VOL. IV.1 EXCHEQUER COURT REPORTS. 151 BRITISH COLUMBIA ADMIRALTY DISTRICT. • HER MAJESTY THE QUEEN PLAINTIFF ; 1894 AGAINST Feb. 7. THE SHIP "' MINNIE." Pelagic sealing—Seal Fishery (North Pacific) Act, 1893, (56-57 Vict. [U. K.] c. 23) secs. 1, 3 and 4----judicial notice of order in council thereunder—Protocol of examination of o f fending ship by Russian war vessel, sufficiency of—Presence within prohibited zone—Bona fides-Evidence. By sec. 1 of the Seal Fishery (North Pacific) Act, 1893, it is provided. that "Her Majesty The Queen may, by order in council, prohibit during the period specified by the order, the catching . of seals by British ships in such parts of the seas to which this Act applies as are specified by order." Held, That the court might take cognizance of such order in council without proof. 2. By subsec. 3 of sec. 1 of the Act in question the provisions of secs. 103 and 104 of The Merchants Shipping Act, 1854, giving jurisdiction to colonial Admiralty courts in actions for the condemnation of ships guilty of offences under such Act, are applied to offences against the first mentioned Act. 3. By the 3rd sec. of the Act in question it was provided that "A statement in writing, purporting to be signed by an officer having power in pursuance of this Act to stop and examine a ship, as to the circumstances under which, or grounds on which, he stopped and examined the ship, shall be admissible in any proceedings, civil or criminal, as evidence of the facts or matters therein stated. " Clause 2 of the order in council extended to the "Captain or other officer ", in command of any war vessel of His "Imperial Majesty, the Emperor of Russia" all the powers conferred upon officers of the British Navy by subsec. 4 of sec. 1 of the Act, in relation to the examination and detention of an offending British ship. Held, that where a protocol of the examination of an offending British ship by a Russian vessel did not disclose on its face that the person who signed the same was an officer in command of .the examining vessel, or that the vessel was a Russian war vessel, the court, by reason of it being a matter involving international
152 EXCHEQUER COURT REPORTS. [VOL. IV. 1894 obligations, must apply the maxim omnia presumuntur rite esse acta and assume that the person who signed the protocol was an officer THE QUEEN properly in command of the examining vessel, and that such y. vessel was a Russian war vessel within the meaning of the Act. TgE Suie 4. A ship, the master of which had notice of the prohibited zone, was MINNIE. found within the waters thereof fully manned and equipped for Statement sealing, and having on board shooting implements and one seal of Faota. skin. It, however, did not appear that the seal bad been taken within the zone. Held, that under the provisions of the Seal Fishery (North Pacific) Act, 1893, the presence of the ship within the prohibited waters required the clearest evidence of bona fides to exonerate the master of an intention to infringe the provisions of the Act, and that as his explanation of the circumstances was unsatisfactory, the ship must be condemned. ACTION for condemnation under the Seal Fishery (North Pacific) Act, 1893 (56-57 Vict. [U.K.] c. 23). The sections of the Act bearing upon the case are sufficiently stated in the head-note. The case turned mainly upon two points : (1) Whether the protocol of the examination of the offending ship satisfied the requirements of section 3 of the Act so as to make it evidence of the facts or matters therein stated ; (2) Whether the court could take judicial notice of the Imperial order in council provided for in section one of the Act and passed in pursuance thereof. Copies of such protocol and of such clauses of the order in council as are material to the case are given below. PROTOCOL OF THE EXAMINATION OF THE SCHOONER " Minnie." "On this 5/ 1 7 day of July, in the year 1898, in latitude 54°, 21' N., and longitude 168° 38' E., at a distance of twenty-two miles from the southern extremity of Copper Island, a schooner under sail was seen at 9 o'clock in the evening, by His Imperial Majesty's Transport Yakout, cruising off the Commander Islands.
