40
(iii) Craft
50 Gove nment amed craft and about 200 miscellaneous craft were either immobilised or scuttled; there is no record of the names of the latter.
The last date on which ships were able to sail from Hong Kong with a reasonable chance of escape was 7th December, 1941.
(e) On the surrender of the Armed Forces in Hong Kong all ships and craft other than those sunk under the Defence Plan or as denial action fell under Japanese control. Same, including requisitioned craft, remained in owners
Others were hands, when the owners were local residents of Chinese origin. scized by the Japanese. A high proportion of all vessels left were sunk as à result of subsequent allied action during the war, were removed by the_ Japanese and have not since been traced, or, if traced, are not in a condition to be worth recovering. A fair number of the ships and craft scuttled either under the Defence Plan or in the course of denial action were subsequently raised and put into service by the Japanese, in many cases an easy salvage task. Some of these were again sunk by allied action later in the war, while others were recovered at the end of the war in Hong Kong or elsewhere and are again in service. The recovery of these craft, intact or damaged, has not hitherto been correlated with any obligations on the Hong Kong Government under the 1941 rcquisitions.
POTENTIAL CLAIMS.
3.
The potential claims arising out of the above situation are summarised below.
(a)
Vessels requisitioned under the Defence Plan.
These vessels were all legally requisitioned by duly authorised officers of the Hong Kong Government from the Marine Department, under the powers conferred on the Hong Kong Government under Regulation 55 (i) of the Dofenco Regulations 1940, acting in accordance with the Defence Plan,
The owners of vessels so
roquisitioned are entitled as a matter of law to look to the Hong Kong Government to meet their claims in accordance with the Compensation (Defence) Regulations 1940, which lay down a basis for compensation for use, damage
The legal and/or loss of vessels requisitioned under the Emergency Powers. liability of the Hong Kong Government in these cases has been admitted by the Hong Kong Attorney General and is not open to doubt.
(b)
•/2 without
Vessels sunk as denial action.? winter
ge
While it would be ridiculous to dispute the propriety of the action taken, it appears that at the time ships were sunk in the course of denial action, there was no specific legal power in the Emergency Legislation under which this might be done by the Civil authorities, unless (i) the vessels were first requisitioned or (ii) the Governor's general authority as Commandor-in-Chief of the Armed Forces in Hong Kong could be held to enable him. In the United Kingdom, whore circumstances wore not identical, such action would undoubtedly have been treated administratively as equivalent to requisitioning (a de facto requisition), except in the event that the sinking was done to avoid imminent and inevitable capture by the enemy, a situation which, whatever the legal niceties, has in practice been treated by underwriters as qualifying for pay-
In Hong Kong it seems possible ment of a total loss under war policies. that a Court might hold that the action taken amounted to a de facto requisition
In the case (a) of vessels in possession of but this is by no means certain. local residents of Chinese origin, who would not necessarily have been dispossess by the Japanese after the occupation and (b) of sea going vessels which, if allowed to sail, night have had a reasonable chance of reaching safety, denial action would possibly have given rise to a claim for damages under common law, were it not that under Ordinance No. 1. of 1st May, 1946, Article 3a, the Crown
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