On the other hand many cases have occurred in which the master or owner has been ordered to pay costs. It has been seen that the language of section 436 of the Merchant Shipping Act, 1854, under which the above Rule was framed, is very wide, and the Court in exercising the judicial discretion thus conferred upon it, will no doubt be guided by the considerations which ordinarily influence other tribunals, such as the conduct of the parties in the course of the Investigation, the extent to which that conduct may have increased the expense of the proceedings, and the like. But the Inquiry itself may have been the result of conduct on the part of persons (") other than certificated officers, which caused or conduced to the casualty. This would, it is conceived, afford substantial ground on which to order the payment of costs as against any such persons who are parties to the Investigation. The mode of recovery of costs when ordered may be conveniently referred to here. By section 436 of the Merchant Shipping Act, 1854 ('), it is enacted that such costs shall be recoverable in the same manner as other costs incurred in summary proceedings before Justices. The manner of recovery is provided by 11 & 12 Vict., c. 43, ss. 18 and 26. The law as to costs in Scotland is to be found in 27 & 28 Vict. c. 53, and by section 22 of that Act, judgment may be given for expenses, if necessary, by a separate judgment, in such form as may be appropriate. But there is no provision for enforcing such judgment, except impliedly, under section 18, allowing poinding and sale (the Scotch equivalent of fi. fa.) or imprisonment. But it is doubtful if imprisonment is now competent for the recovery of costs alone, since the abolition of imprisonment for civil debt, 43 & 44 Vict., c. 34. sums In Ireland the recovery of costs ordered by Justices to be paid is regulated by 14 & 15 Vict., c. 93, s. 22 The following additional power for the 66 of recovery of money" ordered to be paid by any Court, Justice, or Magistrate is given by section 523 of the Merchant Shipping Act, 1854" In all cases where any Court, Justice or Justices of the Peace, or other Magistrate, has or have the power to make an order directing payment to be made of any seaman's wages, penalties, or other sums of money, then, if the party so directed to pay the same is the master or owner of a ship, and the same is not paid at the time and in manner prescribed () As to jurisdiction in the case of such persons, see ante, page 98. (b) 17 & 18 Vict., c. 104. See ante, page 58. in the order, the Court, Justice or Justices, or other Magistrate, who made the order, may, in addition to any other powers they or he may have for the purpose of compelling payment, direct the amount remaining unpaid to be levied by distress or poinding and sale of the said ship, her tackle, furniture, and apparel." The mode of recovery of costs provided by section 436 does not seem to be exclusive, for they are there only made "recoverable in the manner in which they are usually recoverable. The above section would seem to have been enacted with the object of giving Justices and others, in view of the peculiar class of persons with whom the Act deals, additional power of enforcing their orders. Costs ordered to be paid are sums of money," and the use of the word other in the section following such dissimilar matter as seamen's wages and penalties, should not have the effect of excluding costs from the operation of the section. It is submitted that they are within it. 66 66 No special power has been conferred upon the Court of delegating the taxation of the costs, and it is necessary from the form of the order, the analogy to the orders of the Courts, which have no power of delegation, and probably from the provision of Jervis's Act (a) that the amount should be mentioned in the order. The fixing of the amount, or taxation, is a judicial act, Reg. v. Recorder of Cambridge, 8 El. & Bl., 637; 27 L.J. M.C. 160, and as such must be performed by the Court of itself, cannot be delegated, and must be done by the Court before it finally disposes of the case. Sellwood v. Mount, 1 Q.B. 726; Reg. v. Long, 1 Q.B., 740. It would seem, however, that the Court may order its Clerk to ascertain the amount, adopt his estimate as its own act, and insert the sum in its order. Sellwood v. Mount, 1 Q.B. 735; Ex parte Holloway, 1 Dowl. P.C. 26. RULE XXII. Costs. As to taxation. Rule 22. Report to the At the conclusion of the case the Judge shall report to the Board of Trade (). Form of the Board of Trade. Report will be found in the Appendix [to the Rules], No. 3 (). This is a very essential part of the procedure. Not only or chiefly is it necessary