VOL. IV.] EXCHEQUER COURT REPORTS. 153 " On nearing her, she was ordered by the_ transport 1894 to bring to, which was promptly done. A whale boat at once put off from the schooner to the transport with Qu:E ti. N the mate, who explained that the schooner was English THE SHIP li'lINNIE. (that she was) from Victoria (that) her name was Minnie. For six days she had taken no observations.' s tatement of Facts. " The Midshipman, Michaelof Raslovlef, was sent for the examination of the aforesaid schooner, who on his return to the Transport with the schooner's skipper, Julius Mohrhouse, brought with him the log-book and ship's papers, and reported (that) they had on the schooner 12 whale boats, 23 shot-guns and one rifle, and in the hold only a few seal skins and salt. " After an inspection of the aforesaid log-book and papers, the ship's Commission, appointed by order of the commander of the Transport, on the 5th of July, in accordance with N. 42 consisting of the President Lieutenant Ginter, and of the members Lieutenant Dedenef and Midshipman Michaelof Raslovlef, found that the schooner Minnie (sailing) under the flag of Great Bri-tain, belonging to Victor Jacobson, (and) under the command of Julius Mohrhouse, from Victoria, is sailing for the purpose of sealing by the way (i. e. is engaged in pelagic sealing) and called before her arrest by the Transport, at San Juan, Yakoutat and Sand Point, from which last port she sent the seal skins she had procured to Victoria. " The crew ou the schooner consisted of 25 men. in accordance with 'the finding of the whole of the aforesaid Commission, in compliance with the principle, es. 9 of the instructions to a war cruiser in the year 1893 for the protection of the Russian maritime industries in the Behring Sea, it was decided that after having seized the ship's documents, a temporary certificate be given to skipper Julius Mohrhouse, with an inscription upon it of the number and description of the documents
154 EXCHEQUER COURT REPORTS. [VOL. IV. 1894 seized, and that he be ordered to leave the territorial R'1 waters at once and go to Yokohama and there present QUEEN U. himself to H. B. M's Consul and inform him that the THE SHIP documents of the schooner Minnie would be forwarded MINIZIE. to the authorities of Great Britain. Statement (Members Sgd.) of Facts. " MIDSHIPMAN MICHAELOF RASLOVLEF. " LIEUTENANT DEDENEF. Sgd. " PRESIDENT LIEUTENANT GINTER. " I confirm this document. Sgd. `• CAPTAIN (2 Rapa) SCHMELEVSKY. The clauses of the order in council bearing upon the case are as follows :— " 1. From and after the fourth day of July, one thousand eight hundred and ninety-three, until the first day of January, one thousand eight hundred and ninety-four, the catching of seals by British ships is hereby prohibited within such parts of the seas to which the recited Act applies, as are comprised within the following zones, that is to say (1) a zone of ten marine miles on all the Russian coasts of Behring Sea and the North Pacific Ocean, and (2) a zone of thirty marine miles round the Komandorsky Islands and Tulénew (Robben Island.) " 2. The powers which under the recited Act may be exercised by any Commissioned Officer on full pay in the Naval Service of Her Majesty, may be exercised by the Captain or other officer in command of any war vessel of His Imperial Majesty the Emperor of Russia in relation to a British ship, and the equipment and crew and certificate thereof. The other material facts of the case are stated in the judgment. January 20 and 22nd, 1894. The trial took place at Victoria, B. C., before Mr. Justice Crease, Deputy Local Judge for the Admiralty District of British Columbia.
