Pt. VI. 467-470. List of assessors. [42 & 43 Vict. c. 72, s. 3.] Inquiry in fishing ves- sess. 2, c. 4, Power of Trade as to of investiga [1854, s. 242; 1862, ss. 1,23; 1883, s. 39.] (c) See s. 467, and the Shipping Casualties Rules, set out post, Appendix, P. 723. (d) See Shipping Casualties Rules, 15, 17, post, Appendix, p. 725. 467.-(1.) The list of persons approved as assessors for the purpose of formal investigations into shipping casualties shall be in force for three years only, but persons whose names are on any such list may be approved for any subsequent list. (2.) The Secretary of State may at any time add or withdraw the name of any person to or from the list. (3.) The list of assessors in force at the passing of this Act shall, subject as aforesaid, continue in force till the end of the year one thousand eight hundred and ninety-five. 468. When any loss of life arises by reason of any casualty happening to or on board any boat belonging to a fishing vessel, the Board of Trade may, if they think fit, cause an inquiry to be made or a formal investigation to be held as in the case of a shipping casualty, and the provisions of this Act relating thereto shall apply accordingly. See also ss. 385, 386, as to inquiries in such cases by superintendents. Power as to Certificates of Officers, &c. 469. The Board of Trade may suspend or cancel the certificate of any master, mate, or engineer if it is shown that he has been convicted of any offence (a). (a)" Any offence." Quære, means any offence, whether under this Act or not. 470.-(1.) The certificate of a master, mate, or engineer may be cancelled or suspended (a) by a court holding a formal investigation into a shipping casualty under this Part of this Act (a), or by a naval court constituted under this Act (b), if the court find that the loss or abandonment of, or serious damage to, any ship, or loss of life (c), has been caused by (d) his wrongful act or default (e), provided that, if the court holding a formal investigation is a court of summary jurisdiction, that court shall not cancel or suspend a certificate unless one at least of the assessors concurs in the finding of the court: (b.) by a court holding an inquiry under this Part of this Act (f) into the conduct of a master, mate, or engineer, if they find that he is incompetent, or has been guilty of any gross act of misconduct, drunkenness, or tyranny, or that in a case of collision he has failed to render such assistance or give such information as is required under the Fifth Part of this Act (g): (c.) by any naval or other court where under the powers given by this Part of this Act the holder of the certificate is superseded or removed by that court (h). (2.) Where any case before any such court as aforesaid involves a question as to the cancelling or suspending of a certificate, that court shall, at the conclusion of the case or as soon afterwards as possible, state in open court the decision to which they have come with respect to the cancelling or suspending thereof (i). (3.) The court shall in all cases send a full report on the case with the evidence to the Board of Trade, and shall also, if they determine to cancel or suspend any certificate, send the certificate cancelled or suspended to the Board of Trade with their report (i). (4.) A certificate shall not be cancelled or suspended by a court under this section, unless a copy of the report, or a statement of the case on which the investigation or inquiry has been ordered, has been furnished before the commencement of the investigation or inquiry to the holder of the certificate. (a) As to these investigations, see ss. 466, 478. Where the investigation is instituted by the Board of Trade, the Board must not act as a neutral party, but must advise the court whether or no the board considers that the certificate in question should be cancelled or suspended. The Carlisle, [1906] P. at p. 310 et seq. (b) As to naval courts, see ss. 480 et seq. (c) The occurrences mentioned in sub-ss. (2) and (7) of s. 464 were added to the subjects of preliminary inquiries and formal investigations by M. S. A. 1876, s. 32; but it was held in Ex parte Story (1878), 47 L. J. Q. B. 266; 3 Q. B. D. 166, that the jurisdiction as to the suspension of certificates under 1854, s. 242 (1894, s. 470) was not thereby extended, and that there was no power to suspend the master's certificate where a ship had merely stranded without material damage to the ship or loss of life. (d) See The Arizona (1880), 49 L. J. P. D. & A. 54; 5 P. D. 123, in which the master's certificate was restored on appeal because there was no evidence to connect the casualty with his alleged default. (e)" Wrongful act or default."