Saving of
6. Nothing in the provisions of this Ordinance
prize court shall affect or apply to proceedings in any prize court respecting any matter within the jurisdiction of the
proceedings.
10 & 11
Geo. 3.
c. 48, 8. 3.
court.
Objects and Reasons.
1. This Bill is based on the Indemnity Act, 1920, 10 & 11 Geo. 5, chapter 48.
2. The definition of the term "war risk" in clause 2 is taken from clause 19 of Admiralty Charter Party T. 90, as being the risk assumed at the time of requisition- ing when certain ships were first placed under control in 1917 and 1918. The other definitions in clause 2 are taken from the Act.
3. Clause 3 of the Bill is practically a copy of clause 1 of the Act, except that words have been inserted in order to make it quite clear that the clause will include claims for the recovery of money held by the Government of the Colony in consequence of such acts as are referred k in the main part of the clause. These words are inserted by way of extra caution as it seems obvious that the section in the Imperial Act is intended to cover such claims and probably does cover them.
4. Speaking generally, clause 3 gives protection to all persons in the public service, in respect of any act done during the war and before the passing of the Ordinance, if such acte were done (a) in execution of a public duty, and (b) in good faith. Sub-clause (3) provides that a certificate by the Colonial Secretary that any act was done in execution of a duty shall be sufficient evidence of that fact, and that any act so done shall be deemed to have been done in good faith unless the contrary is proved.
5. The clause in question, clause 3, bars all legal proceedings in respect of any such acts, including legal proceedings for the recovery of money held by the Certain Government in consequence of any such act. legal proceedings, are excepted from this bar, and amongst the excepted cases is the institution of proceed- ings in respect of breach of contract, provided that such proceedings are commenced within one year from the termination of the war or from the date when the cause of action arose, whichever may be the later date. This limitation of time is imposed in order that claims may not be held back unduly but may be presented while the evidence on behalf of the Government is more likely to be available. Temporary organisations set up for the purposes of a war are dissolved when the war comes to an end, or even before that event, and the longer the time which elapses the more difficult it is to obtain evidence on matters dealt with by such temporary organisations.
6. Clause 4 makes an exception to the general bar on legal proceedings imposed by clause 3. It gives a definite legal right to payment in respect of the requi- sition and control of shipping by or on behalf of the Government of the Colony, and a right to compensation for damage directly due to war risk during the period of requisition or control. The payment in respect of requisitioning and control is to be in accordance with the Blue Book rates, together with any additional pay- ment which may have been expressly promised in writing, or credited to the owner, by the Government. This addition does not appear in the Imperial Act but is peculiar to the Bill. Compensation for damage due to war risk is limited, as in the Imperial Act, by the provision that, in assessing such damage, no account is to be taken of any increase of market values of tonnage due to the war,
— 3 —
7. The tribunals for assessing payment or compen- sation under the Imperial Act are (a) the Admiralty Board of Arbitration, (b) the Defence of the Realm Losses Commissiou, and (c) any special tribunal pres- cribed by the Defence of the Realm Regulations for any particular case. As none of these arbitration boards exist in Hongkong, clause 3 provides for tribunals which are to consist of one of the judges as president, and of two other members, one nominated by the Governor and the other by the claimant. The Imperial Act provides for au appeal on a point of law from the arbitration tribunal to the Court of Appeal. Clause 5 provides that the pre- sident of the focal tribunal way reserve any point of law for the decision of the Full Court, and that the decision of the Full Coert on such point of law shall be final. The Imperial Act provides for an appeal from the Court of Appeal to the House of Lords, but only by leave of the Court of Appeal.
8. Clause 6 saves all Prize Court proceedings from the operation of the Bill.
9. It may be pointed out that sub-clause (I) of clause
3 provides that if any legal proceedings which is barred by the Ordinance shall have been instituted before the commencement of the Ordinance it shall be discharged, subject to such order as to costs which the Court may think fit to make. Sub-clause (4) of the same clause provides that nothing in the clause shall affect a final judgment given before the passing of the Ordinance.
22nd April, 1921.
J. H. KENP,
Attorney General.
153
No comments yet.
Private notes are available after approval.