Besides the facts described above, in which the Embassy of Spain had a direct involvement in their development and proposed solutions, there are many other issues or events which, without directly involving the Embassy of Spain in Canada, had to be reflected in this Directory of Fisheries and especially within the Program "Sí, Spain".

Some of these follow and others will be added as they are being produced:

1. CANADA-SPAIN: OWNER AND CAPTAIN OF SPANISH FISHING VESSEL "ESTAI" TAKE LEGAL ACTION AGAINST CANADA

By Miguel Sanz

Montreal (Canada), 2 August (EFE). The owner of the Spanish fishing vessel "Estai" and her Master have filed an action against Canada for damages caused during the so-called "turbot war" last March.

Through an action filed in St. John's Newfoundland to which EFE has had access, the owner "José Pereira e Hijos, S.A." and the Master Enrique Dávila González accuse Canada of violating rules of the International Law and the Canadian Law proper and claim damages.

During the month of March, Canada seized the Spanish fishing vessel in international waters under the accusation of unlawful fishing and made her Master appear before the provincial Court of St. John's Newfoundland.

The action brought on July 28th against the Attorney General in representation of the Queen of England (Head of the Canadian State) and the Minister of Fisheries and Oceans, Brian Tobin, states that the defendants did not have "reasonable and probable" grounds for the institution of proceedings against the Estai and her Master.

The action contends that the seizure of the ship as well as the subsequent arrests and accusations were made "in bad faith" by the Defendants and that the prosecutions were "malicious".

The Plaintiffs also accuse the Attorney General and the Minister of Fisheries of "using the criminal justice system for ends which it was not designed to serve and thereby abused their offices..."

One of the main statements on which the action is based is the fact that the Master of the "Estai", Enrique Dávila, "was not given any time to privately meet with and instruct Counsel prior to Court appearance".

Furthermore, the action refers to the fact that the representation of the shipowner of the "Estai" was not given opportunity to seek legal counsel with regard to the accusation laid against the ship.

According to the plaintiffs, both facts "violated the rights of Enrique Dávila Gonzalez and the vessel "Estai" under Section 10 (b) of the Canadian Charter of Rights and Freedoms giving everyone the right on arrest or detention to retain and instruct Counsel without delay.

The action also refers to the fact that the legal amendment by which Canada autogranted themselves the right to seize vessels in international waters had still not been gazetted on March 9th, on the day the Estai was arrested.

According to the Plaintiffs, the amendment by the Canadian government which was not "properly exempted from the requirements of gazetting" was of "no force or effect".

The action also contends that the fact that the legal amendment approved by the Canadian government referred specifically to Spanish and Portuguese vessels is "discriminatory" and also constitutes a violation of the Canadian Charter of Rights and Freedoms that advocates equality, without discrimination of racial, ethnical or national origin.

In another statement of the action, the Attorney General and Brian Tobin are made responsible for the harassing suffered by the Master of the "Estai", in St. John's Newfoundland, by the public who had gathered for the arrival of the vessel.

Enrique Davila was forced to proceed on foot, from the "Estai" to the Court, in the midst of great tumult, insults, jostling and objects being thrown, which lasted several minutes, due to the fact that the door of the Court House was locked.

The plaintiffs claim an "exemplary and punitive" sentence against the defendants and claim special damages, among other grounds set forth, for the detention of the "Estai", for having made her navigate through ice over the objections of her Master, and for having been forced to cease fishing and ordered to proceed to St. John's Newfoundland.

Besides the costs of the trial, the action claims general damages and prejudices for infraction, endangering on the high seas, piracy, unlawful seizure, unlawful arrest of the "Estai" and her master, negligence and illegal detention.

The chapter of general damages and prejudices is also extended to other grounds such as proceeding in bad faith, insufficient protection for Enrique Dávila while in custody, violation of the Charter of Rights, eviction of the crew from the "Estai" and unlawful discharge of her cargo. -EFE

1. CANADA-ESPAÑA: EMPRESA Y CAPITAN PESQUERO ESPAÑOL "ESTAI" DEMANDAN A CANADA

Montreal (Canadá), 2 ago (EFE). - La empresa propietaria del pesquero español "Estai" y su capitán presentaron una demanda a Canadá por daños y perjuicios ocasionados durante la denominada "guerra del fletán" el pasado mes de marzo.

La empresa "José Pereira e Hijos S.A." y el capitán Enrique Dávila González, a través de una demanda presentada en San Juan de Terranova, y a la que EFE ha tenido acceso, acusan a Canadá de violar leyes tanto del Derecho internacional como del propio Derecho canadiense y le reclaman daños y perjuicios.

Durante el mes de marzo, Canadá capturó al pesquero español en aguas internacionales bajo la acusación de pesca ilegal e hizo comparecer a su capitán en el juzgado provincial de San Juan de Terranova.

