Pt. V. 459.

visionally detained (d) for the purpose of being surveyed or for ascertaining the sufficiency of her crew, and either finally detained or released as follows:

:

(a.) The Board of Trade, if they have reason to believe, on complaint (c) or otherwise, that a British ship is unsafe, may order the ship to be provisionally detained as an unsafe ship for the purpose of being surveyed.

(b.) When a ship has been provisionally detained there shall be forthwith (e) served on the master (f) of the ship a written statement of the grounds of her detention, and the Board of Trade may, if they think fit, appoint some competent person or persons to survey the ship and report (c) thereon to the Board.

(c.) The Board of Trade on receiving the report may either order the ship to be released or, if in their opinion the ship is unsafe, may order her to be finally detained, either absolutely, or until the performance of such conditions with respect to the execution of repairs or alterations, or the unloading or reloading of cargo, or the manning of the ship, as the Board think necessary for the protection of human life, and the Board may vary or add to any such order.

(d.) Before the order for final detention is made a copy of the report shall be served upon the master of the ship, and within seven days after that service the owner or master of the ship may appeal to the court of survey for the port or district where the ship is detained in manner directed by the rules of that court (g).

(e.) Where a ship has been provisionally detained, the owner or master of the ship, at any time before the person appointed under this section to survey the ship makes that survey, may require that he shall be accompanied by such person as the owner or master may select out of the list of assessors for the court of survey, and in that case if the surveyor and assessor agree, the Board of Trade shall cause the ship to be detained or released accordingly, but if they differ, the Board of Trade may act as if the requisition had not been made, and the owner and master shall have the like appeal touching the report of the surveyor as is before provided by this section.

(f.) Where a ship has been provisionally detained, the Board of Trade may at any time, if they think it expedient, refer the matter to the court of survey for the port or district where the ship is detained.

(g.) The Board of Trade may at any time, if satisfied that a ship detained under this section is not unsafe, order her to be released either upon or without any conditions.

(2.) Any person appointed by the Board of Trade for the purpose (in this Act referred to as a detaining officer) shall have the same power as the Board have under this section of ordering the provisional detention of a ship for the purpose of being surveyed, and of appointing a person or persons to survey her; and if he thinks that a ship so detained by him is not unsafe may order her to be released.

(3.) A detaining officer shall forthwith report to the Board of Trade any order made by him for the detention or release of a ship.

(4.) An order for the detention of a ship, provisional or final, and an order varying the same, shall be served as soon as may be on the master of the ship.

(5.) A ship detained under this section shall not be released by reason of her British register being subsequently closed (a).

(6.) The Board of Trade may with the consent of the Treasury appoint fit persons to act as detaining officers under this section, and may remove any such officer; and a detaining officer shall be paid such salary or remuneration (if any) out of money provided by Parliament as the Treasury direct, and shall for the purpose of his duties have all the powers of a Board of Trade inspector under this Act (h).

(7.) A detaining officer and a person authorised to survey a ship under this section shall for that purpose have the same power as a person appointed by a court of survey to survey a ship, and the provisions of this Act with respect to the person so appointed shall apply accordingly (i).

(a) As to the meaning of "British ship," see ss. 1, 2, 72, and notes thereto. Where a vessel, registered as a British ship, was detained by the Board of Trade under M. S. A. 1873, s. 12, after a contract for her transfer to a foreigner, but before completion of the transfer and before the closing of her British register, it was held that she was a British ship and therefore was not released by the subsequent completion of the transfer. Granfelt v. Lord Advocate (1874), (Sc.) 1 Ct. of Sess. Cas. (3rd Series), 782; 11 Sco. L. R. 337.

The detention does not prevent the transfer to a foreigner, and the closing of the British register. Per the Lord President, ibid.

Quare, whether a vessel, registered as British, may be detained after transfer to a foreigner, but before the closing of the register. Ibid.

(b) The words in clarendon type in this section are to be read in by virtue of the M. S. A. 1897, s. 1. The powers given by this section now include power to

muster the crew. Ibid.

When a British ship is detained under this section the Board of Trade may enquire into the condition of her anchors. and chains, and make such order as they think requisite. Anchors and Chain Cables Act, 1899, s. 4.

(c) In Lewis v. Gray (1876), 45 L. J. C. P. 720; 1 C. P. D. 452, it was held, under 36 & 37 Vict. c. 85, s. 12, that neither the original information or complaint nor the report need state in terms that the vessel "cannot proceed to sea without serious danger to human life"; it is enough if the facts reported to the Board are such as ought reasonably to satisfy them that this is so.

