CHAPTER III.

REGISTRATION AND DISCIPLINE OF SEA FISHING BOATS.

THE registration and discipline of fishing boats and the men engaged therein is regulated by the Merchant Shipping Act, 1894, and is carried into effect by the Board of Trade, which body has power, if it think fit to use it, to exempt any class of fishing boats from some or all of the provisions relating to such vessels (a). The registration and lettering of foreign boats is regulated by the countries to which they belong, in accordance with the provisions of the conventions attached to the Sea Fisheries Acts, 1843-1891. By the Merchant Shipping Act, every fishing boat, that is, a vessel of whatever size and in whatever way propelled, which for the time being is employed in sea fishing or in the sea fishing service, including those used otherwise than for profit, must be lettered and numbered and have official papers, and be entered on the fishing boat register (b). This does not apply to ships engaged in the whale, seal, walrus, or Newfoundland cod fisheries, for they are deemed to be foreign-going ships, unless they belong to ports in Canada or Newfoundland and are engaged in the Newfoundland cod fisheries (e); but it does apply to fish carriers or tenders (d). By Order in Council of the 29th day of March, 1902, certain other classes of vessels have been exempted from the provisions as to registration and numbering. This order gives all the regulations now in force as to registration, lettering, and numbering of sea fishing boats (dd). If a fishing boat required to be entered on the register is not so entered, and is used as a fishing boat, the owner and the skipper are each liable to a fine not exceeding 201., and the boat may be detained (e). The tonnage of a fishing boat, for the purpose of registration as a fishing boat, is in the case of a steam trawler her gross tonnage, but in any other case her register tonnage. If she is registered under Part I. of the Merchant Shipping (a) The Board of Trade by an order, dated 2nd November, 1899, have exempted sailing trawlers under fifty tons register, and paddle-steamers engaged in trawling, from sects. 399-408 of the Act.

(b) The Merchant Shipping Act, 1894, ss. 370, 373.

(e) The Merchant Shipping Act, 1894, s. 744.

(d) The Merchant Shipping Act, 1894, s. 369, sub-s. 4.

(dd) St. R. & Orders, 1902, No. 274, post.

(e) The Merchant Shipping Act, 1894, s. 373 sub-s. 4.

Act, the tonnage there found is the tonnage for the fishing register. If the tonnage has not been so found, then a certificate signed by a surveyor of ships stating her tonnage, ascertained as in the case of a ship registered under Part I. of the Act, is conclusive of her tonnage (f). A trawler of twenty-five tons tonnage or upwards must not go to sea without a duly certificated skipper and second hand. These certificates are granted by the Board of Trade after the candidates have passed the necessary examination in that behalf (g). The crews of vessels of this class are engaged under an agreement according to a form sanctioned by the Board of Trade, and can only be discharged in the method set out in the Act (h). The provisions as to certificates and crew do not apply to vessels used otherwise than for profit (i).

Boys may be apprenticed to or serve in the sea fishing service, but not till they are thirteen years of age. If under the age of sixteen years, boys may not be taken to sea to serve in any capacity connected with the sea fishing service, unless they are bound by an indenture of apprenticeship made in conformity with Part IV. of the Merchant Shipping Act, 1894 (j).

The discipline on board a fishing boat is maintained by making certain offences punishable by fine or imprisonment, or forfeiture of wages. They are desertion, absence without leave, wrongfully quitting the boat, wilful disobedience, continued breach of duty, assault, unlawful combination, wilful damage and smuggling. A skipper can be punished for the offences of desertion, absence without leave, wrongfully quitting the boat, wilful damage and smuggling, as if he were a seaman (k).

By the North Sea Fisheries Act, 1893 (1), it has been agreed by Great Britain, Belgium, Denmark, and the Netherlands, that spirituous liquors—that is, liquids which contain more than 5 per centum of alcohol-shall not be sold to any fishermen in the North Sea outside the territorial limits of the United Kingdom. In the North Sea, and outside the exclusive fishery limits of Great Britain, provisions and other articles for their use (spirituous liquors excepted) may only be sold by persons licensed by the respective Governments. The limits of the North Sea are defined by art. 4 of the 1st schedule to the Sea Fisheries Act, 1883.

(ƒ) The Merchant Shipping Act, 1894, s. 371.

(g) Ibid., ss. 413-416.

(h) Ibid., ss. 399-412. See note (a), ante.

(i) Ibid., s. 370.

(j) Ibid., ss. 392, 393 et seq.

(k) Ibid., s. 376. A seaman may be convicted of wilful disobedience, though the act of disobedience amounted to desertion or absence without leave: Edgill v. J. & G. Alward, Limited, [1902] 2 K. B. 239.

(2) 56 & 57 Vict. c. 17.

Besides the provisions set out above, further regulations have been made by the Sea Fisheries Act, 1883, and by Order in Council of 6th April, 1889. As these provisions are set out hereafter, it is unnecessary to deal with them now in detail.

A fishing boat may not proceed to sea unless she is provided, according to her tonnage, with boats in accordance with the 15th schedule of the Act; and if she carries more than ten passengers, she must also have two lifebuoys and a lifeboat (m). She is not required, like all other vessels, to carry life-belts for each person on board of her.

