afford to all parties full information of what are the issues which affect them, and how they do so, and in addition when the Board of Trade raises a question of a certificate being dealt with, its representative is instructed to give such precision to the questions propounded under the above Rule, as to put the officer upon full notice of the failure of duty of which he is accused. Objection has sometimes been made, by way of general criticism, to the number and range of the questions so raised on the part of the Board of Trade. So far as such criticism may be well founded, it may usefully take the form of specific objections to be submitted to the Court on behalf of the party aggrieved.

Statement of questions always made in

It will be observed that the Rule does not in terms require the statement of questions to be made in writing; indeed the expression "shall state in open Court" might possibly suggest writing. the contrary inference. But the Board of Trade have always held themselves required, as well by analogy with all other proceedings, both civil and criminal, as by the obligation to afford to parties implicated the fullest opportunity of making a defence, to deliver the questions in writing.

In a case heard almost immediately after the Rules of 28th July, 1878, came into operation, the Wreck Commissioner expressed an opinion that it was desirable to frame the questions in writing, although the new Rules did not make that course obligatory. The Leader, reported in the Times of November 15th, 1878.

Two Inquiries may be heard together when the same officer is concerned, even if the casualties happened on different voyages. Upon a statement of questions under the above Rule being handed in, the first eight relating to the first, and the last seven to the second casualty, the questions being numbered consecutively, and followed by an application that the certificate of an officer should be dealt with, the Wreck Commissioner held that the application related to both casualties and was sufficient to justify the suspension of the certificate for a wrongful act or default in regard to the first casualty alone. The Amcott, Law Times, October 29th, 1881. Report dated September 30th, 1881.

General principle of framing

The following passage in "Simmons on Courts Martial" may be quoted as laying down a general principle in analogy questions. to which the questions or issues raised in a Formal Investigation should be framed :-

"The Judge Advocate-General on the trial of Colonel Quentin (Printed trial, page 81), very clearly pointed out the general principle which is applicable to the subject of framing charges. It is well known by everybody, that in the case of charges brought before a Court Martial, they are not bound to the technical formalities which prevail in other

Same principle embodied in the Queen's Regulations relating to Naval Courts Martial.

Signature and

tions.

Courts of Law: but there is this essential principle in every charge, before any Court that can exist in the civilized world, that the charge should be sufficiently explicit to enable the person to know what he is to answer, and to enable the Court to know what they are called to enquire into." (Simmons on Courts Martial, 7th Ed.,

page 161.)

The same general principle is embodied in Article 2 of the Queen's Regulations relating to Naval Courts Martial :-" Every offence consists of certain acts done or omitted under certain circumstances, and all the ingredients of the offence should be set forth with sufficient certainty and precision to inform the accused of the specific allegations to be met, and the Court of the specific subject of Inquiry." Thring's Criminal Law of the Navy, 2nd Ed., page 71.

The circumstances attending casualties to ships necessarily differ very widely. It is difficult therefore to adopt any great degree of uniformity in framing the questions to be submitted for the opinion of the Court, but the forms used in several cases have been collected in the Appendix, page 557.

By means of questions properly framed, the advantage is secured of treating these Investigations without pleadings and without any unnecessary forms or delays.

The questions are signed by the representative of the delivery of ques- Board of Trade, one signed copy being handed to the officer of the Court, and one or more signed copies (as the case may be) being delivered to the person or persons whose conduct may be called in question.

Case of the Brazilian.

It will be observed that if the conduct of a certificated officer is in question, the Board of Trade are bound by the Rule to “state in open Court" whether, in their opinion, his certificate should be dealt with.

In the case of the Brazilian, an Inquiry held before the Stipendiary Magistrate of Shields before the repeal of the Rule requiring a formal charge, an intimation was made by the representative of the Board of Trade, at the proper stage of the proceedings, to the master's solicitor, that no charge would be preferred against his client. The master thereupon retired from the Court, but the Magistrate, desiring further inquiry, demanded his subsequent attendance. On application being made to the Court of Queen's Bench for a prohibition to restrain the Magistrate from proceeding further, on the ground that the Board of Trade had decided not to formulate any charge against the master, the Court refused the application, holding that the Magistrate was independent of the Board of Trade, and his power to proceed could not be affected by their action in not charging the master with default. The Magistrate accordingly proceeded with the Investigation, and

on the succeeding day expressed an opinion, that notwithstand-
ing the formal intimation by the Board of Trade, such a charge
ought to be preferred, and it was accordingly done. The
master was found in default, and his certificate was suspended
for three months. Upon that Order being brought up by
certiorari before the Court of Queen's Bench, it was quashed,
on the ground that an intimation having been formally
made by the Board of Trade to the master in the first
instance that no charge would be preferred against him, the
Counsel for the Board of Trade cannot charge him, even on
the suggestion of the Judge, and under the sanction of the
Board of Trade. Ex parte Minto, 35 L.T. Rep. N.S. 808;
"Solicitors' Journal," vol. XXI., page 274; 25 W.R. 251.
In the case of the Cymba and Vigilant, heard on the 13th
Nov., 1876, a" charge" was made against the master of a vessel
(under the repealed Rules of 1876), in that he was guilty of
default by the non-observance of Articles 15, 16, and 20 of
the Regulations for preventing Collisions at Sea, but without
more particularly specifying the default charged. Upon
objection made on behalf of the master, it was held that he
was not entitled to a more specific charge, as no practical
inconvenience or injury would be caused to him for want
of it.

