The Ship Oscar & Hattie v. The Queen, (1894) 23 SCR 396

Supreme Court of Canada

The Ship Oscar & Hattie v. The Queen, (1894) 23 S.C.R. 396

Date: 1894-02-20

The Ship "Oscar and Hattie" (Defendant) Appellant;

and

Her Majesty the Queen (Plaintiff) Respondent.

1893: October. 20; 1894: February 20.

Present: Sir Henry Strong, C.J., and Fournier, Taschereau, Gwynne, Sedgewick and King JJ.

On Appeal from the Admiralty District of British Columbia.

54 & 55 Vict. (Imp.) c. 19 sec. 1 subsec. 5—Presence of a British ship equipped for sealing in Behring Sea—Onus probandi—Lawful intention.

On 30th August, 1891, the ship "Oscar and Hattie" a fully equipped sealer was seized in Gotzleb Harbour in Behring Sea while taking in a supply of water.

Held, affirming the judgment of the court below, that when a British ship is found in the prohibited waters of Behring Sea, the burthen of proof is upon the owner or master to rebut by positive evidence that the vessel is not there used or employed in contravention of the Seal Fishery (Behring's Sea) Act, 1891, 54 & 55 Vic. (Imp.) c. 19, sec. 1, subsec. 5.

Held, also, reversing the judgment of the court below, that there was positive and clear evidence that the " Oscar and Hattie " was not used or employed at the time of her seizure in contravention of 54 & 55 Vic., c. 19, sec. 1, subsec. 5.

APPEAL from the Exchequer Court of Canada (Admiralty District of British Columbia)[1] .

This was an action in rem. for the condemnation of a ship for a contravention of The Seal Fishery (Behring's Sea) Act, 1891[2].

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The judgment appealed from was delivered by Sir Matthew B. Begbie C.J., Local Judge in Admiralty for the District of British Columbia.

The ship " Oscar and Hattie," Thomas Turtle, Master, a British ship registered at the Port of Victoria, sailed from Yaquina Bay, in the State of Oregon, the latter end of February, 1892, for the North Pacific Ocean on a sealing and fishing voyage.

In continuance of the object of the voyage the ship continued sealing and fishing in the North Pacific Ocean up to and until the latter end of August, when being short of water and prepared to give up sealing for the season, the ship put about with the object of returning to the Port of Victoria, British Columbia.

Owing to the shortness of water on board the ship it was found necessary by the captain to put into Gotzleb Harbour, in Attou Island, the western island of the Aleutian group. While engaged there in laying in a supply of water the ship was boarded and seized by an officer, ensign Harrison, and crew from the United States man—of—war "Mohican." The seizure occurred on the 30th day of August, in the evening, about 5 o'clock. Ensign Harrison of the "Mohican" overhauled all the papers of the "Oscar and Hattie" and took possession of the ship's official log book and the ship's log. The seizing officer and crew remained in charge of the "Oscar and Hattie" until the evening of the first day of September. The master of the "Oscar and Hattie" in the interim visited the Commander of the "Mohican" on board the "Mohican" and protested against the seizure.

No written communication passed from the officers of the "Mohican" or any of them to the master of the "Oscar and Hattie" of the reasons for the seizure, but various conversations occurred between them with

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reference to the same which will be referred to hereafter.

On the afternoon of the 1st day of September, in pursuance of orders received from the Commander of the " Mohican " and with an officer and prize crew on board from the " Mohican," the master of the " Oscar and Hattie " navigated her to the Port of Ounalaska, in the Territory of Alaska. Arriving at Ounalaska the " Oscar and Hattie " was taken in charge by the United States man-of-war " Yorktown," who in turn handed over the " Oscar and Hattie " to the officers of Her Majesty's Ship " Melpomene " some nine or ten days after the arrival of the " Oscar and Hattie " at Ounalaska.

At the end of such period in pursuance of instructions or orders received from Captain Parr, the officer in command of H. M. S. " Melpomene," the master of the " Oscar and Hattie " proceeded from Ounalaska to Victoria, and reported to the Collector of Customs at the Port of Victoria, and the ship was left in charge of the Collector of Customs.

