Another View Of The Public Right To Fish -and The Question Of Regulation Or Ownership

摘要

Tom Appleby's article 'Damage by fishing in the UK's Lyme Bay-A problem of regulation or ownership?' is an interesting analysis, albeit from a somewhat partisan standpoint, of the scope that exists for state bodies to take measures to limit damage to benthic fauna or flora of nature conservation interest caused by a particular method of fishing, and by fishing in general. This article represents an alternative viewpoint. Appleby argues that there are intrinsic common law limitations to the right to fish, irrespective of statutory prohibitions or restrictions on the public right. The implications of this are that the exercise or purported exercise of the public right to fish by particular methods may constitute a civil tort actionable by the owner of the seabed; that where that owner is a state body, there may be a specific o-bligation to take action against the tortfeasors, and the existence of the civil tort may then render other provisions of criminal law applicable against the tortfeasor. Appleby specifically suggests, by analogy with private law doctrines in relation to easements and profits a prendre, that there can be exceedence of the public right. He also discusses the possibility that collateral environmental damage from fishing operations may be considered ancillary to the public right of fishery.