RULE XVII.

The Board of Trade and any other party may thereupon produce further witnesses, who shall be examined, cross-examined, and re-examined, in such order as the Judge may direct.

The issues having been raised by the proceedings under the last Rule, the second stage of the Investigation is entered upon for the trial of those issues. This Rule is obviously intended to, and does afford persons against whom charges are made ample opportunity of defence. It is competent for the Board of Trade and any other party to produce further witnesses, but in practice the evidence is generally completed during the first stage of the Investigation, and this being one proceeding throughout, the evidence is not repeated. It is, however, open to the parties to recall witnesses already examined, and in practice it is often done.

The above Rule is in substitution for Rules 18, 19, and 20 of the Rules of 1876. In a case (the Vigilant, "Solicitors' Journal," XXI., page 31), heard under those Rules, the Wreck Commissioner held that the order of examination

Rule 17. Examination

of further wit

nesses and order

of examination.

Rule 18. Conclusion of

evidence, order

of addressing Court, reply of

Board of Trade.

Rule 19. Adjournment

of Court.

Rule 20. Decision of the Court.

after the issues had been raised, should be the same as before (*).

RULE XVIII.

When the whole of the evidence is concluded, the parties shall be heard in such order as the Judge may direct, and the Board of Trade shall be heard in reply.

Objection having been taken that a person whose conduct was not in question was not entitled to be heard, the Wreck Commissioner held that as it was the duty of the Court to report to the Board of Trade upon the whole case, and not merely as to the charge made, all parties appearing were entitled to be heard under Rule 20 of 1876 (now repealed). The Dinorah and Dorunda, "Solicitors' Journal," XXI., page 9.

Accordingly the owner of the ship lost was first heard, then the person charged, and finally the Board of Trade was heard in reply.

The same order is usually observed under the existing Rules.

RULE XIX.

The Judge may adjourn the Court from time to time and from place to place, as he may think fit.

RULE XX.

Except when the certificate of an officer is cancelled or suspended, in which case the decision shall always be given in open Court, the Judge may deliver the decision of the Court either viva voce or in writing; and, if in writing, it may be sent or delivered to the respective parties, and it shall not be necessary to hold a Court merely for the purpose of giving the decision.

The excepted case mentioned above, is that in which the Statute renders it compulsory that the decision of the Court with respect to cancelling or suspending certificates, shall always be stated in open Court at the conclusion of the case or as soon afterwards as possible (").

() As to order during first stage. See ante, page 118.
(b) 25 & 26 Vict., c. 63, s. 23, sub-sec. 3. See ante, page CO.

RULE XXI.

The Judge may, if he thinks fit, order the costs and expenses of the proceedings, or any part thereof, to be paid by either the Board of Trade, or by any other party to the proceedings. Form of Order for payment of costs will be found in the Appendix [to the Rules] (") No. 2.

This Rule has been framed in order to give effect to the powers conferred upon Courts of Formal Investigation by section 436 of the Merchant Shipping Act, 1854 (b), although the Rule purports to authorize an order for the payment of expenses as well as costs.

Rule 21.

Order for costs.

Assessors have no jurisdiction with

By the terms of that section the Justices or Magistrates (©) alone have power to make orders with regard to costs, the Assessors having no jurisdiction whatever in that respect. The proceedings of a Formal Investigation are, as we have respect to costs. seen, promoted by the Board of Trade under direct statutory authority, and on public grounds. Accordingly, the witnesses are summoned, and their expenses are defrayed by the Board of Trade, who are empowered to pay the whole expense of an Inquiry, mero motu, if in any case they think fit to do so, and without an order (“).

Prior to the passing of the Merchant Shipping Act, 1876, it was unusual to make any order for payment of costs, but occasionally a master who was found guilty of a grave default, or who, being blameable, held no certificate which could be cancelled or suspended, was ordered to pay a portion of the costs of an Investigation. Orders were also made against owners, but owing to the fact that they were not under the then existing law "parties" to the Investigation, the orders could not be enforced against them. This difficulty has now been obviated () by the Rules made under the authority of the Merchant Shipping Act, 1876.

The principle upon which the Wreck Commissioner will act in ordering costs to be paid by the Board of Trade, was explained in one of the early cases heard by him. He expressed his opinion that the power to order the Board to pay costs was only intended to be exercised in a case where there was no foundation for the charge, or for any Inquiry The Vigilant "Solicitors' Journal," XXI., page 31.

at all.

(*) See Appendix, page 215.

(b) 17 & 18 Vict., c. 104, and see ante, page 58.

(c) And the Wreck Commissioner by virtue of 39 & 40 Vict., c. 80,

s. 29. See ante, page 62.

(d) 17 & 18 Vict., c. 104, s. 436, page 58.

(e) See ante, page 109, et seq.

Witnesses

summoned and Board of Trade.

paid by the

Orders for costs against masters.

Against

owners.

Against the Board of Trade