Subsequently an action for condemnation of the ship " Oscar and Hattie " her equipment and everything on board of her, was instituted against the ship for contravention of the act known as the " Seal Fishery (Behring's Sea) Act, 1891," the writ in such action being issued on the 22nd day of October, 1892, and it was alleged in the petition in support of such action:

"That the ship ' Oscar and Hattie ' was seized by an officer of the " Mohican " on the 31st day of August, 1892, at Gotzleb Harbour, Attou Island, being a place within the prohibited waters of Behring's Sea as defined by an Order in Council dated the 9th day of October, 1892, made by Her Majesty the Queen in

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pursuance of an act of the Imperial Parliament, intituled the Seal Fishery (Behring's Sea) Act, 1891."

"That the said ship sailed from Victoria on the 26th day of January, 1892, fully manned and equipped for the purpose of seal-fishing, hunting, killing and taking seals."

" That the master of the ' Oscar and Hattie ' was on the 17th day of June, 1892, duly warned by an officer of the United States ship ' Adams ' not to enter the waters of Behring's Sea for the purpose of sealing, and at the same time had delivered to him from the said officer a copy of the Proclamation of the President of the United States, and a copy of the Convention between Great Britain and the United States and a copy of the Seal Fishery (Behring's Sea) Act, 1891."

" That the ' Oscar and Hattie ' was at the time of the seizure as alleged, namely on the 31st day of August, 1892, fully manned and equipped for sealing purposes and was used and employed in killing, hunting, taking or attempting to kill and take seals within the prohibited waters of Behring's Sea."

In answer to the allegations in the petition the defendant, the owner of the " Oscar Hattie," admitted practically the whole of the allegations except so far as related to the purpose for which the ship was in Behring's Sea, and alleged that such ship was in Gotzleb Harbour, Attou Island, where she was seized, solely for the purpose of obtaining a supply of water and provisions in order to enable her to return to Victoria, and not for the purposes of sealing or attempting to seal as alleged or otherwise, and the said ship was never in prohibited waters for the purposes alleged or otherwise, and that the said ship put into the said harbour being at the time in distress and for the purpose of relieving such distress, and was not in such waters for the pur-

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pose prohibited by the Order in Council, Prohibitions and Conventions. Whereupon issue was joined and the trial of the issue had on Thursday the 27th day of January, 1892, and judgment was delivered on the 5th day of January, 1893, condemning the ship " Oscar and Hattie " and her equipment and everything on board of her as forfeited to Her Majesty in contravention of the act known as the " Seal Fishery (Behring's Sea) Act, 1891," and the owners of the " Oscar and Hattie " were condemned in costs.

The evidence taken at the trial on these issues is reviewed in the judgment of the court below[3], and in the judgments hereinafter given.

D'Alton McCarthy Q.C. and D. M. Eberts for the appellants contended upon the evidence that the " Oscar and Hattie " was not in Behring's Sea at any time during the season of 1892 for any prohibited purpose, and referred to Walker v. Baird[4].

Hogg Q.C. for the respondent contended that the onus was upon the appellant to show by clear evidence that the "Oscar and Hattie " was not in Behring's Sea and that the finding of fact of Chief Justice Sir M. Begbie upon the evidence should not be disturbed.

THE CHIEF JUSTICE:—This is an appeal from the judgment of the Chief Justice of British Columbia, sitting as local judge in Admiralty for the British Columbia Admiralty District, pronounced in a proceeding in rem against the ship " Oscar and Hattie," whereby that ship and her equipment and everything on board her were condemned as forfeited to Her Majesty for contravention of the act known as the Seal Fishery (Behring's Sea) Act, 1891.