VOL. IV.] EXCHEQUER COURT REPORTS. 155 Pooley, Q. C., for the plaintiff; ti 1894 Belyea, for the ship. THE QUEEN At the trial Mr. Pooley, on behalf of the plaintiffs, THE v. SHIP tendered in evidence the Act and the order in council MINNIE. passed thereunder. Reasons [CREASE, D. L. J.:—It is not necessary, Mr. Pooley, to ,rn, .:anc. put in evidence, as you now offer, the Seal Fishery (North Pacific) Act, 1898, and the order of Her Majesty in Council thereunder, dated July 4th, 1893. The court takes cognizance of them already, and sits now under these enactments.] The case was then argued upon the evidence. CREASE, D. L. J. now (February 7th, 1894,) delivered judgment. This was an action for condemnation under the Imperial British Seal Fishery (North Pacific) Act, 1893, and the order in council thereunder, of July 4th, 1893, of the schooner Minnie. (Victor Jacobson, owner, and Julius Mohrhouse, master) seized by the Imperial Russian Transport Yakout within the forbidden thirty mile zone around Kormandorsky Islands, manned and armed, and having shooting implements and seal skins on board, and otherwise fully equipped for hunting, or attempting to hunt or take seals within the prohibited waters aforesaid, in contravention of the above mentioned enactments. The seizure took place in Lat. 54, 21° N., and Long. 168°, 38' E., about 22 miles from the southern extrerni ty of Copper Island. The statement of claim sets forth the above facts, and charges that Victor Jacobson and Julius Mohr .house had due notice not to enter the prohibited waters of the North Pacific nor to proceed within a zone of thirty miles round the Kormandorsky Islands ; that Copper Island is one of the Kormandorsky Islands
156 EXCHEQUER COURT REPORTS. [VOL. IV. 1894. and that at the time of the seizure, the Minnie was fully manned and equipped for the purpose of QUEEN v. hunting, killing and taking seals, and had on board THE SHIP thereof shooting implements and seal skins ; that after MIrtNIE. the seizure and examination of the said ship and her papers by the official commission of the said Yakout it Judgment. was decided to seize the said papers, and the said Julius Mohrhouse was directed to proceed with the Minnie to appear before Her Majesty's Consul at Yokohama, and a provisional certificate was given to the said Julius Mohrhouse ; but that he did not proceed to the port of Yokohama, and report to H. B. M's Consul there, but sailed for the port of Victoria, where he arrived on the 24th August, 1893. Whereon Captain Hughes-Hallett, R. N., Captain of H. M. S. Garnet, claimed her condemnation and that of her equipment and everything on board for such contravention, as laid, under the said Seal Fishery Act and order in council. In the statement of defence, the defendant denies that the ship was seized in Lat. 54, 21° N., and Long. 168°, 38' E., as claimed or at any other point within the prohibited zone ; alleging that neither he, nor Captain Mohrhouse, had any notice whatever not to enter the prohibited waters in the North Pacific Ocean, nor to proceed within the prohibited thirty mile zone ; also, while admitting that the Minnie at the time of the seizure was fully manned and equipped for the purposes mentioned in the statement of claim, alleging that she had but one seal skin on board when seized. He also denied that the master of the Minnie was directed to proceed with her to Yokohama by the Captain of the Yakout ; but that officer merely " proposed " to him that he should leave the " said waters and proceed to Yokohama." In the alternative, defendant alleges,
VOL. IV.] EXCHEQUER COURT REPORTS. 157 that if it be proved that the Minnie .was within the 1894 thirty mile zone when seized (which he denies), the F1 schooner was not used or employed or intended to be QUEEN used or employed therein in killing, hunting or at- TEE SHIP tempting to kill, hunt or take seals therein, in contra- MIxxIE. vention of the said Seal Fishery (North Pacific) Act, Iie ôr 1893, or otherwise, but that theos P it ion of the ship, a p n , agment. when seized, was due wholly to stress of weather. . Upon which issue was joined, and the trial took place before me on the 20th and 22nd ,of January, 1894. The Hon. Mr. Pooley, Q. C., for the Crown then brought forward the evidence for the plaintiff. The translation into English of the Russian protocol sent by the Captain of the Yakout, under the Act for the purposes of the trial, was proved by Mr, Clive Phillips Woolley, a gentleman certified to have passed in the Russian language, by Alexander de la Voye for the Director-General of Military Education, in the College of the Civil Service Commissioners, in the Military Education Division. He proved the substantial accuracy of the translation, and in reply to questions from defendant's counsel, Mr . Belyea, as to the correctness of the signature of Captain Shemelevsky, the officer in command of the Yaknut, that the words of confirmation of the protocol were " Oot-versh-doo," in the first person, " I confirm ' (meaning this document) and he then adds his title as captain, following a contraction, " 2 Rapa," before Shemelevsky, which the interpreter conceived might mean, Captain of the second rank or commander but he was not certain. On being asked what Russian word was used, which had been translated " proposed "in the Russian-English memorandum .of the seizure, endorsed.by the Russian Officer in the Minnie's official log—he stated that it. was
