CO882-6 — Page 420

PUBLIC RECORD OFFICE

Reference :-

C.O. 882

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PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH-NOT TO

See print with M. 7458/1900,

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Enclosure in No. 4.

BOARD OF TRADE.

MEMORANDUM from Solicitor's Department to Sir Courtenay Boyle, K.C.B., &c., &c.

Re Hong Kong Ordinance.

August 25, 1900.

I am sending herewith my observations upon the letter from Mr. C. P. Lucas to the Assistant Secretary, Marine Department, Board of Trade, dated 11th April last, together with a print of the Ordinance with my notes thereon.

I think that I should add that the Merchant Shipping Act of 1894, being an Imperial Act, cannot, in my opinion, be altered or varied by a Colonial Ordinance in regard to the duties and obligations by that Act imposed upon British ships and their owners and officers, except in the case of ships registered in the Colonial Registry, and except so far as it may be necessary to legislate for local requirements, which, however, must not, it seems to me, clash with the provisions of the Merchant Shipping Act, 1894, in cases already provided for by that Act as regards British ships not registered in the Colonial Registry.

1

This principle has to a considerable extent been recognised in this Ordinance, but not in all cases, and I have called attention to it in my notes when it appears to me to have been overlooked. There are various sections in the Merchant Shipping Act, 1894, referring to Colonies or British Possessions, and sections 735 and 736 seem to indicate to what extent the Legislature of a British Possession may vary the Act.

This matter has called for a considerable amount of attention, and while I have thought it advisable to make once and for all a good many notes in the hope of pre- venting the matter requiring further consideration, I have felt that in many instances my observations have had to be made more in the nature of enquiries or queries rather than criticisms, as the framers of the Ordinance must have much greater knowledge of the local requirements than I can. I have, moreover, felt justified in going into the matter in detail from the fact that it is patent to me that the drafting of the Ordinance has been a work of immense labour, and one calling for the closest attention to detail.

The Quarantine Regulations were not formally referred to me.

28774

No. 5.

COLONIAL OFFICE to FOREIGN OFFICE.

[Answered by No. 6.]

R. E. C.

SIR,

Downing Street, October 15, 1900. I AM directed by Mr. Secretary Chamberlain to request you to inform the Marquess of Salisbury that a revised Merchant Shipping Ordinance for Hong Kong has been under the consideration of this Office and of the Board of Trade.

2. The Governor of Hong Kong, in submitting this Ordinance for the signification of Her Majesty's pleasure, raised a point of considerable importance in his covering despatch, a copy of which is enclosed for his Lordship's information, I am also to enclose a copy of the Ordinance, † including marginal notes by the Solicitor to the Board

of Trade.

*

3. In referring this Ordinance for the observations of the Board of Trade, Mr. Chamberlain caused an enquiry to be made whether the proposal in paragraph 7 of Sir H. A. Blake's despatch was viewed favourably by the Board. The reply of the Board stated that, while they were inclined to think that the proposal was sound in principle, it would probably be better to give effect to that principle by enacting that the Colonial Court should non-suit the Chinese owner if it were shown that the colli- sion were due to his non-observance of the collision regulations. This would be a less drastic remedy than precluding the Chinese owner from suing in a Colonial Court until his Government had adopted the International regulations.

4. Mr. Chamberlain will be glad to learn the opinion of the Marquess of Salis- bury on this question.

• No. 1.

↑ Not printed.

↑ No. 3.

11

5. His Lordship will observe that certain parts of section 9 of the Ordinance under consideration deal with foreign sailors and ships. In regard to the sixth sub-section the Board of Trade were informed as follows:-

The provision that a foreign seaman convicted under the section may be placed at the disposal of the Consular Officer would appear to need further safe- guards. It would be preferable to word the whole sub-section as in section 238 of the Imperial Merchant Shipping Act.”

6. I am to enclose an extract from a memorandum* by the Solicitor to the Board of Trade dealing with this question, and to enquire whether his Lordship agrees with the opinions expressed therein and also whether he has any objection to the final provision of sub-section 5 of section 9, which provides that a Magistrate shall not deal with offences against discipline by a sailor belonging to a foreign ship unless the proper Consular Officer (if there be one resident) undertakes that the seaman shall not, in consequence, become a charge on the Colony.