The "Oscar and Hattie," a British ship registered at port of Victoria and commanded by Thomas Turtle, the

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sailed from Yaquina Bay in the State of Oregon, on the 18th February, 1892, on a sealing and fishing voyage in the North Pacific Ocean fully equipped for that purpose. The ship continued sealing (as the owners allege) in the North Pacific Ocean and outside the limits of Behring's Sea until the latter end of August, 1892, when, being short of water and prepared to give up sealing for the season, the master put the ship about with the intention of returning to Victoria. Instead of sailing directly for Victoria, however, he put into Gotzleb Harbour, in Attou Island, the western island of the Aleutian group. This harbour is on the north side of the island and beyond all question within the limits of Behring's Sea. The master states that his sole purpose in going into this harbour was to procure a supply of water of which he was short, and he alleges that he was actually engaged in getting water when his ship was boarded and seized by an officer (Ensign Harrison) and a boat's crew from the United States ship" Mohican"

This seizure was made about 5 o'clock in the afternoon of the 30th August, 1892. Ensign Harrison took possession of the ship's papers, including the "official log-book and the ship's log." The seizing officer and crew remained on board the "Oscar and Hattie" until the afternoon of the 1st of September. The master of the "Oscar and Hattie" in the interval visited the commander of the "Mohican" and protested against the seizure. On the afternoon of the 1st of September, in pursuance of the orders of Captain Johnson of the "Mohican" the "Oscar and Hattie" sailed for Ounalaska with an officer and prize crew from the "Mohican" on board. On her arrival at Ounalaska the ship was taken in charge by the United States ship—of—war "Yorktown," by whose commanding officer she was subsequently handed over to the commander of Her Majesty's ship

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"Melpomene" By the orders of Captain Parr of the " Melpomene," the master of the " Oscar and Hattie " proceeded from Ounalaska to Victoria, and reported to the Collector of Customs at that port, to whom the ship was then delivered up.

Soon afterwards the present action for condemnation was commenced, it being contended on behalf of the Crown that the ship had incurred forfeiture for an infraction of the Behring Sea Act, 1891, in that she had been found in Behring's Sea within prohibited limits, with shooting implements and seal skins on board. The master of the "Oscar and Hattie," Captain Turtle, was examined on behalf of the claimants, the owners of the ship ; his evidence was not however, taken in open court, but before an examiner. Captain Johnson of the " Mohican," and Ensign Harrison, the officer who made the original seizure, were called as witnesses for the Crown and examined before the Chief Justice, and one Joseph Brown, who had been on board the ship during the voyage as a hunter, was called as a witness for the claimants, and also examined before the Chief Justice at the trial. The learned Chief Justice after taking time for consideration pronounced judgment condemning the ship, her equipment, and everything found on board her as forfeited to the crown. From that judgment the present appeal has been brought.

Subsection 2 of section 1 of the act referred to is as follows:

(2). While an Order in Council under this act is in force.

(a) A person belonging to a British ship shall not kill, or take, or hunt, or attempt to kill or take, any seal within Behring's Sea during the period limited by the Order ; and

(b) A British ship shall not, nor shall any of the equipment or crew thereof, be used or employed in such killing, hunting, or attempt.

Subsection 5 of section 1 reads as follows:

If a British ship is found within Behring's Sea having on board thereof fishing or shooting implements or seal skins, or bodies of seals,

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it shall lie on the owner or master of such ship to prove that the ship was not used or employed in contravention of this act.

By an order of Her Majesty in Council passed on the 9th of May, 1892, under and pursuant to this act, the limits of Behring's Sea were defined and the catching of seals by British ships in Behring's Sea was prohibited. The offence charged against the ship was therefore that she or some of her equipment or crew had been employed in killing, taking, or hunting or in attempting to kill, or take seals within Behring's Sea as defined by the order in council.

Sufficient primâ facie proof of this was undoubtedly afforded by the fact that the ship was found within the boundaries of prohibited waters, with shooting implements and seal skins on board. The onus was thus cast on the owners to prove that the ship had not been employed in killing, taking or hunting seals or in attempting to do so within Behring's Sea.

The question thus becomes purely one of evidence. Have the claimants by their proofs displaced the presumption arising by force of the 5th subsection of sec. 1 of the act from the conditions under which the ship was found in Behring's Sea?

