109
(c)
5.
Customs Control (see paragraph 3 of my telegram No. 214 of December 30th last), and this is the first overt step towards giving effect to that intimation.
The provision, in Article 19, that violation of the Regulations will be punished in accordance with Japanese Military Regulations.
In my letter of protest to the Japanese Consul, a copy of which is enclosed, I have drawn special attention to the points enumerated above. As my objection is one
of principle, I have not gone into a detailed criticism of the "Temporary Regulation" though exception might be taken to almost every clause of it. There is no provision for any qualification on the part of the pilots beyond their being on the staff of the Navy or even of the Army; nothing is said about their navigational qualifications. The "Temporary Regulation" appears to be designed to set up an exclusively Japanese pilotage service. (Articles 13 and 16).
of
6.
The statement, in Article 9, that further regulations are to be drawn up for pilotage below Chuon Pi Point appears to indicate that the Japanese contemplate extending compulsory pilotage right up to the limits of Hongkong waters. The exemption, in the same Article, vessels of under 500 tons or 8 feet draught, coupled with the provision regarding fees in Article 11 (E), would appear to let out the tug and lighter traffic mentioned in paragraph 12 of my despatch No. 50 of December 5th last to the Commercial Counsellor (copy to Your Excellency No. 258), and would thus further prejuaice British interests.
In connexion with Article 17, the agent of the China Navigation Company Limited, suggests that under compulsory pilotage the responsibility of a pilot meeting with an accident lies deeper than merely reporting the occurrence. In support of this view he cites the following extract from pages 40 and 41 of Carver's "Carriage by Sea", Sixth Edition, Part I:-
7.
"30.
A further exception, established by law, is that a ship-owner is not answerable for damage to goods carried by him, which has been caused by a pilot whom he was compelled by law to employ."
"Pilotage aistricts have from time to time be constituteà, and the employment of pilots licensed for these districts has been made compulsory on shipowners by charters or by Acts of Parliament, either local or general (r). Where that is the case, and a pilot has been allowed to take charge of a ship in obedience to such compulsion, the Shipowner is not liable for the consequences of his acts. This is declared by Section 633 of the Merchant Shipping Act, 1894 (s), which is as follows:-
"An owner or master of a ship shall not be answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified (t) pilot acting in charge of that ship, within any district where the employment of a qualified pilot is compulsory by law."
"Whether the employment of a pilot in any case has been compulsory, is generally a question depending upon
the