Reckless navigation in proximity to a reef, and neglecting Note to Neglecting to keep a proper look-out during his watch; Neglecting to keep the course set by the master. 3. On the part of an Engineer— Neglecting to see that the sea-cocks were properly Neglecting to maintain proper discipline in the engine room; Neglecting to attend to defective screwed cover of lower Neglecting to examine the belt of the dynamo, and Neglecting to test the density of the water in the Neglecting an incrustation of salt formed on the top of engines. A wrongful act or default causing the loss or abandonment of or serious damage to a ship, or loss of life, may also arise in respect of acts constituting an offence against the criminal law or in respect of the neglect of some obligation imposed upon the officer by the imperial or local statute; e.g., the master or person in charge failing, in a case of collision, to render the assistance or give the information required by s. 422 of the Merchant Shipping Act, and s. 120, post. Incompetency or Misconduct.-As before noted, a Court holding an inquiry into the conduct of a master, mate, or engineer, may cancel or suspend his certificate if it finds that he is incompetent, or has been guilty of any gross act of misconduct, drunkenness, or tyranny. tyranny. To give the Court jurisdiction it is not necessary to prove that the imcompetency or misconduct has caused the loss of or serious damage to a ship, or loss of life. The incompetence which may be the subject of investigation has been deemed to be not merely professional incompetency, but incompetency from mental or even physical incapacity. It is obviously dangerous in the highest degree to permit a person to hold command of a ship, or to entrust the lives of others to his care, whose conduct or actions prove him to be mentally or physically unfit to discharge his duties (Murton, p. 140). It will be observed that the misconduct, drunkenness, or tyranny must be gross. In an inquiry held by the Metropolitan Section 27 Note to Court, the certificate of a master who was found guilty of Section 27 drunkenness on many occasions, while on a voyage from Antwerp to Sydney, was suspended for six months. The jurisdiction to hold the inquiry is conferred by s. 27 (1), ante. Failure to Render Assistance or Give Information in Cases of Collision.—(1) In every case of collision between two vessels it shall be the duty of the master or person in charge of each vessel, if and so far as he can do so without danger to his own vessel, crew, and passengers (if any)— (a) to render to the other vessel, her master, crew, and passengers (if any) such assistance as may be practicable, and may be necessary to save them from any danger caused by the collision, and to stay by the other vessel until he has ascertained that she has no need of further assistance, and also (b) to give to the master or person in charge of the other vessel the name of his own vessel and of the port to which she belongs, and also the names of the ports from which she comes and to which she is bound. (2) If the master or person in charge of a vessel fails to comply with this section, and no reasonable cause for such failure is shown, the collision shall, in the absence of proof to the contrary, be deemed to have been caused by his wrongful act, neglect, or default. (3) If the master or person in charge fails without reasonable cause to comply with this section, he shall be guilty of a misdemeanour, and, if he is a certificated officer, an inquiry into his conduct may be held, and his certificate cancelled or suspended (s. 422, Merchant Shipping Act; and see s. 120, post). In every case of collision, in which it is practicable so to do, it is the duty of the master to make any entry of the circumstances in the official log-book, which entry must be signed by him and also by the mate or one of the crew (s. 423, ib.). Jurisdiction. The provisions of sub-s. 3 of s. 422, supra, conferring jurisdiction to hold an inquiry into the conduct of a person in charge have not been adopted by the local statute A Court of Marine Inquiry in this State may only deal with the certificate of a master, mate, or engineer; but, subject to that limitation, it has the same powers of cancelling and suspending certificates, and it must exercise those powers in the same manner, as a Court holding a similar investigation or inquiry in the United Kingdom (s. 27, sub-ss. 1, 5, ante). Vessel. The word "vessel" in s. 422, was inserted in the Merchant Shipping Act (1873) instead of the word "ship" to get rid of the doubt which was raised in Ex p. Ferguson (L. R., 6 Q. B., THE 281). In that case it was decided that a fishing coble of ten tons Note to burden was a ship. For definition of a ship, see s. 3, ante. Section 27 Person in Charge.—The words include a mate when the master is below (Ex p. Ferguson, supra). Duty of Standing by and Rendering Assistance. This provision was introduced at the instance of Lord Kingsdown, in consequence of some case which came within his cognisance while sitting in the Judicial Committee of the Privy Council, in which, after a collision, one ship sailed away and left the other to perish. The clear object of the clause is to meet with deserved penalty and punishment such a transgression (per Phillimore, J., The Hannibal, L. R. 2 A. & E. at p. 56). The duty is not discharged by a steamship, where, it being practicable and safe to lower a boat to render assistance, although possibly dangerous to stay by the injured ship, she continues her voyage without lowering her boat, and merely hails and signals for other vessels to go to the assistance of the other ship (The Adriatic, 33 L. T., 102). If his ship is so seriously damaged in the collision that the master is not in a position to stand by and render assistance, he must yet return the signals of the other ship, and will be held to blame for not doing so (The Emmy Haase, 9 P. D., 81). Procedure. - See s. 30, and note thereto, post. Summoning Parties and Compelling Attendance of Witnesses. The Court has all the powers of the Supreme Court so far as relates to the summoning of parties and compelling the attendance of witnesses (sub-s. 5.) These powers would seem to be, as regards the summoning of parties, the power of issuing writs commanding the parties to appear, &c., and as regards the compelling the attendance of witnesses, the powers given in the Evidence Act of 1898. By s. 12 of that Act persons present in court are made liable to give evidence and produce documents under penalty of attachment. In the case of persons bound by recognizance or served with a subpoena failing to attend, &c., they are liable in the case of a recognizance, to execution on the recognizance, and in the case of a subpoena to attachment for disobedience (see ss. 13, 14, ib). 