Pt. V. 463. to be un c. 85, s. 9.] or absence without leave or for otherwise being absent from his ship without leave (b), it is alleged by one-fourth, or if their number exceeds twenty by not less than five, of the seamen seaworthy. belonging to the ship, that the ship is by reason of unseaworthi- [34 & 35 Vict. ness, overloading, improper loading, defective equipment, or for c. 110, s. 7; any other reason, not in a fit condition to proceed to sea, or that 36 & 37 Vict. the accommodation in the ship is insufficient, the court having cognizance of the case shall take such means as may be in their power to satisfy themselves concerning the truth or untruth of the allegation, and shall for that purpose receive the evidence of the persons making the same, and may summon any other witnesses whose evidence they may think it desirable to hear, and shall, if satisfied that the allegation is groundless, adjudicate in the case, but if not so satisfied shall before adjudication cause the ship to be surveyed. (2.) A seaman or apprentice charged with desertion, or with quitting his ship without leave, shall not have any right to apply for a survey under this section unless he has before quitting his ship complained to the master of the circumstances so alleged in justification. (3.) For the purposes of this section the court shall require any surveyor of ships appointed under this Act (c), or any person appointed for the purpose by the Board of Trade, or, if such a surveyor or person cannot be obtained without unreasonable expense or delay, or is not, in the opinion of the court, competent to deal with the special circumstances of the case, then any other impartial surveyor appointed by the court, and having no interest in the ship, her freight, or cargo, to survey the ship, and to answer any question concerning her which the court think fit to put. (4.) Such surveyor or other person shall survey the ship, and make his written report to the court, including an answer to every question put to him by the court, and the court shall cause the report to be communicated to the parties, and, unless the opinions expressed in the report are proved to the satisfaction of the court to be erroneous, shall determine the questions before them in accordance with those opinions. (5.) Any person making a survey under this section shall for the purposes thereof have all the powers of a Board of Trade inspector under this Act (d). (6.) The costs (if any) of the survey shall be determined by the Board of Trade according to a scale of fees to be fixed by them, and shall be paid in the first instance out of the Mercantile Marine Fund. (7.) If it is proved that the ship is in a fit condition to proceed to sea, or that the accommodation is sufficient, as the case may be, the costs of the survey shall be paid by the person upon whose demand, or in consequence of whose allegation the survey Pt. V. 463. was made, and may be deducted by the master or owner out of the wages due or to become due to that person, and shall be paid over to the Board of Trade. (8.) If it is proved that the ship is not in a fit condition to proceed to sea, or that the accommodation is insufficient, as the case may be, the master or owner of the ship shall pay the costs of the survey to the Board of Trade, and shall be liable to pay to the seaman or apprentice, who has been detained in consequence of the said proceeding before the court under this section, such compensation for his detention as the court may award. Cf. s. 483, sub-s. (1) (j), as to survey by order of a naval court. (a) Quære whether the provision of s. 238 (deserters from foreign ships) extends the powers of s. 463 to foreign ships belonging to the countries set out in the note to s. 238. (b) See ss. 221 et seq. for powers for dealing with deserters and absentees. (c) See s. 724 as to appointment of surveyors. Cf. M. S. A. 1906, s. 75, as to shipwright surveyors. (d) See ss. 729, 730, for powers of inspectors. Pt. VI. 464. PART VI.-SPECIAL SHIPPING INQUIRIES AND COURTS. Inquiries and Investigations as to Shipping Casualties. 464. For the purpose of inquiries and investigations under Shipping this Part of this Act a shipping casualty shall be deemed to casualties. occur: (1.) when on or near the coasts of the United Kingdom (a) any ship (b) is lost, abandoned, or materially damaged; (2.) when on or near the coasts of the United Kingdom any ship has been stranded or damaged, and any witness is found in the United Kingdom (c) ; (3.) when on or near the coasts of the United Kingdom any (5.) when in any place any such loss, abandonment, material (7.) when any British ship (e) is lost or is supposed to have (a)" On or near the coasts of the United Kingdom."-Semble, means within territorial waters. See The Fulham, 68 L. J. P. 75; [1898] P. 206; and see note (b) to s. 546. As to colonies, see s. 478. (b) "Ship."-As to the meaning of this term, see s. 742, and note thereto. In Ex parte Ferguson there cited, it was held that a fishing "coble" was a "ship" within the provisions of M. S. A. 1854, here re-enacted. Certain fishing boats are expressly exempted from the provisions as to naval courts: see 8. 486. As to inquiries regarding casualties to fishing boats and boats belonging thereto, see also ss. 385, 386, 468. (e) The occurrences mentioned in paras. (2), (6), (7), were made subjects of inquiry by M. S. A. 1876, s. 32, as to the effect of which with regard to the jurisdiction to suspend certificates, see note (c) to s. 470. That Act did not apply to vessels trading on colonial rivers and inland waters; but if such exemption had any application to these provisions, it is now dropped: see sub-ss. (5)—(7). (d) Apparently the word "material" was inserted in para. (5) in consequence of the addition to the context of para. (2), which is not limited to cases of material damage; and the words "as above mentioned," in accordance with Ex parte Story, infra (s. 470), where it was held that "casualty" here means the casualty mentioned in the preceding sub-section, i.e., one by which loss of life occurs. (e) "British ship."