The precautions to be observed and the lights to be carried for preventing collisions between fishing boats and between fishing boats and vessels navigating the sea, are contained in the Collision Regulations, which are made from time to time by Order in Council (n). When fishing boats are working in fleets, the Board of Trade may make regulations as to the conveyance of fish from the fishing boats to the fish-carriers (o).

(m) The Merchant Shipping Act, 1894, s. 375.

(n) See The Rules of the Road at Sea, 3rd ed.

(0) The Merchant Shipping Act, 1894, s. 417. Regulations have been made as to the Great Northern Steamship Fishing Co., Ltd., Great Grimsby Ice Co., Ltd., Grimsby and North Sea Steam Trawling Co., Hull Steam Fishing and Ice Co., Ltd., Short Blue Fleet, Hagerup, Doughty & Co., and Helsall Brothers and Beeching, Ltd.

CHAPTER IV.

STATUTORY PROVISIONS RELATING TO FISHERIES GENERALLY.

AT common law there is no right of property in fish in their natural liberty (a), and they become the property of their captor, even though he be a poacher; and the owner of the fishery, although he may seize the fishing implements of the captor, yet he may not take the fish he has caught (b). There are certain exceptions to this rule of common law. Fish taken in a trunk or net, or put in a stewpond, are the subject of property (c). Royal fish, i.e., whales, sturgeon, and porpoise, are the property of the Crown and its grantees, whether taken at sea or on the shore, and not of the finder (d). Oysters and mussels and cockles, in or on a bed within the limits of a several oyster and mussel and cockle fishery, granted under the Sea Fisheries Act, 1868, are the absolute property of the grantees of such fishery. Oysters on any private oyster-bed are the property of the owner of the bed (e).

Although there may be no property in fish in a private fishery, yet the statute law has enacted that in certain cases a person who takes fish from a private fishery may be punished. By the Larceny Act, 1861, s. 24, it is made a misdemeanour to take or destroy fish in any water which runs through or is in any land adjoining or belonging to the dwelling-house of the owner of the water. If the fishing was by means of an angle used in the daytime, i.e., between the last hour before sunrise and the first hour after sunset only, a penalty not exceeding 51. is incurred. Any one who unlawfully and wilfully fishes in any water which is private property, or in which there is a private right of fishing, is liable to pay the value of the fish taken, and a sum not exceeding 51., unless it was a case of angling in the daytime, for which offence there is only a penalty not exceeding 51. Besides the penalties above mentioned, a person fishing at night, and a person fishing by any other mode than by rod and line,

(a) R. v. Hundsdon, (1781) 2 East, P. C. 611.

(b) Larceny Act, 1861, s. 25.

(c) Russell on Crimes, 6th ed., Vol. II., p. 245.

(d) De Prerogativa Regis, 17 Edw. II. st. 1, c. 11; Moore on Foreshore, p. 753. (e) Sea Fisheries Act, 1868, s. 51, and Sea Fisheries Act, 1884, s. 1.

may be arrested (ƒ), and may have all his implements for catching fish taken from him (g). When the fishing is by angling in the daytime the owner of the fishery or ground on which the offender is found may, instead of prosecuting, take the implements used by the offender to catch fish, and keep them for his own use. If he adopts this course he cannot proceed against the offender in any other way (g). The owner of the ground or fishery may authorise his servants or anybody else to do this for him, but they can only act on the ground and fishery of their master (h). As the lessee of a fishery is not the owner, he cannot avail himself of this provision unless he is authorised by the owner. These provisions of the Larceny Act apply both to tidal and non-tidal waters (i), and to all kinds of fish, whether shellfish or floating fish (k).

The Larceny Act also protects the owners of oyster fisheries by making it a felony to steal oysters therefrom. It also prohibits the use of any dredge or other engine for taking oysters within the limits of an oyster fishery. Oyster-beds are not protected if not sufficiently marked out and known as such (1).

By the Malicious Damage Act, 1861 (m), it is a misdemeanour, punishable with seven years' penal servitude, to unlawfully and maliciously cut down or otherwise destroy the dam, flood-gate, or sluice of any fishpond or of any water which is private property, or in which there is any private right of fishing, with intent to take and destroy fish, or to put any lime or other noxious material into such water. This provision as to poisoning water also applies to salmon rivers (n).

Fisheries, both tidal and non-tidal, are also protected from pollution by the Rivers Pollution Prevention Acts, 1876 and 1893, and by the Salmon and Freshwater Fishery and other Acts, as will appear later (0).

By the Fisheries Dynamite Act, 1877, dynamite or other explosive substances may not be used to catch or destroy fish in a public fishery, or in any private fishery within the limits of the Freshwater Fisheries Act, 1878 (p).

(f) Larceny Act, 1861, s. 103; see also Salmon Fishery Act, 1873, s. 38.

(g) Ibid., s. 25.

(h) Hughes v. Buckland, (1846) 15 M. & W. 346.

(i) Paley v. Birch, (1867) 8 B. & S. 336; 16 L. T. 410.

(k) Caygill v. Thwaites, (1885) 33 W. R. 581; 49 J. P. 614, where it was held that crayfish were within this Act.

(1) Sect. 26.

(m) Sect. 32.

(a) Salmon Fishery Act, 1873, s. 13.

(0) See post, Chap. X.

(p) As to whether this applies to an artificial reservoir, see Stead v. Nicholas, [1901] 2 K. B. 163.