atlantic fisheries (see the North American Fisheries Act 1819 and the Treaty of Washington Act 1872) and in 1892 as to the Behring sea fisheries (see Behring Sea Award Act 1894), those between Great Britain and France in 1839 and 1867 as to adjacent seas (see Sea Fisheries Acts 1843 and 1868) and in 1904 as to Newfoundland (see Anglo-French Convention Act 1904)• The parties to the North Sea Fisheries Convention of 1882 were Great Britain, Germany, Belgium, Denmark, France and the Netherlands. This convention was confirmed by the Sea Fisheries Act 1883, and a further convention dated 1887 between the same parties respecting liquor traffic in the North sea was confirmed by the North Sea Fisheries Act 1893. A declaration respecting the North sea fisheries between Great Britain and Belgium was confirmed by the Fisheries Act 1891. As to seal fishery (1) on the eastern coast of Greenland see the Seal Fishery (Greenland) Act 1875, and (2) in the North Pacific see the Seal Fisheries (North Pacific) Acts 1895 and 1912, the latter having been passed to carry out a convention between Great Britain, the United States of America, Japan and Russia.

See S. A. Moore and H. S. Moore, The History and Law of Fisheries (1903) ; T. W. Fulton, The Sovereignty of the Sea (191I) ; H. J. W. Coulson and U. A. Forbes, The Law relating to Waters (4th ed., by H. Stuart Moore, 1924) . (S. D. C.) United States.—After the American Revolution the people of each State became themselves sovereign, and in that character held the absolute right to all navigable waters within their terri torial limits, including the soil under them and the fisheries therein, for their own common use, subject only to the right of control and regulation of navigation which the Constitution of the United States reposes in the Federal Government. As in the absence of treaty stipulations Congress has no authority to pass laws to regu late or protect fisheries within the territorial jurisdiction of the States, this function rests with the individual States. In exercising the right of control and regulation of navigation, the secretary of war of the United States may grant permission for the use of fish ing gear in areas in navigable waters under such conditions as he may prescribe where, in his opinion, it will not constitute a menace to navigation. The right of the States to regulate the fisheries extends to the three-mile limit of adjacent waters, with certain exceptions, e.g., in the Great Lakes, where such jurisdiction extends to the international boundary line. As laid down by the award of The Hague Tribunal (1910) the general principle with respect to bays is that the three marine miles are to be measured in a straight line drawn across the body of water at the place where it ceases to have the configuration and characteristics of a bay, and at all other places the three marine miles are to be measured following the sinuosities of the coast. In the case of large indenta tions the limits of exclusion are to be drawn three miles seaward from a straight line across the bay in the part nearest the entrance, at the first point where the width does not exceed ten miles. While the tendency of international law is to restrict jurisdiction over large coastal indentations, the rule is not absolute. Such large bays as the Chesapeake and Delaware are recognized as parts of the United States. As regards their local government the States are sovereign within their own limits and foreign to each other. An agreement between States, for example, affecting fisheries in boundary waters between them, to be binding, must be ratified by Congress. Such a treaty exists between the States of Washington and Oregon with respect to regulating the fisheries of the Colum bia river. The Constitution provides that no State shall enter. into any treaty, alliance or confederation. The exclusive right of regulating by treaty with foreign nations all matters which are the proper subject of international agreement has been taken away from the States and committed to the Federal Government. In treaties pertaining to the fisheries as in other matters this author ity is supreme.

Under the provisions of the Constitution, Congress is em powered to make rules and regulations respecting the territory of the United States, and under this authority Congress makes the laws which are the basis for regulating the fisheries of Alaska and the District of Columbia. On the other hand the laws of the territory of Hawaii not inconsistent with the Constitution or the Iaws of the United States or the provisions of the organic act con tinue in force, subject to repeal or amendment by the legislature of Hawaii or the Congress of the United States. Regulatory powers over the fisheries have been exercised by the territorial Government. Under the law of 1793, the right to engage in the coasting trade and the fisheries is restricted to U.S. vessels. While it has been held that the high seas are the territory of no nation and no nation can extend its laws over them, means for exercising control over the operations of its own nationals and inhabitants on the high seas have been evolved. For example, a law of Congress, approved Aug. i S, 1914, makes it illegal to have on any vessel or boat of the United States engaged in sponging in the waters of the Gulf of Mexico or the Straits of Florida outside of State territorial limits sponges of less than a fixed diameter, or to possess any sponges of less than the said diameter sold or delivered by such vessels. By treaty two nations may control the operations of their nationals and inhabitants on the high seas. Thus under the terms of a convention between the United States and Great Britain for the preservation of the halibut fishery of the northern Pacific ocean, including Bering sea, ratified Oct. 21, 1924, the actions of the nationals and inhabitants and the fishing vessels and boats of the United States and of the Dominion of Canada are subject to certain regulations and restrictions including a closure to fishing for halibut for a fixed period of three months.

Under the convention between the United States, Great Britain, Japan and Russia, signed July 7, 1911, the citizens and subjects of the several nations named are prohibited from engaging in pelagic sealing in the waters of the north Pacific ocean, north of the 3oth parallel of north latitude, including the seas of Bering, Kam chatka, Okhotsk and Japan. Importations of sealskins taken in restricted waters are prohibited, provision is made for a patrol and for the assignment of fixed percentages of the kill by the Governments having jurisdiction over the breeding grounds to certain of the other Governments. The story of the international complications that have arisen between the United States and Great Britain over the interpretations placed upon the intent and meaning of the several treaties regulating the fishing interests of the United States, Canada and Newfoundland, is a lengthy one. Suffice it to say that the first grant of fishing privileges was secured in 1783 with the conclusion of the treaty of peace between the United States and Great Britain and held until the opening of the war of 1812. Subsequently the convention of 1818 was entered into. Its provisions have been the basis of United States fishing rights in Canadian and Newfoundland waters much of the time since 1818, and with slight modifications, such as those under the award of The Hague Tribunal of Sept. 7, 191o, are still in force. It provides that American fishermen shall be admitted to enter the bays or harbours of Canada and Newfoundland "for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever." Under the provisions of the existing tariff law, the products of American fisheries are admitted duty free. (L. RA.)

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