The burden of proof being thus on the claimants, the owners of the ship, it was for them to rebut the statutory inferences arising from the circumstances, and if they have failed in doing this the ship was properly condemned. Their explanation is that the " Oscar and Hattie " entered Behring's Sea for the purpose of getting a supply of water, of which she was short, and for no other purpose whatever ; that she had been actually engaged in watering by means of her boats, immediately before being seized by the boat from the " Mohican " ; and that no seals were taken by her, nor by any of her equipment or crew within Behring's Sea ; nor was any attempt made to seal within the prescribed

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limits. Further, that the seal skins on board had been taken in the North Pacific Ocean, outside of Behring's Sea and off Copper Island, where the ship had been sealing during her whole cruise, prior to sailing on her return voyage to Victoria, in the course of which she entered Behring's Sea to get water. In order to establish this case the claimants called in the first place, Thomas Turtle, the master who had commanded the ship during her sealing voyage. Captain Turtle, as I have before said, was not examined in court, nor in the presence of the Chief Justice but before an examiner. If his evidence is not discredited it is, in my opinion amply sufficient to exonerate the vessel from any charge of contravention of the act arising from the legal presumption imposed by the statute. The witness swears that he went into Behring's Sea for the sole purpose of getting water, turning aside for that purpose from his true course on his return voyage to Victoria. He also says most emphatically, as I understand his deposition, that he did not take or attempt to take any seals in Behring's Sea ; that he was actually getting water on board when the officer on the " Mohican " seized the vessel ; he also states with sufficient clearness that the seal-skins he had on board had been taken off Copper Island, in the North Pacific, where he had been prior to sailing on his home voyage ; and he deposes that he had not been in Behring's Sea during his whole voyage until he entered it for the purpose of getting water on the 30th of August, the day before his vessel was seized. Captain Turtle candidly admits that during the early part of the voyage he had been warned against Behring's Sea by the United States ship " Adams," for when he sailed from Victoria in January, the Order in Council had of course not been passed, and the exclusion from Behring's Sea under the modus vivendi could not have been known to him but for this

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notice. He gives the state of the wind and weather as his reason for making the North coast of the Island instead of the South side, which was outside Behring's Sea. The witness further says that he saw no seals near Attou Island, and that there were none there. This evidence by itself, even if not corroborated by other evidence, given by a witness who cannot be discredited by reason of any peculiarity of his demeanour in the witness box since he was not observed under examination by the Chief Justice any more than by ourselves, would, in my judgment be amply sufficient to rebut the statutory presumption and ensure the acquittal of the vessel unless sufficiently countervailed by further proofs on the part of the crown. But this is not all. Another witness is called by the claimants, Joseph Brown, who had been on board the ship as a hunter during the whole voyage. He proves sufficiently that the ship had been engaged in sealing off Copper Island and that the seal-skins on board had been taken there ; that she had been sealing there immediately before she sailed on her return voyage in the course of which she bore up for Attou Island to get water ; that she did take in water there ; that she was not engaged in sealing while in the Attou roadstead, where she had arrived the day she was seized. The Chief Justice puts aside this witness as having given immaterial evidence ; but granting that he knew nothing of the navigation of the ship, he at least shows that there was no sealing at Attou ; that the ship went in there for water ; and that the seal-skins on board had been taken in a different part of the North Pacific from which the ship had sailed some days before reaching Attou ; all of which i most material as confirmatory of the captain's evidence. The Chief Justice does not say that this witness was unworthy of credit, but merely that his evidence was not material, a conclusion in which I

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cannot agree. Then to rebut this testimony, two witnesses are called on behalf of the crown both of them no doubt entitled to the utmost credit ; Captain Johnson, Commander of the United States Ship " Mohican " and Ensign Harrison, the boarding officer who seized the " Oscar and Hattie." Had these gentlemen, or either of them contradicted the testimony of the master in any material point, it might have discredited him entirely ; but so far from material contradiction I find in their depositions most material corroboration of Captain Turtle's account. They show that there were no seals within two hundred miles of Attou Island. They do not, either of them, even suggest that there was any circumstances leading to a suspicion that the " Oscar and Hattie " was intended to go further into Behring's Sea for the purpose of hunting seals ; and Ensign Harrison, at least rather confirms the captain's story about water, and both say that he accounted for his whereabouts in Behring's Sea by attributing it to the failure of his supply of water. I am therefore unable to agree with the learned Chief Justice in his conclusion that this evidence for the crown affects the claimants' case in the least degree, save to confirm it.

