CO885-(13-15) — Page 227

20,762.

PUBLIC RECORD OFFICE

Reference :-

C.O.885

13 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH-NOT TO

+

We have taken the papers into our consideration, and, in obedience to your Lordship's commands, have the honour to

Report

1. That, in our opinion, the form of words proposed would, if accepted, involve the admission of the liability of Great Britain to pay compensation for losses occasioned to the United States' Government, or the lessees of the Pribyloff Islands, by the killing of seals in Behring's Sea by British subjects on board vessels flying the British flag.

2. Apart from such admission, the British Government would be liable for injuries caused by British subjects who had acted in the exercise of a right asserted, and, on the hypothesis, wrongly asserted, by Great Britain.

We have, &c. (Signed)

APPENDIX.

RICHARD E. WEBSTER. EDWARD CLARKE.

BEHRING'S SEA ARBITRATION.—ARTICLE 7 AS PROPOSED by the President,

THE LORD CHANCELLOR'S OPINION.

I concur in the answer of the Law Officers to question 1.

I am wholly unable to concur in their answer to question 2.

The principle involved would be a most formidable one if once admitted. The flying of the British flag is only the emblem of the nationality of the vessel, and only affords protection to the vessel if it is engaged in a lawful occupation. If engaged in an occupation which is unlawful it may be subject to a variety of penalties, according to the nature of the thing done, but unless the particular thing done is done by the direction or express permission of the Government of Great Britain it affords no ground for claiming compensation against that Government.

It seems to me that it is not material that Great Britain claimed and insisted on a right to fish for seals in Behring's Sea on behalf of its subjects, but if that makes a ground for demanding compensation, then, whenever there is a disputed boundary. [? whatever] the subjects of either Power do in the meantime, before that dispute is. settled, may be made the subject of a demand for compensation from the Government of that country which has erroneously claimed boundary. I cannot agree that any known principle of international law recognises the propriety of such a claim..

The formidable nature of the claim here would be enough to justify its rejection. The seals caught by British sealers would not necessarily have been caught at all, and until caught they certainly would belong to no one, since seals might swim out of American waters even if Behring's Sea were found to be American waters.

I very earnestly deprecate agreeing to any such words as are proposed.

(Signed) HALSBURY.

August 1, 1891.

No. 219A.

(GENERAL.)

EXTRACT from the REPORT of the SOLICITOR TO THE CUSTOMS, dated 12th August 1891.

Taking the Report [of Registrar of Copyright, New South Wales], not quite in order, but on its matter, its points may be put, perhaps, thus:

(a.) Defects and ambiguities indicated in the Imperial Copyright Act, showing the

difficulty of their application in the Colony.

(b.) General reasons for not wishing to apply them.

As regards (a): The Registrar asks, as to the Copyright Acts, how (which he does not see provided) the Customs officer is to know whether a book is imported by the proprietor of the copyright or not; whether for sale or not, as the Copyright Acts only forbid that; and where printed (pp. 6, 7, and 8).

Speaking from the practice of the officers of the Imperial Customs, no difficulties are found in these respects. A single book stopped is not likely to be imported by the proprietor; if a parcel of books bo ao imported, the fact will soon be made known, and the interim stoppage is justified as "reasonable." or not does not arise, as the Customs prohibition (indeed the Registrar admits this) The question of whether for sale does not make this distinction; while, as regards the place of printing, the "imprint (as the Secretary of the Copyright Association points out) shows this with sufficient reliability to justify detention.

Then, the Registrar further complains that details of procedure in the Copyright Act, 5 and 6 Vict. c. 45., both as to prosecutions and actions at law, are not clear, and not applicable to the Colony; that there is a contradiction as to what is to be done with seized books; and that the power to seize books inland, involving, as he suggests, a power to search houses, is "

copyright, and would be making officers exercise quasi magisterial and juilicial surely too large a power in defence of Imperial "functions" (pp. 10, 11, and 12; and 15, 16, and 17).

富家

It is correct that section 17 of the Act 5 and 6 Vict. c. 45. does give power to seize inland, though it would certainly not include, unless expressly provided, a power to enter and search premises; also, the Customs prohibition does render liable goods after importation which were illegal on importation; but what is really being dealt with in this correspondence, and requested of the Colony, at present, importation; and, as a matter of fact, the Imperial Customs officers rarely, if ever, only stoppage on carry their powers on to inland seizures, except for Revenue. soarching (under due warrant) a house for suspected contraband goods, foreign indecent Occasionally, in pictures or things, if found there, are swept away; and I remember one instance of a Customs officer, more zealous than gallant, who, happening, in a tram-car, to be next a young lady scanning a prohibited cheap American book of songs, relieved her of it; but, as an almost invariable rule, action by the officers is confined (as to non-dutiable goods) to the time only while they are under inspection or importation.

The contradiction as to the disposal of seized books is not important; and, indeed, is rather apparent than real. It is quite clear that destruction is to be the fate of all that the Crown seizes; while the proprietor may claim any, whether imported, or printed in the State, which he gets at by legal process. officers of piratical books suffer the one fate, destruction. Occasionally, books are All seizers by the Imperial passed with the consent of the copyright proprietor, but then they do not become

seizures." As regards the details of procedure, it is scarcely necessary to go closely into the objections as to them. They refer to process inland; and, at present, that is not the point in discussion. The point is importation; and for that it is the Customs Acts which have to be looked to.

The Customs Acts as to British Possessions (of which I have mentioned 8 and 9 Vict. c. 93. as one, and it was the last) contained more appropriate and defined enactments as the disposal of forfeited goods, the jurisdiction for prosecution of seizures and penalties, the commencement of suits and the like; and these provisions were repeated in the Customs Consolidation Act of 1853, in sections 165, 166, 181, 182, 183, 185, 187, and 188 of that Act: and, further, these sections were, in the repeal of that Act by the Consolidation Act of 1876, retained as unrepealed, and still exist. See Repeal Schedule (A). I think these sections would not be found to have the same objections; and this meets the Registrar's comment also (in p. 23), that section 152 of the Customs Act does not provide for the mode of dealing with the goods which it directs to be forfeited.

E65453.-34.

25.-10, 91.