See also ibid., as to when detention is justifiable-form of order for detention— appeal; and as to whether in the case of any excess of jurisdiction on the part of the Board the owner's common law remedy is taken away by this enactment.

Pt. V.

459.

Pt. V. 460.

Liability for

costs and damages.

[39 & 40 Vict. c. 80, ss. 10,

41, 42; J. I. A.]

As to the right of the Board of Trade to rely, in an action for illegal detention, upon a deficiency not mentioned in the notice of detention, subject to fair notice to the shipowner before the hearing, see per Brett, L. J., Thompson v. Farrer (1882), 51 L. J. Q. B. 534; 9 Q. B. D. 372, at p. 382.

See also note (a) to s. 460.

(d) As to the enforcement of detention, see s. 692.

(e) "Forthwith served."--Notice by registered letter is sufficient, see Larsen v. Hart (1900), 2 F. (Court of Justiciary Cases) 54; 37 Sc. L. R. 924; and see note (d) to s. 462.

(f) As to service of documents on master, see s. 696.

(g) As to courts of survey, see ss. 487-489.

(h) As to the powers of a Board of Trade inspector, see ss. 723, 729, 730. (i) See s. 488, sub-s. (4), as to powers of court to survey.

460.-(1.) If it appears that there was not reasonable and probable cause, by reason of the condition of the ship (a) or the act or default of the owner, for the provisional detention of a ship under this Part of this Act as an unsafe ship, the Board of Trade (b) shall be liable to pay to the owner of the ship his costs of and incidental to the detention and survey of the ship, and also compensation for any loss or damage (c) sustained by him by reason of the detention or survey.

(2.) If a ship is finally detained under this Act, or if it appears that a ship provisionally detained was, at the time of that detention, an unsafe ship within the meaning of this Part of this Act (d), the owner of the ship shall be liable to pay to the Board of Trade their costs of and incidental to the detention and survey of the ship, and those costs shall, without prejudice to any other remedy, be recoverable as salvage is recoverable (e).

(3.) For the purpose of this section the costs of and incidental to any proceeding before a court of survey, and a reasonable amount in respect of the remuneration of the surveyor or officer of the Board of Trade, shall be part of the costs of the detention and survey of the ship, and any dispute as to the amount of those costs may be referred to one of the officers following, namely, in England or Ireland to one of the masters or registrars of the High Court (ƒ), and in Scotland to the auditor of the Court of Session, and the officer shall, on request by the Board of Trade, ascertain and certify the proper amount of those costs.

(4.) An action for any costs or compensation payable by the Board of Trade under this section may be brought against the Secretary of that Board by his official title as if he were a corporation sole, and if the cause of action arises in Ireland, and the action is brought in the High Court, that Court may order that the summons or writ may be served on the Crown and Treasury Solicitor for Ireland in such manner and on such terms respecting extension of time and otherwise as the Court thinks fit, and that that service shall be sufficient service of the summons or writ upon the Secretary of the Board of Trade.

(a) In an action for compensation for detention it was held (under M. S. A. 1876, ss. 6, 10), that the proper question to be left to the jury was whether the facts with regard to the ship as she lay, which would have been apparent to a person of ordinary skill on examining her and inquiring about her, would have given him reasonable and probable cause to suspect her safety, and to detain her for survey and inquiry. Thompson v. Farrer, supra. See also Lewis v.

Gray, supra.

(b) An action under this section (M. S. A. 1876, s. 10) is one in which the Crown has an interest so as to entitle the Attorney-General to demand, as of right, a trial at bar, and hence upon his waiving that right the Court is bound (under the Crown Suits Act, 1865, s. 46) to change the venue to any county wherein he elects to have the action tried. Dixon v. Farrer (1886), 56 L. J. Q. B. 53; 18 Q. B. D. 43.

(c) General damages in respect of injury to the owners' reputation as shipowners, by reason of the detention of their ship, are not within the words compensation for loss or damage," and therefore are not recoverable. Dixon v. Calcraft, 61 L. J. Q. B. 529 ; [1892] 1 Q. B. 458.

66

(d) See s. 459, sub-s. (1), as to detention of unsafe ships.

(e) See ss. 547 et seq., for procedure in salvage.