La querella, presentado el día 28 de julio contra el fiscal de la Corona en representación de la Reina de Inglaterra (jefa del Estado canadiense) y el ministro de Pesca y Océanos, Brian Tobin, afirma que los demandados no tenían "motivos razonables ni probables" para procesar ni al "Estai" ni a su capitán.

La demanda defiende que tanto la captura del barco como los posteriores arrestos y acusaciones fueron hechas "de mala fe por los querellados", así como que el procesamiento fue "de mala voluntad".

Los querellantes acusan también al fiscal de la Corona y al ministro de Pesca de haber "utilizado el sistema de justicia criminal para fines para los que no fue diseñado y, por tanto, de haber abusado de sus cargos (...)"

Uno de los puntos principales en los cuales se basa la demanda es el hecho de que al capitán del "Estai", Enrique Dávila, "no se le concedió tiempo para hablar en privado con un abogado y recibir consejo antes de su comparecencia judicial".

Asimismo, la demanda hace referencia a que la representación del armador del "Estai" tampoco tuvo "ninguna oportunidad" para obtener asesoramiento legal respecto a la acusación formulada contra el barco.

Ambos hechos, según los querellantes, violaron los derechos de Enrique Dávila González y del barco "Estai" recogidos en la sección 10 b de la Carta Canadiense de Derechos y Libertades", que concede a todas las personas arrestadas o detenidas el derecho de ver a un abogado inmediatamente.

La demanda también hace referencia al hecho de que la enmienda legal por la que Canadá se concedió el derecho de capturar barcos en aguas internacionales aún no había aparecido en el boletín oficial del Estado el 9 de marzo, día en que el "Estai" fue apresado.

Según los querellantes, la enmíenda adoptado por el Gobierno canadiense, que no fue debidamente exceptuada" de ser publicada en el boletín oficial, no tenía "ningún vigor o efecto.

La demanda considera asimismo que el hecho de que la enmienda legal aprobada por el Gobierno canadiense se refiriera específicamente a barcos de nacionalidad española y portuguesa es "discriminatoria" y constituye también una violación de la Carta Canadiense de Derechos y Libertades, que propugna la igualdad, sin discriminación por raza, origen étnico o nacionalidad.

En otro de los puntos de la querella se hace responsable al fiscal de la Corona y a Brian Tobin del hostigamiento sufrido por el capitán del "Estai", en San Juan de Terranova, de parte del público congregado para esperar al barco.

Enrique Dávila fue forzado a ir a pie, del "Estai" al juzgado, en medio de un gran tumulto, con insultos, empujones y lanzamiento de objetos, que se prolongaron durante varios minutos, debido a que la puerta del edificio tardó en ser abierta.

Los querellantes solicitan una sentencia "ejemplar y punitiva" contra los demandados y reclaman daños y perjuicios especiales por la detención del "Estai", por haberle hecho navegar entre hielos contra la voluntad de su capitán, así como por tener que dejar de faenar y por tener que viajar hasta San Juan de Terranova, entre otros motivos expuestos.

La demanda reclama, además de las costas del juicio, daños y perjuicios generales por infracción y causar peligro en alta mar, por piratería, apresamiento ilegal, arresto ilegal del "Estai" y su capitán, negligencia, y detención ilegal.

El capítulo de daños y perjuicios generales se extiende también a otras causas como procesamiento de mala fe, insuficiente protección para Enrique Dávila durante su costodia, violación de la Carta de Derechos, desalojo de la tripulación del "Estai" y descarga ilegal de la pesca del barco. -EFE

ms/emr/rcm

08/02/05-39/95

2. Full text of the statement of claims.

1.

The Plaintiff José Pereira e Hijos, S.A. is a body corporate under the law of Spain and at all times material hereto was the owner and operator of the M.V. "ESTAI".

2.

The Plaintiff Enrique Dávila González is a Master Mariner and a resident and citizen of Spain and at all times material hereto was the Master of the Motor Vessel "ESTAI".

3.

This action is brought against Her Majesty the Queen in Right of Canada pursuant to the provisions of the Crown Liability and Proceedings Act of Canada and is taken in the name of the Attorney General of Canada pursuant to Section 23 of the Crown Liability and Proceedings Act. This action is also brought against the Attorney General of Canada in his capacity as Attorney General of Canada.

4.

The Defendant the Minister of Fisheries and Oceans is the Chief Officer of the Department of Fisheries and Oceans of the Government of Canada.

5.

The M.V. "ESTAI" is a side strawler registered at the Port of Vigo, Spain and with its certificates, including safety certificate, tonnage certificate and equipment certificate issued in accordance with the laws of Spain and with its Master and crew citizens of and residents of Spain.

6.

