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The Recent Controversy as to the British Jurisdiction Over Foreign Fishermen More than Three Miles from Shore: Mortensen V. Peters

Published online by Cambridge University Press:  02 September 2013

Charles Noble Gregory
Charles Noble Gregory
Affiliation:
State University of Iowa
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Extract

Emmanuel Mortensen, residing at Grimsby, on the thirtieth of November, 1905, being master of the trawler Niobe, of Sandefiord, Norway, was charged, contrary to a bye law adopted pursuant to a British statute, with using the method of fishing, known as otter trawling, in a part of the Moray Firth, five miles or thereabouts by east by north from Lossie-Mouth, which lies within a line drawn from Duncansby Head, in Caithness, to Rattray Point, in Aberdeenshire and is within the area specified in the bye law referred to, made by the fishery board for Scotland, under a power conferred by statute, which bye law had been duly confirmed by the secretary for Scotland, and duly published. He was thereby liable to a fine not exceeding 100 pounds, on conviction, and, on failure to pay, to not exceeding sixty days imprisonment and to forfeiture of his nets. At the trial, defendant stated, as a preliminary objection, that his steam trawler was registered in Norway, and the locus of the offense as alleged was not within the jurisdiction of the court and, reserving this plea, pleaded “not guilty.” It was proved said trawler was registered in Sandefiord, Norway, and that defendant was a Dane; that he did the act in the plea alleged, and that this was outside a marine league from low water mark on the adjacent coast, and within ten miles thereof.

The sheriff “repelled” the preliminary objection, found defendant guilty, imposed a fine of fifty pounds, and, in default, sentenced the accused to fifteen days' imprisonment. Defendant paid the fine and appealed, and the questions of law submitted to the high court of justiciary were, whether the sheriff's court had jurisdiction, and whether the conviction and sentence were “legal and competent.”

Type
Research Article
Information
American Political Science Review , Volume 1 , Issue 3 , May 1907 , pp. 410 - 437
Copyright
Copyright © American Political Science Association 1907

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References

1 Mortensen v. Peters (High Court of Judiciary, Full Bench). The Scots Law Times, vol. xiv, p. 227, August 4, 1906.

2 4 Moore's Internat. Arbt., p. 4333.

3 See Fish Trades Gazette, September 29, 1906, p. 84 to 88, for a copy of which the writer is indebted to the courtesy of Lord Heneage.

4 Green v. Leith (1896) 23 R. (J.C.) 50.

5 Wilson v. Rust (Ibid., p., 56).

6 Poll v. The Lord Advocate (1897) 1 F. 823.

7 Rex (Coleman) v. Petit (1902) 2 Ir. R. I.

8 143 U. S. 474.

9 Foster v. Neilson, 2 Peters 253; Williams v. Insurance Co., 3 Sum. 270, 13 Pet. 415; Luther v. Borden, 7 How 1; Georgia v. Stanton, 6 Wall 50; Jones v. U. S. 137 U. S. 202; Nabob of Carnatic v. East India Co., 1 Ves. Jr. 371, 2 Ves. Jr. 56; Barclay v. Russell, 3 Ves. Jr. 424; Penn. v. Baltimore, i Ves. Sr. 144.

10 137 U. S. 202.

11 Moore's, Digest International Law, i, 744–5.Google Scholar

12 Rose v. Himely, 4 Cranch 241; Moore's, Digest International Law, ii, §198.Google Scholar

13 Reg. v. Cunningham, Bells C. C. 722, 1 Moore's, Digest International Law, p. 739.Google Scholar

14 The Direct U. S. Cable Co. v. The Anglo Am. Tel. Co. Law Rpts. 2 App. Cases 394. Snow's Cases Inter. L., p. 45.

15 The Alleganean (Stetson v. U. S.) 32 Albany L. J. 484. 4 Moore's, Internat. Arbt. 4333Google Scholar, 5 id., 4675. Scott's Cases Internat. Law, p. 143.

16 152 Mass. 230.

17 Manchester v. Massachusetts. 139 U. S. 240.

18 See 1 Ops. Atty. Genl. 15; 1 Moore's, Digest Internat. Law, p. 735.Google Scholar

19 R. Com. of Claims, p. 170. Cited Scott's Cases International Law, p. 153.

20 Senate Exec. Doc., 2d Ses., 53d Congress, 1893–4, vol. 7, part 4, p. 110.

21 Glenn, : International Law, p. 60.Google Scholar Lake Borgne and Mississippi Sound, large lagoons or bays of salt water, connected with the Gulf of Mexico but landlocked, seem to be held territorial in a recent decision of the United States Supreme Court, which is by no means easily understood. Louisiana v. Mississippi, 26 Sup. Ct. R. 408 (1905). The fact that the openings into the Gulf of Mexico “are neither of them six miles wide,” seems relied on. See p. 421.

22 I Phillimore, p. 239. See to like effect 1 Halleck, Inter. Law, p. 139, ed. 1878.Google Scholar

23 Chapter iv, §179.

24 P. 159, ed. 1904.

25 I Phillimore, p. 216.

26 I Phillimore, p. 226–7.

27 I Phillimore, p. 213, et seq.

28 Wheaton's, International Law, 4th Eng. ed., 1904, p. 277.Google Scholar Lord Derby to Mr. Watson, 25th Dec., 1874, U. S. Dip. Cor., 1875, p. 641. Same, p. 649. Wharton's Dig., §32.

29 Vol. i, p. 698, et seq.

30 Case of Great Britain. Sen. Ex. Doc., 2d Ses., 53d Cong., vol. 7, part 4, p. 108.

31 This is quoted in the case of Great Britain as to Seal Fishing. Senate, Exec. Doc., 2d Ses. 53d Cong., vol. 7, part 41, p. 111.

32 1 Moore's, Digest Internat. Law, p. 716.Google Scholar

33 1 Moore's, Digest Internat. Law (1906), p. 718.Google Scholar

34 Idem, p. 718.

35 Idem, p. 735.

36 P. 155.

37 See Award of Tribunal. Sen. Ex. Doc., 2d Ses., 53d Cong. 1893–4, vol. 7, part 1, p. 75, et seq.

38 La Ninfa, 75 Fed. 513. Scott's Cases Internat. Law, p. 443.

39 P. 152, et seq.

40 LeLouis, 2 Dodson 210. Scott's Cases, p. 357.

41 Senate Ex. Doc., 2d Ses., 53d Congress, 1893–4, vol. 7, part 4, p. 117.

42 L. R. 2 Exec. Div. 63. Scott's Cases, 154.

43 International Law, p. 147.

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