28. A Court of Marine Inquiry shall, when requested When Court by the Colonial Treasurer and may in any case where it to make inquiry. thinks fit, make any inquiry under the last preceding sec- Act No. 32, tion. 1899, s. 11. All the inquiries that have been held up to the present have been at the request of the Colonial Treasurer. Note to Rehearing of inquiry at instance of Governor. Ibid. s. 12. Presiding Judge Ibid. 8. 13. Notice of Inquiry. When the time and place for holding an inquiry have been fixed by the Court, the Registrar should cause notice thereof to be served upon the Superintendent, and the owner, master, &c., as directed by R. 6, post. Parties to Inquiries.-See RR. 7 and 8, post. Proceedings in Court. - See RR. 17-20, post. 29. The Governor may, where any such inquiry as aforesaid has been made, order the case to be reheard by a Court of Marine Inquiry, either generally or as to any part thereof, and shall do so (a) if new and important evidence, which could not be produced at the inquiry, has been discovered; (b) if for any other reason there has, in the opinion. of the Governor, been ground for suspecting that a miscarriage of justice has occurred. Rehearing. The provisions respecting rehearings in the English and local statutes are similar in every respect except as to the authority in whose hands the power to order the rehearing is placed. Up to the present in no case has a rehearing been ordered in this State. In England, the Board of Trade have ordered rehearings for the following reasons: that (a) the Board were dissatisfied with the decision of the Court; (b) a mistake was make by the Court in giving its decision; (c) new and important evidence was forthcoming; and (d) there had been a miscarriage of justice. This information has been obtained from the notes of cases reported in Murton's Wreck Inquiries (1884), at p. 189. The source of information is the only one readily available, but, as it is far from being up-to-date, it will be understood that there may be cases where the Board of Trade have ordered rehearings for reasons other than those stated. Time and Place of Rehearing.—Where a rehearing has been directed by the Governor, the Judge is to fix a time and place for the same, and notice thereof shall be given by the Registrar to the parties affected by the order for rehearing (R 28, post). Procedure. See RR. 29-31, post; and the next section. 30. (1) The senior District Court Judge present shall preside at any sitting of a Court of Marine Inquiry. THE COURT OF MARINE INQUIRY (2) Every inquiry under this Act shall be in open Section THE THE THE PROPER DAILY RAPH court. The decision of the Court shall be delivered by the fairy to be presiding Judge in open court. In the event of an In the event of an quality in open court, of votes the presiding Judge shall have a casting as as a deliberative vote. ion and notes (3) The presiding Judge shall in every case for- Copy of deelsward to the Governor a copy of the decision of the Court, to be forwardtogether with notes of the evidence given; and any member ed to Goverof the Court who dissents from the decision may likewise forward his written reasons for so dissenting. Constitution of Court.-Any one or more of the District Court Judges may sit as a Court of Marine Inquiry, and shall be assisted by two assessors. See s. 24, and note thereto, ante. Duties of Judges and Assessors.-The assessors have power to advise but not to adjudicate on any matter before the Court (s. 24, ante). In case of a difference of opinion between the Judge and the assessors, the Judge is not at liberty to act upon any inferences which they may draw from the evidence, except they accord with his own. It is the duty of the Judge to decide the case on his own responsibility (The Magna Charta, 25 L. T., 512). Even in purely nautical matters he is not bound to follow the advice of his assessors, if it does not agree with his own opinion (The Aid, 6 P. D., 84; The Beryl, 9 P. D., 137; The Swanland, 2 Sp. E. & A., 107; The Fred, 72 L. T., 153); but "it would be impertinent in a Judge not to consider as almost binding upon him the opinion of the nautical gentlemen who, having ten times his own skill, are called in to assist him" (Per Brett, M. R., The Beryl, supra). Matters of Nautical Skill and Knowledge.-It seems that in any Court where assessors are present to advise the Court, evidence as to matters of nautical skill and knowledge is not admissible (see The Assyrian, 63 L. T., 91; The Kirby Hall, 8 P. D., 75; The Earl Spencer, L. R., 4 A. & E., 431; The Ivo, 1 Sp. E. & A., 184; The Sir Robert Peel, 43 L. T.. 364; The Nimrod, 14 Jur., 942). And in appeals under the Shipping Casualties Investigations Act, 1879, the Court of Appeal would not permit witnesses to be called to give evidence of this kind (The Kestrel, L. R., 6 P. D., 182). In that case the President (Sir James Hannen) is reported (at p. 189) to have said: 'I have been informed what the practice of the Admiralty Division is with respect to evidence of this kind, and it commends itself to my judgment, and I think that we ought to adopt it in these appeals. We have nautical B nor. |