On the 27th day of October 1994, The M.V. "ESTAI", under the command of the Plaintiff Enrique Dávila González sailed from the Port of Vigo, Spain enroute to traditional fishing grounds in international waters on the Grand Banks in order to conduct an approximately seven month fishing campaign to May, 1995. The said traditional fishing grounds are located in fishing zone 3M of the Northwest Atlantic Fishery Organization Convention Area and those portions of fishing zones 3L and 3N lying to the east of Canadian Fisheries waters.

7.

At all times material hereto, the "ESTAI" and its Master and crew sailed and fished pursuant to authorization, licences and quotas issued by the European Community and its member country Spain.

8.

At all times material hereto, the M.V. "ESTAI" sailed with a Spanish Master and a Spanish crew under the flag of Spain and was subject to the exclusive jurisdiction of Spain pursuant to Maritime Law, established principles of international law, Spanish Law, Canadian Law, Article 6 of the Geneva Convention on the High Seas, 1958, and Article 92.1 of the United Nations Convention on the Law of the Sea, 1982.

9.

Following an eight day voyage, the "ESTAI" reached the fishing grounds and commenced fishing operation on the 3rd day of November, 1994 in international waters in NAFO Division 3M, at a position to the north of the Flemish Cap. The midday position was 48°06'N 43°59'W, which position is in international waters in excess of 300 miles east of Canada.

10.

The M.V. "ESTAI" continued fishing from 3rd November, 1994 until 5th February, 1995 in international waters in NAFO Division 3M and portions of NAFO Division 3L and 3N lying outside Canadian Fisheries waters. On the 5th day of February, 1995, the M.V. "ESTAI", because of a death at sea, commenced to sail to St-Pierre, arrived there on 7th February, 1995, and remained in Port in St-Pierre until 9th February when it returned to the fishing grounds, resuming fishing on 12th February in international waters in Division 3M. Between the 12th day of February, 1995 and 9th day of March, 1995, the "ESTAI" remained in international waters in furtherance of its fishing campaign.

11.

On the 1st day of March, 1995, fishing operations were conducted in international waters in Division 3L outside Canadian Fisheries waters. The vessel continued to fish in international waters until March 6th, 1995 when it sailed outside the NAFO Zone because of a communication from Canada threatening vessels fishing Greenland halibut (turbot) with seizure and fines because according to them Spanish vessels had completed their quota. On 7th March, 1995, the "ESTAI" was advised that following a meeting between Ship owners and the Secretary for Fisheries of Spain that they could continue fishing because the European Community had a quota of 18,600 metric tonnes and the Spanish Secretary for Fisheries was heard on the radio that Spanish are within their rights to continue fishing and that the Canadian Authorities had been advised. The "ESTAI" returned to the fishing grounds and resumed fishing on March 8th.

12.

On the 9th day of March, 1995 while the vessel "ESTAI" was fishing in the area of 48°10.7'N 47°21.6'W, which position is in international waters approximately 240 miles east of Canada, an armed boarding team from the Canadian Fisheries Patrol Vessel "CAPE ROGER" attempted to board the "ESTAI" at 14:03 hours. The attempted boarding was made without any contact by radio or other means.

13.

Tha Plaintiffs state that the attempted boarding by Canadian Fisheries Officers and other Canadian Officiers referred to in the preceding paragraph hereof was unlawful in that the "ESTAI" was a Spanish ship in international waters and was clearly identified by flag, home port name, and side number as being a Spanish ship.

14.

The Plaintiff states that in order to avoid an unlawful boarding on the high seas, that the Master of the "ESTAI" cut the warps leading to the vessel's trawl and was thereby able to increase speed with a view to avoiding unlawful boarding in international waters on the high seas.

15.

The Plaintiffs state further that the "CAPE ROGER" pursued the "ESTAI" and came dangerously close to the "ESTAI" whereby the "ESTAI" and its crew were put in danger. The Plaintiffs state that the "CAPE ROGER" was at all times material hereto owned by Her Majesty the Queen in Right of Canada and was operated by employees, servants and agents of Her Majesty the Queen who were under the direction of the Defendant The Minister of Fisheries and Oceans. The Plaintiffs state that the actions of the Defendants in pursuing, through their servants and agents, the vessel "ESTAI" and in coming too close to the "ESTAI" and in putting the "ESTAI" and its crew in danger, were unlawful and constituted and unlawful trespass by the Defendants on the high seas.

16.

The Plaintiffs state further that in addition to the fisheries patrol vessel "CAPE ROGER", that a second Canadian fisheries patrol vessel the "LEONARD COWLEY" and the Canadian Coast Guard ship "SIR WILFRED GRENFELL", both of which were also owned by the Defendant Her Majesty the Queen and operated by employees, servants and agents of Her Majesty thee Queen and under the direction and control of the Defendants, continued to unlawfully pursue the "ESTAI" in international waters, at times in dense fog, and in contravention of the freedom of the seas and the rule of law.

