CO885-6 — Page 418

PUBLIC RECORD OFFICE

Reference :-

EPIC.O. 882

6 PUBLIC RECORD OFFICE, LONDON

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

See print with M. 7458 1900,

10

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.

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

SIR,

No. 5.

COLONIAL OFFICE to FOREIGN OFFICE.

[Answered by No. 6.]

R. E. C.

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, be returned with your reply.

28774

No. 6.

may

I am, &c.,

C. P. LUCAS.

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

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 at all.

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 of 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.

12425

• Enclosure in No. 3.

† Not printed.

13 2