CO885-(16-18) — Page 23

PUBLIC RECORD OFFICE

THE

Reference :-

C.O.885

16 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH-NOT TO

2

relative to the status of small enemy craft in the territorial waters of British Colonies and Protectorates, you would be obliged if we could furnish you with a further exposition of our views with regard to the application to these vessels of Article III. of Hague Convention No. XI. of 1907.

In obedience to your commands we have the honour to submit the following

Report

We have reconsidered our answer to question 3 in the reference of the 19th April, 1916.

There is no doubt a good deal to be said for the view that Article 3 of Convention VI. of 1907 is confined to vessels engaged in small coastal voyages, and that tugs, lighters, &c., which are used in connexion with ocean-going vessels, are neither within the protection of that Article nor entitled to the exemption which is given in practice to enemy property on land. Accordingly, while the question is not free from doubt, we think (on further reflection) that such of these vessels as belong to owners commercially domiciled in enemy territory may be made the subject of prize proceedings with a reasonable prospect of success.

The above conclusion seems to apply to all the vessels mentioned in the statement enclosed in the letter of the 16th April, 1916, though some of them may not be worth seizing as prize. The conclusion, however, does not apply to the proceeds of sale of vessels which have been sold by liquidators. The right of capture may be waived, and if a vessel has been lawfully sold before seizure there is no right to seize as prize the proceeds of sale.

The Right Honourable

A. Bonar Law, M.P.,

&c.,

&c., &c., Colonial Office, S.W.

We have, &c.,

FREDERICK SMITH. GEO. CAVE.

38492.

SIR,

No. 200.

LAW OFFICERS to COLONIAL OFFICE.

(COMMONWEALTH OF AUSTRALIA.)

Law Officers' Department,

Royal Courts of Justice,

14th August, 1916. WE were honoured with your commands signified in Mr. Lambert's letter of the 4th instant stating that, with reference to the letter from the Colonial Office of the 27th January, 1915, and to the Report of the 10th July, 1915, on the subject of the Act passed by the Parliament of the Commonwealth of Australia entitled The Judiciary Act, 1914," he was directed by you to transmit to us, for our consideration, the draft of an Order in Council assenting to the Act, together with copies of the telegrams noted in the margin.

.

That it would be observed from the telegram ultimately received from the Governor-General that no acts have been done under the Commonwealth Act rendering it necessary to validate them by Act of the Imperial Parliament.

That the draft of the Order in Council had been founded on the form of Order in Council used in the case of Acts passed before the Australian States Constitution Act, 1907, by the Australian Colonies (or States), which ought to have been, but were not, reserved under the provisions of the various Acts of the Imperial Parlia- ment relating to the Constitutions of those Colonies (or States).

That Mr. Lambert was to request that we would be good enough to take the draft Order in Council into our consideration and report (1) whether its terms were proper and sufficient for the purpose for which it was intended; and (2), if not, in what respect it should be amended.

We have taken the matter into our consideration, and, in obedience to your commands, have the honour to submit the following

Report-

The terms of the draft Order in Council, which we have initialled and enclose herewith, are, in our opinion, proper and sufficient for the purpose for which it is intended.

We have the honour to be, Sir,

Your most obedient and humble servants,

FREDERICK SMITH. GEO. CAVE.

The Rt. Honble. A. Bonar Law, M.P., &c.,

Colonial Office, S.W.

Draft Order in Council.

WHEREAS by the Colonial Courts of Admiralty Act, 1890, it is amongst other things provided that the legislature of a British possession may, by any Colonial law declare any court of unlimited civil jurisdiction, whether original or appellate in that possession, to be a Colonial Court of Admiralty;

AND WHEREAS by the said Act it is further provided that every Colonial law which is made in pursuance of the said Act shall, unless previously approved by His Majesty through a Secretary of State, either be reserved for the signification of His Majesty's pleasure thereon, or contain a suspending clause providing that such laws shall not come into operation until His Majesty's pleasure thereon has been publicly signified in the British possession in which it has been passed;

AND WHEREAS a certain Bill passed by the Senate and the House of Representa- tives of the Commonwealth of Australia, entitled "An Act to amend the Judiciary Act, 1903-1912," has been transmitted for the signification of His Majesty's pleasure thereon;

AND WHEREAS the said Bill so transmitted as aforesaid has been laid before His Majesty in Council, and it is expedient that the said Bill should be assented to by His Majesty;

NOW, THEREFORE, His Majesty, in pursuance of the said Act, and in exercise of the powers thereby reserved to His Majesty as aforesaid, doth by this present Order. by and with the advice of His Majesty's Privy Council, declare his assent to the said Bill.

F. S. G. C.

(10783-2.) Wt. 20-1020. 25. 3/17. D & 8. G. 1.