7. The second sub-section of the same section makes an alteration in the Imperial Merchant Shipping Act, and I am to request you to invite the Marquess of Salisbury's attention to the notest in the enclosed copy of the Ordinance on this sub-section, and also on section 4 sub-section 4, and section 10 sub-section 8 (B) vii. In all these cases Mr. Chamberlain will be glad of an expression of his Lordship's opinion.

8. I am to request that the original copy of the Ordinance enclosed herewith, may be returned with your reply.

28774

No. 6.

I am, &c.,

C. P. LUCAS.

MEMORANDA BY FOREIGN OFFICE ON COLONIAL OFFICE LETTER of October 15th, 1900.

at all.

HONG-KONG MERCHANT SHIPPING ORDINANCE.

The views of the Foreign Office are asked:—

(1) As to precautions against collision on the part of Chinese junks. The Harbour Master suggests that junks should not be allowed to sue for damages

The Colonial Office seem to take that as the Governor's suggestion, but the Governor's suggestion appears really to be contained in the next paragraph (8) of his despatch, and to coincide more or less with that of the Board of Trade; it is that junks should be non-suited if collision was due to non-observance of the collision regulations. On this point Mr. Davidson seems to agree with the Board of Trade, he has written "yes "in pencil in the margin.

There does not appear to be any reason why we should not say that Lord Lansdowne agrees with the Board of Trade.

(2) Sub-clause 6 of Clause 9 of the Ordinance provides that foreign seamen imprisoned under the Section "may be placed at the disposal of the Consular Officer on the written application of the said Consular Officer." The Colonial Office think this sub-clause should be worded like Section 238 of the Merchant Shipping Act. The Board of Trade agree that some parts of Clause 9, dealing with the apprehen sion of seamen for various offences, should be more in harmony with Section 238 ɔf the Merchant Shipping Act, but that Section deals with desertion only, while this sub-clause 6 deals with offences which do not come under Section 238 and must necessarily therefore go beyond that Section (as it does in giving power to the Magis- trates to hand over offenders to a Consul). I imagine the Ordinance is not bound to be confined within the limits of Section 238, and the Solicitor to the Board of Trade certainly says the powers "may be convenient." Perhaps, therefore, we may express concurrence with the views of the Solicitor and say we have no objection to such powers being given to the Magistrate.

18425

• Enclosure in No. 3.

† Not printed.

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(3) The question is whether when asked by a foreign Consul to deal with an offending seaman the Magistrate may decline to do so unless the Consul guarantees that the seaman shall not become a charge on the Colony.

Mr. Davidson seems to think the Magistrate ought not to decline.

4. The point is that Clause 9 sub-clause 2 would enable the Magistrate at the request of the Master of a German ship to search for an offending seaman not only on land but even on, say, a French ship. This the Solicitor to the Board of Trade considers (I should think rightly) might lead to trouble.

(5) 4 (4)—The Solicitor to the Board of Trade says it is for the Foreign nice to decide whether the system should continue under which, while British ships leaving without certificated officers are liable to a fine and to refusal of clearance, foreign ships are only liable to refusal of clearance.

I should think that if the Colony does not propose a fine on foreign ships we need not ask them to do so.

(6) 10-8 (b) VII.

Owners have to have their ships surveyed by a Government surveyor.

Among other things he is to declare that the ship is duly marked with deck and load lines.

३

The Solicitor to the Board of Trade asks Can it be contended that foreign ships should be so marked? But the Clause begins (sub-clause 2) by saying that in the case of foreign ships a survey shall not be required if they have from their own country a certificate equivalent to that required in the case of British ships, and that if a question of sufficiency arises the matter should be referred to the Governor. Perhaps the Governor might be told to waive the requirement of deck and load lines.

December 10, 1900.

J. A. C. T.

It still seems to me, as I have previously said, that the great majority of these matters do not concern the Foreign Office at all. Indeed, I cannot see that any of them are matters calling for an expression of the opinion of the Secretary of State for Foreign Affairs-who is not concerned with either colonial legislation, or with the governance of merchant shipping and the administration of the Merchant Shipping law. If the Colonial Office and Board of Trade cannot settle these points between them it would seem desirable to refer them to the Law Officers of the Crown rather than to this department.

Of course if there were any special question of a novel character in the Ordinance which was thought to be likely to create international difficulties it might be useful for the Foreign Office to give their opinion on it. But I do not understand that it is considered that any such points arise and certainly attention has not been specifically directed to them on such ground.

I don't think (for instance) that the point dealt with in §§ 3 and 4 of the Colonial Office letter is such a point, though I agree with the suggestion made by the Board of Trade with regard to it.