-These words do not include an error of judgment at a moment of great difficulty and danger. The Famenoth (1882), 7 P. D. 207; 48 L. T. 28; Watson v. Board of Trade (1884), 22 Sco. L. R. 22. But they include conduct arising from a surrender of the judgment to the influence of unreasonable panic. Brown v. Board of Trade (1890), (Sc.) 18 Ct. of Sess. Cas. (4th Ser.) 291; 28 Sco. L. R. 401. A master's certificate was suspended where the loss was due to his taking improper ballast. The Golden Sea (1882), 51 L. J. P. D. & A. 64; 7 P. D. 194. (f) See ss. 471, 478, as to conduct of officers. (g) See s. 422: duty to "stand by, &c." (h) See ss. 472, 483, as to removal, &c. of officers. (i) See Rules 15, 17 of the Shipping Casualties Rules, 1895, post, Appendix, p. 725. In The Kestrel (1881), 6 P. D. 182; 45 L. T. 111, it was held, upon the construction of the statutes (and in particular the words of M. S. A. 1862, s. 23, here re-enacted), and of the rules then in force, that, although the authority holding the inquiry must, when he deals with a certificate, give his decision with regard thereto in open court, he need not make any statement of the reasons for the decision (though it is usual to do so); and hence he may subsequently in his report to the Board of Trade state reasons for his decision not mentioned by him when delivering judgment. This decision seems also to apply to the rules now in force. Pt. VI. 470. Pt. VI. 471. Inquiry into conduct of certificated officer. 471.-(1.) If the Board of Trade, either on the report of a local marine board (a) or otherwise, have reason to believe that any master, mate, or certificated engineer is from incompetency or misconduct unfit to discharge his duties, or that in a case of collision he has failed to render such assistance or give such [1854, s. 241, information as is required under the Fifth Part of this Act (b), the Board may cause an inquiry to be held. 1862, ss. 11, 23; 1883, 8. 39.] (2.) The Board may either themselves appoint a person to hold the inquiry or direct the local marine board at or nearest the place at which it is convenient for the parties or witnesses to attend to hold the same, or where there is no local marine board before which the parties and witnesses can conveniently attend, or the local marine board is unwilling to hold the inquiry, may direct the inquiry to be held before a court of summary jurisdiction. (3.) Where the inquiry is held by a local marine board, or by a person appointed by the Board of Trade, that board or person (a.) shall hold the inquiry, with the assistance of a local stipendiary magistrate, or, if there is no such magistrate available, of a competent legal assistant appointed by the Board of Trade; and (b.) shall have all the powers of a Board of Trade inspector under this Act (c); and (c.) shall give any master, mate, or engineer against whom a charge is made an opportunity of making his defence either in person or otherwise (d), and may summon him to appear; and (d.) may make such order with regard to the costs of the inquiry as they think just; and (e.) shall send a report upon the case to the Board of Trade. (4.) Where the inquiry is held by a court of summary jurisdiction, the inquiry shall be conducted and the results reported in the same manner, and the court shall have the like powers, as in the case of a formal investigation into a shipping casualty under this Part of this Act (e), provided that, if the Board of Trade so direct, it shall be the duty of the person who has brought the charge against the master, mate, or engineer, to the notice of the Board of Trade to conduct the case, and that person shall in that case, for the purpose of this Act, be deemed to be the party having the conduct of the case. (a) As to local marine boards, see ss. 244, 245. (b) See s. 422, as to "standing by " in cases of collision. (c) See ss. 728-730. These powers include (see s. 729, sub-s. (1) (c)) a discretionary power to grant summonses for witnesses for the defence. The expense of witnesses so summoned is to be borne by the public, and it is a proper course for the court before granting summonses to inquire who the witnesses are and what they are expected to prove, and to prevent a witness being vexatiously summoned. R. v. Collingridge (1864), 34 L. J. Q. B. 9, and S. C., sub nom. R. v. Local Marine Board of London, 12 W. R. 1109. False swearing at such an inquiry is indictable "Otherwise" seems to mean by his counsel or attorney. Ibid. (e) See s. 466, and as to the power to cancel or suspend certificates, see s. 470. A local marine board when holding an inquiry into the conduct of a certificated officer by order of the Board of Trade is a court within the meaning of s. 470 (b), and has power to cancel a certificate of competency. See Board of Trade v. Leith Local Marine Board, (1896) 24 Ct. of Sess. Cas. (4th Series), 177. As to similar inquiries in British possessions, see s. 478. 