158 • EXCHEQUER COURT REPORTS. [VOL. IV. 1894 " predpologite "—and was used in the same sense THE there as one would employ it in " turning a man out Qu EEN v. ----directing him to walk out of the door," which I take THE SHIP it is equivalent to " ordering," which was the sense MINNIE. in which Captain Mohrhouse acted upon and showed Re RI ~ ' o n' he so understood it at the time. Also, that the Russian Judgm ent,. word used in expressing sailing for the purpose of sealing en route—which the interpreter had explained by—(" is engaged in pelagic sealing ") is " doroboo " " by the way." If the phrase had been left as " sealing on or by the way," it would, to my mind, have exactly expressed the sense intended, but I have left the interpolation there—that the translation of the protocol might go in entire, but be read with the interpreter's subsequent explanation, which I have just given. Mr. Belyea objected on behalf of the ship to the admission of the protocol as evidence on the grounds : That it does not .purport to be signed by the proper officer ; that there is nothing in it to show it has been signed by the Captain of the Yakout,—nothing in the document itself to show who the Captain of the Yakout is ; and therefore the signature of the Captain is no proper evidence that it is signed by the Captain of this particular vessel, the Yakout. True, he argued, the inference may be that it is, but the fact is not proved ; and the Act being highly penal, must be construed strictly. The learned counsel moved for a non-suit on these grounds, citing R. v. Lowe (1), to show that as it was a penal statute, it should be construed strictly, and The Queen v. Wallace (2) where " the copy of the Dublin Gazette purporting to be printed by the Queen's Printers," being admissible in evidence, "a copy of the Dublin Gazette printed at the Gazette office, and published by authority," was declared inadmissible. I noted and over-ruled the objection, and refused to (1) 15 Cox 286. (2) 17 I. C. L. R. 206.
VOL. IV.1 EXCHEQUER COURT REPORTS. 159 order a non-suit on the following grounds : The power 1894 of seizing; etc., is under subset. 5 of sec. 1, of the T$ British Seal Fishery (North Pacific) Act, 1893, and sec. QUEEN 2 of the order in council of 1893, which says.: " The THE SHIP captain or any officer in command of any 'w ar-ship, MINNIE. may board, search and seize, etc.," and a statement pur- Iter" porting to be signed by such officer," as to the circum- aaagZent. stances, etc., " shall be admissible," etc. The Russian officers carrying out the Act must be considered in. the same light as British officers carrying out the same duty. It is not only a point of law, but a matter of international obligation, to treat them so, and then the principle omnia presumuntur rite esse acta applies, and throws the ones of disproving on the other side, and as that, so far, has not been done, the presumption in its favour not being as yet displaced--the court admitted the protocol in evidence, and the trial proceeded. The copy of the register of the ship was proved by Mr. Alexander R. Milne, the Collector of Customs, at Victoria. (The original was subsequently produced in court.) Mr. Milne, who has been both judicious and active in carrying out his portion of the duty in sealing cases, and has been zealously aided by Captain Hughes-Hallett, R.N., 'in enclosing and transmitting, through H.M.S. Garnet, letters containing warning of the present arrangement between England and Russia, and the continuation of the modus vivendi for distribution, warning the masters and owners of all sealers against proceeding within the prohibited waters of the North Pacific and the thirty mile Kormandorsky zone —addressing letters by that conveyance to the different masters, and including in each letter, a copy of the notices of William Smith, Deputy Minister . of Marine, , of 13th of April, 1893, and Captain Hughes-Hallett's notice of the 22nd May, 1893, among them,
