DEPARTMENT OF STATE, Washington, April 17, 1905.

EXCELLENCY: I have the honor to acknowledge the receipt of your note of the 10th instant informing me of the concurrence of his Majesty's Government in the proposal made by this Department's note of September 23, 1904, that the agreement between the Government of the United States and that of His Britannic Majesty for the mutual protection of American and British trade-marks in China, be effected by an exchange of notes, as was done in the case of the reciprocal protection of trade-marks in Morocco, and that the necessary instructions on the subject would be sent to His Majesty's Minister at Peking.

In accordance with the understanding thus reached, instructions have this day been addressed to the American Minister at Peking directing him to effect the exchange of notes with His Majesty's Minister there.

I have the honor to be, with the highest consideration, your excellency's most obedient servant FRANCIS B. LOOMIS

(Signed)

His Excellency the Right Honorable

Acting Secretary.

Sir H. M. DURAND, G.C.M.G., K.C.S.I., K.C.I.E.,

etc., etc., etc.

AMERICAN LEGATION,

Peking, China, June 28, 1905.

MR. MINISTER and Dear CollEAGUE: The Acting Secretary of State of the United States has informed me in an instruction dated April 17, 1905, that you have been authorized by your Government to enter into a reciprocal agreement with me for the mutual protection of trade-marks registered in the United States and Great Britain against infringement in China by the citizens or subjects of our respective nations, and he has given me authority to effect with you by an exchange of notes an agreement for the reciprocal protection of American and British trademarks in China.

In pursuance of the general agreement reached between our respective governments on the subject, it affords me much satisfaction to agree on behalf of the government of the United States, that henceforth trade-marks of British subjects having been duly registered in the United States of America, will be protected against infringement by such persons as come under the jurisdiction of the United States Consular Courts in China, in which effectual provision exists for the punishment of such infringements by American citizens.

I have the honor to be, my dear colleague, your obedient servant,
W. W. ROCKHILL.

(sgd.)

PEKING, June 28, 1905.

MR. MINISTER AND DEAR COLLEAGUE: I have the honour to acknowledge the receipt of your letter of this date, informing me that you have been authorized

by your Government to effect with me by an exchange of notes an agreement for the reciprocal protection of American and British trademarks.

I beg to thank you for this communication and to assure that it affords me much satisfaction to enter into this reciprocal agreement, and henceforth protection will be afforded in China by His Britannic Majesty's Supreme Court for China and Corea and the Provincial Courts to trade-marks of citizens of the United States which have been duly registered in Great Britain in conformity with "The Patents, Designs, and Trademarks Acts, 1883 to 1888."

At the same time it appears necessary to mention that the consent in writing of His Majesty's Minister or Charge d'Affaires must be obtained on each occasion, which consent will be given as a matter of course in consequence of the assurance contained in your Note under reply that effectual provision exists for the punishment in the United States Consular Courts in China of infringement, by such persons as come under the jurisdiction of those Courts, of the trade-marks of British subjects which shall have been duly registered in the United States of America.

I have the honour to be, sir, your obedient servant,

His Excellency, the Honourable W. W. ROCKHILL,
etc., etc., etc.

Note.

The Order in Council above cited has been repealed: the relevant provisions of law are embodied in the Order in Council of February 11, 1907 (amending the China and Corea Order in Council of 1904), Articles 3 and 4 of which are to the following effect:

"ARTICLE 3.-.

British Order in Council.-February 11, 1907.

Any Act which, if done in the United Kingdom, or in a British Possession, would be an offence against any of the following Statutes of the Imperial Parliament or Orders in Council, that is to say :

(a) The Merchandise Marks Act, 1887';

66

(b) The Patents, Designs, and Trade Marks Acts, 1883 to 1902';

(c) 'The Trade Marks Act, 1905';

(d) Any Statute amending or substituted for any of the above-mentioned Statutes; (e) Any Act, Statute, or Order in Council for the time being relating to copyright, or to inventions, designs, or trade-marks, of which a copy is kept exhibited in the public offices of the Consulates at Shanghai and Seoul, and is there open for inspection by any person at all reasonable times; shall, if done by a British subject in China or Corea, be punishable as a grave offence against the Principal Order, whether such act is done in relation to any property or right of a British subject, or of a foreigner or native, or otherwise howsoever.

