TNAG-2531-FCO40-3701-Hong-Kong-shipping-matters-1997 — Page 71

FROM MARSHAM ST, LONDON

(WED)08, 657%

:..

67

THE DEPARTMENT

OF TRANSPORT

BY FAX

Ms A Forryan

Aviation and Maritime Department,

FCO,

Whitehall.

Dear Anme

HONG KONG FLAG

HKC 175/1

2 MARSHAM STREET LONDON SWIP WA

TELEX 22221 DIRECT LINE 071-276 SWITCHBOARD 071-2/6 3000

GTN 276

не

Bu. R.+R

My Ret:

Your Ref:

5 August, 1992

LCC RAJ Bunten

& PAYSI

сн

カルバー 5/8-

WH305

HED

DOT's advice C

You telegr

1. Thank you for copying me the draft reply to Hong Kong's telex of 19 December 1991. We discussed this briefly by telephone.

2. Essentially, the problem which your Legal advisers have identified appears to be the fact that Hong Kong is not a 'state' in its own right for the purposes of international shipping law and that a vessel flying Hong Kong colours would therefore be in danger of appearing 'stateless'

I

3. On the basis of past papers on our own files however, understand that Hong Kong law currently requires a vessel to fly both the HK colours and the Red Ensign. In these circumstances, I am not sure that the above problem would arise?

4. The more obvious difficulty, and the one with which IK appears particularly concerned, is the fact

fact that S.73 of the 1894 Merchant Shipping Act requires all British ships to fly the Red Ensign whilst in UK ports and makes it an offence to fly "any distinctive national colours" other than the Red Ensign. Under the UK's 1988 Act, HK ships are British.

5. We have however responded to HK's concerns to the effect that, as long as the Red Ensign is visible on a vessel, the existence of the additional Hong Kong flag will not matter for the purposes of S.73: in effect, lawyers feel that the HK flag would not be a "national colour" because - again HK is not itself a nation.

W

6. HK has not been entirely persuaded by this argument. First, it suggested that the UK should amend its own law. Secondly, It proposed that the Secretary of State might use the power, under s.78 of the 1906 MSA, to dispense with any specific requiremonto contained in Merchant Shipping Acts and thus make a blanket exemption from s.73 for all vessels registered in Hong Kong,

7. On the latter, our lawyers' view is that s.78 exemptions con be applied only to UK-registered ships. The exemption power has in any case only ever (and rarely) been use:l to exempt individual