160 EXCHEQUER COURT REPORTS. [VOL. IV. 1894 one such letter containing these notices, addressed T to the master of the Minnie, no name, no' port. This,. Q EE' however, Captain Mohrhouse did not get as it was THE SHIP returned unopened to the post office. He, however, MINNIE. got full notice in another way. ReA 1101116 for The chief dependence of the master of the Minnie Judgment. in the defence, which was admirably conducted in every respect by his counsel, Mr. Belyea—was on his ship's log, hereinafter called " the log," to distinguish it from the official log, which contained no entry beyond his appointment, at Sand Point, on the 27th .Tune, 1893, as master in the place of Victor Jacobson, • the owner, who had been previously acting as master, and the Russian-English memorandum of the ship's papers detained, and of the seizure by the Russians. ' A little examination into the mode of making up this log, shows that very little dependence can be placed upon it. Usually and properly the log is kept by the first mate, and dictated, checked, or countersigned, as the case may be, by the captain, or vice versa ; and when there is no mate, then by some able seaman on board ; but here, according to Captain Mohrhouse's evidence, whether by design or accident, the log was kept by him, as master and mate alone. His evidence also is that he'kept the log according to nautical time, in his handwriting alone and unchecked. He says, " I kept the log of the vessel myself and entered merely the position of the vessel and the state of the weather." The time he has to account for is from the 11th, July to the seizure off Copper Island on the 17th, six days, (during which the protocol says the captain had admitted, he had taken no observation). According to this log, on Monday, the 10th of July, 1893, the Minnie was by observation in Lat. 51, 33, N. ; Long. 175, 25, E. On Tuesday, =11th July sighted Aggatttz
VOL. IV.] EXCIIEQ UER COURT REPORTS. 161 Island, S. E. point bearing N. N. E., distant 2 miles, 1894 lat. 52, 18, N. ; long. 173, 23, E. T That gave them their position accurately on the 11th QUEF.x July, 1893, as a point of departure. THE SHIP On the 12th of July (by dead. reckoning) lat. 51, 54, MSIVNIE. N. ; long . 173, 5, E. Semen's On the 13th, when he spoke the May Belle and corn- auag.nent. pared chronometers with her, and found they tallied, the Minnie was in lat. 52, 08; long. 171,51. On the 14th, (by dead reckoning) in lat. 52. 55, N. ; long. 169, 28, E. On the 15th, she was in lat. 53,. 26, N. ; according to this log, and long. 169, 75, E. Sunday, 16th-In lat: 53, 30, N. ; long. 168, 33, E. Monday, 17th-In lat. 53, 40, N. ; long. 168, 45 E. (The seizure was on the evening of the 17th, at 9 o'clock.) The position of the Minnie was not marked in the log by the captain on Tuesday at noon, but she was supposed by him to be in the same position as the day before, as he thought she had not made any headway. In the evening of Tuesday,. at 9 p.m., he put her position at 53, 49, N., and long. 168, 41, E. On reference to the chart in use on the ship, which consisted of three parts, Captain Mohrhouse says : " I marked the position each day with a dot ; most are marked, some are rubbed out," (and some mark's rubbed out, I would add, present the appearance of being entirely new, and, being in a different place from some of the dots rubbed out, destroy its authority as a guide to positions marked on the chart at the time.) The seizure was at 9 p.m. (he says) on Monday, the 17th. He was detained until one o'clock a.m. on Tuesday, and then set free. The weather during all that time that I have been speaking of, viz.: from the 11th of July to the seizure, had been cloudy, overcast and foggy, with occasional II
162 EXCHEQUER COURT REPORTS. [VOL. IV. 1894 strong winds, from S. and W., so that no observation x could be taken, and no land had been seen since sight- QUEEN ing Agattu Island and taking her departure thence. THE S HIP Little, indeed, no allowance was recorded in the calculation in this log, whatever deduction he may have Reasons made in sailing, for the current known to the captain for Judg ment' by two years previous experience, which there, in strong S. W. winds, goes very strongly to the N. E. with proportionate drifting in that direction—an element in fixing the Minnie's position which deserved a special notice. Moreover, Captain 'Mohrhouse, who claims that he used nautical (or sea) time, in compiling his log, diverges all through the log occasionally into civil time. Now the difference between the two kinds of time is so great that a short notice of it, becomes unavoidable. The nautical or sea day, begins at noon, or twelve hours before the civil day. It is divided into two parts of twelve hours each, the former being marked p.m. and the latter a.m. This mode of reckoning arises from the custom of seamen dating their log for the preceeding twenty-four hours, the same as the civil day ; so that occurrences, which happen, for instance, on Monday, 21st, afternoon, are entered in the log, marked Tuesday, the 22nd—in short the noon of the astronomical day and the end of the nautical day, take place at the same moment. As some of Captain Mohrhouse's observations in his • log were made in harbour, (as in the port at Sand Point), it is necessary also to mention that in harbour work (i.e., remarks logged in harbour) the day is estimated according to the civil reckoning, as on shore, that is, from midnight to midnight ; but at sea the day's work being made up at noon, is dated the same as the civil day, so that the day's work marked Monday, began on Sunday, at noon, and ended on Monday, at noon ; hence the day by the ship's reckoning, which is called the nautical day, begins twelve hours before the civil ~~~
