339 Commonwealth Government to Cranborne
Cablegram 305 CANBERRA, 1 December 1943
Your 354.  Japanese Exchange. We greatly appreciate your understanding of our position and also your decision to give express support to our note.
2. With regard to amendments suggested in your paragraph 3, we agree to (1) but would suggest a variation of (2). While we appreciate force of argument that Japanese should be offered no legal loopholes we consider that we should take our stand on the definition of merchant seamen which has already been communicated to Japanese Government rather than introduce a new category of 'seafaring persons'. The Japanese would probably regard this as indicating a weakness in our legal position.
3. It is agreed that Japanese will probably take point that these men were not all actual members of crews when detained and we would counter this by asserting that they were habitually engaged in their vocation of merchant seamen. It is considered that the latter part of your proposed second sentence from 'who spent' and first part of your proposed third sentence would be taken by the Japanese as indicating doubt as to our legal position whereas our main concern should be to avoid use of phrase 'members of crews'.
4. We cannot see much substance in possible Japanese contention that Article VI of Convention XI would apply, since Articles V to VII deal only with crews of enemy merchant ships and these men were all engaged as pearlers in vessels owned by Europeans and on the Australian register.
5. We would therefore propose the following wording:
(2) (b) (i) 2nd, 3rd, 4th and 5th sentences to read: 'The deciding factor is that in this case all, these individuals although resident in Australian territory at the outbreak of war were merchant seamen who are habitually employed or engaged on vessels which do not come within the restrictive categories as set out in Article III of the Hague Convention, No. 11 of 1907. It is likewise clear that these individuals are not covered by any provision of Hague Convention No. 11. In particular it is irrelevant for the Japanese Government to appeal to the spirit of provisions of Article III of this Convention. By no topographical stretch can the provisions of Article III be made to apply to case of Japanese seamen who earn their livelihood by serving in vessels operating in or near Australian waters.' (ii) Fourth sentence to read 'In point of fact, however, they were still following their vocation at the outbreak of war and the fact that they were then detained does not in any way affect their status as merchant seamen.'