This case involved a vessel fishing for cod by Otter Trawl. The evidence was that the vessel had caught 60,000 lbs. of cod in a open area, but could only take 25,000 lbs. into its tanks at a time. While the first 25,000 lbs. was being processed, the cod end of the net was put back into the water to prevent the fish in the net from freezing. With the net in the water it was necessary for the vessel be under power to prevent the net from being entangled in the propellers. Further, it was necessary for the vessel to pull the net with the wind. This resulted in the vessel going into a closed area with its net partially in the water. The vessel was charged with fishing in closed waters and failing to stop to allow Fisheries officers to board.
With respect to the issue of whether or not the vessel was "fishing" while its net was in the water in a closed area, the court reviewed a number of authorities and concluded that the vessel had "obtained absolute and certain possession" of the fish while it was in an open area. The act of fishing was therefore concluded before the vessel went into the closed area. The placing of the net back in the water, was viewed simply as an act of storage.
With respect to the charge of failing to stop the vessel to allow safe boarding, the court held that the defence of necessity had been established as the vessel could not be safely stopped because of the risk of entangling the net in the propeller.
Counsel for the Crown: Anne Fagan
Counsel for the Accused: Fred Constantine