(f) The jurisdiction in England is assigned to the Probate, Divorce and Admiralty Division by Rule 1 of the Rules of the Supreme Court (Merchant Shipping), 1894, for which see Appendix, p. 763.

Pt. V. 461-462.

461.-(1.) Where a complaint is made to the Board of Trade Power to or a detaining officer that a British ship is unsafe, the Board or require from complainant officer may, if they or he think fit, require the complainant to security for give security to the satisfaction of the Board for the costs and costs. compensation which he may become liable to pay as herein-after [39 & 40 Vict. mentioned. c. 80, s. 11.]

(2.) Provided that such security shall not be required where the complaint is made by one-fourth, being not less than three, of the seamen belonging to the ship, and is not in the opinion of the Board or officer frivolous or vexatious, and the Board or officer shall, if the complaint is made in sufficient time before the sailing of the ship, take proper steps for ascertaining whether the ship ought to be detained.

(3.) Where a ship is detained in consequence of any complaint, and the circumstances are such that the Board of Trade are liable under this Act to pay to the owner of the ship any costs or compensation, the complainant shall be liable to pay to the Board of Trade all such costs and compensation as the Board incur or are liable to pay in respect of the detention and survey of the ship.

ships of

462. Where a foreign ship has taken on board all or any Application part of her cargo at a port in the United Kingdom, and is whilst to foreign at that port unsafe by reason of the defective condition of her provisions as hull, equipments, or machinery, or by reason of overloading or to detention. improper loading, or by reason of undermanning (a), the pro- [39 & 40 Vict. visions of this Part of this Act (b) with respect to the detention c. 80, s. 13.] of ships shall apply to that foreign ship as if she were a British ship (c), with the following modifications:

Pt. V. 463.

Survey of

(i.) a copy of the order for the provisional detention of the ship shall be forthwith served (d) on the consular officer (e) for the country to which the ship belongs at or nearest to the said port;

(ii.) where a ship has been provisionally detained, the consular officer, on the request of the owner or master of the ship, may require that the person appointed by the Board of Trade to survey the ship shall be accompanied by such person as the consular officer may select, and in that case, if the surveyor and that person agree, the Board of Trade shall cause the ship to be detained or released accordingly, but if they differ, the Board of Trade may act as if the requisition had not been made, and the owner and master shall have the like appeal to a court of survey touching the report of the surveyor as is herein-after provided in the case of a British ship (ƒ); and

(iii) where the owner or master of the ship appeals to the court of survey, the consular officer, on his request may appoint a competent person to be assessor in the case in lieu of the assessor who, if the ship were a British ship, would be appointed otherwise than by the Board of Trade (g).

(a) The words in italics in this section are repealed by M. S. A. 1906, s. 85, Sched. II. and the words in clarendon added by M. S. A. 1897, s. 1 (2) and M. S. A. 1906, s. 2. Sect. 2 of the latter Act enacts with regard to foreign ships on certain voyages that s. 462 shall apply to the case of a ship which is unsafe by reason of the defective condition of her hull, equipments, or machinery, and shall apply with respect to any foreign ships being at any port in the United Kingdom, whether those ships take on board any cargo at that port or not. This provision as to foreign ships does not apply to ships putting in under stress of weather, &c., see M. S. A. 1906, s. 6.

(b) See s. 459, as to detention of unsafe ships.

(c) An Order in Council, under s. 734, is not needed in order to enforce the provisions of this section against a foreign ship. Chalmers v. Scopenich, infra (s. 692); and see note (a) to s. 734.

The general provisions for enforcing detention are contained in s. 692. As to whether, in the absence of such an Order in Council, they also apply to a foreign ship which is subject to detention under s. 462, see ibid. and note to 8. 692.

(d.) "Forthwith served": Where a foreign ship was detained and the copy of the Order only referred to s. 459, and was sent by registered post to the consul, it was held that the notice was sufficient, and that the consul had been "forthwith served" within the meaning of this section. Larsen v. Hart (1900), 2 F. (Court of Justiciary Cases) 54; 37 Sc. L. R. 924.

(e) For definition of "Consular officer," see s. 742.

(f) See s. 459, sub-s. (1) (d).

(g) See s. 487, sub-s. (3), as to assessors in court of survey.

463.-(1.) Whenever in any proceeding against any seaman ships alleged or apprentice belonging to any ship (a) for the offence of desertion,

by seamen