Some observations were made by the Chief Justice about the non—production of the log—book in which the entries of the ship's course during the early part of the voyage were supposed to be contained, but the claimants were not responsible for that ; the log—book together with all the other ship's books and papers were seized by Ensign Harrison and handed over to Captain Parr of the " Melpomene " at Ounalaska. It was for the crown to have produced this early log-book, or to have shown that no such document could be found amongst the ship's papers. This they failed to do. No inference unfavourable to the claimants can

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therefore be drawn from this circumstance. The learned Chief Justice thinks that the entry in the log book which was produced, an entry made by the mate, as to the state of the wind when the ship made Attou is inconsistent with the captain's account. Captain Turtle says the wind was north-west: the mate's entry in the log-book alleges it to have been not north but " northerly." I apprehend that the learned Chief Justice was under the impression that the record of the mate was meant to indicate that the wind was due "north" but it does no such thing. The Chief Justice seems also to have drawn an inference unfavourable to the claimants from the absence of the mate, but considering the very reasonable and probable excuse offered for his non-production by the learned counsel for the claimants, namely, that it had been impossible to find him, I do not attach any weight to the circumstance. At all events it is quite insufficient to turn the scale against the claimants in whose favour there is such a great preponderance of testimony, as the evidence shows. The claimants have therefore succeeded in proving that the " Oscar and Hattie " was not used or employed in contravention of the statute.

The appeal must be allowed with costs and the action for condemnation in the Admiralty dismissed with costs.

FOURNIER J.—[Translated]. The ship "Oscar and Hattie," a British ship registered at the Port of Victoria, sailed from Yaquina Bay, in the State of Oregon, the latter end of February, 1892, for the North Pacific Ocean, on a sealing and fishing voyage. Towards the latter end of August when being short of water the master decided to give up sealing and the ship was

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put about with the object of returning to Victoria, British Columbia.

In order to lay in his supply of water Captain Thomas Turtle, who was the master of the ship, found it necessary to put into Gotzleb Harbour, in Attou Island, the western island of the Aleutian group. While engaged there in laying in a supply of water the ship was boarded and seized by an officer, Ensign Harrison, and crew from the United States man-of-war "Mohican," in the afternoon about 5 o'clock of the 30th day of August.

Ensign Harrison took possession of the ship and of the ship's official log-book and ship's log, and overhauled all the papers and kept them in his possession until the evening of the 1st of September. In the interim the master of the "Oscar and Hattie" visited the commander of the "Mohican" on board the "Mohican" and protested against the seizure. Several conversations took place between them at the time, but no written communication passed. Later on in pursuance of orders received from the commander of the "Mohican" the "Oscar and Hattie " with an officer and prize crew on board from the " Mohican " proceeded to Victoria Harbour and the master reported to the Collector of Customs, and the ship was left in charge of the Collector of Customs.

Then an action for condemnation of the ship " Oscar and Hattie," her equipment and everything on board of her, was instituted for having sailed into Gotzleb Harbour, Attou Island, being a place within the prohibited waters of Behring's Sea, as defined by an Order in Council, dated the 9th day of October, 1892, made by Her Majesty the Queen in pursuance of an Act of the Imperial Parliament intituled the Seal Fishery (Behring Sea) Act 1891.

Captain Turtle had been warned on the 18th June, 1892, by an officer of the United States ship "Adams" not to enter the water of Behring's Sea for the purpose of sealing. This officer at the same time delivered to him a copy of the proclamation of the President of the United States and a copy of the convention between Great Britain and the United States, and a copy of the "Seal Fishery (Behring's Sea) Act, 1891."

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In answer to the action, the defendant admitted practically the whole of the allegations, except so far as they related to the purpose for which the ship was in Behring's Sea, and to the contrary alleged that his ship had entered into Gotzleb Harbour solely for the purpose of obtaining a supply of water in order to enable her to return to Victoria, and not for the purpose of sealing, or attempting to seal, in contravention to the rules and regulations agreed upon between the two governments of Great Britain and the United States.

