PUBLIC RECORD
OFFICE
Reference :-
TTIC.O. 885
19
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14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC. COPYRIGHT PHOTOGRAPH-NOT TO
2
That Mr. Irving was an officer in the service of the Straits Settlements at the date of the passing of the Pensions Ordinance, 1870, and had been transferred to that service from the Imperial Civil Service. That he retired from the public service in 1887, and that a pension was granted to him computed under the provisions of the Pensions Ordinance, 1871. That he would have received a larger pension if it had been computed under the provisions of section 20 of the Pensions Ordinance, 1870.
That it was contended on behalf of Mr. Isemonger and Mr. Irving that, at the date of the passing of the Pensions Ordinance of 1871, they had acquired under section 20) of the Pensions Ordinance, 1870, an inchoate right to receive, on their retirement from the service of the Colony, a pension computed according to the Rules set forth in that section, and that under the fourth section of the General Clauses Act, 1889, the repeal by the Pensions Ordinance, 1871, of section 20 of the Pensions Ordinance, 1870, must be deemed not to have affected that right; and that, on behalf of Ms. Isemonger it was further contended that that right was not affected by the enactment of the Pensions Ordinance, 1887.
That, on the other hand, it was contended by the Colonial Government that the fourth section of the General Clauses Ordinance, 1888, had no application to a repealing law which had itself been repealed before the commencement of the General Clauses Ordinance, and that it did not have the effect of reviving any right under section 20 of the Pension Ordinance, 1870, that section having been unconditionally repealed by the Pensions Ordinance, 1871, which was itself repealed before the commencement of the General Clauses Ordinance, 1888.
That it was further contended, with reference to Mr. Irving, that as his pension was awarded in accordance with the law as it then stood before the commencement of the General Clauses Ordinance, 1888, his rights were then fixed, and were not affected by the subsequent enactment of that Ordinance.
That Mr. Wingfield was to enclose a copy of a Memorandum by the Acting Attorney General and the Acting Treasurer of the Colony, setting forth grounds for refusing to revise the rate of pension granted to Mr. Irving.
That Mr. Wingfield was to request us to favour your Lordship with our opinion upon the following questions :---
(1.) Whether Mr. Isemonger, on his retirement from the public service, assuming that he would have fulfilled all the conditions qualifying him for a pension from the Straits Settlements, might claim to have his pension computed in accordance with the rules set forth in section 20 of the Pensions Ordinance, 1870.
(2.) Whether Mr. Irving was entitled to have his pension from the Straits Settlements revised and re-assessed in accordance with those rules; and if so, from what date such re-assessment should take effect.
We have taken the matter into our consideration, and, in obedience to your Lord- ship's commands, have the honour to-
That in our opinion-
Report-
1. Mr. Isemonger on his retirement, upon the assumption stated, may claim to have his pension computed in accordance with the rules set forth in section 20 of the Pensions Ordinance, 1870.
The repeal of that Ordinance does not, in our opinion, affect rights acquired under it, and though there was no absolute right to a pension (see section 4 of the Ordinance of 1870) there was a conditional right, which is preserved under the Ordinance 1 of 1888. 2. Mr. Irving is entitled to have his pension revised and re-assessed in accordance with the same rules, and the re-assessment should take effect from the date of his retirement.
The Most Hon. the Marquess of Ripon, K.G.,
&c.
&c.
&c.
We are, &c.,
R. T. REID.
FRANK LOCKWOOD.
6362.
No. 82.
(CANADA.)
LAW OFFICERS to FOREIGN OFFICE, MY LORD,
Royal Courts of Justice, April 1, 1895. We were honoured with your Lordship's commands, signified in Mr. Bertie's letter of the 18th ultimo, stating that he was directed by your Lordship to request our opinion with reference to the seizure of the British sealing schooner "Wanderer the United States' ship "Concord," in June 1894, for an alleged infringement of Behring Sea Award Act, 1894."
by
"The
We have taken the matter into our consideration, and, in obedience to your Lord- ship's commands, have the honour to
Report-
That, in our opinion, though this is certainly a difficult case, it is not a case in which compensation can be claimed of right against the United States Government.
There is no Treaty or Agreement before us regulating the circumstances under which compensation should be made for improper seizure by officers either of Her Majesty or the United States. Accordingly, we think that general principles must apply, and compensation cannot be claimed unless there has been a violation of the law of nations, or unreasonable and unfair conduct.
When Her Majesty and the United States Government reciprocally authorized the seizure of vessels of their own flag by the Naval officers of the other State, it cannot be supposed that either intended to incur a pecuniary liability in every case in which the seizure, however reasonable, did not ultimately result in conclusive evidence of guilt.
In this particular case the captain of the "Concord " appears to have acted upon
the authority of American law, which is, of course, inapplicable to British vessels. But if he did what he was justified by British law in doing, though he did it upon an erroneous ground, the complaint is rather technical than substantial.
Now, by British law, the pursuing of seals is an offence (Article II. of Schedule to Act of 1894), and, in the arrangement of the same year between the two Governments, Article II. makes the sealing up of fishery implements and the entry in the log protection to a vessel "unless there shall be evidence of seal hunting notwithstanding." When the captain of the "Concord" found a concealed gun and cartridges in the "Wanderer," and a statement by the master a few hours before that there was no such weapon on board except such as had been sealed up, and further observed, or honestly thought he observed, the "Wanderer" under such sail as she was accustomed to carry when dodging about for seals, he might reasonably think that she was seal hunting. She would be seal hunting even if the intention was merely to kill such seals as might come in her way on her voyage to port.
ET
The British Act and Order in Council in terms authorise seizure only when an offence has been committed. But under section 104 of "The Merchant Shipping Act, 1854," which is incorporated with The Behring Sea Award Act, 1894," no officer is responsible for seizure if it is shown there were reasonable grounds for seizure, and we think the same principle applies to the action of a United States officer.
We further consider that the release of the vessel before she came for trial throws additional difficulties in the way of a claim for compensation. The release is not conclusive against such a claim, just as a judicial decision exculpating the accused vessel would not be conclusive in favour of such a claim. But the United States Government have been deprived of that guidance as to the propriety of the course pursued by their officer which would have been afforded by a judicial investigation of the facts and the decision of a legal tribunal. .
We, therefore, answer your Lordship's first question in the affirmative, and the second question in the negative.
We have, &c.,
The Right Hon. the Earl of Kimberley,
&c.
&c.
&c.
R. T. REID. FRANK LOCKWOOD,
D 85985.-7.
25.-5/95.