I gather from § 5 that the Board of Trade have probably already taken the opinion of Counsel on the point dealt with in that paragraph, and if it were necessary for us to go into the matter we should, of course, like to see the Counsel's opinion, assuming my conjecture to be right. But I don't think that it really is a point to be decided by the Foreign Office.

As to §6 it is impossible satisfactorily to deal with an extract from a memorandum. The final provision of the sub-section appears to me to be of very doubtful expediency and it might possibly lead to remonstrance from Foreign States.

The matters mentioned in § 7 seem to me not directly to concern the Foreign Office. And finally, with regard to the whole of these matters, if it be necessary for us to consider them, I think we ought to have the advantage of the observations of the legal adviser to the Colonial Office before we are called on to do so. Mr. Cox has been consulted, but there is no indication to this effect, or hint as to I should suppose that what his views are.

W. E, D,

December 31, 1900.

28774

13

No. 7.

MR. CHAMBERLAIN to GOVERNOR SIR H. A. BLAKE.

(No. 118.)

SIR,

[Answered by No. 8.]

Downing Street, April 12, 1901. WITH reference to my despatch, No. 357, of the 5th of November last,* relating to the Quarantine Rules embodied in table L of the Merchant Shipping Consolidation Ordinance, 1899, I have the honour to inform you that I much regret the considerable delay which has occurred in dealing with the various questions raised in your despatch, No. 54, of the 10th of February, 1900.†TM

2. A number of important points have been raised in connection with this Ordin- ance which have involved protracted correspondence and frequent reconsideration, especially as grave doubts have arisen as to the validity of some of its provisions.

3. It is clear that in several points the Ordinance under consideration operates as an amendment of the provisions of the Imperial Merchant Shipping Act, 1894. It is doubtful how far such amendments are not ultra vires of a Colonial Legislature; but without determining this question, I am unable to advise sanction of an Ordinance con- taining them, since the desire of His Majesty's Government is to secure throughout his dominions uniformity with regard to the matters dealt with by the Imperial Act.

4. The Ordinance has been referred to the Board of Trade, from whom I have received a memorandum,‡ together with an annotated copy of the Ordinance,§ which I enclose for your information, with copies of the memorandum and of the letter|| from this office, transmitting it for observations. The marginal notes of the Solicitor to the Board of Trade show that, in his opinion, the Ordinance clashes with the Imperial Act in the following places:-

Section 3 sub-sections 2 (B) and 9, 10, 13.

Section 9 sub-section 2.

Section 10 sub-section (1) B.

Section 13.

Section 14 sub-sections 1 and 3.

Section 41 sub-section 5.

5. I may add to these section 37 sub-section 1 so far as it purports to apply to any steamship not exceeding 60 tons plying to any place outside the waters of the Colony. It is doubtful also whether sections 8 and 41 sub-section 2, which purport to impose on British ships greater penalties than those provided by the Imperial Act (sections 200 and 711) should be allowed.

6. In this list section 3 is of much importance. The Solicitor to the Board of Trade assumes in his criticism that "any Chinese person resident in the Colony," who is a lessee of Crown Lands includes persons not British subjects. In this case the Ordinance is really dealing with two different kinds of registry, viz., registration of ships in the Colony as British ships and the registration of Chinese vessels (or vessels owned by Chinese), which may not be registrable as British ships, but as to, and over which it is desirable that the Government should have some record and control; and the two classes should be distinguished more clearly, the former being left to be governed by the provisions of the Imperial Merchant Shipping Act as to Colonial registry (which should not be varied by the Colonial Ordinance), while the latter can be specifically provided for in the Ordinance.

7. It has also been found desirable to discuss those parts of the Ordinance which relate to foreign ships and seamen with the Foreign Office, to ascertain how far they would be agreeable to Foreign Powers.

8. The Foreign Office agree generally with the opinions of the Board of Trade. It seems desirable to bring section 9 into strict conformity with section 238 of the Imperial Act, so far as it relates to deserters, and in particular the powers given to the Magistrate to decline to deal with an offending seaman unless his Consul guarantees that he shall not become a charge on the Colony; and, by sub-section 2, to order search on a Foreign ship at the request of the Master of a Foreign ship, even if of another nationality, should be omitted. Offences other than desertion should be treated in a separate provision,

27110: not printed. † No. 1.

Enclosure in No. 3. § Not printed.

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