TNAG-0960-FCO40-1179-Legislation-for-merchant-shipping-in-Hong-Kong-1980 — Page 3

KCC(79)74A

Other Considerations

7 (a)

(b)

(c)

(d)

(e)

Such "moral claims" are an undesirable way of providing compensation for it makes the Government appear in the eyes of the public to be both judge and jury in its own cause. It is considered to be preferable for the determination of the issue of compensation manifestly to be made by an independent body, whether the judiciary or an arbitrator, acting upon recognised principles of law.

It appears only just that where the owner of property seized has suffered loss or damage as a result of the seizure through no fault of his own, he should, especially where the Government is to blame, be entitled as a matter of justice to compensation.

i.

The provision of powers of compensation is likely to make this stringent legislation more readily acceptable to the public.

11

New section 37H(2) has been re-drafted and now provides for payment of compensation, if any, only where it is

just and equitable in all the circumstances of the case including the conduct of the owner or person in charge of the vessel etc"; this removes the possible implication in the earlier draft that payment was always necessary of such sum as "fairly and reasonably" compensated the owner., 16

It is accepted that this may tend to establish a precedent. But even if that did happen, the precedent would be restricted to the limited circumstances outlined in sub- paragraphs (b) and (d) above. Moreover, the courts would not order compensation to be paid unless this was "just and equitable", and it is difficult to understand why, where it is "just and equitable", it should not be payable.

First port of call rule

8

-

New section 371

This matter has been further examined.

༣་་་

Notwithstanding

the normal scope for administrative relaxation, and the pressure for its use to which such a provision may give rise, the balance of advantage seems to lie in making express provision to allow the entry into Hong Kong, as a port of refuge, of ships carrying

CONFIDENTIAL &