Applicable only to persons in charge of * * prevent the occurrence of such a catastrophe. No doubt the guilt might arise from totally different circumstances; that of the captain from improperly leaving his vessel in charge of the second mate; whilst that of the mate might arise from the manner in which he exercised the trust reposed in him. * * It has been said, that there was nothing more than error in judgment attributable to him the captain]. That he did err in judgment, as before mentioned, was undoubted, for had his conduct been intentional to produce the disaster which occurred, his crime would have been that of murder. The question was, did he, charged with the care of a vessel containing so many passengers, culpably leave her to the care of another, by whose mismanagement the wreck was occasioned? * * * The jury, by a majority, found the captain guilty of culpable, but not reckless neglect of duty, and unanimously found the panel (the second mate) guilty of culpable and reckless neglect of duty. The second mate was sentenced to seven years' transportation, and the master to imprisonment for eighteen calendar months. The entire charge is instructive, and contains so clear an exposition of the duties and responsibilties of ships' officers that it has been thought worth while to print it in the Appendix (*). II. and III.-Failure of duty in cases of collision. The cases II. and III. it will be observed, apply British ships. only to masters or persons in charge of British vessels. In ex parte Ferguson (") an English steamer ran down a fishing coble; no injury ensued to the steamer or anyone on board of her, but the coble sank and three of her crew were drowned; the master was below and the mate was in charge of the deck; the master came up soon after the collision, but neither master nor mate took any steps to save the men. The certificates of the master and mate (*) Pamphlet by Mr. Thomas Gray, on "Wrecks and Misconduct at Sea," written in 1871, revised in 1873, reprinted from the Nautical Magazine. See Appendix, page 340. (b) Ex parte Ferguson, 6 Q.B. 280. were suspended for three months upon an Inquiry under section 33 of the Merchant Shipping Act of 1862, which was in terms similar to those of the 16th section of the Act of 1873. The Court of Queen's Bench held that the mate before, and the master after, he came on deck were "in charge' within the meaning of the statute, and that their certificates had been lawfully suspended. In the classes II. and III of cases now under consideration the conduct which involves liability to suspension or cancellation is by the statute made. a misdemeanour. It may further be the subject of an Investigation into conduct under section. 241 of the Merchant Shipping Act, 1854, as distinguished from a Formal Investigation into a shipping casualty. This question is more fully discussed in a later Chapter ("), and it is submitted that where a Formal Investigation is actually being held into the circumstances of a collision the whole matter may properly be inquired into, and the certificate of the master or person in charge may be dealt with in those proceedings. For the safety of vessels navigated on the seas, regulations have been made, which are only to be departed from under exceptional circumstances. Some apply to certain rivers only, and are usually made under special Acts, others are made applicable to the high seas in general. The latter together with the reference to the statute under which they are made, are printed in the Appendix ('). Departures from these "rules of the road are, and ought to be highly censurable, and may, in certain circumstances, expose the wrongdoer to criminal liability(), and also if he hold a certificate to its suspension or cancellation ("). The above classes of offences, II. and III. (if they cause or contribute to the loss of, or serious damage to a ship, or loss of life), may also constitute a wrongful act or default (). (*) See post, Chapter VII., pages 131 and 137. (c) Reg. v. Keyn, 2 Ex. Div., 63. (d) 25 & 26 Vict., c. 63, ss. 27, 28. (*) See ante, page 62. H As to third persons who are Formal Investi parties to a gation. Subject-matter of Inquiry. 1. The circum stances and cause. 2. The conduct of certificated officers. 3. The conduct of third parties. II.--PERSONS OTHER THAN CERTIFICATED OFFICERS Persons other than certificated masters, mates, or engineers, may become, or be made parties to a Formal Investigation, and when parties, are to some extent subject to the jurisdiction of Courts of Formal Investigation. It is not proposed to consider here who are liable to be made, or who may claim to be parties. Those are questions which are more properly discussed under the head of procedure ("), and in the chapter devoted to that subject the matter is fully dealt with. There is no precise definition laid down in the Merchant Shipping Acts with respect to the subject matter of Inquiry at a Formal Investigation, but it is clearly to be gathered that the circumstances and cause of the casualty, and the conduct of the certificated officers of the ship, so far as it may have conduced to the casualty, are to be investigated. The conduct of persons (b) other than certificated officers may also have brought about or contributed to the disaster, and may not only thus be fairly and properly brought within the scope of the Inquiry, but may require to be examined in order to determine the cause of the casualty. Thus it happens not