-See ss. 1, 2, 72, and notes thereto. [1854, s. 432; 39 & 40 Vict. c. 80, s. 32.] Pt. VI. 465-466. Preliminary inquiry into shipping casualties. [1854, s. 432; 39 & 40 Vict. c. 80, s. 32.] Formal investigation of shipping casualties. [1854, ss. 433, 436, 437; 39 & 40 Vict. c. 80, ss. 29, 30, 33; 42 & 43 Vict. c. 72, s. 3.] 465.—(1.) Where a shipping casualty has occurred a preliminary inquiry may be held respecting the casualty by the following persons, namely: : (a.) where the shipping casualty occurs on or near the coasts (c.) in any case by any person appointed for the purpose by (2.) For the purpose of any such inquiry the person holding the same shall have the powers of a Board of Trade inspector under this Act (b). (a) See definition of "chief officer of customs," s. 742. The result of this inquiry is entered in a Board of Trade form, and sworn to by the deponent. It is usually referred to as "the deposition" of the person examined. The form must be filled in and completed before being sworn, and no alteration should afterwards be made by the officer of customs. (b) See ss. 729, 730, for powers of inspectors. See as to examinations by receivers of wreck or other persons in cases of ships in distress, s. 517; as to inquiries by Board of Trade inspectors, ss. 728 et seq.; and as to inquiries in colonies, see s. 478. 466.-(1.) A person authorised as aforesaid to make a preliminary inquiry shall in any case where it appears to him requisite or expedient (whether upon a preliminary inquiry or without holding such an inquiry) that a formal investigation should be held, and in any case where the Board of Trade so directs, apply to a court of summary jurisdiction to hold a formal investigation, and that court shall thereupon hold the formal investigation (a). (2.) A wreck commissioner appointed under this Act (b) shall at the request of the Board of Trade hold any formal investigation into a shipping casualty under this section, and any reference to the court holding an investigation under this section includes a wreck commissioner holding such an investigation. (3.) The court holding any such formal investigation shall hold the same with the assistance of one or more assessors of nautical, engineering, or other special skill or knowledge, to be appointed out of a list of persons for the time being approved for the purpose by a Secretary of State in such manner and according to such regulations as may be prescribed by rules made under this Part of this Act with regard thereto (c). (4.) Where a formal investigation involves or appears likely to involve any question as to the cancelling or suspension of the certificate of a master, mate, or engineer, the court shall hold the investigation with the assistance of not less than two assessors having experience in the merchant service. (5.) It shall be the duty of the person who has applied to a court to hold a formal investigation to superintend the management of the case, and to render such assistance to the court as is in his power. (6.) The court after hearing the case shall make a report to the Board of Trade containing a full statement of the case and of the opinion of the court thereon, accompanied by such report of, or extracts from, the evidence, and such observations as the court think fit (d). (7.) Each assessor shall either sign the report or state in writing to the Board of Trade his dissent therefrom and the reasons for that dissent. (8.) The court may make such order as the court think fit respecting the costs of the investigation, or any part thereof, and such order shall be enforced by the court as an order for costs under the Summary Jurisdiction Acts. (9.) The Board of Trade may, if in any case they think fit so to do, pay the costs of any such formal investigation. (10.) For the purposes of this section the court holding a formal investigation shall have all the powers of a court of summary jurisdiction when acting as a court in exercise of their ordinary jurisdiction. (11.) 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. (12.) Formal investigations into shipping casualties under this section shall be held in some town hall, assize or county court, or public building, or in some other suitable place to be determined according to rules made under this Part of this Act with regard thereto, and, unless no other suitable place is in the opinion of the Board of Trade available, shall not be held in a court ordinarily used as a police court, and all enactments relating to the court shall for the purposes of the investigation have effect as if the place at which the court is held were a place appointed for the exercise of the ordinary jurisdiction of the court. (13.) Where an investigation is to be held in Scotland, the Board of Trade may remit the same to the Lord Advocate to be prosecuted in such manner as he may direct. (a) See the provisions of s. 476, as to holding formal investigations before stipendiary magistrates who are members of local marine boards. As to proceeding with an investigation, although the Board of Trade have no charge to make against the master or officers, see Ex parte Minto (1877), 35 L. T. 808; 25 W. R. 251. (b) See s. 477: appointment of wreck commissioner. Pt. VI. 466. |