with a view to the entry upon the record of certificates in pursuance of section 138 of the (*) 11 & 12 Vict., c. 43. (b) See ante, page 101. Objects of the Report. Report to Board of Trade. Must be sent to Board of Trade. Assessors dissenting. Merchant Shipping Act, 1854, of any dealing with a certificate by cancellation or suspension ("), but the Board of Trade may, if they think the justice of the case requires it, re-issue or return the certificate, or shorten the time of its suspension, or they may grant a new certificate of the same or any lower grade ("). Again, the Board of Trade may think fit to take some action against persons whose conduct may have been reported upon by the Court, or the Report may contain some suggestive lesson for future action or safeguards (c). The reports are published for the information of those interested in shipping. Accordingly, as we have seen ("), the Court is required in all cases to report to the Board of Trade. The form given in the Appendix to the Rules consists of the Report proper, and the Annex to it. Both parts should be signed by the " Judge, and by such of the Assessors as concur therein. If any Assessor do not so concur, he is required by statute to report to the Board of Trade his reasons for dissenting (). Rule 23. Computation of time. RULE XXIII. In computing the number of days within which any act is to be done, they shall be reckoned exclusive of the first day and inclusive of the last day, unless the last day shall happen to fall on a Sunday, Christmas Day, or good Friday, or on a day appointed for a public Fast or Thanksgiving, in which case the time shall be reckoned exclusive of that day also. Rule 24. Service of notices, &c. Application of Rule. RULE XXIV. Any notice, summons or other document issuing out of the Court may be served by post. It will be observed that this Rule does not apply to the Notice of Investigation mentioned in Rule 5. It is to be served by the Board of Trade and does not issue out of the Court ('). (a) See Appendix, page 388. (b) 25 & 26 Vict., c. 63, s. 23, sub-sec. 4. See ante, page 60. (c) See further as to the Report, ante, page 101. (d) The statutory provisions on the subject of the Report are stated at pages 58, 60 and 63. (e) 39 & 40 Vict., c. 80 s. 30. See ante, page 63. (See ante, page 107. RULE XXV. Rule 25. Proof of ser The service of any notice, summons, or other document may be proved by the oath or affidavit of vice of notice. the person by whom it was served. The formalities to be observed in regard to affidavits to be used at a Formal Investigation are set forth in Rule 12 ("). RULE XXVI. &c. Rule 26. Repealing The Shipping Casualties Rules, 1876, except as to the cases in which an order for a Formal clause. Investigation shall have been made previous to the 1st day of October, 1878, are hereby revoked (). See ante, page 114. () The above Rules are dated 28th July, 1878. K Enactments now in force. 17 & 18 Vict. c. 104, sec. 241. (Merchant Shipping Act, 1854.) CHAPTER VII. INVESTIGATIONS INTO THE CONDUCT OR COMPETENCY In addition to the Inquiries into the conduct of certificated officers which take place as part of, or in connection with, a Formal Investigation into a shipping casualty, in which the conduct of the officers is in strictness a subsidiary question, there are Inquiries in which the conduct and competency of an officer are the main subject of the investigation. In such cases a casualty may or may not have happened to his ship, and even if it has occurred, it may only form an incidental subject for investigation. The particular enactments upon which these Inquiries depend are the following: "If the Board of Trade or any Local Marine Board has reason to believe that any master or mate is from incompetency or misconduct unfit to discharge his duties, the Board of Trade may either institute an Investigation or may direct the Local Marine Board at or nearest to the place at which it may be convenient for the parties and witnesses to attend to institute the same, and thereupon such persons as the Board of Trade may appoint for the purpose, or, as the case may be, the Local Marine Board, shall, with the assistance of a local Stipendiary Magistrate (if any), and if there is no such Magistrate of a competent legal assistant to be appointed by the Board of Trade, conduct the Investigation, and may summon the master or mate to appear, and shall give him full opportunity of making a defence either in person or otherwise, and shall for the purpose of such Investigation have all the powers given by the first part of this Act to Inspectors appointed by the Board of Trade, and may make such order with respect to the costs of |