After issue joined and the evidence taken at the trial, a judgment was delivered on the 5th January, 1893, condemning the said ship "Oscar and Hattie," and everything on board of her, as forfeited to Her Majesty in contravention of the act known as the "Seal Fishery (Behring's Sea) Act, 1891," and the owners were also condemned in costs.

The only question raised on this appeal is, whether the " Oscar and Hattie," at the time of her seizure, was being used and employed in hunting seals in the prohibited waters of the Behring Sea.

On Her Majesty's behalf it is contended that under section 5 of the Seal Fisheries Act, 1891, the onus probandi is upon the owner or master of the ship found in the prohibited waters of Behring Sea to show that the ship was not used or employed in contravention of the act, viz., " was not used or employed in killing, taking, hunting, or attempting to kill, take or hunt seals."

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If it is true that the law imposes upon the owner of the ship in such a case the obligation to rebut the presumption of guilt which results from the position of the vessel at the time of the seizure, nevertheless it leaves intact the owner's right to rebut such a presumption by positive proof. The owners of the " Oscar and Hattie " in my opinion have clearly and positively proved the fact that they had not proceeded into the prohibited waters in view of contravening any of the provisions of the fishery act. Captain Turtle stated in his evidence of the 2nd December, 1892, that he had proceeded to Gotzleb Harbour for the sole purpose of renewing his supply of water in order to return to Victoria from his sealing expedition in the Northern Pacific. When he arrived at Gotzleb, the weather was stormy and there was a heavy sea. He went there because it was the only place where he could go. "The wind was very strong and it was impossible for me to get around to the south side of the island." Arriving about seven or eight o'clock in the morning he went ashore to see if he could find a suitable place to water at, and about one o'clock began to fill the tanks, and about 5 o'clock Ensign Harrison of the " Mohican " seized the vessel. Harrison does not in any way contradict Captain Turtle's statement. When he seized the ship he had a couple of boats tied to the stern of the vessel and one boat was coming from the island with three men. All the guns and other appliances were on the schooner in their ordinary position. In his cross-examination he says he does not think the boats were tied to the stern of the schooner for the purpose of sealing; he does not believe there are ever any seals around this island Attou. Several witnesses confirm the statement that it is not a fishing place, that you must proceed two to three hundred miles further to catch seals. Harrison states that he knows there is a suitable place on Attou Island

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where a supply of water can be had. He adds: " there was a heavy swell coming in from the northward and westward." Captain Turtle told them that he had been sealing for a month around Copper Islands, but that he had not been sealing in Behring Sea, and that he had gone to Gotzleb Harbour for the sole purpose of obtaining water and that the fishing season for him was closed.

Commander Johnson of the " Mchican " admits that he almost knew immediately after the seizure that he knew that Captain Turtle had been lately sealing in the neighbourhood of Copper Island, but cannot say whether it was Harrison or Turtle who gave him the information. He also states that there are no seals within 200 miles of Attou. The evidence of Captain Turtle is also corroborated by the evidence of Joseph Brown, a hunter on board the " Oscar and Hattie," who says that a long time previous to going for water on Attou Island, the vessel had been employed around Copper Island.

Now, Sir Matthew Baillie Begbie, in his reasons for judgment in this case reproaches Captain Turtle, while trying to justify himself, of making use of ambiguous expressions, as follows :—

I never lowered a boat in Behring Sea " is an expression which he again repeats, and a third time adopts when repeated to him by his counsel, excepting of course the boats in Gotzleb Harbour, on the 31st August. He uses no other expression of denial." He also adds " that all his words are to be carefully weighed, and it is impossible to carry them further than the dry meaning they express. It is evident that he does not in express terms contradict the charge that he was in Behring Sea attempting to hunt seals and that the schooner was employed for that purpose. All he says is that he, himself, never lowered a boat there."