17.

The Plaintiffs state further that at 17:40 hours , March 9th, 1995 the Defendants vessel "SIR WILFRED GRENFELL" unlawfully used water cannon against the "ESTAI" on the high seas, and this action constituted an unlawful trespass against the Plaintiffs and the Plaintiffs' vessel "ESTAI" by the Defendants on the high seas.

18.

At 17:57 hours, March 9th, 1995, the Defendants ship "CAPE ROGER", being operated as aforesaid by servants and agents of Her Majesty the Queen and under the direction of the Defendants, opened fire on the "ESTAI" on the high seas. There were two bursts of machine gun fire. The Plaintiffs state that the actions of the Defendants by their employees, servants and agents in opening fire on the high seas on an unarmed fishing vessel, clearly marked as being of Spanish Nationality, was unlawful and constituted an unlawful trespass by the Defendants upon the Plaintiffs and the Plaintiffs' vessel "ESTAI".

19.

Following the firing of shots at the "ESTAI" as set forth in the preceding paragraph hereof, the Master of the "ESTAI" stopped his vessel. At 18:15 hours, an armed boarding team from the Defendants' vessel "CAPE ROGER" consisting of Officers of the Royal Canadian Mounted Police and Canadian Fisheries Officers who were employees, servants and agents of the Defendants and under the control of the Defendants unlawfully boarded the "ESTAI" and unlawfully took control of the "ESTAI". The Plaintiffs state that the actions of the Defendants constituted an unlawful trespass on the high seas by the Defendants and an act of piracy.

20.

The Plaintiffs repeat the foregoing and state that the vessel "ESTAI" and the Plaintiff Enrique Dávila González were unlawfully arrested by the Defendants through their employees, servants and agents on the high seas in international waters and unlawfully ordered to proceed to the Canadian Port of St. John's Newfoundland.

21.

Following the arrest of the "ESTAI" and its Master at 18:25 hours, March 9th, 1995, the "ESTAI" was unlawfully taken by the Defendants to St. John's and docked there on Sunday afternoon, March 12th, 1995. During the voyage to St. John's, the Defendants negligently ordered and caused the "ESTAI" to be sailed through a field of multi year Arctic ice over the objections of the Plaintiff Captain Dávila, whereby the "ESTAI" was damaged and the Plaintiff Captain Dávila, whereby the "ESTAI" was damaged and the Plaintiffs suffered damages.

22.

At St. Johns's, the "ESTAI" was brought by the Defendants to Berth 9E on the north side of St. John's Harbour, double berthed outside the "CAPE ROGER", and immediately adjacent to the site of a public demonstration of 10,000 people on the St. John's waterfront.

23.

By Information bearing date 12th March, 1995, the Defendants through the Defendants' employee, servant and agent Fishery Officer, Frank Snelgrove, charged the Plaintiff Enrique Dávila González with four breaches of the Coastal Fisheries Protection Act of Canada and charged the motor vessel "ESTAI" with one breach of the Coastal Fisheries Protection Act of Canada. The said Enrique Dávila González and the motor vessel "ESTAI" had been arrested on 9th March, 1995 and continue under arrest.

24.

The Plaintiffs repeat the foregoing and state that upon arrival of the "ESTAI" in St. John's that the Defendants refused to allow the said Enrique Dávila González or the vessel "ESTAI" to have a reasonable time to instruct Counsel concerning the charges laid against them and the Defendants, through their employees, servants and agents required that the said Enrique Dávila González leave the ship and attend Court that day, Sunday March 12th, 1995. The Plaintiffs state that the Plaintiff Enrique Dávila González was not given any time to privately meet with an instruct Counsel prior to Court appearance. The Plaintiffs state further that no opportunity was given for the instruction of Counsel on behalf of the motor vessel "ESTAI" in respect to the charge laid against it. The Plaintiffs state that the Defendants violated the rights of Enrique Dávila González and the motor vessel "ESTAI" under Section 10(b) of the Canadian Charter of Rights and Freedoms giving everyone the right on arrest or detention to retain and instruct Counsel without delay.

25.

The Plaintiffs state that at or about 5:00 p.m. on Sunday afternoon, March 12th, 1995, the Plaintiff Enrique Dávila González still under arrest, was escorted by Canadian Fisheries Officers and other officers, employees, servants and agents of the Defendants, from his ship "ESTAI" to the Provincial Court of Newfoundland. The trip was on foot, and the Plaintiff Enrique Dávila González was forced to walk through a gauntlet of hostile demonstrators who had remained behind after the conclusion of the public demonstration. During the journey, the Plaintiff Enrique Dávila González was abused, jostled and subjected to obscenities and an assault was committed when eggs were thrown at the Plaintiff Enrique Dávila González and Spanish, French, German and European Community Diplomats accompanying him. The Plaintiffs state that the Defendants Her Majesty the Queen in Right of Canada and the Attorney General of Canada and the Minister of Fisheries and Oceans of Canada had a duty to protect Enrique Dávila González, inter alia, and failed in that duty, and compounded such failure by negligently failing to make prior arrangements to have the Court House door unlocked, whereby the abuse, jostling, obscenities and assaults continued.

