Mortensen v Peters

JurisdictionScotland
Judgment Date19 July 1906
Date19 July 1906
Docket NumberNo. 27.
CourtHigh Court of Justiciary
Court of Justiciary
High Court (Full Bench)

Lord Justice-General, Lord Justice-Clerk, Lord M'Laren, Ld. Kyllachy, LdStormonth-Darling, Lord Low, Lord Pearson, Lord Ardwall, Lord Dundas, Ld. Johnston, Lord Salvesen, Lord Mackenzie.

No. 27.
Mortensen
and
Peters.

Jurisdiction—River, Loch, Sea—Territorial Waters—Foreign Vessel—Contravention of British Statutes by Foreigner outside three miles limit—Fishing—Trawling—Herring Fishery (Scotland) Act, 1889 (52 and 53 Vict. cap. 23), sec. 7 (1)—Sea Fisheries Regulation (Scotland) Act, 1895 (58 and 59 Vict. cap. 42), sec. 10 (4) (5)—Bye-law No. 10 of Fishery Board for Scotland.—The Herring Fishery (Scotland) Act, 1889, sec. 7 (1), enacts:—

‘The Fishery Board may, by bye-law or bye-laws, direct that the methods of fishing known as beam-trawling and otter-trawling shall not be used within a line drawn from Duncansby Head, in Caithness, to Rattray Point, in Aberdeenshire, in any area or areas to be defined in such bye-law. …’

Bye-law (No. 10), made by the Fishery Board for Scotland, provides (2), after narrating the foregoing provision, ‘It is hereby declared that the foregoing provision shall apply to the whole of the area above specified.’

The Sea Fisheries Regulation (Scotland) Act, 1895, sec. 10 (4), enacts:—‘Any person who uses any such method’ [i.e., beam-trawling and otter-trawling] ‘of fishing in contravention of any such bye-law,’ [i.e., made by Fishery Board] ‘shall be liable on conviction, under the Summary Jurisdiction (Scotland) Acts, to’ certain penalties.

A Dane, master of a steam-trawler registered in Norway, was charged in the Dornoch Sheriff Court with a contravention of the Sea Fisheries Acts and the Herring Fisheries (Scotland) Acts, by using, on a certain date, the method of fishing known as otter-trawling ‘in a part of the Moray Firth … which is within a line drawn from Duncansby Head, in Caithness, to Rattray Point, in Aberdeenshire, and is within the area specified in the bye-law (No. 10) made by the Fishery Board for Scotland.’ The locus of the alleged offence was admittedly within the area specified in the bye-law, and was outwith a line drawn at a distance of one marine league [three miles] from low-water mark on the adjacent coast. The accused objected that he was not subject to the jurisdiction of the Dornoch Sheriff Court, on the grounds that the statutes and the bye-law were, on a sound construction, inapplicable as regarded foreigners to such part of the area specified as lay outwith the territorial jurisdiction of the British Crown, and that the locus libelled was by international law outwith such jurisdiction. The Sheriff repelled this objection. The accused was convicted and sentenced.

In an appeal on a stated case, held by a Full Bench, (1) that the accused was subject to the jurisdiction of the Dornoch Sheriff Court, and (2) that the conviction and sentence were legal and competent.

Emmanuel Mortensen, residing at 24 Montague Street, Grimsby, was charged in the Sheriff Court at Dornoch on a complaint, dated l5th January 1906, under the Summary Jurisdiction (Scotland) Acts, 1864 and 1881, and Criminal Procedure (Scotland) Act, 1887, at the instance of David Peters, Procurator-fiscal of the Court. The complaint set forth that the accused had been guilty of a contravention of the Sea Fisheries Acts and the Herring Fisheries (Scotland) Acts,*

in so far as on 30th November 1905 he, being the master of the Norwegian steam-trawler ‘Niobe,’ S.D. 5, of Sandefiord, Norway, did, contrary to the bye-laws and sections of the statutes after mentioned, use the method of fishing known as otter-trawling in a part of the Moray Firth five miles or thereby east by north from Lossiemouth, 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 No. 10 made by the Fishery Board for Scotland, under the powers conferred by the Sea Fisheries (Scotland) Amendment Act, 1885, the Herring Fisheries (Scotland) Act, 1889 (particularly section 7 (1) thereof), and the Herring Fisheries (Scotland) Act Amendment Act, 1890, dated said bye-law at Edinburgh on 27th September 1892, confirmed by Her late Majesty's Secretary for Scotland on 22d November 1892, and published in the Edinburgh Gazette on 25th November 1892, as amended by bye-law No. 14, made by the said Fishery Board under the powers conferred by the Herring Fishery (Scotland) Act, 1889, section 7 (1), dated said bye-law at Edinburgh on 17th April 1896, confirmed by Her late Majesty's Secretary for Scotland on 6th August 1896, and published in the Edinburgh Gazette on 18th August 1896, a copy of which bye-laws, certified by the Secretary of said Fishery Board, is produced herewith, whereby the said Emmanuel Mortensen is, on conviction, liable in terms of the Sea Fisheries Regulation (Scotland) Act, 1895, section 10 (particularly subsection 4 thereof), to a fine not exceeding £100, and failing immediate payment of the fine, to imprisonment for a period not exceeding sixty days.