472.—(1.) Any of the following courts, namely In England and Ireland the High Court (a), In Scotland the Court of Session, Pt. VI. 472-473. Removal of Elsewhere in Her Majesty's dominions any colonial Court [1854, s. 240; of Admiralty or Vice-Admiralty Court, J. A.; J.I.A.] may remove the master of any ship within the jurisdiction of that court, if that removal is shown to the satisfaction of the court by evidence on oath to be necessary (b). (2.) The removal may be made upon the application of any owner of the ship or his agent, or of the consignee of the ship (c), or of any certificated mate, or of one third or more of the crew of the ship. (3.) The court may appoint a new master instead of the one removed; but, where the owner, agent, or consignee of the ship is within the jurisdiction of the court, such an appointment shall not be made without the consent of that owner, agent, or consignee. (4.) The court may also make such order and require such security in respect of the costs of the matter as the court thinks fit. (a) The jurisdiction is assigned in England to the Probate, Divorce and Admiralty Division by Rule 1 of the Rules of the Supreme Court (Merchant Shipping), 1894. See post, Appendix, p. 763. (b) As to what circumstances make a master's removal "necessary," see The Royalist (1863), B. & L. 46; 32 L. J. Adm. 105. As to endorsement of removal upon certificate of registry, &c., see s. 19. (c) The words of the repealed section were "upon application by the owner removal was ordered on the application of a part owner in The Royalist, supra. 473.-(1.) A master, mate, or engineer whose certificate is Delivery of cancelled or suspended by any court or by the Board of Trade shall deliver his certificate certificate cancelled or suspended. (a.) if cancelled or suspended by a court to that court on [1854, s. 242; T. demand: 1862, s. 24; 42 & 43 Vict. Pt. VI. 474-475. Power of Board of restore cer- (b.) if not so demanded, or if it is cancelled or suspended by the Board of Trade, to that Board, or as that Board direct. (2.) If a master, mate, or engineer fail to comply with this section, he shall, for each offence, be liable to a fine not exceeding fifty pounds. 474. The Board of Trade may, if they think that the justice of the case requires it, re-issue and return the certificate of a master, mate, or engineer which has been cancelled or suspended, whether in the United Kingdom or in a British [1854, s. 242; possession, or shorten the time for which it is suspended, or 1862, s. 23 (4); 45 & 46 Vict. grant in place thereof a certificate of the same or any lower grade. c. 76, s. 3.] Rehearing of inquiries and investigations. [42 & 43 Vict. c. 72, s. 2.] Rehearing of Investigations and Inquiries. 475.-(1.) The Board of Trade may, in any case where under this Part of this Act a formal investigation as aforesaid into a shipping casualty, or an inquiry into the conduct of a master, mate, or engineer has been held, order the case to be reheard either generally or as to any part thereof, and shall (a) do so, (a.) if new and important evidence which could not be produced at the investigation or inquiry has been discovered; or (b.) if for any other reason there has in their opinion been ground for suspecting that a miscarriage of justice has occurred. (2.) The Board of Trade may order the case to be reheard, either by the court or authority by whom the case was heard in the first instance, or by the wreck commissioner, or in England or Ireland by the High Court (b), or in Scotland by the Senior Lord Ordinary, or any other judge in the Court of Session whom the Lord President of that Court may appoint for the purpose, and the case shall be so reheard accordingly. (3.) Where on any such investigation or inquiry, a decision has been given with respect to the cancelling or suspension of the certificate of a master, mate, or engineer (c), and an application for a rehearing under this section has not been made or has been refused, an appeal shall lie from the decision to the following courts; namely, (a.) If the decision is given in England or by a naval court, to the High Court (b): (b.) If the decision is given in Scotland, to either division of the Court of Session : (c.) If the decision is given in Ireland, to the High Court in Ireland |