But if such answers, which the learned Chief Justice qualifies as evasive, are in truth a denial of the complaint of being there for the purposes of sealing, there can be no reproach made to Captain Turtle for making

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use of peculiar but very appropriate expressions, as the following extract of his evidence clearly shows and especially if we remember that the hunting of seals with large vessels can only be carried on by lowering the boats fully equipped in order to get at the seals, for it cannot be done from the high deck of a vessel such as the " Oscar and Hattie." The following are the answers I refer to:—

Q. Never mind what you got from him. Was anything said about seals?—A. He said that he didn't believe I had been sealing at all; he didn't believe I had come into the sea to seal there, he fully believed that I came in there for the sole and whole purpose of getting water.

Q. Well, had you been sealing in the Behring Sea?—A. No, sir; never lowered a boat in the Behring Sea.

Q. Well, you had some seals on board, had you, seal—skins?—A. Yes, sir.

Q. Where had you been sealing?—A. I took them off Copper Island in the North Pacific Ocean.

Q. How far off?—A.Various distances; from 100—Objected to by petitioner's counsel.

A. I never lowered a boat inside the Behring Sea.

Q. You never lowered a boat in the Behring Sea?—A. No,sir.

Q. Outside of going into Attou Island, as referred to.—A. No,sir.

Q. Had you shot any seals there, or killed any in any way, without lowering a boat?—A. No,sir.

Q. Could not?—A. No,sir.

And again at the close of his testimony in re—cross examination by counsel on behalf of the crown he answers as follows:—

Q. (Mr. Pooley) And you did not take any whilst in there?—A. No,sir.

Q. (Mr. Pooley) You say you did not go in for the purpose of taking seals?—A. No,sir.

Q. (Mr. Pooley) Into the Behring Sea?—No,sir.

It is difficult for me to understand how after these several specific denials the learned Chief Justice still hesitated to believe that Capt. Turtle had proceeded to Behring Sea on an illegal errand. When it is known that seal hunting can only be carried on in small boats,

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the answer may be better appreciated. In my opinion, "I never lowered a boat in Behring Sea" is a categorical answer to the question: "Had you been sealing in Behring Sea. It is a complete and perfect denial of the charge of having sealed in Behring Sea. It is twice repeated. Moreover, we see by the answers to the questions above cited that seals are not killed generally except by lowering the boats. Lowering boats is for the purpose of sealing.

It is abundantly clear, in my opinion, that there are formal and positive denials of record by Capt. Turtle that he ever intended fishing for seals in Behring Sea contrary to law.

When leaving Copper Island on his home voyage Attou Island was almost on his way and where he might make a stop for the purpose of taking in a supply of water. It is also in evidence that as a matter of fact he did there obtain a supply of water and that it was owing to the strong winds and heavy sea that he was unable to get around to the south side of the island—Attou, which is situated outside of the prescribed waters. The stress of the weather forced him to go to the north side which happens to be within the prohibited waters. On the whole, I repeat it, the evidence seems to show that he had no intention of contravening any of the provisions of the Fishery Seal Act and that he has not in fact been guilty of any infraction of the provisions of the law.

I am therefore of opinion that the appeal should be allowed and the action for condemnation dismissed, the whole with costs.

TASCHEREAU J.—I take no part in this judgment.

GWYNNE J.—This appeal must, in my opinion, be allowed with costs. Granting that the ship having

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been taken within the Behring Sea cast upon the appellant the onus of proving that the vessel had not been used and employed in taking seals in the Behring Sea, that onus was completely discharged by the evidence of the officers in charge of the vessel, whose veracity was not assailed in the slightest particular. The evidence established beyond doubt that the vessel was taken almost immediately after she had entered the sea on the north side of one of the Aleutian islands, which constituted the extreme southern boundary of the sea where she had entered for water, and within two hundred miles of which, as was shown by independent testimony, seals had never been known to be taken or seen.

The naval officer of the United States who took the vessel and handed her over to the authorities for trial entertained no doubt of the truth of the statement made by the captain of the vessel when taken, as to the purpose for which she had gone to the north side of the island instead of to the south, and had so entered the Behring Sea, namely, the state of the wind at the time, and the wonder is that she should have been taken at all, or being taken, should have been put upon trial.

SEDGEWICK and KING JJ.—Concurred.

Appeal allowed with costs.

Solicitors for appellant: Eberts & Taylor.

Solicitors for respondent: O'Connor & Hogg.