Your 354. [1] 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.'