26.

At approximately 5:30 p.m., Sunday, March 12th, 1995, the Plaintiff Enrique Dávila González personally and the ship "ESTAI", appearing by Counsel, appeared in the Provincial Court of Newfoundland, where the charges herinbefore referred to were read and bail in the amount of $8,000.00 for Captain Dávila was ordered. Bail was immediately posted, under protest, and the Plaintiff Enrique Dávila González was released from arrest.

27.

On the evening of March 12th, 1995, the entire crew of the "ESTAI" was evicted from the "ESTAI" by the Defendants. The Plaintiffs state that the eviction of the crew of the "ESTAI" by the Defendants was unlawful and resulted in damages to the Plaintiffs.

28.

On the 14th day of March, 1995, the Defendant commenced off-loading of the cargo of fish on board the motor vessel "ESTAI", notwithstanding that the motor vessel "ESTAI" had been fishing on the international sea and had been fishing prior to the enactment of any Canadian Regulation purporting to regulate fishing by Spanish vessels on the high seas. The Defendants continued to off-load the "ESTAI" and refused to stop until the Plaintiffs agreed to post, and posted, bail for the "ESTAI". On the 15th day of March, 1995, the Plaintiffs arranged bail for the "ESTAI" in the amount of $500,000.00, and the vessel was released from arrest and seizure, and thereupon discharge operations by the Defendants ceased. The Defendants continued to hold fish and documents seized from the "ESTAI". The Plaintiffs state that the actions of the Defendants in demanding bail for the "ESTAI" and in off-loading and retaining fish from the "ESTAI " and in seizing all ships documents from the "ESTAI" were unlawful and tortious.

29.

At noon on the 18th day of April, 1995, the Defendants gave notice to the Plaintiffs, through the Plaintiffs' Counsel, that a Stay of Proceedings of the charges against the Plaintiff Enrique Dávila González and the charge against the motor vessel "ESTAI" would be filed that afternoon. At 2:00 p.m., April 18th, 1995, the Defendants appearing by Counsel in open Court filed a Stay of the said charges. On the 19th day of April, 1995, the Provincial Court of Newfoundland returned to the Plaintiffs, through Counsel, the bail in the amount of $8,000.00 in respect of the Plaintiff Enrique Dávila González, together with interest thereon of $8.11, and the original Bond in the amount of $500,000.00 representing bail for the vessel "ESTAI". Subsequently, the fish seized and off-loaded from the "ESTAI" was returned to the Plaintiffs and the Defendants made payment in the amount of $41,000.00 in respect of costs of redelivering the fish from a freezer facility in Mount Pearl, Newfoundland to the Plaintiffs.

30.

The Plaintiffs state that the actions of the Defendants, their employees, servants and agents in the boarding of the "ESTAI" on March 12th, 1995 and all matters related thereto as herein set forth were unlawful and constituted an unlawful trespass and further the Plaintiff's state that the actions of the Defendants in the laying of charges against the Plaintiff Enrique Dávila González and the vessel "ESTAI" were unlawful and made in bad faith as hereinafter set forth.

31.

The Plaintiffs state that the Defendants purported to act under authority of P.C. 1995-372 of March 3rd, 1995, being amendments to the Coastal Fisheries Protection Regulation. Section 2 of the amendment enacted a new Section 21(2)(b) of the Regulations defining prescribed classes of foreign fishing vessels for the purposes of Section 5.2 of the Coastal Fisheries Protection Act. The new Section 21(2)(b) read as follows:

          21(2)(b)  The following classes of foreign fishing
                    vessels are prescribed classes, namely

               (I)       foreign fishing vessels without
                         nationality,
               (II)      foreign fishing vessels that fly the
                         flag of any state set out in Table III
                         to this section, and
               (III)     foreign fishing vessels that fly the
                         flag of any state set out in Table IV
                         to this section.

Table III sets out six "flags of convenience" nations.

Table IV as enacted by the said P.C. 1995-372 on March 3rd, 1995 lists two states as follows:

               Item                States

               1                   Portugal
               2                   Spain

32.