VOL. IV.] EXCHEQUER COURT REPORTS. 163 day, the first twelve being p.m. and the other twelve 1894 hours a.m., or before noon. And this difference in cal- n culating time has introduced an additional element of QUEEN V. uncertainty into his log, and consequently in even the THE SHIP approximate accuracy of his conclusions and position. MINNIE. For instance, as a sample of this : On leaving Victoria $ aaona at noon on the last day of February, the entry is made a n=eat. as on the first day of March. The boarding of the Corwin at noon on the 16th of • June, is recorded on the 16th. Sailing from \' akoutat, a port on the way up North, on the 28th May, although at one p.m., is entered on' the 28th. The arrival at Sand Point on the 17th of June, at 5 p.m.. is entered on the log on the 17th. The meeting with the Viva on the morning of the 18th July at eight o'clock, 'is entered on the log on the 19th, which according to the evidence, is incorrect. The inference from all these considerations, and from the evidence, I find, is irresistible, that no reliance is to be placed on Captain Mohrhouse's account that, when seized, he was without the thirty mile zone. Nor does Captain Anderson's clear and manly account of the mode in which he found himself in his schooner the Viva a few miles within the zone, and the speed with which he got out of it, and their sighting each other, and subsequent meeting, in the least strengthen Captain Mohrhouse's contention that he was outside when seized. And the inference is reasonable (though not certain, as he lowered his jib,) that when he (Captain Anderson) saw the Russian steamer, they also saw him, , and if they did, considered him outside the zone, and so not seizable. The protocol distinctly states the Minnie was 22 miles within the zone, in the latitude and longitude I have set out. The Yakout was only three hours out of port and being worked by steam, was independent of wind 11 % •
164 EXCHEQUER COURT REPORTS. [VOL. IV. 1894 and tide, and its officers presumably, intimately ac- 7 quainted with the current there, and the inference is QUEEN . that they could not be mistaken in their position ; and v THE SHIP the hasty memo. of 8 o'clock given by the Russian MINNIE. captain to Mohrhouse, on a tiny slip of paper, was, I itegren• think, clearly a mistake for 9 o'clock, and I therefore Judgment. find that, beyond a doubt, the Minnie was taken at that particular spot, 22 miles south of Copper Island, within the zone. And what was she doing there ? Captain Jacobson, the owner, whose evidence was delivered in an eminently untruthful manner, which 1 think must have surprised the learned counsel who so steadily and earnestly advanced every possible argument for the defence—as it certainly did the court—knew perfectly well of the thirty mile zone, and even, though very roughly, pencilled out a zone of his own on the ship's chart, though not a thirty mile zone, as a thirty mile zone. Moreover, he had been on board the Triumph the well-known master of which, Captain Clarence Cog, had been furnished by Captain Hughes-Hallett with one or more copies of Mr. William Smith's and his own public warning to sealers for distribution, and had engaged to communicate the warning to all the sealers he encountered, and presumably must have doue so to him ; and it is a matter of common knowledge and has been before the court, that in several known cases, and on several occasions, during 1893 he had honourably discharged this obligation, so that it is in the highest degree unlikely that he would have omitted either Captain Jacobson or Captain Mohr]] ouse, when either came aboard his ship, from this friendly service. Moreover, Captain Mohrhouse, in his evidence, confesses to knowing the danger of sealing near the thirty mile zone until he could get an observation, a practical admission which speaks for itself. •