infrequently that the master or person in charge of the ship is not the holder of any certificate, or that the owner or some other person may by his conduct have directly contributed to the casualty. The clauses of the Merchant Shipping Acts, however, contain no trace of any penal jurisdiction conferred upon Courts of Formal parties except as Investigation, as against such third persons, apart from the power to award costs against them to which reference is made in the chapter on procedure. No penal jurisdiction against third We have seen (") that for the purpose of hearing and trying a Formal Investigation, two Justices or a Stipendiary Magistrate have, so far as relates to the (a) See post, page 109. (b) By the General Rules of procedure the Board of Trade are required to state at the proper stage upon what questions, in reference to the causes of the casualty, and the conduct of any persons connected therewith, they desire the opinion of the Court. See post, page 119. (c) 17 & 18 Vict., c. 104, s. 433. See ante, page 57. summoning of parties, the same powers as if the same were a proceeding relating to an offence or complaint upon which they or he have power to make a summary conviction or order or as near thereto as circumstances permit. The same jurisdiction and powers are now conferred (a) upon a Wreck Commissioner, and the Lord Chancellor may make General Rules for carrying into effect the enactments relating to Formal Investigations, and in particular with respect to (among other matters) the parties, and the notice to such parties. But all these powers are expressly to be exercised for the purpose of "hearing and trying" or "holding a Formal Investigation" and "for carrying into effect the enactments relating thereto." The jurisdiction as against all the parties thereto, must accordingly be sought in the enactments themselves, and these contain no definition of the offences which may be charged against any persons other than certificated masters, mates, and engineers; they confer no authority and prescribe no machinery for trying any other class of offenders, and they do not empower the Court to inflict punishment (b), or even directly to censure any other class. It may be matter for discussion whether it is desirable to enlarge the jurisdiction of the Courts of Formal Investigation in this direction, but on the other hand, the inconvenience, if not injustice, of needlessly prolonging and widening out the scope of an Inquiry by travelling into collateral and frequently criminal issues not really necessary to the Inquiry, is sufficiently obvious. The questions which are permissible under the terms of the statute and rules are in themselves so comprehensive as to have provoked remark, and even a protest, on some occasions by the parties interested. In the well-known case of the Princess Alice inquired into at so much length in October, 1878, the fitness of the vessel in point of stability and construction might be said to to have been a legitimate subject of investigation, in a case of such gravity, but it was, nevertheless, a matter of strong comment on the part of the repre (*) 39 & 40 Vict., c. 80, s. 29. See ante, page 62. (b) Report and Evidence of Unseaworthy Ships Commission, Vol. II., 1873, pages 303 and 305. Inconveni ence of travellral and often ing into collate criminal issues. What is the real issue. sentatives of some of the parties that their clients were put to great expense by that question having been raised (a). The real issue in a Formal Investigation is ('), according to the existing law, "what was the cause of the casualty." In so far as the trial of that issue may involve the conduct of a certificated officer, the statutes expressly provide that it shall be reported on () by the Court, and that they may exercise powers of cancelling or suspension of certificates. So far as the cause of the casualty is to be sought in the conduct of other parties, that conduct must also be discussed, inquired into, and reported upon, but at this point the jurisdiction in their case appears to become exhausted, except in regard to the power to visit them with costs as already mentioned.~ It is true that it has been said fairly enough that the expression "any person" in section 30 of the Merchant Shipping Act, 1876, which provides that " every Formal Investigation into a shipping casualty shall be conducted in such manner that if a charge is made against any person that person shall have an opportunity of making a defence," is a proof that some extended jurisdiction was intended to be conferred, because the word "person" embraces others than certificated officers. No doubt it would have been more verbally accurate to have used the words master, mate, or engineer" instead of "person,' but the very form of the clause appears to preclude the wider interpretation above suggested. It does not declare that charges shall or shall not be made, but that "if a charge is made" there shall be opportunity of defence. Such language cannot, it is submitted, carry the Act any further, or enlarge the scope of inquiry previously laid down by the enactments in question. The effect of the clause is to provide for those who may be impeached under the provisions of the Merchant Shipping Acts, an opportunity for genuine defence, and not to extend the subject-matter of the charge, or to apply the clause to new classes of offenders. 66 (*) Princess Alice Report, dated 6th November, 1878. (c) See ante, pages 58 and 60. |