The Plaintiffs repeat paragraph 30 hereof and state that the regulation PC. 1995-372 of March 3rd, 1995 in purporting to bring two nations and no others within the ambit of Canadian Regulation of the International Seas beyond the 200 mile limit of Canada is discrimatory and in violation of Section 15(1) of the Canadian Charter of Rights and Freedoms which provides as follows:

     15(1)     Every individual is equal before and under the
               law and has the right to the equal protection and
               equal benefit of the law without discrimination
               and, in particular, without discrimination based
               on race, nationality or ethnic origin, colour,
               religion, sex, age or mental or physical
               disability.

The Plaintiffs state that Spanish nationals sail Spanish Vessels, and that Section 21(2)(b) of the Coastal Fisheries Protection Regulations as amended and Table IV thereof discriminate on the basis of race and on the basis of national origin and on the basis of ethnic origin and violate Section 15(1) of the Charter and are of no force or effect.

33.

The Plaintiffs state further that the Regulation P.C. 1995- 372 of March 3rd, 1995 sets out in Table V a list of seven prescribed conservation and management measures applicable by virtue of Section 21(2)(b) to Table IV vessels, that is say to Spanish and Portuguese vessels but not applicable to the vessels of any other national including flags of convenience vessels and Canadian vessels. The Plaintiffs state that the Regulations in imposing management and conservation measures applicable only to Spanish and Portuguese vessels violate Section 15 of the Charter and are of no force or effect.

34.

The Plaintiffs state further that the said amendments to the Coastal Fisheries Protection Act contained in P.C. 1995-372 of March 3rd, 1995 in purporting to bring Spanish vessels and Portuguese vessels but not vessels generally within the ambit of the Coastal Fisheries Protection Regulations while on the high seas and in purporting to impose conservation and management measures on Spanish and Portuguese vessels but not on the vessels of any other nationality violate Section 7 of the Canadian Charter of Rights and Freedoms which reads as follows:

     7.   Everyone has the right to life, liberty and security
          of the person and the right not to be deprived thereof
          except in accordance with the principles of
          fundamental justice.

The Plaintiffs state that the Regulations hereinbefore referred to violate the principles of fundamental justice and are of no force or effect.

35.

The Plaintiffs repeat the preceding paragraph hereof and state that the Regulations in question violate the provisions of Section 8 of the Canadian Charter of Rights and Freedoms, the right to be secure against unreasonable search and seizure, in that the Regulations apply to Spanish or Portuguese vessels but not the vessels of any other country, and the Regulations are thereby unreasonable and purport to authorize unreasonable search and seizure in contravention of Section 8, and are of no force or effect.

36.

The Plaintiffs state further that P.C. 1995-372 of March 3rd, enacting Regulations making Spanish and Portuguese vessels subject to Canadian Law on the high seas beyond the 200 mile limit was ultra vires the Regulation making authority conferred on the Governor-in-Council by Section 6 of the Coastal Fisheries Protection Act. Section 6 of the Coastal Fisheries Protection Act authorizes the Governor-in-Council to make Regulations.

(b.2) Prescribing any class of foreign fishing vessels for the purposes of Section 5.2

Section 5.2 precludes fishing in the NAFO regulatory Area, which includes the high seas beyond the Coast of Canada, by persons on board "a foreign fishing vessel of a prescribed class."

The Plaintiffs state that there was no authority conferred by Section 6 of the Coastal Fisheries Protection Act, or otherwise, to make regulations that discriminate on the basis of national origin of the fishing vessel, and that in purporting to regulate on the basis of race, national or ethnic origin, the said Regulation P.C. 1995-372 of March 3rd, 1995 were ultra vires Section 6 of the Coastal Fisheries Protection Act.

37.

The Plaintiffs state further that Section 6 of the Coastal Fisheries Protection Act authorizes the making of Regulations prescribing "any class of foreign fishing vessels" for the purposes of Section 5.2, and that the words "class of foreign fishing vessel" may refer to size, tonnage, construction, fishing equipment used, species sought, method of propulsion, but that the word "class" in relation to fishing vessels does not include the question of flag or national origin. Flag or national origin are not items of "class". The Plaintiffs state that the Regulations P.C. 1995-372 of March 3rd., 1995 were ultra vires the Coastal Fisheries Protection Act, Secion 6.

38.

The Plaintiffs state that the amendment to the Coastal Fisheries Protection Act contained in P.C. 1995-372 of March 3rd, 1995 had not been gazetted six days later when the Defendants opened fire upon and boarded the "ESTAI" in international waters and that by reason of non-gazetting the Regulations were of no force or effect. The Plaintiffs state further that the said Regulations of March 3rd, 1995 was not properly exempted from the requirements of gazetting and further that reasonable steps had not been taken to bring the purport of the Regulations to the notice of the Plaintiffs and each of them.

39.