VOL. IV.] EXCHEQUER COURT REPORTS. 165 , Yet on the very day of seizure, he puts down all his 1894 boats, each with two expert persons in it, for Indian`s women are as good, if not better, canoeists than the 4ukr men, under the pretense of washing decks, which to THE SHIP his shame, be it said, he avowed as a reason, had been MINNIE. dirty for some three weeks and we have only his Rego:" word for it, that they did not take guns with them, auagmeat. and not a single witness of the twenty-three or twenty-four who were there, was brought forward to corroborate him. It is sworn that Mohrhouse was picked out by the owner to redeem his previous ill-luck in sealing, Captain Jacobson well knowing that he (Captain Mohrhouse) had already brought other sealers into trouble in a similar manner. It is well known, and is so stated in the negotiations which preceded the passage of the Act, that recent events in Behring Sea had sent a cloud of fleet and daring schooners, some of them making even eleven and twelve knots an hour, admirably manned and commanded, hovering like hawks, and covered with a cloud of canvas, all around the thirty mile zone about the Kormandorsky Islands. And it was necessary to guard against any of them, to whom the risk itself would be an attraction, slipping inside the thirty miles of feeding ground, set aside for the seals which might chance to frequent the Kormandorsky Islands, running the risk of capture, in order to secure a rich but forbidden harvest of seal skins.' The statement of claim alleges that in this instance, the Minnie at the time and place of seizure, was fully manned and equipped for the purpose of hunting, killing and taking seals, and it has ,been proved that. after due notice, she was so found manned and equipped for that purpose, within the thirty mile zone. Section 6 of the Seal Fishery (North Pacific) Act, 1898, above cited, enacts that, " if during the period,"
166 EXCHEQUER COURT REPORTS. [VOL. IV. 1894 (that is between the 4th July, 1893, and 31st Dec., 1893 THE —here it was the 17th July, 1893) "and within the sea QUEEN v specified by the order in council," viz.: the thirty mile THE SHIP zone, " a British ship is found, having on board .there- MINNIE. of, fishing or shooting implements or seal skins, or Reasons for bodies of seal, it shall lie on the master or owner of Judgment. such ship to show that the ship was not used or employed in contravention of this Act." And that has certainly not been shown to me as a jury by the evidence adduced by the defence. If Captain Mohr-house had been sincere in his desire to keep outside of the forbidden waters, his vessel's head would have been put the other way, away from and not towards the island, until he had ascertained his position by observation. If such flimsy excuses as his, supported by such equivocal testimony, were to .be allowed to prevail, sealers would only have, in that foggy climate (especially so on the south-west side of Copper Island) to allege stress of weather, to make the Act, framed to repel their intrusion within the zone, a dead letter ; and thus render nugatory an honourable understanding between England and a friendly nation, whose officers, so far as we have seen, in carrying out the provisions of this particular Act (and I am guided solely in my consideration and decision by this Act) have treated British subjects with every courtesy and consideration. As a jury, I find that the presumption which the portion of the Act I have cited raises of the liability of the defendant, has not been displaced. The lesson which this law teaches has yet to be learned, and the present is a case, wherein from the total absence of bona fides in the defendant from first to last, it has become the duty of the court to enforce the provisions of the law.
VOL. IV.] EXCHEQUER COURT REPORTS. 167 I do not take into consideration in forming the pre- 1894 sent judgment, the question of what may be deemed THE the disobedience of what I consider the order or QUEEN V. direction of the Captain of the Yakout, that the master THE SHIP of the Minnie should report himself to H. B. M's. Consul. MINNIE. at Yokohama, where there is a good and competent EMT" Q orient. court to deal with the case, as no penalty therefor is dtidr._ sought to be enforced. I pronounce, therefore, in favour of the Crown, and decree the condemnation of the ship Minnie and her equipment and everything on board of her, and the proceeds thereof, on the ground that the said ship, was, at the time of the seizure thereof, within the prohibited waters of Behring Sea or the North Pacific Ocean, that is to say, within a zone of thirty marine miles around the Kormandorsky Islands, as defined by the order in council, dated the 4th day of July, 1893, made by Her Majesty the Queen in pursuance of the Seal Fishery (North Pacific) Act, 1893, fully manned and equipped for killing, taking and hunting seals, and had on board shooting implements and one seal skin, and that the said ship was used and employed in taking, killing, or hunting, or attempting to kill or take seals within the prohibited waters aforesaid.' The proportion in which the proceeds are to be distributed, I reserve for further consideration. No costs on either side. Judgment accordingly.* . Solicitors for plaintiff: C. E. Pooley. Solicitor for ship : A. L. Belyea. * REPORTER'S NOTE : On appeal to the Supreme Coud of Canada [Present, Strong, C.J., Fournier, Taschereau, Sedgewick and King, JJ.] by the owner of the condemned ship, this judgment was affirmed and the appeal dismissed, with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.