CO885-(13-15) — Page 385

PUBLIC RECORD OFFICE

Reference :-

C.O. 885

14 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

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That, at the same time, it might be questioned whether, after having once expressly disclaimed the intention of advancing any claim for compensation for the owners and crew of the vessel, Her Majesty's Government would now be justified in putting forward the more extended claim for the consideration of the arbitral tribunal, laying them- selves open to a charge of inconsistency which would deprive it of much of its moral force.

That your Lordship felt also the weight of the observations made in the Law Officers' Report of April 3rd, 1894, as to the importance of not putting forward claims which Her Majesty's Government would not be prepared themselves to entertain on behalf of foreigners who might suffer loss and intonvouience from the execution of process of law in portions of Her Majesty's dominions remote from the seat of any fixed tribunal.

That your Lordship would accordingly feel obliged by our opinion:

Firstly, Whether, in the event of Her Majesty's Government deeming it right to accept the proposal for arbitration, they could properly stipulate that the whole of the original claim should be submitted for the consideration of the arbitrators, and,

Secondly, Whether, and in what manner, such a stipulation could be made without exposing Her Majesty's Government to dangerous liability for similar claims in the manner pointed out in the Law Officers' Report before referred to.

Sir Edward Grey further stated that it had been suggested that the best method of procedure would be to stipulate that, in the event of the matter being submitted to arbitration, it should be open to the Government of the Colony to bring before the tribunal all the facts and arguments which they might think proper subjects for consideration, and that the arbitrator or arbitral tribunal should be left free to pronounce upon

the amount, if any, of compensation due, and the persons entitled to receive it, without any previous restriction.

That your Lordship wished to be favoured with our opinion upon this suggestion. and with any general observations which we might have to offer on the case.

We have considered the matter, and, in obedience to your Lordship's commands, have the honour to

Report-

1. That in the event of Her Majesty's Government deeming it right to accept the proposal for arbitration they would not, as matter of law, be precluded from stipulating that the whole of the original claim should be submitted for the consideration of the arbitrators. Whether they should withdraw from the statement already made, that they did not intend to press the claims of the owners and crew, is a matter of policy. The fact of such a statement having been once made would, however, greatly prejudice the case before any arbitrators, and might prevent the arbitration from satisfying the colonial feeling, and these considerations should not be lost sight of.

2. The putting forward of the larger claim in any manner would, in our opinion. form a precedent which might expose Her Majesty's Government to the danger of being held liable for similar claims.

The suggestion that, in the event of arbitration, it should be open to the Government of the Colony to bring forward the case of the owners and crew does not seem to us one that ought to be adopted without careful consideration. Her Majesty's Government cannot avoid the responsibility toward, the Dutch Government of deciding what claims ought to be put forward.

The Earl of Kimberley, K.G.,

&c., &c., &c.

• No. 56A.

We have, &c. (Signed)

JOHN RIGBY. R. T. REID.

15086.

No. 71.

(Hong Kong.)

LAW OFFICERS to FOREIGN OFFICE.

Mr LORD,

Royal Courts of Justice, August 16, 1894. We were honoured by your Lordship's commands, signified in Mr. Bertie's letter of the 21st ultimo, stating that he was directed by your Lordship to transmit to us the papers relating to the question of the overcrowding of vessels engaged in the Chinese passenger traffic between Chefoo and Chinese and Russian Manchuria.

That the previous history of the case was brought to the attention of our predecessors in November last, and that, with a view to carry out the recommendations of the Law Officers, as expressed in their report of the 14th of February,* a Draft Circular to Her Majesty's representatives at the Courts of the Maritime Powers was prepared, inviting them to co-operate in an attempt to check this abuse by enforcing upon their subjects regulations analogous to those contemplated by Her Majesty's Government.

That the Colonial Office and Board of Trade were in the meanwhile consulted, with a view to the preparation of a Draft Ordinance to be passed by the Legislature of Hong Kong for the enforcement of the proposed regulations.

That the Board of Trade had now communicated a Memorandum which they had received from their Solicitor, stating that he had been unable to satisfy himself that the Government of Hong Kong had any power under the Chinese Passenger Act of 1885 to make regulations in respect of vessels proceeding to sea on voyages of less than seven days' duration.

That the reasons for this view were fully set forth in the Memorandum by Mr. Murton, C.B., which accompanied the Board of Trade letter of July 10th.

That this Memorandum was subsequently considered in conference by the Legal Advisers of the Colonial and Foreign Offices, respectively, who concurred generally in the views expressed by Mr. Murton, and it had therefore been considered desirable to re-submit the papers to us in order to obtain our opinion on the specific point raised in his Memorandum, and, in the event of that view of the construction of the Act being considered correct, on the further question, whether a short amending Act should not be passed, or some other, and if so, what, stops should be taken to confer upon the Government of Hong Kong the powers necessary to enforce regulations of the nature desired.

That the papers previously submitted to our predecessors, which included a copy of the Chinese Passenger Act of 1855, were sent for convenience of reference.

Mr. Bertie further stated that he was to request that we would take the papers into our consideration, and that we would favour your Lordship with our opinion on tho questions submitted in his letter, and with any general observations which we might

have to offer on the matter.

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

Report-

That, in our opinion, the Government of Hong Kong have power under the Chinese Passenger Act of 1855 to make regulations in respect of vessels proceeding to sea on voyages of less than seven days' duration.

There is no limitation in the second section of the Act, which is the source of the authority of the Legislature of Hong Kong to make regulations.

The limitations appearing in Schedule A. represent the scope of the regulations thought suitable when the Act was passed; they do not qualify the power of the Legislature of Hong Kong to make other, quite different, regulations if they see fit.

The limitations appearing in sections 4 and 8 of the Act expressly enjoin certain duties upon ships on voyage of more than seven days, and penalties for non-compliance, but do not in any way curtail the provisions of section 2.

We therefore see no necessity for any amending Act, or any other step of that character, considering that the existing law suffices for the purpose.

We have, &c. (Signed) JOHN RIGBY.

R. T. REID.

The Earl of Kimberley, K. G.,

&c. &c. &c.

• 79871.-39. 25.-9/94

• No. 52A.