The Plaintiffs state further that by virtue of the fact that the vessel "ESTAI" began its fishing campaign on 27th October, 1994 and entered the NAFO Convention Area on 3rd November, 1994 and was at all times material hereto subject to the exclusive jurisdiction of Spain and to Spanish law and to the laws of the European Community of which Spain is a member that subsequently enacted Canadian Regulations of March 3rd, 1995 had no application to the "ESTAI" while it continued its fishing campaign, and in particular, had no application to the activities of the "ESTAI" between the 7th day of March, 1995 and the 10th day of March, 1995.

40.

The Plaintiffs state further that the Regulations of March 3rd, 1995 were passed by the Governor-in-Council when the European Community refused to accept a quota for turbot (Greenland halibut) set by the Northwest Atlantic Fisheries Organization whereby Canada received 60 percent of the quota for 1995 and the fifteen nations of the European Community received 12.6 percent to be divided between them. This represented an increase in the Canadian quota of over 300 percent over the previous years catch, and the decrease in the European Community quota to 8.5 percent of the previous years catch. In accordance with the Rules and Regulations of the Northwest Atlantic Fisheries Organization, the European Community withdrew from the NAFO quota and established its own quota for turbot and agreed to respect the overall NAFO total allowable catch for 1995. The Defendants responded to this with new Canadian Regulations, as contained in P.C. 1995-372 of March 3rd, 1995 purporting to outlaw Spanish fishing on the high seas and six days later opened fire upon the Plaintiffs ship "ESTAI" and unlawfully boarded the "ESTAI" on the high seas. Following negotiations between the European Community and Canada, agreement was reached on 20th April, 1995 respecting control and enforcement measures, total allowable catch for turbot (Greenland halibut) for 1995, inter alia, and quotas and other matters respecting, inter alia, the internatioanal waters where the "ESTAI" had been fishing. Pursuant to the said agreement, the Regulations enacted by P.C. 1995-372 of March 3rd, 1995 were amended by deleting the two states in Table IV thereof, namely Spain and Portugal, with the result that the Defendants no longer purported to regulate Spanish vessels on the high seas - Coastal Fisheries Protection Regulations Amendment of May 1st, 1995, Canada Gazette, Part II, May 17th, 1995, Page 1445.

41.

The Plaintiffs repeat the foregoing and state that the dispute between Canada and the European Community was precipitated by the refusal of the European Community to accept an unfair quota of turbot (Greenland halibut) obtained by Canada. The Plaintiffs state further that the seizure of the "ESTAI" and arrest of the "ESTAI" and its Master and the laying of charges were used by Canada for the purpose of forcing an international agreement with the European Community covering turbot inter alia. The seizure, arrests and charges were used by Canada as bartering pieces towards the Canadian objective of obtaining a new international agreement concerning turbot and fishing generally. The Plaintiffs state that the Defendants did not have reasonalbe and probable grounds for the institution of proceedings against the Plaintiff Enrique Dávila González and the motor vessel "ESTAI" and used the criminal justice system for ends which it was not designed to serve and thereby abused the offices of Attorney General and Minister of Fisheries and Oceans. The Plaintiffs state that the seizure, arrests and charges were made in bad faith by the Defendants and that the prosecutions were malicious.

42.

The Plaintiffs state further that the actions of the Defendants is attempting to board the "ESTAI" without notice on the high seas, and in using water cannon and guns against the "ESTAI", and in boarding the "ESTAI" under force of automatic weapons on the high seas were high- handed and oppressive, and justify an award of punitive and exemplary damages. The Plaintiffs state further that the actions of the Defendants were precipitated by a breakdown in the fish quota system theretofore in force and the laying of charges against the Plaintiff Enrique Dávila González and the motor vessel "ESTAI" and the baragaining by the Defendants in relation to such charges involved blatant misuse of the prosecutorial power and abuse of process, and justify an award of punitive and exemplary damages against the Defendants.

43.

As a result of the actions of the Defendants, the Plaintiffs have suffered damages and claim damages against the Defendants for trespass, assault, malicious prosecution and negligent navigation and claim as follows:

(a)

Special Damages

(i)

Detention of Plaintiffs ship "ESTAI" March 9th - March 15th, 1995;

(ii)

Damages to the "ESTAI" from ice on the voyage to St. John's March 9-12, 1995;

(iii)

Loss of fishing for the period March 9th-May 31st, 1995;

(iv)

Operating expenses from fishing grounds to St. John's and the reverse thereof;

(v)

Hotel, travel, legal, bonding, bail, ships agency and other expenses.