"(1) That no person shall be punished under this Order for an act which would be an offence against any Act, Statute, or Order in Council, the exhibition of which is required by paragraph (e) above, unless such exhibition had commenced not less than one month before the act took place, or unless the person offending is proved to have had express notice of such Act, Statute, or Order in Council.

It would appear that by Articles 3 and 4 of the Order in Council of February 11, 1907 (quoted above), this consent is no longer requisite.

"(2) That a prosecution by or on behalf of a prosecutor who is not a British subject shall not be entertained, unless either (a) an arrangement is in force between His Majesty's Government and the Government of the State or Power to which the prosecutor belongs, or (b) the Court is satisfied that effectual provision exists, for the punishment in Consular or other Courts in China or Corea of similar acts committed by the subjects of such State or Power in relation to or affecting the interests of British subjects. Where such an arrangement is in force the Minister may issue a notification to that effect, and the Court shall take judicial notice thereof.

66

ARTICLE 4.-No action shall be brought for the protection of any copyright, trade-mark, patent, or design by any person who is not a British subject, unless either (a) an arrangement is in force between His Majesty's Government and the Government of the State or Power to which the plaintiff belongs, or (b) the Court is satisfied that effectual provision exists, for the protection in Consular or other Courts in China or Corea of the rights and interests of British subjects in copyrights, trade-marks, patents, and designs infringed by the subjects of such State or Power.

"Where such an arrangement is in force the Minister may issue a notification to that effect, and the Court shall take judicial notice thereof." (Hertslet, p. 1097.)

NUMBER 1905/5.

GREAT BRITAIN (Pekin Syndicate, Limited) AND CHINA.

Loan agreement, and working agreement, for the Taokow-Chinghua Railway.*— July 3, 1905.

(I.)-LOAN AGREEMENT

Agreement for the construction of a railway from Taokow to Chinghua, in the Province of Honan, made between H. E. Sheng Hsuan-Huai, Director-General of Railways, being thereto specially authorized by the Chinese Government, and George Jamieson, Esq., C. M. G., Agent General of the Pekin Syndicate Limited, also being fully authorized by the said syndicate:

1. On the 21st May 1898 (Kwanghsu 24th year 4th Moon 2nd day) the Shansi Bureau of Trade signed an Agreement with the Pekin Syndicate for working coal and iron in the five following places, namely, Yu Hsien, PingtingChow, Luanfu, Tsechowfu and Pingyangfu in the province of Shansi † and on the 21st June 1898 (Kwanghsu 24th year 5th Moon 3rd day) the Yu-Feng Company signed a mining Agreement with said Syndicate for mining in Honan in the neighborhood of Huai Ching and north of the Yellow River. These Agreements were both ratified by the Tsungli Yamen, in pursuance of an Imperial Decree dated 17th May 1898 (Kwanghsu 24th year intercalary 3rd Moon 27th day). In Article 17 of said Agreements it was stated that the Pekin Syndicate on notifying the Governor of the province should be permitted to build a railway to connect the mines with a main line or with water navigation. In June 1902 the Pekin Syndicate began to open coal mines in Siu Wu Hsien of Honan prov

*Texts as printed in Wang, pp. 325, 345. Printed also in F. E. Review, vol. 5, pp. 135, 137, and Kent, pp. 235, 240.

† Annexed to No. 1908/2, post.

No. 1898/12, ante.

ince and at the same time gave notice to the Governor and obtained permission to build a railway from the said mines to Taokow a port on the Wei River. The British Minister has now applied that the said railway be put under the General Administration of the Imperial Chinese Railway Company and the matter having been arranged in consultation with the Wai Wu Pu, this Agreement has been discussed and settled between the Director-General of the said Imperial Chinese Railway Administration and the said Syndicate.

The line from Taokow to Tsechow is divided into two sections the first from Taokow to the neighborhood of Chinghua Chen a distance of 901⁄2 miles the second section is from Chinghua Chen to the neighborhood of Tsechow in Shansi a distance of 38 miles more or less.