On 13th February 1906 the Sheriff (Guthrie), in respect of the evidence adduced, found Mortensen guilty of the contravention charged, and imposed a fine of £50, with the alternative of imprisonment for fifteen days.

Mortensen obtained a case for appeal.

The stated case, after narrating the complaint, set forth as follows:—

‘The appellant stated as a preliminary objection that said steam-trawler being registered in Norway, and the locus of the offence being as alleged, the appellant was not subject to the jurisdiction of Dornoch Sheriff Court. Under reservation of the said objection, the appellant pleaded not guilty.

‘It was proved that said steam-trawler was registered in Sandefiord, Norway, and that the appellant is a Dane.

‘It was further proved that the appellant did on 30th November 1905, being the master of said steam-trawler, use the method of fishing known as otter-trawling in a part of the Moray Firth five miles or thereby east by north from Lossiemouth, which lies within a line drawn from Duncansby Head, in Caithness, to Rattray Point, in Aberdeenshire; and there was produced and proved the accompanying Admiralty chart, having marked thereon the foresaid position of said steam-trawler, which position is outwith a line drawn at a distance of one marine league from low-water mark on the adjacent coast and within ten miles of the coast. …

‘The Sheriff repelled the appellant's said preliminary objection, found the appellant guilty of the contravention charged …’

The questions of law submitted for the opinion of the High Court were:—‘1. Whether, in view of the facts stated as proved, and having regard to the bye-laws and the enactments of the sections of the statutes above mentioned, the appellant was subject to the jurisdiction of Dornoch Sheriff Court? 2. Whether, having regard to the provisions of the Sea Fisheries Regulation (Scotland) Act, 1895, and in particular to the provisions of sections 10, subsections 4 and 6 thereof, the conviction and sentence imposed on the appellant are legal and competent?’

The appeal came before the High Court of Justiciary on 16th March 1906, on which date the Lord Justice-General intimated that the case would be heard by a full Bench.

At the hearing before a full Bench, on 29th May 1906, the appellant argued;—The appellant was a Dane, and the trawler of which he was master was registered in Norway. Denmark was, but Norway was not, one of the signatory powers to the North Sea Fisheries Convention of 1883. The spot where the appellant was charged with having contravened the statutes and bye-laws libelled was outside a line drawn three miles from the adjacent coast, and also more than three miles outside a straight line drawn across the Moray Firth ‘in the part nearest the entrance at the first point where the width does not exceed ten miles.’1 (1) The statutes and bye-laws alleged to have been contravened, being British municipal legislation, only conferred jurisdiction over (a) British subjects, and (b) Foreign subjects within British territory. The universality of the language of sec. 10 (4) of the Act of 1895—‘any person’—was subject to construction. It meant‘any person over whom our Courts have jurisdiction.’ In interpreting a statute, it was not to be presumed that the Legislature either meant to exceed its jurisdiction or to violate the established rules of international law.2 The general rule was that legislation was primarily

territorial. It might apply to British subjects outside British territory, but it could never be intended to extend to foreigners outside British territory.1 This principle of interpretation was adopted in argument by the British representatives at the Behring Sea Arbitration.2 The presumption might be overcome by the express inclusion of foreigners. In that case the Court would be bound by the express words. But the statutes here in question, so far from expressly including foreigners outside the jurisdiction, implied that they were not to be affected.3 The Sea Fisheries Regulation Act, 1895, sec. 10 (3), and the Sea Fisheries Act, 1883, secs. 18 and 28, expressly recognised the rules of international law. (2) The locus in quo was not within British territory. In determining whether a spot was within British territory, our Courts (in the absence of express legislative enactment or judicial decision) applied the principles of international law, which was part of our common law.4 By international law, territorial jurisdiction ended at the three-miles limit, subject to the exception of bays intra fauces terrœ.5 The locus in quo was not intra fauces terrœ, as that expression had been interpreted by the authorities.6 The expression designated a landlocked bay, and there had been no instance of a bay of the extent and width of the Moray Firth being held to be intra fauces terrœ. The result of the authorities was that jurisdiction did not extend over bays, unless their...

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