(b)

General Damages for trespass on the high seas, endangerment on the high seas, piracy, unlawful seizure, unlawful arrest of the Motor Vessel "ESTAI", unlawful arrest of the Plaintiff Captain Dávila, negligence, unlawful detention and interference with the Plaintiff's sevants and agents, namely the crew of the Motor Vessel "ESTAI", malicious prosecution of the Motor Vessel "ESTAI" and the Plaintiff Captain Dávila, abuse of process, failure to protect Captain Dávila while in custody, interference with Charter right to retain and instsruct Counsel without delay (Section 10(b)) and also interference with Charter rights under Sections 15, 7 and 8, eviction of crew from the "ESTAI", and unlawful discharage of cargo.

(c)

Punitive Damages

(d)

Exemplary Damages.

AND the Plaintiffs claim the costs of this action.

DATED at St. John's, in the Province of Newfoundland, this 28th day of July, 1995.

______________________________
JOHN R. SINNOTT, Q.C. of
Lewis, Sinnott & Heneghan
Solicitors for the Plaintiffs.


ADDRESS FOR SERVICE:

267 Duckworth Street
P.O. Box 884
St. John's, Newfoundland
A1C 5L7


TO:
Majesty the Queen in Right of Canada
c/o The Attorney General of Canada

AND TO:
The Attorney General of Canada
as Attorney General
c/o The Deputy Attorney General of Canada



AND TO:
The Minister of Fisheries and Oceans

You are required to file in the Registry of the Federal Court of
Canada, at the City of Ottawa, or at a local office of the Court, your Defence to the within Statement of Claim or Declaration within thirty (30) days (or such other time as may be fixed by an Order for Service out of the jurisdiction of the Court or other special Order) after the day of service hereof, in accordance with the Rules of Court.

If you fail to file your Defence within the time above limited, you will be subject to have such Judgment given against you as the Court may think just on the Plaintiffs own showing.

NOTE:

1.

Copies of the Rules of the Court, information concerning the local Offices of the Court and other necessary information may be obtained on application to the Registry of this Court at Ottawa - (Telephone Number (613) 992-4238), or at any local office thereof.

2.

This Statement of Claim or Declaration is filed by Lewis, Sinnott & Heneghan, of St. John's, in the Province of Newfoundland, Solicitors for the Plaintiffs.

3. "CANADIAN-SPANISH CLUB OF FRIENDS OF THE FISHERMEN."

Initially, Newfoundlanders, Galicians and Basques.

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4. THE FRENCH-SPANISH EXAMPLE:

"El País", 6 August, 1995

Spanish and French fishermen, who use traditional fishing gears and are grouped within the Itsas Geroa Association (Future of the Sea) will request from the European Union the creation of a reservation in the south of the Gulf of Biscay where fishing with drift nets, or pelagic dragging will be forbidden, according to an annoucement they made yesterday to the members of the Association.

In this context the Association pointed out yesterday that the stocks of certain species of fish such as hake, sea bass, sole and other species have significantly diminished, whereas sea bream has practically disappeared over the last five years. However, anchovy and tuna stocks remain the same "because a selective fishing system has been maintained", according to Esteban Olaizola, President of the Hondarribia Association.

This initiative by Spanish and French fishermen has been supported by Greenpeace. A representative of the latter was present at that meeting and stated that the creation of such associations which start at the fishermen level and expand to other collectivities is essential for the conservation of resources.

5. A DIFFERENT CANADIAN WAY OF SOLVING FISHERIES DISPUTES: MEDIATION WITH THE US ON THE PACIFIC SALMON

Foreign Affairs Minister André Ouellet and Fisheries and Oceans Minister Brian Tobin today announced that Canada and the United States have agreed to appoint Ambassador Cristopher Beeby of New Zealand to serve as mediator in their dispute concerning the implementation of the Pacific Salmon Treaty.

Ambassador Beeby, currently New Zealand's Ambassador to France, is retiring from the New Zealand foreign service shortly. He will begin his duties as mediator in October. The mediation process is expected to be completed by the end of 1995.

"We are optimistic that the mediation process will help resolve a bilateral dispute regarding the management of this valuable resource", said Mr. Ouellet.

"This appointment is a crucial step in reaching agreement on implementing the equity principle under the Pacific Salmon Treaty", Mr. Tobin said. "I have every confidence that Mr. Beeby will be able to assist us in reaching a solution to this difficult issue".

The mission of the mediator will be to assist Canada and the United States in finding a solution to the problems that have been encountered in implementing the Pacific Salmon Treaty, which entered into force in 1985. While the mediation will have no binding effect, both governments are hopeful that this process will enable them to overcome past differences and to fulfil the promise of the Treaty to rebuild west coast salmon stocks and to provide to both sides the benefits of their salmon production.

The governments anticipate that an intensive mediation process from October through December will produce an outcome that can be taken into account in the negotiation of fishing regimes for 1996 and beyond.

For further information, media representatives may contact:
Heidi Bonnell
Fisheries and Oceans
Ottawa
(613) 992-3474
GOVERNMENT OF CANADA-GOUVERNEMENT DU CANADA