1. International law permits qualified jurisdiction for revenue purposes to prevent hovering; the Dominion Parliament possesses plenary powers within its assigned legislative subjects. (Para 7 )
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1932 Supreme(SC) 45
Privy Council At Canada
Sir George Lowndes, Wright, Macmillan, Thankerton, Justice Lords Tomlin, JJ.
E.R. Croft -Appellant
Versus
Sylvester Dunphy -Resopndent
Appeal No. 131 of 1931
Decided On : 28-07-1932
Advocates Appeared:
Horace Douglas, G.A. Cameron, Frank Gaham, J.M.G. Stewart
Horace Douglas, G.A. Cameron, Frank Gaham, J.M.G. Stewart
A legislature granted plenary power over customs can enact laws operating beyond ordinary territorial waters to prevent smuggling, as such "hovering" jurisdiction is recognized by international law and historical legislative practice.
Headnote:(A) Customs Act - Sections 151 and 207 - Territorial waters - Legislative competence - Power to legislate beyond ordinary territorial limits for revenue purposes - It is a recognized principle of international law that for certain purposes, notably police, revenue, public health, and fisheries, a State may enact laws affecting the seas surrounding its coasts to a distance seaward which exceeds the ordinary limits of its territory - Such permissive or qualified jurisdiction is exercised to prevent "hovering" on coasts to ensure the execution of revenue laws.
(B) Constitutional Law - Plenary powers of legislation - When a legislature is granted power to legislate on a particular topic, such powers are plenary and of the same nature as those of the sovereign parliament - The scope of such legislation is not restricted by considerations other than those applicable to a fully sovereign state, provided the legislature acts within the limits of the powers conferred upon it.
(C) Legislative Practice - Interpretation of conferred powers - In determining the scope of a legislative power, regard must be had to what is ordinarily treated as embraced within that topic in legislative practice, particularly in the practice of the State which conferred the power - Historical use of anti-smuggling "hovering" laws, which authorized seizure of vessels beyond ordinary territorial limits, indicates that plenary power to legislate on customs includes the power to enact similar executive provisions to render anti-smuggling legislation effective.
Facts of the case:
A vessel carrying dutiable liquors was boarded and seized by a customs officer while at a distance of 11.5 miles from the coast. The seizure was effected under legislation that defined territorial waters, for the purpose of customs examination and seizure, as extending up to 12 marine miles for vessels registered in the Dominion. The owner of the vessel challenged the validity of the seizure, contending that the legislature exceeded its legislative competence by enacting laws that operated beyond the ordinary limits of territorial waters.
Findings of Court:
The legislation purporting to operate to a distance of 12 miles from the coast for customs purposes is valid. The legislature possesses plenary powers to enact customs laws, and the inclusion of provisions to prevent hovering is consistent with both international law and the historical legislative practice of the sovereign parliament that conferred those powers.
Issues: Whether the legislature of a dominion had the competence to enact customs legislation operating beyond the ordinary limits of territorial waters to a distance of 12 miles.
Ratio Decidendi: The court ruled that a state may exercise qualified jurisdiction for fiscal purposes beyond its ordinary territorial limits to prevent smuggling. Since the dominion legislature was granted plenary power to legislate on customs, and such "hovering" provisions had long been an integral part of imperial customs legislation, the dominion parliament was not disabled from enacting similar provisions. The power to legislate on customs necessarily includes the power to make that legislation effective through such extra-territorial measures.
Result: Appeal allowed.
Legal Category Hierarchy
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constitutional law
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division of powers
- legislative competence
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division of powers
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international law
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territorial waters
- revenue jurisdiction (Para 7)
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territorial waters
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administrative law
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customs and excise
- seizure and forfeiture
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customs and excise
Table of Contents
2. Can a state legislate beyond its territorial waters for revenue purposes?
Yes, international law recognizes that states may exercise qualified or permissive jurisdiction beyond ordinary territorial limits for specific purposes, including revenue, police, public health, and fisheries, to prevent hovering and protect fiscal regulations. (Para 7 )
Lord Macmillan.-
On 10th June 1929 the schooner “Dorothy M. Smart” sailed for “the high seas” from the French island of St. Pierre with a cargo on board of rum and other liquors, which are dutiable under Canadian law. The vessel was registered in Nova Scotia and with her cargo was the property of the respondent, who is resident in Nova Scotia. On 13th June 1929 the schooner, when at a distance of 11½ miles from the coast of Nova Scotia, was boarded by the appellant, an officer in the Customs service of the Canadian Government. The cargo having been found to consist of dutiable goods, the vessel and cargo were seized and taken into port.
The validity of the seizure, which was effected in pursuance of powers conferred by the CUSTOMS ACT OF CANADA , Revised Statutes of Canada 1927, c. 42, as amended by 18 and 19 Geo. 5, c. 16, is challenged in the present proceedings on the broad ground that the Parliament of the Dominion in conferring the powers in question exceeded its legislative competence. The enactments impugned are contained in Ss. 151 and 207 of the statute as amended. S. 151 provides as follows:
“(1) If any vessel is hovering in territorial waters of Canada any officer may go on board such vessel and examine her cargo and may also examine the master or person in command upon oath touching the cargo and voyage and bring the vessel into port.”
* * * *
(7) For the purposes of this section and S. 207 of this Act 'Territorial waters of Canada' shall mean the waters forming part of the territory of the Dominion of Canada and the waters adjacent to the Dominion within three marine miles thereof in case of any vessel and within 12 marine miles thereof in the case of any vessel registered in Canada.”
Section 207 enacts as follows:
“(1) If upon the examination of any officer of the cargo of any vessel hovering in territorial waters of Canada any dutiable goods or any goods the importation of which into Canada is prohibited are found on board such vessel with her ... cargo shall be seized and forfeited....”
The question accordingly is whether it was within the power of the Dominion Parliament to pass such legislation purporting to operate to a distance of 12 miles from the coast of Canada. To test this question the respondent as plaintiff below initiated proceedings in the Supreme Court of Nova Scotia against the Customs officer who had seized his vessel and cargo, claiming their return and damages for their detention on the ground of the illegality of the seizure. The trial Judge upheld the validity of the legislation and consequently of the seizure, and his decision was affirmed by five Judges of the Supreme Court of Nova Scotia en banco. On an appeal being taken to the Supreme Court of Canada this judgment was reversed by a majority consisting of Duff, Rinfret and Lamont, JJ., Newcombe and Cannon, JJ., dissenting. The matter now comes before their Lordships on the defendant's appeal.
It may be accepted as a general principle that States can legislate effectively only for their own territories. To what distance seaward the territory of a State is to be taken as extending is a question of international law upon which their Lordships do not deem it necessary or proper to pronounce. But whatever be the limits of territorial waters in the international sense, it has long been recognized that for certain purposes, notably those of police, revenue, public health and fisheries, a State may enact laws affecting the seas surrounding its coasts to a distance seaward which exceeds the ordinary limits of its territory. There is the weighty authority to this effect of Lord Stowell, who, when Sir William Scott, said in the case of Le Louis , (1817) 2 Dodson 210 at p. 245:
“Maritime States have claimed a right of visitation and inquiry within those parts of the ocean adjoining to their shores which the common courtesy of nations has for their common convenience allowed to be considered as parts of their dominions for various domestic purposes, partic