The construction of the first section has been undertaken by the Pekin Syndicate and is now approaching completion. The present Agreement deals specially with the first section from Taokow to Chinghua Chen. As regards the second section it is agreed that hereafter when the Pekin Syndicate has fixed a date for opening mines in the neighborhood of Tsechow a supplementary Agreement will be drawn up between the Director-General and the Pekin Syndicate to provide funds for construction, etc., of this section on terms in conformity with those of the present Agreement for the Taokow to Chinghua line and on basis of the Russian Cheng-Tai Railway Agreement, said terms to be settled at their discretion. The cost of construction of the line from Taokow to Chinghua Chen including rolling stock and monies expended by the Syndicate as estimated by the Chinese Engineer after verification of the proper accounts is £614,600. But in order to provide a liberal sum to meet the expenses of working the line until it is fully developed and the interest on the loan the Director-General has fixed the amount of the loan at £700,000 in 7000 bonds of £100 each. This loan is to bear interest at 5 per cent per annum, and to be called the Chinese Imperial Government Honan Railway 5 per cent (gold) loan of 1905.

2. Out of the above amount of £700,000 there will be issued to the Syndicate 6829 bonds of £100 each which the Syndicate takes firm at the price of 90 per cent of face value equivalent to £614,600 cash in order to refund the above amount of capital. This will be done on the day when the line is handed over to China and interest on the bonds will accrue from date of issue.

At the same time the Syndicate will make up and present an account with vouchers of all initial expenditure not already included in construction account and of the sums provided by them from time to time for the ordinary working of the line from the date of opening to traffic to the time of handing over and request the General Administration to examine and settle it. Any loss on working account after deducting earnings will be borne half and half by each. To the amount so found due will be added interest on capital from 1st January 1905 to the date of handing over and the total of these two items will be refunded to the Syndicate by the further issue of bonds out of the 171 surplus bonds in hand for the required amount reckoned at 90 per cent of face value. If any bonds still remain over they will be retained by the Imperial Chinese Railway Administration for future use. If after the line is taken over the earnings of the line are insufficient to meet the payment for interest and refund of capital

at due date a further loan may be obtained from the Syndicate.§ These bonds the form of which is attached to this contract shall be signed in the name of the Chinese Government by the Chinese Minister in London.

The interest coupons will be paid at their face value in gold in London on 1st of July and the 1st of January of each year. Coupons falling due and paid will be collected in numerical order by the Syndicate at its cost and handed over to the Chinese Minister in London.

3. The loan shall be redeemed in twenty years dating from the tenth year of issue by annual drawings which shall be held in London at the office of the Pekin Syndicate in conformity with the schedule hereto annexed.

The drawings will be held on the 2nd Tuesday of January of each year. The first of such drawings shall be held in the year 1916. The number of drawn bonds at each drawing will be published in four daily newspapers at the cost of the Syndicate.

4. Drawn bonds shall be paid in gold at their face value at the date when the next interest falls due. Bonds presented for payment must be surrendered along with all the interest coupons not yet due. In case of shortage the sum of the missing coupons shall be deducted from the capital repayable. Interest on the bonds will cease on the date when the latter are repayable. Repaid bonds will be collected by the Pekin Syndicate at its cost and handed over to the Chinese Minister in London.

5. The Chinese Government shall not be at liberty before the year 1916 to augment the amount of the annual instalments for redemption nor to repay the whole amount of the loan nor to convert the loan. After this date the Chinese Government shall be at liberty at any time to repay the whole amount of the loan, provided however that until the expiry of the Syndicate's mining concessions the rates then in force for the conveyance of minerals shall not be arbitrarily increased to the detriment of the Syndicate's business. On the other hand the Syndicate after having settled an equitable tariff with the General Administration based on the practice on other lines shall not make pretexts to lower the rates to the detriment of the fund available for payment of principal and interest. 6. Interest coupons and drawn bonds shall be repayable in gold in London at the office of the Pekin Syndicate or of such bank as the Syndicate may appoint for that purpose.

7.-Payment of interest and repayment of the bonds forming this loan are guaranteed upon the general revenue of the Chinese Government. Further by consent of the Chinese Government the Imperial Chinese Railway Administration hereby declares that the net earnings of the said section of railway after payment of ordinary working expenses are specially reserved for payment of interest and repayment of the said bonds, as is set out in the Working Agreement made between the said Imperial Chinese Railway Administration and the Pekin Syndicate, and which working Agreement is to be taken as one with this Contract. This reserve is exclusively for the purposes above set forth and is not divertible until the final extinction of the bonds of this loan.

8.-The Imperial Chinese Railway Administration after having taken note § See Note 1 to this document, post, p. 515.